>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Gaspar LEAL, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 22, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-2083\n\n GASPAR LEAL,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of New Mexico\n (D.C. No. 1:16-CR-03308-JB-2)\n _________________________________\n\nJason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the Defendant –\nAppellant.\n\nJason Wisecup, Assistant U.S. Attorney (Fred Federichi, First Assistant U.S. Attorney\nwith him on the brief), Albuquerque, New Mexico, for the Plaintiff – Appellee.\n _________________________________\n\nBefore MATHESON, MURPHY, and CARSON, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n Gaspar Leal appeals from the district court’s denial of his motion to dismiss the\n\nindictment. In his motion, he argued that the drug conspiracy charged in this case is the\n\nsame conspiracy for which he was convicted in a previous case and that continued\n\fprosecution would violate his double jeopardy rights. The district court found the\n\nconspiracies were not interdependent, the indictment therefore charged a separate\n\noffense, and double jeopardy did not apply. We affirm.\n\n I. BACKGROUND\n\n A. Factual Background\n\n The facts in this section are drawn from the factual findings in the district court’s\n\norder, which were based largely on the Government’s pleadings, and which recounted\n\nMr. Leal’s conduct in two drug transactions: (1) the Tapia Deal and (2) the Carmona\n\nDeal. The parties do not dispute the facts underlying Mr. Leal’s first conviction or the\n\nfacts supporting the indictment he sought to dismiss.\n\n Tapia Deal\n\n In 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)\n\nemployed a confidential informant (“CI”) to buy drugs in Albuquerque, New Mexico.\n\nAn ATF agent told the CI to contact Mr. Leal.\n\n On May 7, 2016, the CI went to Mr. Leal’s home. While there, the CI told Mr.\n\nLeal he wished to make money buying and selling drugs and was interested in buying\n\n“an ounce or two” of methamphetamine or cocaine. ROA at 94.\n\n On May 9, Mr. Leal referred the CI to a seller named “Pete.” Mr. Leal said Pete\n\ncould sell meth to the CI. The CI met Pete the following day, but Pete could sell him\n\nonly 3.5 grams.\n\n\n\n 2\n\f On May 12, after the CI told Mr. Leal he was disappointed with the amount of\n\nmeth he had purchased from Pete, Mr. Leal sold the CI $40.00 worth of heroin and\n\n$30.00 worth of meth. Mr. Leal tried unsuccessfully to call other drug dealers to arrange\n\na larger sale for the CI.\n\n On June 8, Mr. Leal, then in jail on unrelated charges,1 called the CI and gave him\n\nBernadette Tapia’s phone number. He said Ms. Tapia could sell drugs to the CI. Ms.\n\nTapia’s husband, Christopher Apodaca, who was in jail with Mr. Leal, had given her\n\npermission to sell drugs to the CI.\n\n Later that day, the CI and an undercover ATF agent met with Ms. Tapia and her\n\ndaughter, Candace Tapia, and bought two ounces of meth from them. The ATF\n\ndeposited $60.00 into Mr. Leal’s jail commissary account for arranging the deal.\n\n2. Carmona Deal\n\n On July 21, 2016, Mr. Leal called the CI from prison2 and gave him Jose Casillas’s\n\nphone number. When the CI contacted Mr. Casillas and asked to buy meth, Mr. Casillas\n\noffered to put the CI in touch with an unidentified woman. The next day, Erika Barraza\n\ntexted the CI.\n\n\n\n 1\n The record does not indicate why Mr. Leal was in jail and does not suggest\nhis incarceration was related to his contacts with the CI.\n 2\n The Government maintains that Mr. Leal was moved to a different\ncorrectional facility sometime between the first call he made to the CI on June 8\nand his contact with the CI on July 21, 2016. In July 2016, Mr. Leal was\nincarcerated at the Central New Mexico Correctional Facility. It is not clear\nwhere he was incarcerated in June 2016.\n 3\n\f On July 24, the CI called Ms. Barraza. She told him that her boyfriend, Luis\n\nArreola-Palma, was in prison with Mr. Leal and had instructed her to contact him. The\n\nsame day, Mr. Casillas conducted a conference telephone call with the CI, Mr. Leal, and\n\nMr. Arreola-Palma. Mr. Arreola-Palma told the CI to contact his cousin, Daniel\n\nCarmona, who could sell an ounce of meth to the CI. Mr. Leal gave Mr. Carmona’s\n\ntelephone number to the CI and asked the CI to send him money. The CI called Mr.\n\nCarmona to arrange the transaction.\n\n On July 25, the CI and an undercover ATF agent purchased more than 50 grams of\n\nmethamphetamine from Mr. Carmona. On August 3, the CI and an undercover ATF\n\nagent again purchased more than 50 grams of methamphetamine from Mr. Carmona.\n\n B. Procedural Background\n\n Tapia Indictment and Trial\n\n On July 12, 2016, a grand jury indicted Mr. Leal, Bernadette and Candace Tapia,\n\nand Brandon Candelaria (Candace Tapia’s boyfriend) with (1) conspiracy to distribute 50\n\ngrams or more of methamphetamine, in violation of 21 U.S.C. § 846; and (2) distribution\n\nof more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and\n\n841(b)(1)(B). The indictment alleged Mr. Leal and the sellers conspired on or about June\n\n8, 2016.\n\n On December 20, 2017, a jury convicted Mr. Leal on the conspiracy count and\n\nacquitted him on the distribution count.\n\n\n\n 4\n\f Carmona Indictments\n\n On August 9, 2016, a grand jury indicted Mr. Leal, Mr. Carmona, and Mr. Arreola-\n\nPalma with (1) conspiracy to distribute 50 grams or more of methamphetamine, in violation\n\nof 21 U.S.C. § 846; and (2) distributing 50 grams or more of methamphetamine, in violation\n\nof 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).\n\n After the December 20, 2017 verdict in the Tapia case, the grand jury returned\n\na superseding indictment in the Carmona case. It added another distribution count\n\nand charged Mr. Leal with a conspiracy beginning “on a date unknown, but not later\n\nthan July 21, 2016, and continuing to on or about August 3, 2016.” ROA at 100.\n\n Motion to Dismiss\n\n On March 6, 2018, Mr. Leal moved to dismiss the conspiracy count of the\n\nsuperseding indictment under Federal Rule of Criminal Procedure 12(b). He said the\n\nactivity underlying the Tapia conviction and the Carmona superseding indictment was\n\npart of one larger conspiracy. He argued that trying him again for conspiracy would\n\ntherefore violate double jeopardy.\n\n “In essence,” he said, “the first jury had to have found the necessary criminal\n\nagreement, formed on June 8, 2016, between Mr. Leal, the government informant, and\n\nothers, to convict Mr. Leal in trial one.” Id. at 62-63. Because the superseding\n\nindictment charged a conspiracy “beginning at a date unknown,” Mr. Leal claimed both\n\nconspiracy charges stemmed from the same agreement, making them the same offense\n\n\n 5\n\ffor double jeopardy purposes. Id. at 58; see also id. at 63 (“No doubt, the criminal\n\nagreements in the indictment for trial one and for trial two, are the same.”).3\n\n District Court Ruling\n\n The district court denied the motion. First, it said the transactions were not part of\n\nthe same chain conspiracy because there was “no evidence that the members of the Tapia\n\nDeal and the Carmona Deal entered into a single conspiracy with each other. Leal is the\n\nonly common member of those deals.” United States v. Leal, 330 F. Supp. 3d 1257, 1278\n\n(D.N.M. 2018). The transactions were “discrete and parallel.” Id. at 1279. Second, the\n\ntwo deals were not part of a single wagon-wheel conspiracy because they were not\n\ninterdependent—that is, “the success of one deal does not depend on the success of the\n\nother.” Id.4\n\n Mr. Leal timely appealed.\n\n\n\n\n 3\n Mr. Leal also asked for dismissal of the distribution count without prejudice so a\nnew grand jury could consider it anew without hearing evidence of the conspiracy.\nBecause we affirm the denial of dismissal of the conspiracy count, we do not need to\naddress the distribution count.\n 4\n The district court also rejected the Government’s argument that Mr. Leal’s\nmotion was unripe because the Government had not yet presented any evidence of\nhis 2017 conviction. The Government does not contest that conclusion on appeal.\n\n\n\n 6\n\f II. DISCUSSION\n\n Mr. Leal argues the district court erred in finding the Tapia and Carmona deals\n\nlacked the requisite interdependence to make each of them part of one conspiracy.\n\nProceeding to trial on the conspiracy count in the Carmona case would, he contends,\n\nviolate double jeopardy because he would be prosecuted for the same conspiracy he was\n\nconvicted of in the Tapia trial. The following discussion shows that his argument fails\n\nunder conspiracy law and the record.\n\n A. Jurisdiction and Standard of Review\n\n Jurisdiction\n\n We have appellate jurisdiction over this interlocutory appeal. In Abney v. United\n\nStates, 431 U.S. 651 (1977), the Supreme Court held that a pretrial order denying a\n\nmotion to dismiss an indictment on double jeopardy grounds falls within the collateral\n\norder exception to the final-judgment rule and is therefore immediately appealable under\n\n28 U.S.C. § 1291. Id. at 662. The Court explained that holding otherwise would require\n\nthe defendant to “endure the personal strain, public embarrassment, and expense of a\n\ncriminal trial” that he asserts violates the Double Jeopardy Clause of the Fifth\n\nAmendment. Id. at 661.\n\n Here, as in Abney, “[t]here are simply no further steps that can be taken in the\n\nDistrict Court to avoid the trial the defendant maintains is barred by the Fifth\n\nAmendment’s guarantee.” Id. at 659; see also United States v. Tucker, 745 F.3d 1054,\n\n1064 (10th Cir. 2014) (stating “a Double Jeopardy Clause claim would be rendered\n 7\n\fmeaningless if motions to dismiss on double jeopardy grounds were not immediately\n\nreviewable”); United States v. Perez-Herrera, 86 F.3d 161, 163 (10th Cir. 1996)\n\n(exercising jurisdiction over an interlocutory appeal from a pretrial order in a double\n\njeopardy case).\n\n Standard of Review\n\n “We generally review a district court’s denial of a motion to dismiss a criminal\n\nindictment for abuse of discretion.” United States v. Berres, 777 F.3d 1083, 1089 (10th\n\nCir. 2015). “We review the factual findings underlying the defendant’s double jeopardy\n\nclaim for clear error.” United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024-25\n\n(10th Cir. 1996). “The district court’s ultimate determination regarding double jeopardy\n\nis, however, a question of law we review de novo.” Id. at 1025.\n\n On whether there were one or two conspiracies, which Mr. Leal raised in his\n\nmotion to dismiss, we review the district court’s finding about interdependence for clear\n\nerror. See United States v. Mintz, 16 F.3d 1101, 1106 (10th Cir. 1994) (concluding that\n\ndistrict court’s finding that “the ultimate goal [of the two conspiracies] was to mix the\n\ntwo types of marijuana for sale in New York and that [the two conspiracies] were\n\ninterdependent” was not “clearly erroneous”).\n\n B. Legal Background\n\n1. Conspiracy\n\n To prove a conspiracy, the government must show that “(1) two or more\n\npersons agreed to violate the law, (2) the defendant knew the essential objectives of\n\n 8\n\fthe conspiracy, (3) the defendant knowingly and voluntarily participated in the\n\nconspiracy, and (4) the alleged co-conspirators were interdependent.” United States\n\nv. Pickel, 863 F.3d 1240, 1251 (10th Cir. 2017) (brackets and quotations omitted).\n\nBecause “the gist of the crime of conspiracy” is the agreement rather than the overt\n\nacts done in furtherance of the conspiracy, “the precise nature and extent of the\n\nconspiracy must be determined by reference to the agreement which embraces and\n\ndefines its objects.” Braverman v. United States, 317 U.S. 49, 53 (1942).\n\n Although two or more people must agree to form a conspiracy, an informant\n\ncannot count toward that requirement: “[T]here can be no indictable conspiracy\n\ninvolving only the defendant and government agents or informers.” United States v.\n\nBarboa, 777 F.2d 1420, 1422 (10th Cir. 1985). In short, “informers cannot be\n\nconspirators” and “cannot be considered parties to the illegal agreement.” United States\n\nv. Rodriguez, 765 F.2d 1546, 1552 (11th Cir. 1985); see also United States v. Villasenor,\n\n664 F.3d 673, 682 (7th Cir. 2011); United States v. Hackley, 662 F.3d 671, 679 (4th Cir.\n\n2011).\n\n We have described two conspiracy models: “chain” and “wagon-wheel.” See\n\nUnited States v. Evans, 970 F.2d 663, 668 n.8 (10th Cir. 1992). In a chain conspiracy,\n\n“there is successive communication and cooperation in much the same way as with\n\nlegitimate business operations between manufacturer and wholesaler, then wholesaler and\n\nretailer, and then retailer and consumer.” Id. (quotations omitted). Most drug trafficking\n\nnetworks fall into this category and “involve loosely knit vertically-integrated\n\n 9\n\fcombinations.” Id. (quoting United States v. Brewer, 630 F.2d 795, 799 (10th Cir.\n\n1980)).\n\n In a wagon-wheel conspiracy, “a single person or group (the ‘hub’) deal[s]\n\nindividually with two or more other persons or groups (the ‘spokes’).” Id. (quotations\n\nand citation omitted). Individuals operating as independent spokes, connected through a\n\ncenter hub, are part of the same conspiracy only if they are enclosed by a “rim”—that is,\n\n“a unified and shared objective.” United States v. Carnagie, 533 F.3d 1231, 1238 (10th\n\nCir. 2008); see also Kotteakos v. United States, 328 U.S. 750, 755 (1946).5\n\n2. Double Jeopardy and Conspiracy\n\n The Double Jeopardy Clause states that no person shall “be subject for the\n\nsame offence to be twice put in jeopardy.” U.S. Const. amend. V. It provides three\n\nprotections. “It protects against a second prosecution for the same offense after\n\nacquittal. It protects against a second prosecution for the same offense after\n\nconviction. And it protects against multiple punishments for the same offense.”\n\nNorth Carolina v. Pearce, 395 U.S. 711, 717 (1969). Mr. Leal seeks the second of\n\nthese protections.\n\n\n\n\n 5\n Mr. Leal states that “the circumstances of the conspiracy charges in the Tapia\nand Carmona cases do not even fit within a ‘wagon-wheel’ or ‘chain’ conspiracy\ntheory.” Aplt. Br. at 13. We do not need to rely on these models to resolve this case.\n\n 10\n\f “The defendant bears the burden of proving a claim of double jeopardy.”\n\nRodriguez-Aguirre, 73 F.3d at 1025.6 Moreover, “the burden of proof is on the defendant\n\nto demonstrate that two conspiracies are the same for double jeopardy purposes.” United\n\nStates v. Sasser, 974 F.2d 1544, 1549 n.3 (10th Cir. 1992) (citing United States v. Jones,\n\n816 F.2d 1483, 1486 (10th Cir. 1987)).\n\n When the government charges a defendant under separate statutes for the same\n\nconduct, the test derived from Blockburger v. United States, 284 U.S. 299 (1932),\n\ndetermines whether the crimes are the “same offense” for double jeopardy purposes.7\n\nWhen the government charges a defendant with committing two (or more)\n\nconspiracies, whether the charges are for the “same offense” depends on whether\n\nthey “are in fact based on a defendant’s participation in a single conspiracy.” United\n\n\n\n\n 6\n Mr. Leal argues that once the defendant advances a non-frivolous claim of\ndouble jeopardy, the burden shifts to the government to show “by a preponderance of\nthe evidence, that the conspiracies alleged in the two indictments are in fact\nseparate.” Aplt. Br. at 15 (citing United States v. Beachner Const. Co., Inc., 555 F.\nSupp. 1273, 1275 (D. Kan. 1983); United States v. Jabara, 644 F.2d 574 (6th Cir.\n1981)). At least one other circuit has adopted this burden-shifting framework. See\nUnited States v. Jones, 858 F.3d 221, 225 (4th Cir. 2017). But we have adhered to\nthe rule that the defendant bears the burden of showing a double jeopardy violation.\nSee United States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998) (“A defendant\nbears the burden of proving double jeopardy.”); United States v. Quinonez-Quintero,\n573 F. App’x 674, 676 (10th Cir. 2014) (unpublished) (“[U]ncertainty is insufficient\ngiven that Quinonez-Quintero bears the burden of proof.”)\n 7\n The Blockburger test asks whether crimes charged under different statutes for\nthe same conduct “require[] proof of an additional fact which the other does not.”\n284 U.S. at 304. If not, double jeopardy bars prosecution under both statutes. See id.\n\n 11\n\fStates v. Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988). If so, double jeopardy “bars\n\nthe second prosecution.” Id.\n\n When, as here, a defendant claims that a second conspiracy charge is for the\n\nsame conspiracy as the first conspiracy charge and therefore is a double jeopardy\n\nviolation, “the court must determine whether the two transactions [alleged in the\n\ncharges] were interdependent and whether the [co-conspirators] were ‘united in a\n\ncommon unlawful goal or purpose.’” Mintz, 16 F.3d at 1104 (quoting Sasser, 974 F.2d\n\nat 1550). As we said in United States v. Daily, 921 F.2d 994 (10th Cir. 1990), “[T]he\n\nfocal point of the analysis is whether the alleged co-conspirators were united in a\n\ncommon unlawful goal or purpose. . . . Of principal concern is whether the conduct\n\nof the alleged co-conspirators, however diverse and far-ranging, exhibits an\n\ninterdependence.” Id. at 1007 (citations omitted).\n\n Interdependence requires a “shared, single criminal objective, not just similar or\n\nparallel objectives between similarly situated people.” Evans, 970 F.2d at 671. A shared\n\nobjective is present when “the activities of [the] alleged co-conspirators in one aspect of\n\nthe charged scheme were necessary or advantageous to the success of the activities of\n\nco-conspirators in another aspect of the charged scheme, or the success of the venture as\n\na whole.” Daily, 921 F.2d at 1007; see also United States v. Hopkins, 608 F. App’x 637,\n\n644 (10th Cir. 2015) (unpublished) (holding six robberies did not form one global\n\nconspiracy absent evidence each individual robbery “benefitted from or depended upon\n\n\n\n 12\n\fthe success of” the other robberies).8 In Sasser, we said the evidence must “show that the\n\n[first] conspiracy was designed to further and to promote the success of the [second]\n\nconspiracy.” 974 F.2d at 1550. It is not enough that “participation in one conspiracy\n\nprovided [the defendant] with funds to participate in another.” Id.\n\n If two conspiracies have a shared objective, they need not involve all the same\n\nco-conspirators or occur at the same time to be interdependent. In Mintz, 16 F.3d 1101,\n\nwe held that two marijuana distribution conspiracies were interdependent for double\n\njeopardy purposes. Id. at 1106. The conspiracies, which operated over different periods\n\nof time and in different states, shared the “ultimate goal . . . to mix the two types of\n\nmarijuana for sale in New York.” Id. Although the two schemes involved different\n\npeople, we noted that two “core conspirators . . . coordinated the entire plan.” Id.\n\n Conspiracies aimed at different ends are not interdependent. For example, two\n\ndrug distribution conspiracies tied to the same city were distinct because one involved\n\n“the transportation of marijuana out of state” while the other “involved . . . no evidence\n\nof planned nationwide transport.” United States v. Rodriguez-Moreno, No. 99-5120,\n\n2000 WL 504858, at *4 (10th Cir. 2000) (unpublished).\n\n Without direct evidence of a conspiracy’s goal, courts look for commonalities in\n\ntime, place, and personnel. If two conspiracies involved the same people, occurred in the\n\n\n 8\n Although not precedential, we find the reasoning of the unpublished cases\ncited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are\nnot precedential, but may be cited for their persuasive value.”); see also Fed. R. App.\nP. 32.1.\n 13\n\fsame place, and happened at roughly the same time, courts are more likely to find the\n\nconspiracies were interdependent. In the foundational case of Short v. United States,\n\n91 F.2d 614 (4th Cir. 1937), the Fourth Circuit held double jeopardy barred a successive\n\nconspiracy prosecution when each indictment named the defendant and the same two\n\nother individuals as co-conspirators and the conspiracy alleged in the second indictment\n\n“cover[ed] a portion of each of the periods covered by” the prior indictment. Id. at 620.\n\n By contrast, in United States v. Ruiz, No. 93-6124, 1993 WL 520285 (10th Cir.\n\n1993) (unpublished), this court upheld a finding of non-interdependence when the two\n\ncharged drug conspiracies “were carried out over distinct time periods, involved\n\nprimarily different personnel and geographic operation, and placed defendant in quite\n\ndifferent roles.” Id. at *2; see also Sasser, 974 F.2d at 1550 (finding no interdependence\n\nbetween housing fraud conspiracies in which the defendant had different roles in each\n\nscheme). The mere presence of one common co-conspirator will not establish\n\ninterdependence. Sasser, 974 F.2d at 1550.\n\n C. Analysis\n\n To aid in following the analysis, we summarize the transactions underlying each\n\nindictment:\n\n\n\n\n 14\n\f Date of Date of Sale Alleged Seller Other Alleged Facilitators\n Indictment\n\n 07/12/16 06/08/16 Bernadette Tapia Christopher Apodaca, Brandon\n Candace Tapia Candelaria, Gaspar Leal/CI\n\n 08/09/16 07/25/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis\n 12/20/17 Arreola-Palma, Gaspar Leal/CI\n\n 08/09/16 08/03/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis\n 12/20/17 Arreola-Palma, Gaspar Leal/CI\n\n\n The district court’s finding that the Tapia and Carmona conspiracies were not\n\ninterdependent was not clearly erroneous. It therefore properly denied Mr. Leal’s motion\n\nto dismiss the conspiracy count of the superseding indictment because there was no\n\ndouble jeopardy violation. The record lacks direct evidence that the two conspiracies\n\nshared a common goal. It also lacks evidence of common time, place, or personnel. As\n\nthe following discussion shows, Mr. Leal failed to meet his burden to establish a double\n\njeopardy violation. We discern four arguments in his briefing.\n\n1. Common Goal\n\n Mr. Leal argues that the conspiracies shared a common goal. He relies on United\n\nStates v. Watson, 594 F.2d 1330 (10th Cir. 1979), to support this inference. In that case,\n\nseveral co-conspirators had purchased large amounts of drugs for distribution from a\n\nsingle wholesaler. They argued there was no evidence they had joined the same\n\nconspiracy. Id. at 1339. We affirmed their conspiracy convictions, explaining that\n\n“[w]here large quantities of narcotics are being distributed, each major buyer may be\n\n 15\n\fpresumed to know that he is part of a wide-ranging venture, the success of which depends\n\non performance by others whose identity he may not even know.” Id. at 1340.\n\n Mr. Leal argues that his alleged co-conspirators were “major buyers” and should\n\nbe presumed to have acted in conscious support of a wide-ranging drug trafficking\n\nventure. Aplt. Br. at 25. But his reliance on Watson is misplaced, and the record does\n\nnot support his argument. The Watson defendants were retailers who repeatedly\n\npurchased large amounts of drugs from a single wholesaler. 594 F.2d at 1339-40. The\n\n“evidence of the volume and nature of their operations” supported an inference that they\n\nwere aware of the “scope of the narcotics conspiracy.” Id. at 1340. Here, there is no\n\nevidence that (1) Ms. Tapia or Mr. Carmona were “major buyers,” (2) they obtained their\n\ndrugs from the same supplier, or (3) Mr. Leal was a supplier to either of them. The\n\nrecord shows only that each made one sale at Mr. Leal’s suggestion. This hardly\n\nsupports an inference that they pursued a shared common objective or that the Tapia deal\n\n“[was] necessary or advantageous to the success” of the conspirators in the Carmona\n\ndeal. Daily, 921 F.2d at 1007, see Pickel, 863 F.3d at 1255 (finding sufficient evidence\n\nof interdependence where the defendant “expressed that other co-conspirators’ successes\n\nwere advantageous to him”).\n\n Even if the Tapia and Carmona sellers each aspired to “distribute large amounts of\n\nnarcotics, particularly methamphetamine, for profit,” Aplt. Br. at 25, that would not\n\nestablish they were pursuing that goal as part of a shared endeavor. Although Mr. Leal is\n\ncorrect that the purpose of each deal was to sell drugs to the CI, the record lacks evidence\n\n 16\n\fthat the Tapia and Carmona sellers shared that purpose with each other, and a shared\n\nobjective is a necessary predicate for interdependence. See Evans, 970 F.2d at 669;\n\nCarnagie, 533 F.3d at 1238.9\n\n2. Common Personnel\n\n Mr. Leal argues that the district court erred in concluding the conspiracies\n\ninvolved different co-conspirators. Because both indictments alleged Mr. Leal conspired\n\nwith “persons whose names are known and unknown to the Grand Jury,” ROA at 11,10 he\n\nasserts the Tapia and Carmona deals could possibly have involved cooperation between\n\nparticipants in both transactions apart from Mr. Leal and the CI. This shows at most that\n\nnot all of Mr. Leal’s co-conspirators in each transaction are identifiable, but he has not\n\n\n\n 9\n Mr. Leal criticizes the district court’s invocation of the “buyer-seller” rule.\nAplt. Br. at 23-24. Under that rule, to establish that a drug buyer is part of a\nconspiracy to distribute the drugs, “the government must do more than show there\nwere casual transactions between the defendant and the conspirators . . . or that there\nwas a buyer-seller relationship between the defendant and a member of the\nconspiracy.” United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996) (citations and\nquotations omitted). In general, “a consumer . . . does not share the distribution\nobjective and thus would not be part of a conspiracy to distribute” drugs. Evans, 970\nF.2d at 669. Even if Mr. Leal’s criticism is correct and the “buyer-seller” rule does\nnot apply here because the CI was not a mere consumer, our interdependence analysis\nstill applies.\n 10\n The superseding indictment for the Carmona deal is part of the record\ntransferred to this court, but the indictment regarding the Tapia deal is not. We take\njudicial notice of the Tapia indictment as it appears on the district court’s docket for\nUnited States v. Leal, No. 1:16-CR-03069-JB (D. N.M. July 12, 2016), ECF No. 2.\nSee United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a\ncourt may take judicial notice of docket information from another court); Fed. R.\nEvid. 201(b)(2).\n\n 17\n\fprovided evidence, nor even argued, that particular individuals worked with him to make\n\nboth sales happen.\n\n The record shows there was no overlap. It shows Mr. Leal conspired with Ms.\n\nBernadette Tapia, Ms. Candace Tapia, Mr. Apodaca, and Mr. Candelaria to arrange the\n\nTapia deal. It shows Mr. Leal conspired with Mr. Casillas, Mr. Barrazza, Mr. Arreola-\n\nPalma, and Mr. Carmona to arrange the Carmona deal. And as noted above, the mere\n\npresence of one common conspirator—here, Mr. Leal—will not establish\n\ninterdependence. Sasser, 974 F.2d at 1550.\n\n To the extent Mr. Leal relies on the CI to argue the conspiracies involved common\n\npersonnel, a CI’s involvement in the two conspiracies does not render them one\n\nconspiracy. Indeed, Mr. Leal’s agreement to help the CI buy drugs was not a conspiracy\n\nas a matter of law. See Barboa, 777 F.2d at 1422 (explaining that there can be no\n\nindictable conspiracy between only the defendant and a government informant). Even\n\nassuming the CI’s involvement in the Tapia and Carmona deals is relevant to whether the\n\nconspiracies were interdependent, his role as a purchaser in both transactions did not on\n\nits own link the conspiracies in a shared common goal. As explained above, this case is\n\ndifferent from Watson, 594 F.2d at 1338-40, where we inferred a common goal between\n\ndisconnected “major buyer[s]” because they purchased (1) large quantities of narcotics\n\nfrom (2) a single wholesaler (3) on multiple occasions.\n\n We agree with Mr. Leal that “excluding the involvement of the CI in the\n\ntransactions does not in and of itself render the two conspiracy charges as separate.”\n\n 18\n\fAplt. Br. at 14. But as we said in Sasser, “The two conspiracies operated independently\n\nof one another, with the success of each dependent exclusively on the individual labors of\n\nits own, separate participants.” 974 F.2d at 1550.\n\n3. Time Overlap\n\n Mr. Leal argues the conspiracies overlapped in time, relying on the statement in\n\nthe superseding indictment that the Carmona conspiracy began at an unknown time\n\nbefore July 21, 2016. But the indictments for the two conspiracies do not allege, and the\n\nrecord does not show, that the conspiracies overlapped in time. The district court\n\nfound—and Mr. Leal does not contest—that he began arranging the Carmona deal on\n\nJuly 21, 2016, more than a month after the Tapia deal. It may be that Mr. Leal had talked\n\nwith someone—perhaps Mr. Arreola-Palma—to begin arranging the transaction before he\n\ncontacted the CI on July 21. But nothing in the record shows that an agreement had\n\noccurred before July 21, more than seven weeks after June 8, 2016, when the CI\n\npurchased meth from Ms. Tapia.11\n\n\n 11\n The Fourth Circuit’s recent decision in United States v. Jones, 858 F.3d 221 (4th\nCir. 2017), shows why there are two conspiracies and no double jeopardy violation in Mr.\nLeal’s case. Mr. Jones pled guilty to a drug conspiracy charge alleging that he and two\nothers conspired from June to August 2012 to purchase cocaine from a DEA CI. Then,\non July 24, 2014, he was indicted for conspiring with the same two people and others to\noperate a “vast drug trafficking organization” from 1998 to 2012. Id. at 223. The\n“substantial if not complete” overlap in the alleged conspiracies, id. at 224, as to\n“substantive violation, personnel, location, time span, and nature and scope,” id. at 223,\nmeant that the first conspiracy was part of the second and double jeopardy barred the\nsecond prosecution. Id. at 230.\n By contrast, the overlap between the Tapia and Carmona deals was minimal.\nBoth involved drug sales to the CI that Mr. Leal arranged, but there was no evidence\n 19\n\f4. Rule 404(b) Evidence\n\n Mr. Leal argues the conspiracies were interdependent because the Government\n\nintends to introduce evidence of the Tapia deal during the Carmona trial “as proof of the\n\nconspiracy alleged” in the Carmona superseding indictment. Aplt. Br. at 21. He notes\n\nthat the Government has stated it will call the same witnesses it called in the Tapia trial.\n\nThe evidence the Government intends to introduce, he argues, shows that Mr. Leal\n\n“repeatedly assisted in procuring methamphetamine from chains of co-conspirators for\n\nthe CI . . . whom Mr. Leal believed would then further distribute it.” Id. at 24.\n\n By way of background, the Government filed a pretrial notice in the Carmona case\n\nthat it planned to offer (1) evidence of Mr. Leal’s prior efforts to arrange drug\n\ntransactions with the CI, (2) video and audio recordings of the meth purchases the CI\n\nmade in May and June of 2016 and physical evidence of the drugs that were purchased,\n\nand (3) a PowerPoint presentation during its opening statement that included slides about\n\nthe Tapia deal. The notice cited Rule 404(b) of the Federal Rules of Evidence12 and\n\n\nthe sellers knew each other or shared a common purpose. There was no time\noverlap—the Tapia deal ended on June 8, 2016, and the Carmona deal began on July\n21, 2016. Although the relationship between Mr. Leal and the CI straddled the two\ntransactions, their working relationship cannot form a conspiracy as a matter of law.\nSee Barboa, 777 F.2d. at 1422.\n 12\n Under Federal Rule of Evidence 404(b)(1), “[e]vidence of a crime, wrong,\nor other act is not admissible to prove a person’s character in order to show that on a\nparticular occasion the person acted in accordance with the character.” But under\nRule 404(b)(2), “[t]his evidence may be admissible for another purpose, such as\nproving motive, opportunity, intent, preparation, plan, knowledge, identity, absence\nof mistake, or lack of accident.”\n\n 20\n\fexplained that this evidence “makes it more probable that the defendant conspired to\n\ndistribute methamphetamine and aided and abetted the distribution of methamphetamine\n\nin the instant matter.” ROA at 18-19. The Government added that Mr. Leal’s prior\n\nconduct “shows a common plan by the defendant to arrange drug deals from jail.” Id. at\n\n20. And it paraphrased Rule 404(b) that the evidence would show Mr. Leal’s\n\n“knowledge and the absence of mistake or accident.” Id. at 18.\n\n Even if this evidence were admissible under Rule 404(b), neither the evidence nor\n\nthe Government’s plan to present it establishes interdependence. As noted above,\n\ninterdependence must be based on a showing of a common goal, Evans, 970 F.2d at 671,\n\nand that the activities in one aspect of the scheme—here, the Tapia deal—were necessary\n\nor advantageous to the other aspect of the scheme—the Carmona deal, Daily, 921 F.2d\n\nat 1007. The Government’s attempt to show common plan, knowledge, and lack of\n\nmistake or accident under Rule 404(b) may show that Mr. Leal handled the deals in a\n\nsimilar manner, but it does not show the conspiracies were interdependent.13 Indeed,\n\n\n\n\n 13\n In United States v. Booth, 673 F.2d 27 (1st Cir. 1982), the First Circuit\nrejected a similar argument that two conspiracies were actually one for double\njeopardy purposes:\n [A]lthough evidence of the Maine conspiracy was\n introduced at the trial of the Florida conspiracy, this\n evidence was introduced for the limited purpose of\n demonstrating intent and knowledge through evidence of\n subsequent similar acts. The evidence was not introduced\n to show a continuing conspiracy in Maine. Admission of\n evidence to show intent is permitted by Rule 404(b) of the\n Federal Rules of Evidence.\n 21\n\fapart from the Government’s pretrial notice under Rule 404(b)(2), Mr. Leal has attempted\n\nto rely on the Tapia deal evidence to establish interdependence, but as the foregoing\n\ndiscussion shows, he has failed to do so.14\n\n\n\n\nId. at 30. The court affirmed the district court’s denial of a motion to dismiss the\nconspiracy count in the Maine indictment.\n 14\n At oral argument, counsel for Mr. Leal identified a fifth argument for\ninterdependence: We should not allow the participation of the CI, as opposed to a\nprivate citizen, in both transactions to prevent a finding of interdependence.\nOtherwise, the government could use CIs to manufacture separate conspiracies and\ntake advantage of sentencing enhancements for repeat offenders under 21 U.S.C.\n§ 851. See Oral Arg. at 12:30-13:38. This argument is unavailing for two reasons.\n First, Mr. Leal did not advance it in his opening brief. In the brief, he argued\nthat the Government had “filed the separate indictments in a transparent attempt to\nside-step the constitutional provision against double jeopardy,” Aplt. Br. at 26, and\n“attempt[ed] to nullify the constitutional prohibition against double jeopardy by\nartful forms of criminal pleading,” id. at 27. But he did not further develop this\nargument in his opening brief and did not mention sentencing enhancements. At oral\nargument, Mr. Leal’s counsel raised for the first time the risk of the Government\nusing CIs to manufacture separate conspiracies to take advantage of sentencing\nenhancements. That argument is therefore waived. See United States v. Dahda, 852\nF.3d 1282, 1292 n.7 (10th Cir. 2017), aff’d, 138 S. Ct. 1491 (2018) (“[I]ssues raised\nfor the first time at oral argument are considered waived.” (quotations omitted)).\n Second, whether the government charges two conspiracies in one indictment or in\nseparate indictments does not affect the double jeopardy analysis. If the conspiracies are\nthe same, there is a double jeopardy problem in either instance. If they are different\nconspiracies, there is not. A legal basis other than double jeopardy would therefore be\nneeded to limit the government’s charging discretion based on Mr. Leal’s concern about\nthe sentencing enhancement implications of two indictments for conspiracies involving\nthe same CI.\n\n 22\n\f III. CONCLUSION\n\n We affirm the district court’s denial of Defendant Leal’s motion to dismiss the\n\nconspiracy count of the superseding indictment.\n\n\n\n\n 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Gaspar LEAL, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 22, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-2083\\n\\n GASPAR LEAL,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of New Mexico\\n (D.C. No. 1:16-CR-03308-JB-2)\\n _________________________________\\n\\nJason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the Defendant –\\nAppellant.\\n\\nJason Wisecup, Assistant U.S. Attorney (Fred Federichi, First Assistant U.S. Attorney\\nwith him on the brief), Albuquerque, New Mexico, for the Plaintiff – Appellee.\\n _________________________________\\n\\nBefore MATHESON, MURPHY, and CARSON, Circuit Judges.\\n _________________________________\\n\\nMATHESON, Circuit Judge.\\n _________________________________\\n\\n Gaspar Leal appeals from the district court’s denial of his motion to dismiss the\\n\\nindictment. In his motion, he argued that the drug conspiracy charged in this case is the\\n\\nsame conspiracy for which he was convicted in a previous case and that continued\\n\\fprosecution would violate his double jeopardy rights. The district court found the\\n\\nconspiracies were not interdependent, the indictment therefore charged a separate\\n\\noffense, and double jeopardy did not apply. We affirm.\\n\\n I. BACKGROUND\\n\\n A. Factual Background\\n\\n The facts in this section are drawn from the factual findings in the district court’s\\n\\norder, which were based largely on the Government’s pleadings, and which recounted\\n\\nMr. Leal’s conduct in two drug transactions: (1) the Tapia Deal and (2) the Carmona\\n\\nDeal. The parties do not dispute the facts underlying Mr. Leal’s first conviction or the\\n\\nfacts supporting the indictment he sought to dismiss.\\n\\n Tapia Deal\\n\\n In 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)\\n\\nemployed a confidential informant (“CI”) to buy drugs in Albuquerque, New Mexico.\\n\\nAn ATF agent told the CI to contact Mr. Leal.\\n\\n On May 7, 2016, the CI went to Mr. Leal’s home. While there, the CI told Mr.\\n\\nLeal he wished to make money buying and selling drugs and was interested in buying\\n\\n“an ounce or two” of methamphetamine or cocaine. ROA at 94.\\n\\n On May 9, Mr. Leal referred the CI to a seller named “Pete.” Mr. Leal said Pete\\n\\ncould sell meth to the CI. The CI met Pete the following day, but Pete could sell him\\n\\nonly 3.5 grams.\\n\\n\\n\\n 2\\n\\f On May 12, after the CI told Mr. Leal he was disappointed with the amount of\\n\\nmeth he had purchased from Pete, Mr. Leal sold the CI $40.00 worth of heroin and\\n\\n$30.00 worth of meth. Mr. Leal tried unsuccessfully to call other drug dealers to arrange\\n\\na larger sale for the CI.\\n\\n On June 8, Mr. Leal, then in jail on unrelated charges,1 called the CI and gave him\\n\\nBernadette Tapia’s phone number. He said Ms. Tapia could sell drugs to the CI. Ms.\\n\\nTapia’s husband, Christopher Apodaca, who was in jail with Mr. Leal, had given her\\n\\npermission to sell drugs to the CI.\\n\\n Later that day, the CI and an undercover ATF agent met with Ms. Tapia and her\\n\\ndaughter, Candace Tapia, and bought two ounces of meth from them. The ATF\\n\\ndeposited $60.00 into Mr. Leal’s jail commissary account for arranging the deal.\\n\\n2. Carmona Deal\\n\\n On July 21, 2016, Mr. Leal called the CI from prison2 and gave him Jose Casillas’s\\n\\nphone number. When the CI contacted Mr. Casillas and asked to buy meth, Mr. Casillas\\n\\noffered to put the CI in touch with an unidentified woman. The next day, Erika Barraza\\n\\ntexted the CI.\\n\\n\\n\\n 1\\n The record does not indicate why Mr. Leal was in jail and does not suggest\\nhis incarceration was related to his contacts with the CI.\\n 2\\n The Government maintains that Mr. Leal was moved to a different\\ncorrectional facility sometime between the first call he made to the CI on June 8\\nand his contact with the CI on July 21, 2016. In July 2016, Mr. Leal was\\nincarcerated at the Central New Mexico Correctional Facility. It is not clear\\nwhere he was incarcerated in June 2016.\\n 3\\n\\f On July 24, the CI called Ms. Barraza. She told him that her boyfriend, Luis\\n\\nArreola-Palma, was in prison with Mr. Leal and had instructed her to contact him. The\\n\\nsame day, Mr. Casillas conducted a conference telephone call with the CI, Mr. Leal, and\\n\\nMr. Arreola-Palma. Mr. Arreola-Palma told the CI to contact his cousin, Daniel\\n\\nCarmona, who could sell an ounce of meth to the CI. Mr. Leal gave Mr. Carmona’s\\n\\ntelephone number to the CI and asked the CI to send him money. The CI called Mr.\\n\\nCarmona to arrange the transaction.\\n\\n On July 25, the CI and an undercover ATF agent purchased more than 50 grams of\\n\\nmethamphetamine from Mr. Carmona. On August 3, the CI and an undercover ATF\\n\\nagent again purchased more than 50 grams of methamphetamine from Mr. Carmona.\\n\\n B. Procedural Background\\n\\n Tapia Indictment and Trial\\n\\n On July 12, 2016, a grand jury indicted Mr. Leal, Bernadette and Candace Tapia,\\n\\nand Brandon Candelaria (Candace Tapia’s boyfriend) with (1) conspiracy to distribute 50\\n\\ngrams or more of methamphetamine, in violation of 21 U.S.C. § 846; and (2) distribution\\n\\nof more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and\\n\\n841(b)(1)(B). The indictment alleged Mr. Leal and the sellers conspired on or about June\\n\\n8, 2016.\\n\\n On December 20, 2017, a jury convicted Mr. Leal on the conspiracy count and\\n\\nacquitted him on the distribution count.\\n\\n\\n\\n 4\\n\\f Carmona Indictments\\n\\n On August 9, 2016, a grand jury indicted Mr. Leal, Mr. Carmona, and Mr. Arreola-\\n\\nPalma with (1) conspiracy to distribute 50 grams or more of methamphetamine, in violation\\n\\nof 21 U.S.C. § 846; and (2) distributing 50 grams or more of methamphetamine, in violation\\n\\nof 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).\\n\\n After the December 20, 2017 verdict in the Tapia case, the grand jury returned\\n\\na superseding indictment in the Carmona case. It added another distribution count\\n\\nand charged Mr. Leal with a conspiracy beginning “on a date unknown, but not later\\n\\nthan July 21, 2016, and continuing to on or about August 3, 2016.” ROA at 100.\\n\\n Motion to Dismiss\\n\\n On March 6, 2018, Mr. Leal moved to dismiss the conspiracy count of the\\n\\nsuperseding indictment under Federal Rule of Criminal Procedure 12(b). He said the\\n\\nactivity underlying the Tapia conviction and the Carmona superseding indictment was\\n\\npart of one larger conspiracy. He argued that trying him again for conspiracy would\\n\\ntherefore violate double jeopardy.\\n\\n “In essence,” he said, “the first jury had to have found the necessary criminal\\n\\nagreement, formed on June 8, 2016, between Mr. Leal, the government informant, and\\n\\nothers, to convict Mr. Leal in trial one.” Id. at 62-63. Because the superseding\\n\\nindictment charged a conspiracy “beginning at a date unknown,” Mr. Leal claimed both\\n\\nconspiracy charges stemmed from the same agreement, making them the same offense\\n\\n\\n 5\\n\\ffor double jeopardy purposes. Id. at 58; see also id. at 63 (“No doubt, the criminal\\n\\nagreements in the indictment for trial one and for trial two, are the same.”).3\\n\\n District Court Ruling\\n\\n The district court denied the motion. First, it said the transactions were not part of\\n\\nthe same chain conspiracy because there was “no evidence that the members of the Tapia\\n\\nDeal and the Carmona Deal entered into a single conspiracy with each other. Leal is the\\n\\nonly common member of those deals.” United States v. Leal, 330 F. Supp. 3d 1257, 1278\\n\\n(D.N.M. 2018). The transactions were “discrete and parallel.” Id. at 1279. Second, the\\n\\ntwo deals were not part of a single wagon-wheel conspiracy because they were not\\n\\ninterdependent—that is, “the success of one deal does not depend on the success of the\\n\\nother.” Id.4\\n\\n Mr. Leal timely appealed.\\n\\n\\n\\n\\n 3\\n Mr. Leal also asked for dismissal of the distribution count without prejudice so a\\nnew grand jury could consider it anew without hearing evidence of the conspiracy.\\nBecause we affirm the denial of dismissal of the conspiracy count, we do not need to\\naddress the distribution count.\\n 4\\n The district court also rejected the Government’s argument that Mr. Leal’s\\nmotion was unripe because the Government had not yet presented any evidence of\\nhis 2017 conviction. The Government does not contest that conclusion on appeal.\\n\\n\\n\\n 6\\n\\f II. DISCUSSION\\n\\n Mr. Leal argues the district court erred in finding the Tapia and Carmona deals\\n\\nlacked the requisite interdependence to make each of them part of one conspiracy.\\n\\nProceeding to trial on the conspiracy count in the Carmona case would, he contends,\\n\\nviolate double jeopardy because he would be prosecuted for the same conspiracy he was\\n\\nconvicted of in the Tapia trial. The following discussion shows that his argument fails\\n\\nunder conspiracy law and the record.\\n\\n A. Jurisdiction and Standard of Review\\n\\n Jurisdiction\\n\\n We have appellate jurisdiction over this interlocutory appeal. In Abney v. United\\n\\nStates, 431 U.S. 651 (1977), the Supreme Court held that a pretrial order denying a\\n\\nmotion to dismiss an indictment on double jeopardy grounds falls within the collateral\\n\\norder exception to the final-judgment rule and is therefore immediately appealable under\\n\\n28 U.S.C. § 1291. Id. at 662. The Court explained that holding otherwise would require\\n\\nthe defendant to “endure the personal strain, public embarrassment, and expense of a\\n\\ncriminal trial” that he asserts violates the Double Jeopardy Clause of the Fifth\\n\\nAmendment. Id. at 661.\\n\\n Here, as in Abney, “[t]here are simply no further steps that can be taken in the\\n\\nDistrict Court to avoid the trial the defendant maintains is barred by the Fifth\\n\\nAmendment’s guarantee.” Id. at 659; see also United States v. Tucker, 745 F.3d 1054,\\n\\n1064 (10th Cir. 2014) (stating “a Double Jeopardy Clause claim would be rendered\\n 7\\n\\fmeaningless if motions to dismiss on double jeopardy grounds were not immediately\\n\\nreviewable”); United States v. Perez-Herrera, 86 F.3d 161, 163 (10th Cir. 1996)\\n\\n(exercising jurisdiction over an interlocutory appeal from a pretrial order in a double\\n\\njeopardy case).\\n\\n Standard of Review\\n\\n “We generally review a district court’s denial of a motion to dismiss a criminal\\n\\nindictment for abuse of discretion.” United States v. Berres, 777 F.3d 1083, 1089 (10th\\n\\nCir. 2015). “We review the factual findings underlying the defendant’s double jeopardy\\n\\nclaim for clear error.” United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024-25\\n\\n(10th Cir. 1996). “The district court’s ultimate determination regarding double jeopardy\\n\\nis, however, a question of law we review de novo.” Id. at 1025.\\n\\n On whether there were one or two conspiracies, which Mr. Leal raised in his\\n\\nmotion to dismiss, we review the district court’s finding about interdependence for clear\\n\\nerror. See United States v. Mintz, 16 F.3d 1101, 1106 (10th Cir. 1994) (concluding that\\n\\ndistrict court’s finding that “the ultimate goal [of the two conspiracies] was to mix the\\n\\ntwo types of marijuana for sale in New York and that [the two conspiracies] were\\n\\ninterdependent” was not “clearly erroneous”).\\n\\n B. Legal Background\\n\\n1. Conspiracy\\n\\n To prove a conspiracy, the government must show that “(1) two or more\\n\\npersons agreed to violate the law, (2) the defendant knew the essential objectives of\\n\\n 8\\n\\fthe conspiracy, (3) the defendant knowingly and voluntarily participated in the\\n\\nconspiracy, and (4) the alleged co-conspirators were interdependent.” United States\\n\\nv. Pickel, 863 F.3d 1240, 1251 (10th Cir. 2017) (brackets and quotations omitted).\\n\\nBecause “the gist of the crime of conspiracy” is the agreement rather than the overt\\n\\nacts done in furtherance of the conspiracy, “the precise nature and extent of the\\n\\nconspiracy must be determined by reference to the agreement which embraces and\\n\\ndefines its objects.” Braverman v. United States, 317 U.S. 49, 53 (1942).\\n\\n Although two or more people must agree to form a conspiracy, an informant\\n\\ncannot count toward that requirement: “[T]here can be no indictable conspiracy\\n\\ninvolving only the defendant and government agents or informers.” United States v.\\n\\nBarboa, 777 F.2d 1420, 1422 (10th Cir. 1985). In short, “informers cannot be\\n\\nconspirators” and “cannot be considered parties to the illegal agreement.” United States\\n\\nv. Rodriguez, 765 F.2d 1546, 1552 (11th Cir. 1985); see also United States v. Villasenor,\\n\\n664 F.3d 673, 682 (7th Cir. 2011); United States v. Hackley, 662 F.3d 671, 679 (4th Cir.\\n\\n2011).\\n\\n We have described two conspiracy models: “chain” and “wagon-wheel.” See\\n\\nUnited States v. Evans, 970 F.2d 663, 668 n.8 (10th Cir. 1992). In a chain conspiracy,\\n\\n“there is successive communication and cooperation in much the same way as with\\n\\nlegitimate business operations between manufacturer and wholesaler, then wholesaler and\\n\\nretailer, and then retailer and consumer.” Id. (quotations omitted). Most drug trafficking\\n\\nnetworks fall into this category and “involve loosely knit vertically-integrated\\n\\n 9\\n\\fcombinations.” Id. (quoting United States v. Brewer, 630 F.2d 795, 799 (10th Cir.\\n\\n1980)).\\n\\n In a wagon-wheel conspiracy, “a single person or group (the ‘hub’) deal[s]\\n\\nindividually with two or more other persons or groups (the ‘spokes’).” Id. (quotations\\n\\nand citation omitted). Individuals operating as independent spokes, connected through a\\n\\ncenter hub, are part of the same conspiracy only if they are enclosed by a “rim”—that is,\\n\\n“a unified and shared objective.” United States v. Carnagie, 533 F.3d 1231, 1238 (10th\\n\\nCir. 2008); see also Kotteakos v. United States, 328 U.S. 750, 755 (1946).5\\n\\n2. Double Jeopardy and Conspiracy\\n\\n The Double Jeopardy Clause states that no person shall “be subject for the\\n\\nsame offence to be twice put in jeopardy.” U.S. Const. amend. V. It provides three\\n\\nprotections. “It protects against a second prosecution for the same offense after\\n\\nacquittal. It protects against a second prosecution for the same offense after\\n\\nconviction. And it protects against multiple punishments for the same offense.”\\n\\nNorth Carolina v. Pearce, 395 U.S. 711, 717 (1969). Mr. Leal seeks the second of\\n\\nthese protections.\\n\\n\\n\\n\\n 5\\n Mr. Leal states that “the circumstances of the conspiracy charges in the Tapia\\nand Carmona cases do not even fit within a ‘wagon-wheel’ or ‘chain’ conspiracy\\ntheory.” Aplt. Br. at 13. We do not need to rely on these models to resolve this case.\\n\\n 10\\n\\f “The defendant bears the burden of proving a claim of double jeopardy.”\\n\\nRodriguez-Aguirre, 73 F.3d at 1025.6 Moreover, “the burden of proof is on the defendant\\n\\nto demonstrate that two conspiracies are the same for double jeopardy purposes.” United\\n\\nStates v. Sasser, 974 F.2d 1544, 1549 n.3 (10th Cir. 1992) (citing United States v. Jones,\\n\\n816 F.2d 1483, 1486 (10th Cir. 1987)).\\n\\n When the government charges a defendant under separate statutes for the same\\n\\nconduct, the test derived from Blockburger v. United States, 284 U.S. 299 (1932),\\n\\ndetermines whether the crimes are the “same offense” for double jeopardy purposes.7\\n\\nWhen the government charges a defendant with committing two (or more)\\n\\nconspiracies, whether the charges are for the “same offense” depends on whether\\n\\nthey “are in fact based on a defendant’s participation in a single conspiracy.” United\\n\\n\\n\\n\\n 6\\n Mr. Leal argues that once the defendant advances a non-frivolous claim of\\ndouble jeopardy, the burden shifts to the government to show “by a preponderance of\\nthe evidence, that the conspiracies alleged in the two indictments are in fact\\nseparate.” Aplt. Br. at 15 (citing United States v. Beachner Const. Co., Inc., 555 F.\\nSupp. 1273, 1275 (D. Kan. 1983); United States v. Jabara, 644 F.2d 574 (6th Cir.\\n1981)). At least one other circuit has adopted this burden-shifting framework. See\\nUnited States v. Jones, 858 F.3d 221, 225 (4th Cir. 2017). But we have adhered to\\nthe rule that the defendant bears the burden of showing a double jeopardy violation.\\nSee United States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998) (“A defendant\\nbears the burden of proving double jeopardy.”); United States v. Quinonez-Quintero,\\n573 F. App’x 674, 676 (10th Cir. 2014) (unpublished) (“[U]ncertainty is insufficient\\ngiven that Quinonez-Quintero bears the burden of proof.”)\\n 7\\n The Blockburger test asks whether crimes charged under different statutes for\\nthe same conduct “require[] proof of an additional fact which the other does not.”\\n284 U.S. at 304. If not, double jeopardy bars prosecution under both statutes. See id.\\n\\n 11\\n\\fStates v. Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988). If so, double jeopardy “bars\\n\\nthe second prosecution.” Id.\\n\\n When, as here, a defendant claims that a second conspiracy charge is for the\\n\\nsame conspiracy as the first conspiracy charge and therefore is a double jeopardy\\n\\nviolation, “the court must determine whether the two transactions [alleged in the\\n\\ncharges] were interdependent and whether the [co-conspirators] were ‘united in a\\n\\ncommon unlawful goal or purpose.’” Mintz, 16 F.3d at 1104 (quoting Sasser, 974 F.2d\\n\\nat 1550). As we said in United States v. Daily, 921 F.2d 994 (10th Cir. 1990), “[T]he\\n\\nfocal point of the analysis is whether the alleged co-conspirators were united in a\\n\\ncommon unlawful goal or purpose. . . . Of principal concern is whether the conduct\\n\\nof the alleged co-conspirators, however diverse and far-ranging, exhibits an\\n\\ninterdependence.” Id. at 1007 (citations omitted).\\n\\n Interdependence requires a “shared, single criminal objective, not just similar or\\n\\nparallel objectives between similarly situated people.” Evans, 970 F.2d at 671. A shared\\n\\nobjective is present when “the activities of [the] alleged co-conspirators in one aspect of\\n\\nthe charged scheme were necessary or advantageous to the success of the activities of\\n\\nco-conspirators in another aspect of the charged scheme, or the success of the venture as\\n\\na whole.” Daily, 921 F.2d at 1007; see also United States v. Hopkins, 608 F. App’x 637,\\n\\n644 (10th Cir. 2015) (unpublished) (holding six robberies did not form one global\\n\\nconspiracy absent evidence each individual robbery “benefitted from or depended upon\\n\\n\\n\\n 12\\n\\fthe success of” the other robberies).8 In Sasser, we said the evidence must “show that the\\n\\n[first] conspiracy was designed to further and to promote the success of the [second]\\n\\nconspiracy.” 974 F.2d at 1550. It is not enough that “participation in one conspiracy\\n\\nprovided [the defendant] with funds to participate in another.” Id.\\n\\n If two conspiracies have a shared objective, they need not involve all the same\\n\\nco-conspirators or occur at the same time to be interdependent. In Mintz, 16 F.3d 1101,\\n\\nwe held that two marijuana distribution conspiracies were interdependent for double\\n\\njeopardy purposes. Id. at 1106. The conspiracies, which operated over different periods\\n\\nof time and in different states, shared the “ultimate goal . . . to mix the two types of\\n\\nmarijuana for sale in New York.” Id. Although the two schemes involved different\\n\\npeople, we noted that two “core conspirators . . . coordinated the entire plan.” Id.\\n\\n Conspiracies aimed at different ends are not interdependent. For example, two\\n\\ndrug distribution conspiracies tied to the same city were distinct because one involved\\n\\n“the transportation of marijuana out of state” while the other “involved . . . no evidence\\n\\nof planned nationwide transport.” United States v. Rodriguez-Moreno, No. 99-5120,\\n\\n2000 WL 504858, at *4 (10th Cir. 2000) (unpublished).\\n\\n Without direct evidence of a conspiracy’s goal, courts look for commonalities in\\n\\ntime, place, and personnel. If two conspiracies involved the same people, occurred in the\\n\\n\\n 8\\n Although not precedential, we find the reasoning of the unpublished cases\\ncited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are\\nnot precedential, but may be cited for their persuasive value.”); see also Fed. R. App.\\nP. 32.1.\\n 13\\n\\fsame place, and happened at roughly the same time, courts are more likely to find the\\n\\nconspiracies were interdependent. In the foundational case of Short v. United States,\\n\\n91 F.2d 614 (4th Cir. 1937), the Fourth Circuit held double jeopardy barred a successive\\n\\nconspiracy prosecution when each indictment named the defendant and the same two\\n\\nother individuals as co-conspirators and the conspiracy alleged in the second indictment\\n\\n“cover[ed] a portion of each of the periods covered by” the prior indictment. Id. at 620.\\n\\n By contrast, in United States v. Ruiz, No. 93-6124, 1993 WL 520285 (10th Cir.\\n\\n1993) (unpublished), this court upheld a finding of non-interdependence when the two\\n\\ncharged drug conspiracies “were carried out over distinct time periods, involved\\n\\nprimarily different personnel and geographic operation, and placed defendant in quite\\n\\ndifferent roles.” Id. at *2; see also Sasser, 974 F.2d at 1550 (finding no interdependence\\n\\nbetween housing fraud conspiracies in which the defendant had different roles in each\\n\\nscheme). The mere presence of one common co-conspirator will not establish\\n\\ninterdependence. Sasser, 974 F.2d at 1550.\\n\\n C. Analysis\\n\\n To aid in following the analysis, we summarize the transactions underlying each\\n\\nindictment:\\n\\n\\n\\n\\n 14\\n\\f Date of Date of Sale Alleged Seller Other Alleged Facilitators\\n Indictment\\n\\n 07/12/16 06/08/16 Bernadette Tapia Christopher Apodaca, Brandon\\n Candace Tapia Candelaria, Gaspar Leal/CI\\n\\n 08/09/16 07/25/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis\\n 12/20/17 Arreola-Palma, Gaspar Leal/CI\\n\\n 08/09/16 08/03/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis\\n 12/20/17 Arreola-Palma, Gaspar Leal/CI\\n\\n\\n The district court’s finding that the Tapia and Carmona conspiracies were not\\n\\ninterdependent was not clearly erroneous. It therefore properly denied Mr. Leal’s motion\\n\\nto dismiss the conspiracy count of the superseding indictment because there was no\\n\\ndouble jeopardy violation. The record lacks direct evidence that the two conspiracies\\n\\nshared a common goal. It also lacks evidence of common time, place, or personnel. As\\n\\nthe following discussion shows, Mr. Leal failed to meet his burden to establish a double\\n\\njeopardy violation. We discern four arguments in his briefing.\\n\\n1. Common Goal\\n\\n Mr. Leal argues that the conspiracies shared a common goal. He relies on United\\n\\nStates v. Watson, 594 F.2d 1330 (10th Cir. 1979), to support this inference. In that case,\\n\\nseveral co-conspirators had purchased large amounts of drugs for distribution from a\\n\\nsingle wholesaler. They argued there was no evidence they had joined the same\\n\\nconspiracy. Id. at 1339. We affirmed their conspiracy convictions, explaining that\\n\\n“[w]here large quantities of narcotics are being distributed, each major buyer may be\\n\\n 15\\n\\fpresumed to know that he is part of a wide-ranging venture, the success of which depends\\n\\non performance by others whose identity he may not even know.” Id. at 1340.\\n\\n Mr. Leal argues that his alleged co-conspirators were “major buyers” and should\\n\\nbe presumed to have acted in conscious support of a wide-ranging drug trafficking\\n\\nventure. Aplt. Br. at 25. But his reliance on Watson is misplaced, and the record does\\n\\nnot support his argument. The Watson defendants were retailers who repeatedly\\n\\npurchased large amounts of drugs from a single wholesaler. 594 F.2d at 1339-40. The\\n\\n“evidence of the volume and nature of their operations” supported an inference that they\\n\\nwere aware of the “scope of the narcotics conspiracy.” Id. at 1340. Here, there is no\\n\\nevidence that (1) Ms. Tapia or Mr. Carmona were “major buyers,” (2) they obtained their\\n\\ndrugs from the same supplier, or (3) Mr. Leal was a supplier to either of them. The\\n\\nrecord shows only that each made one sale at Mr. Leal’s suggestion. This hardly\\n\\nsupports an inference that they pursued a shared common objective or that the Tapia deal\\n\\n“[was] necessary or advantageous to the success” of the conspirators in the Carmona\\n\\ndeal. Daily, 921 F.2d at 1007, see Pickel, 863 F.3d at 1255 (finding sufficient evidence\\n\\nof interdependence where the defendant “expressed that other co-conspirators’ successes\\n\\nwere advantageous to him”).\\n\\n Even if the Tapia and Carmona sellers each aspired to “distribute large amounts of\\n\\nnarcotics, particularly methamphetamine, for profit,” Aplt. Br. at 25, that would not\\n\\nestablish they were pursuing that goal as part of a shared endeavor. Although Mr. Leal is\\n\\ncorrect that the purpose of each deal was to sell drugs to the CI, the record lacks evidence\\n\\n 16\\n\\fthat the Tapia and Carmona sellers shared that purpose with each other, and a shared\\n\\nobjective is a necessary predicate for interdependence. See Evans, 970 F.2d at 669;\\n\\nCarnagie, 533 F.3d at 1238.9\\n\\n2. Common Personnel\\n\\n Mr. Leal argues that the district court erred in concluding the conspiracies\\n\\ninvolved different co-conspirators. Because both indictments alleged Mr. Leal conspired\\n\\nwith “persons whose names are known and unknown to the Grand Jury,” ROA at 11,10 he\\n\\nasserts the Tapia and Carmona deals could possibly have involved cooperation between\\n\\nparticipants in both transactions apart from Mr. Leal and the CI. This shows at most that\\n\\nnot all of Mr. Leal’s co-conspirators in each transaction are identifiable, but he has not\\n\\n\\n\\n 9\\n Mr. Leal criticizes the district court’s invocation of the “buyer-seller” rule.\\nAplt. Br. at 23-24. Under that rule, to establish that a drug buyer is part of a\\nconspiracy to distribute the drugs, “the government must do more than show there\\nwere casual transactions between the defendant and the conspirators . . . or that there\\nwas a buyer-seller relationship between the defendant and a member of the\\nconspiracy.” United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996) (citations and\\nquotations omitted). In general, “a consumer . . . does not share the distribution\\nobjective and thus would not be part of a conspiracy to distribute” drugs. Evans, 970\\nF.2d at 669. Even if Mr. Leal’s criticism is correct and the “buyer-seller” rule does\\nnot apply here because the CI was not a mere consumer, our interdependence analysis\\nstill applies.\\n 10\\n The superseding indictment for the Carmona deal is part of the record\\ntransferred to this court, but the indictment regarding the Tapia deal is not. We take\\njudicial notice of the Tapia indictment as it appears on the district court’s docket for\\nUnited States v. Leal, No. 1:16-CR-03069-JB (D. N.M. July 12, 2016), ECF No. 2.\\nSee United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a\\ncourt may take judicial notice of docket information from another court); Fed. R.\\nEvid. 201(b)(2).\\n\\n 17\\n\\fprovided evidence, nor even argued, that particular individuals worked with him to make\\n\\nboth sales happen.\\n\\n The record shows there was no overlap. It shows Mr. Leal conspired with Ms.\\n\\nBernadette Tapia, Ms. Candace Tapia, Mr. Apodaca, and Mr. Candelaria to arrange the\\n\\nTapia deal. It shows Mr. Leal conspired with Mr. Casillas, Mr. Barrazza, Mr. Arreola-\\n\\nPalma, and Mr. Carmona to arrange the Carmona deal. And as noted above, the mere\\n\\npresence of one common conspirator—here, Mr. Leal—will not establish\\n\\ninterdependence. Sasser, 974 F.2d at 1550.\\n\\n To the extent Mr. Leal relies on the CI to argue the conspiracies involved common\\n\\npersonnel, a CI’s involvement in the two conspiracies does not render them one\\n\\nconspiracy. Indeed, Mr. Leal’s agreement to help the CI buy drugs was not a conspiracy\\n\\nas a matter of law. See Barboa, 777 F.2d at 1422 (explaining that there can be no\\n\\nindictable conspiracy between only the defendant and a government informant). Even\\n\\nassuming the CI’s involvement in the Tapia and Carmona deals is relevant to whether the\\n\\nconspiracies were interdependent, his role as a purchaser in both transactions did not on\\n\\nits own link the conspiracies in a shared common goal. As explained above, this case is\\n\\ndifferent from Watson, 594 F.2d at 1338-40, where we inferred a common goal between\\n\\ndisconnected “major buyer[s]” because they purchased (1) large quantities of narcotics\\n\\nfrom (2) a single wholesaler (3) on multiple occasions.\\n\\n We agree with Mr. Leal that “excluding the involvement of the CI in the\\n\\ntransactions does not in and of itself render the two conspiracy charges as separate.”\\n\\n 18\\n\\fAplt. Br. at 14. But as we said in Sasser, “The two conspiracies operated independently\\n\\nof one another, with the success of each dependent exclusively on the individual labors of\\n\\nits own, separate participants.” 974 F.2d at 1550.\\n\\n3. Time Overlap\\n\\n Mr. Leal argues the conspiracies overlapped in time, relying on the statement in\\n\\nthe superseding indictment that the Carmona conspiracy began at an unknown time\\n\\nbefore July 21, 2016. But the indictments for the two conspiracies do not allege, and the\\n\\nrecord does not show, that the conspiracies overlapped in time. The district court\\n\\nfound—and Mr. Leal does not contest—that he began arranging the Carmona deal on\\n\\nJuly 21, 2016, more than a month after the Tapia deal. It may be that Mr. Leal had talked\\n\\nwith someone—perhaps Mr. Arreola-Palma—to begin arranging the transaction before he\\n\\ncontacted the CI on July 21. But nothing in the record shows that an agreement had\\n\\noccurred before July 21, more than seven weeks after June 8, 2016, when the CI\\n\\npurchased meth from Ms. Tapia.11\\n\\n\\n 11\\n The Fourth Circuit’s recent decision in United States v. Jones, 858 F.3d 221 (4th\\nCir. 2017), shows why there are two conspiracies and no double jeopardy violation in Mr.\\nLeal’s case. Mr. Jones pled guilty to a drug conspiracy charge alleging that he and two\\nothers conspired from June to August 2012 to purchase cocaine from a DEA CI. Then,\\non July 24, 2014, he was indicted for conspiring with the same two people and others to\\noperate a “vast drug trafficking organization” from 1998 to 2012. Id. at 223. The\\n“substantial if not complete” overlap in the alleged conspiracies, id. at 224, as to\\n“substantive violation, personnel, location, time span, and nature and scope,” id. at 223,\\nmeant that the first conspiracy was part of the second and double jeopardy barred the\\nsecond prosecution. Id. at 230.\\n By contrast, the overlap between the Tapia and Carmona deals was minimal.\\nBoth involved drug sales to the CI that Mr. Leal arranged, but there was no evidence\\n 19\\n\\f4. Rule 404(b) Evidence\\n\\n Mr. Leal argues the conspiracies were interdependent because the Government\\n\\nintends to introduce evidence of the Tapia deal during the Carmona trial “as proof of the\\n\\nconspiracy alleged” in the Carmona superseding indictment. Aplt. Br. at 21. He notes\\n\\nthat the Government has stated it will call the same witnesses it called in the Tapia trial.\\n\\nThe evidence the Government intends to introduce, he argues, shows that Mr. Leal\\n\\n“repeatedly assisted in procuring methamphetamine from chains of co-conspirators for\\n\\nthe CI . . . whom Mr. Leal believed would then further distribute it.” Id. at 24.\\n\\n By way of background, the Government filed a pretrial notice in the Carmona case\\n\\nthat it planned to offer (1) evidence of Mr. Leal’s prior efforts to arrange drug\\n\\ntransactions with the CI, (2) video and audio recordings of the meth purchases the CI\\n\\nmade in May and June of 2016 and physical evidence of the drugs that were purchased,\\n\\nand (3) a PowerPoint presentation during its opening statement that included slides about\\n\\nthe Tapia deal. The notice cited Rule 404(b) of the Federal Rules of Evidence12 and\\n\\n\\nthe sellers knew each other or shared a common purpose. There was no time\\noverlap—the Tapia deal ended on June 8, 2016, and the Carmona deal began on July\\n21, 2016. Although the relationship between Mr. Leal and the CI straddled the two\\ntransactions, their working relationship cannot form a conspiracy as a matter of law.\\nSee Barboa, 777 F.2d. at 1422.\\n 12\\n Under Federal Rule of Evidence 404(b)(1), “[e]vidence of a crime, wrong,\\nor other act is not admissible to prove a person’s character in order to show that on a\\nparticular occasion the person acted in accordance with the character.” But under\\nRule 404(b)(2), “[t]his evidence may be admissible for another purpose, such as\\nproving motive, opportunity, intent, preparation, plan, knowledge, identity, absence\\nof mistake, or lack of accident.”\\n\\n 20\\n\\fexplained that this evidence “makes it more probable that the defendant conspired to\\n\\ndistribute methamphetamine and aided and abetted the distribution of methamphetamine\\n\\nin the instant matter.” ROA at 18-19. The Government added that Mr. Leal’s prior\\n\\nconduct “shows a common plan by the defendant to arrange drug deals from jail.” Id. at\\n\\n20. And it paraphrased Rule 404(b) that the evidence would show Mr. Leal’s\\n\\n“knowledge and the absence of mistake or accident.” Id. at 18.\\n\\n Even if this evidence were admissible under Rule 404(b), neither the evidence nor\\n\\nthe Government’s plan to present it establishes interdependence. As noted above,\\n\\ninterdependence must be based on a showing of a common goal, Evans, 970 F.2d at 671,\\n\\nand that the activities in one aspect of the scheme—here, the Tapia deal—were necessary\\n\\nor advantageous to the other aspect of the scheme—the Carmona deal, Daily, 921 F.2d\\n\\nat 1007. The Government’s attempt to show common plan, knowledge, and lack of\\n\\nmistake or accident under Rule 404(b) may show that Mr. Leal handled the deals in a\\n\\nsimilar manner, but it does not show the conspiracies were interdependent.13 Indeed,\\n\\n\\n\\n\\n 13\\n In United States v. Booth, 673 F.2d 27 (1st Cir. 1982), the First Circuit\\nrejected a similar argument that two conspiracies were actually one for double\\njeopardy purposes:\\n [A]lthough evidence of the Maine conspiracy was\\n introduced at the trial of the Florida conspiracy, this\\n evidence was introduced for the limited purpose of\\n demonstrating intent and knowledge through evidence of\\n subsequent similar acts. The evidence was not introduced\\n to show a continuing conspiracy in Maine. Admission of\\n evidence to show intent is permitted by Rule 404(b) of the\\n Federal Rules of Evidence.\\n 21\\n\\fapart from the Government’s pretrial notice under Rule 404(b)(2), Mr. Leal has attempted\\n\\nto rely on the Tapia deal evidence to establish interdependence, but as the foregoing\\n\\ndiscussion shows, he has failed to do so.14\\n\\n\\n\\n\\nId. at 30. The court affirmed the district court’s denial of a motion to dismiss the\\nconspiracy count in the Maine indictment.\\n 14\\n At oral argument, counsel for Mr. Leal identified a fifth argument for\\ninterdependence: We should not allow the participation of the CI, as opposed to a\\nprivate citizen, in both transactions to prevent a finding of interdependence.\\nOtherwise, the government could use CIs to manufacture separate conspiracies and\\ntake advantage of sentencing enhancements for repeat offenders under 21 U.S.C.\\n§ 851. See Oral Arg. at 12:30-13:38. This argument is unavailing for two reasons.\\n First, Mr. Leal did not advance it in his opening brief. In the brief, he argued\\nthat the Government had “filed the separate indictments in a transparent attempt to\\nside-step the constitutional provision against double jeopardy,” Aplt. Br. at 26, and\\n“attempt[ed] to nullify the constitutional prohibition against double jeopardy by\\nartful forms of criminal pleading,” id. at 27. But he did not further develop this\\nargument in his opening brief and did not mention sentencing enhancements. At oral\\nargument, Mr. Leal’s counsel raised for the first time the risk of the Government\\nusing CIs to manufacture separate conspiracies to take advantage of sentencing\\nenhancements. That argument is therefore waived. See United States v. Dahda, 852\\nF.3d 1282, 1292 n.7 (10th Cir. 2017), aff’d, 138 S. Ct. 1491 (2018) (“[I]ssues raised\\nfor the first time at oral argument are considered waived.” (quotations omitted)).\\n Second, whether the government charges two conspiracies in one indictment or in\\nseparate indictments does not affect the double jeopardy analysis. If the conspiracies are\\nthe same, there is a double jeopardy problem in either instance. If they are different\\nconspiracies, there is not. A legal basis other than double jeopardy would therefore be\\nneeded to limit the government’s charging discretion based on Mr. Leal’s concern about\\nthe sentencing enhancement implications of two indictments for conspiracies involving\\nthe same CI.\\n\\n 22\\n\\f III. CONCLUSION\\n\\n We affirm the district court’s denial of Defendant Leal’s motion to dismiss the\\n\\nconspiracy count of the superseding indictment.\\n\\n\\n\\n\\n 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1858,"cells":{"id":{"kind":"number","value":4612500,"string":"4,612,500"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Joan OSBORN, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Osborn"},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"18-4009"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Holmes, Baldock, Carson\", \"parties\": \"\", \"opinions\": [{\"author\": \"CARSON, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 23, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-4009\\n\\n JOAN OSBORN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. No. 2:15-CR-00107-WPJ-1)\\n _________________________________\\n\\nAmy B. Cleary, Assistant Federal Public Defender (Rene L. Valladares, Federal Public\\nDefender, and Cristen C. Thayer, Assistant Federal Public Defender, with her on the\\nbriefs), Office of the Federal Public Defender, Las Vegas, Nevada, for Defendant-\\nAppellant.\\n\\nSyrena C. Hargrove, Assistant United States Attorney (Bart M. Davis, United States\\nAttorney, with her on the brief), United States Attorney’s Office, District of Idaho, Boise,\\nIdaho, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HOLMES, BALDOCK, and CARSON, Circuit Judges.\\n _________________________________\\n\\nCARSON, Circuit Judge.\\n _________________________________\\n\\n In Sell v. United States, 539 U.S. 166, 169, 180–81 (2003), the Supreme Court\\n\\noutlined a demanding four-part test that, if satisfied, allows the government to\\n\\fforcibly medicate a mentally ill but nonviolent criminal defendant “to render that\\n\\ndefendant competent to stand trial.” That test is as follows:\\n\\n First, a court must find that important governmental interests are\\n at stake. . . .\\n ....\\n Second, the court must conclude that involuntary medication will\\n significantly further those concomitant state interests. . . .\\n Third, the court must conclude that involuntary medication is\\n necessary to further those interests. . . .\\n Fourth, . . . the court must conclude that administration of the drugs\\n is medically appropriate, i.e., in the patient’s best medical interest in light\\n of his medical condition.\\n\\nSell, 539 U.S. at 180–81 (emphases in original).\\n\\n But the Supreme Court cautioned that lower courts “need not consider whether\\n\\nto allow forced medication for that kind of purpose, if forced medication is warranted\\n\\nfor a different purpose.” Id. at 181–82 (emphasis in original). Specifically, courts\\n\\n“ordinarily” must first consider whether forced medication is in the defendant’s\\n\\nmedical interest because it safeguards him from himself or others, a circumstance\\n\\nwhich the Supreme Court previously addressed in Washington v. Harper, 494 U.S.\\n\\n210, 227 (1990). Sell, 539 U.S. at 183. The Supreme Court reasoned that the Harper\\n\\nstandard is “usually more ‘objective and manageable’ than the inquiry into whether\\n\\nmedication is permissible to render a defendant competent,” so addressing it first can\\n\\npotentially eliminate—or, at the very least, better inform—a Sell inquiry. Id. at 182–\\n\\n83 (quoting Riggins v. Nevada, 504 U.S. 127, 140 (1992) (Kennedy, J., concurring)).\\n\\n But what happens when changed circumstances necessitate that a defendant be\\n\\nforcibly medicated under Harper after the district court has already authorized forced\\n\\n\\n 2\\n\\fmedication under Sell? Does the Sell order stand, or should the court vacate the Sell\\n\\norder and start again on a clean slate? For the reasons we describe in more detail\\n\\nbelow, we hold that courts generally should vacate the Sell order and begin anew\\n\\narmed with the findings of the intervening Harper proceedings.\\n\\n I.\\n\\n Defendant Joan Osborn is one of the many individuals worldwide who must\\n\\nwake up each day and battle a severe and debilitating mental illness. A sixty-one-\\n\\nyear-old woman, she has been diagnosed at different times with schizophrenia,\\n\\npossible depression, and possible post-traumatic stress disorder. She has thus spent a\\n\\nlarge portion of her life—on and off since 1982—in hospitals and mental health\\n\\nfacilities for treatment. Most of her stays were not voluntary. Courts generally either\\n\\ncivilly committed her to these institutions or placed her therein during pending\\n\\ncriminal proceedings.\\n\\n One of those alleged crimes leads us to where we are today. In mid-October\\n\\n2014, Defendant allegedly called a United States district court judge and left a\\n\\nvoicemail conveying a variety of brutal and obscene threats. A grand jury\\n\\nsubsequently indicted Defendant for threatening to assault and murder a United\\n\\nStates judge in violation of 18 U.S.C. § 115(a)(1)(B). A forensic psychologist, Dr.\\n\\nLesli Johnson, later evaluated Defendant, concluded that she suffered from a\\n\\ndelusional disorder, and opined that her disorder would interfere with her ability to\\n\\nassist in her own defense. After reviewing Dr. Johnson’s report, the district court\\n\\nfound Defendant incompetent to stand trial under 18 U.S.C. § 4241(d). It thus\\n\\n 3\\n\\fcommitted her to the custody of the Attorney General for hospitalization to gauge\\n\\nwhether she could be restored to competency.\\n\\n The district court stayed its order of commitment so Defendant could appeal\\n\\nits competency determination to this Court. While that appeal was pending, the\\n\\nUnited States Marshals Service held Defendant at the Salt Lake County Jail in Utah.\\n\\nAnd while at the Salt Lake County Jail, jail employees forcibly injected Defendant\\n\\nwith the antipsychotic Prolixin Decanoate (“Prolixin”) against her will from\\n\\napproximately June 2016 to October 2016 without notifying her attorney. The\\n\\ndistrict court initially ordered the jail to stop this practice after Defendant’s attorney\\n\\nbrought an emergency motion to halt it. But after a hearing, the district court allowed\\n\\nthe jail to continue its forcible medication of Defendant on Harper grounds “after\\n\\nfinding [that] her mental state had deteriorated so severely to the point where she\\n\\npresented a significant danger to herself and to other inmates and officers.”\\n\\n On November 15, 2016—just two weeks after we affirmed the district court’s\\n\\ndetermination that Defendant was incompetent to stand trial, United States v. Osborn,\\n\\n664 F. App’x 708 (10th Cir. 2016) (unpublished)—the district court ordered the\\n\\nUnited States Marshals Service to transfer Defendant from the Salt Lake County Jail\\n\\nto the Federal Medical Center in Carswell, Texas (“FMC Carswell”). There—and in\\n\\naccordance with the district court’s previous order—forensic psychologist Dr. Diana\\n\\nSchoeller Hamilton and staff psychiatrist Dr. Jose R. Silvas, M.D. evaluated\\n\\nDefendant to determine whether she could be restored to competency.\\n\\n\\n\\n 4\\n\\f Neither Dr. Hamilton nor Dr. Silvas agreed with Dr. Johnson’s earlier\\n\\nconclusion that Defendant suffered from a delusional disorder. Instead, both\\n\\nconcluded—Dr. Hamilton first, and Dr. Silvas second after relying in part on Dr.\\n\\nHamilton’s findings—that Defendant suffered from schizophrenia. For her part, Dr.\\n\\nHamilton opined that Defendant was unlikely to regain competence to stand trial\\n\\n“without psychotropic medication.” Dr. Silvas went a step further: he noted that\\n\\n“[t]reatment with antipsychotic medication for [schizophrenia] is the established\\n\\ncommunity standard” and that such treatment had a “substantial probability” of\\n\\nrestoring Defendant’s competence.\\n\\n Dr. Hamilton’s and Dr. Silvas’s observations resulted in two Sell hearings—\\n\\nthe first on July 13, 2017, the second on September 27, 2017—to determine whether\\n\\nthe government could forcibly medicate Defendant to restore her competency.\\n\\nSeveral months later in early January 2018, and largely based on the testimonies of\\n\\nDr. Hamilton and Dr. Silvas at the Sell hearings, the district court issued a thoughtful\\n\\nopinion authorizing the government to forcibly medicate Defendant under Sell.\\n\\n In its opinion, the district court noted that “the parties do not dispute[] that\\n\\nDefendant is not currently dangerous to herself or to others.” So although just a little\\n\\nover a year prior the district court had allowed Salt Lake County Jail officials to\\n\\nforcibly medicate Defendant under Harper because she was a danger, the district\\n\\ncourt concluded that “involuntary commitment pursuant to Harper is unwarranted.”\\n\\nAfter determining that the government had met each of Sell’s stringent requirements,\\n\\nthe district court thus permitted the government to medicate Defendant with\\n\\n 5\\n\\fRisperdal Contra (“Risperdal”), another antipsychotic medication, every two weeks\\n\\nfor six months. The district court authorized an initial dose of 12.5 milligrams but\\n\\npermitted a maximum dose of 50 milligrams.\\n\\n Utilizing the collateral order exception to the final order rule of 28 U.S.C.\\n\\n§ 1291, Defendant now appeals the district court’s order allowing officials to forcibly\\n\\nmedicate her under Sell.1 Sell, 539 U.S. at 176–77; see also United States v.\\n\\nChavez, 734 F.3d 1247, 1249 (10th Cir. 2013). But after we heard oral arguments on\\n\\nthe merits of that order, the government informed us of a development of which both\\n\\nit and Defendant’s counsel only recently had learned: officials at FMC Carswell had\\n\\nsubjected Defendant to another Harper proceeding in July 2018 and have been\\n\\nforcibly medicating her with antipsychotic medication since that time.2 The officials\\n\\ninitially injected Defendant with 25-milligram doses of Risperdal—the same\\n\\nmedication, but double the starting dosage, the district court had authorized in its Sell\\n\\norder. They later increased Defendant’s dosage to 50 milligrams, which corresponds\\n\\nto the Sell order’s maximum authorized dosage.\\n\\n\\n\\n 1\\n We stayed the district court’s Sell order pending resolution of this appeal.\\n 2\\n FMC Carswell officials conducted this second Harper proceeding because\\nthey considered Defendant to be “gravely disabled.” Under our precedent, “a finding\\nthat a patient is ‘gravely disabled’ includes a determination that the patient is\\n‘dangerous to [herself].’” Jurasek v. Utah State Hosp., 158 F.3d 506, 512 n.2 (10th\\nCir. 1998) (emphasis in original) (quoting Harper, 494 U.S. at 1040). The officials\\nwere thus permitted to seek a Harper proceeding on that basis. See id.\\n Further, when describing the second Harper proceeding throughout the course\\nof this opinion, we use all-encompassing terms like “dangerousness” for the sake of\\nsimplicity and consistency.\\n 6\\n\\f In light of these changed circumstances, we asked the parties to submit\\n\\nsupplemental briefing addressing whether Defendant’s appeal is now moot. We also\\n\\nasked the parties to address whether we should nonetheless vacate the district court’s\\n\\nSell order even if it is not moot given the “general rule” that Harper proceedings\\n\\nshould precede Sell proceedings. United States v. Morrison, 415 F.3d 1180, 1186\\n\\n(10th Cir. 2005).3 We address both questions in turn.\\n\\n II.\\n\\n Although officials at FMC Carswell are now forcibly medicating Defendant\\n\\nwith Risperdal in dosages identical to those authorized under the Sell order, neither\\n\\nDefendant nor the government believes this case is moot. We agree.\\n\\n The mootness doctrine ensures that federal courts decide only actual cases or\\n\\ncontroversies. Brown v. Buhman, 822 F.3d 1151, 1163–64 (10th Cir. 2016); see also\\n\\nU.S. Const. art. III, § 2 (limiting the judicial power to “Cases” and “Controversies”).\\n\\nSpecifically, it “provides that although there may be an actual and justiciable\\n\\ncontroversy at the time the litigation is commenced, once that controversy ceases to\\n\\nexist, the federal court must dismiss the action for want of jurisdiction.” Jordan v.\\n\\nSosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quoting 15 James W. Moore & Martin\\n\\nH. Redish, Moore’s Federal Practice § 101.90, at 101–237 (3d ed. 2010) (italicization\\n\\n\\n 3\\n We also asked the government whether it would relinquish its reliance on the\\ndistrict court’s Sell order given that, after the most recent Harper proceedings,\\nDefendant has already been forcibly medicated with Risperdal. The government\\nresponded that it “does not wish to relinquish future reliance on the Sell order”\\nbecause “[t]he existence of a valid Sell order will allow for Defendant’s continued\\nmedication if and when she no longer satisfies the Harper criteria.”\\n 7\\n\\fomitted)); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\\n\\n1096, 1109 (10th Cir. 2010) (“We have no subject-matter jurisdiction if a case is\\n\\nmoot.”). A claim is thus moot “when a plaintiff”—or, for our purposes, a criminal\\n\\ndefendant—“loses a personal stake in the outcome because of some intervening\\n\\nevent.” EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir.\\n\\n2017).\\n\\n We evaluate mootness by considering “whether a favorable judicial decision\\n\\nwould have some effect in the real world.” Id. That mandate seemingly sounds the\\n\\ndeath knell for Defendant’s appeal. For even if we vacate the Sell order, FMC\\n\\nCarswell officials will still forcibly medicate Defendant with Risperdal under the\\n\\nmost recent Harper proceedings. So at first glance, vacating the Sell order will not\\n\\nhave any real-world effect, and Defendant seemingly has no personal stake in the\\n\\noutcome of her appeal.\\n\\n But the mootness doctrine contains an exception for “disputes that are capable\\n\\nof repetition, yet evading review.” Brown, 822 F.3d at 1166 (internal quotation\\n\\nmarks omitted). That exception “applies where (1) the challenged action is in its\\n\\nduration too short to be fully litigated prior to cessation or expiration, and (2) there is\\n\\na reasonable expectation that the same complaining party will be subject to the same\\n\\naction again.” Id. (quoting Fed. Election Comm’n v. Wis. Right to Life, Inc., 551\\n\\nU.S. 449, 462 (2007)).\\n\\n Defendant’s appeal meets these two requirements. First, the Sell order was in\\n\\nplace for only a few months before officials at FMC Carswell began forcibly\\n\\n 8\\n\\fmedicating Defendant with Risperdal under Harper. That short time frame did not\\n\\ngive Defendant an adequate opportunity to challenge the Sell order before it became\\n\\nexcessive and redundant.\\n\\n Second, if we dismiss this case as moot, officials at FMC Carswell may very\\n\\nwell attempt to medicate Defendant under the Sell order again in the future. Indeed,\\n\\ntheir right to medicate Defendant with Risperdal under Harper lasts only as long as\\n\\nshe remains a danger to herself or others. But once she is no longer a threat—a\\n\\npossibility that her medical history suggests—those officials cannot continue\\n\\nadministering Risperdal on that basis. Rather, they will need to take an entirely\\n\\ndifferent avenue if they wish to continue forcibly medicating her. And thus the\\n\\nparties will end up back at square one: the government will use the Sell order to\\n\\nforcibly medicate Defendant to render her competent to stand trial; Defendant will\\n\\nlikely appeal that order; and a panel of this Court will again dismiss that appeal as\\n\\nmoot if Defendant again becomes dangerous to herself or others and thus needs to be\\n\\nmedicated under Harper. This pattern could feasibly repeat in perpetuity. It\\n\\ntherefore “fit[s] comfortably” within the mootness exception for disputes that are\\n\\ncapable of repetition yet evading review. Wis. Right to Life, 551 U.S. at 462; cf.\\n\\nUnited States v. Grape, 549 F.3d 591, 597–98 (3d. Cir. 2008) (holding that\\n\\nintervening Harper proceedings did not moot the defendant’s appeal of a Sell order\\n\\nbecause the appeal met the requirements of the “voluntary cessation” exception to\\n\\nmootness).\\n\\n\\n\\n 9\\n\\f Accordingly, Defendant’s appeal is not moot, and we retain subject matter\\n\\njurisdiction over her appeal.\\n\\n III.\\n\\n Turning to the merits, we hold that courts generally should vacate a Sell order\\n\\nand begin anew when a defendant is forcibly medicated at a later date under Harper.\\n\\n The primary reason stems from the Supreme Court’s rationale in Sell—\\n\\nnamely, that Harper proceedings are generally more “objective and manageable” than\\n\\nSell proceedings and can thus “help to inform expert opinion and judicial\\n\\ndecisionmaking in respect to a request to administer drugs for trial competence\\n\\npurposes.” Sell, 539 U.S. at 182–83; see also United States v. White, 431 F.3d 431,\\n\\n435 (5th Cir. 2005) (“[M]edicating an inmate to alleviate dangerousness will, in most\\n\\ncases, obviate the need to do so to restore his competency . . . .”). Although the\\n\\nSupreme Court made this observation when advising courts to engage in Harper\\n\\nproceedings before entering a Sell order, see Sell, 539 U.S. at 181–83, we believe\\n\\nthis logic applies with equal force once the court has already entered a Sell order.\\n\\nAfter all, no matter the posture of the case, providing “an informed opinion about\\n\\nwhether . . . particular drugs are medically appropriate and necessary to control a\\n\\npatient’s potentially dangerous behavior (or to avoid serious harm to the patient\\n\\nhimself)” will generally be “easier” for a medical expert “than to try to balance harms\\n\\nand benefits related to the more quintessentially legal questions of trial fairness and\\n\\ncompetence.” Id. at 182. And that inherent objectivity still has great value even\\n\\nonce a court has already entered a Sell order. For instance, medical experts could\\n\\n 10\\n\\fforcibly medicate a defendant under Harper with the same or similar medication that\\n\\na court had earlier authorized but not yet executed under a Sell order. In that\\n\\nscenario, those experts would have the benefit of seeing the defendant’s response to\\n\\nthat medication for purposes of dangerousness and whether that response suggested\\n\\nthe defendant was likely to be restored to competency once forcible medication began\\n\\nunder Sell.\\n\\n Consider, for example, the facts of this case. The stayed Sell order authorized\\n\\nFMC Carswell officials to forcibly medicate Defendant with Risperdal, which they\\n\\nlater used to alleviate Defendant’s dangerousness under Harper. The officials,\\n\\ntherefore, have now had the opportunity to gauge Defendant’s response to Risperdal\\n\\nfor several months and can thus more accurately opine whether Risperdal may restore\\n\\nDefendant’s competency. Granted, FMC Carswell officials have not primarily been\\n\\nconcerned with competency restoration while forcibly medicating Defendant under\\n\\nHarper. They nonetheless possess evidence relevant to determining whether\\n\\nRisperdal will restore Defendant to competency by the very nature of the more\\n\\n“objective and manageable” Harper criteria. See, e.g., Sell, 539 U.S. at 183\\n\\n(observing that the “findings underlying” Harper proceedings “will help to inform”\\n\\nSell proceedings).\\n\\n Our holding today also reinforces the idea that Sell orders are strong medicines\\n\\nthat courts should not lightly dispense. As the Supreme Court itself pointed out, the\\n\\ngovernment should only forcibly medicate defendants to restore their competency for\\n\\ntrial in “rare” and “limited circumstances.” United States v. Valenzuela-Puentes, 479\\n\\n 11\\n\\fF.3d 1220, 1224 (10th Cir. 2007) (quoting Sell, 539 U.S. at 169, 180). Vacating Sell\\n\\norders if and when intervening Harper proceedings occur helps to keep Sell orders in\\n\\ntheir proper place as remedies of last resort.\\n\\n Further, our holding today prevents the government from gaming the system.\\n\\nWhen officials cannot immediately execute a Sell order, they may be tempted to\\n\\nachieve a comparable result in the meantime by using Harper proceedings to forcibly\\n\\nmedicate the defendant with the same or similar medication that the Sell order\\n\\nauthorized. Vacating the underlying Sell order discourages that possibility—however\\n\\nlikely or unlikely it may be—because it prevents the government from keeping that\\n\\norder in its back pocket once the intervening Harper proceedings end.\\n\\n We are not implying that intervening Harper proceedings necessarily or even\\n\\nusually suggest that the government has ill motives.4 To the contrary, we recognize\\n\\nthat mental illnesses wax and wane over time and that the government may often\\n\\nhave strong reasons for seeking forced medication under Harper to alleviate a\\n\\ndefendant’s dangerousness even after the entry of a Sell order. With that said, “the\\n\\nvital constitutional liberty interest at stake” in Sell hearings, United States v. Bradley,\\n\\n417 F.3d 1107, 1114 (10th Cir. 2005)— “avoiding the unwanted administration of\\n\\nantipsychotic drugs,” Sell, 539 U.S. at 178 (quoting Harper, 494 U.S. at 221)—\\n\\nweighs in favor of requiring the government to prove the continuing necessity of a\\n\\nSell order when the intervening Harper proceedings alone may be sufficient. The\\n\\n\\n 4\\n Indeed, we do not suggest the government or FMC Carswell officials acted\\nwith any ill motives in this case.\\n 12\\n\\fcomparatively slight burden on the government in having to seek a new Sell order is\\n\\na small price to pay to ensure that it does not infringe on the defendant’s\\n\\nconstitutional liberty interest in an unnecessary or roundabout manner.\\n\\n As a final note, we observe that “[t]here may be occasions when it is\\n\\nappropriate” to keep a Sell order in place even though the government forcibly\\n\\nmedicates a defendant at a later date under Harper. Morrison, 415 F.3d at 1186.\\n\\n“But it would be good practice to assume otherwise.” Id. Our holding today thus\\n\\nestablishes only a “general rule,” id., that courts should follow in the absence of any\\n\\nextenuating circumstances.\\n\\n IV.\\n\\n FMC Carswell officials forcibly medicated Defendant under Harper after the\\n\\ndistrict court had already authorized forcible medication under Sell. In light of this\\n\\ndevelopment, we vacate the underlying Sell order.\\n\\n We discern no extenuating circumstances suggesting that the Sell order should\\n\\nremain in place. In fact, the circumstances of this case suggest the opposite. As we\\n\\nmentioned previously, because officials have forcibly medicated Defendant with\\n\\nRisperdal for several months under Harper, they can now gauge the effect of that\\n\\ntreatment on Defendant. This will allow the officials to more accurately predict\\n\\nwhether antipsychotic medication could render Defendant competent.\\n\\n This is especially true when viewed in tandem with Dr. Silvas’s testimony at\\n\\nthe Sell hearings. The psychiatrist testified repeatedly that it was important for him\\n\\nto know whether Defendant had previously received antipsychotic medications and,\\n\\n 13\\n\\fif so, whether they were effective. But he also testified repeatedly that he was\\n\\nunfamiliar with those details of Defendant’s medical history. Because the district\\n\\ncourt relied so heavily on Dr. Silvas’s recommendations when granting its initial Sell\\n\\norder, these candid admissions under oath concern us. Dr. Silvas, however, can\\n\\nsupplement his previous testimony in this regard (if, of course, the government\\n\\nchooses to pursue a new Sell order on remand) by reviewing the results of\\n\\nDefendant’s forcible medication with Risperdal under Harper.\\n\\n We thus VACATE the district court’s Sell order and REMAND for further\\n\\nproceedings consistent with this opinion.5,6\\n\\n\\n\\n\\n 5\\n We pass no judgment today on whether the government maintains an\\nimportant interest in forcibly medicating Defendant to render her competent for\\ntrial—i.e., the first of the four Sell factors. With that said, Defendant has now spent\\nover four years in pretrial detention. Thus, if the government chooses on remand to\\ncontinue its quest to forcibly medicate Defendant under Sell, we note that “[t]he\\nclock is ticking.” Valenzuela-Puentes, 479 F.3d at 1227.\\n 6\\n We DENY AS MOOT Defendant’s Motion to Expedite her case. We\\nGRANT Defendant’s Motion to Seal the records attached to her Motion to Expedite.\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389753/\", \"author_raw\": \"CARSON, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"HOLMES"},"judge2":{"kind":"string","value":"BALDOCK"},"judge3":{"kind":"string","value":"CARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612500/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Joan OSBORN, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 23, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-4009\n\n JOAN OSBORN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. No. 2:15-CR-00107-WPJ-1)\n _________________________________\n\nAmy B. Cleary, Assistant Federal Public Defender (Rene L. Valladares, Federal Public\nDefender, and Cristen C. Thayer, Assistant Federal Public Defender, with her on the\nbriefs), Office of the Federal Public Defender, Las Vegas, Nevada, for Defendant-\nAppellant.\n\nSyrena C. Hargrove, Assistant United States Attorney (Bart M. Davis, United States\nAttorney, with her on the brief), United States Attorney’s Office, District of Idaho, Boise,\nIdaho, for Plaintiff-Appellee.\n _________________________________\n\nBefore HOLMES, BALDOCK, and CARSON, Circuit Judges.\n _________________________________\n\nCARSON, Circuit Judge.\n _________________________________\n\n In Sell v. United States, 539 U.S. 166, 169, 180–81 (2003), the Supreme Court\n\noutlined a demanding four-part test that, if satisfied, allows the government to\n\fforcibly medicate a mentally ill but nonviolent criminal defendant “to render that\n\ndefendant competent to stand trial.” That test is as follows:\n\n First, a court must find that important governmental interests are\n at stake. . . .\n ....\n Second, the court must conclude that involuntary medication will\n significantly further those concomitant state interests. . . .\n Third, the court must conclude that involuntary medication is\n necessary to further those interests. . . .\n Fourth, . . . the court must conclude that administration of the drugs\n is medically appropriate, i.e., in the patient’s best medical interest in light\n of his medical condition.\n\nSell, 539 U.S. at 180–81 (emphases in original).\n\n But the Supreme Court cautioned that lower courts “need not consider whether\n\nto allow forced medication for that kind of purpose, if forced medication is warranted\n\nfor a different purpose.” Id. at 181–82 (emphasis in original). Specifically, courts\n\n“ordinarily” must first consider whether forced medication is in the defendant’s\n\nmedical interest because it safeguards him from himself or others, a circumstance\n\nwhich the Supreme Court previously addressed in Washington v. Harper, 494 U.S.\n\n210, 227 (1990). Sell, 539 U.S. at 183. The Supreme Court reasoned that the Harper\n\nstandard is “usually more ‘objective and manageable’ than the inquiry into whether\n\nmedication is permissible to render a defendant competent,” so addressing it first can\n\npotentially eliminate—or, at the very least, better inform—a Sell inquiry. Id. at 182–\n\n83 (quoting Riggins v. Nevada, 504 U.S. 127, 140 (1992) (Kennedy, J., concurring)).\n\n But what happens when changed circumstances necessitate that a defendant be\n\nforcibly medicated under Harper after the district court has already authorized forced\n\n\n 2\n\fmedication under Sell? Does the Sell order stand, or should the court vacate the Sell\n\norder and start again on a clean slate? For the reasons we describe in more detail\n\nbelow, we hold that courts generally should vacate the Sell order and begin anew\n\narmed with the findings of the intervening Harper proceedings.\n\n I.\n\n Defendant Joan Osborn is one of the many individuals worldwide who must\n\nwake up each day and battle a severe and debilitating mental illness. A sixty-one-\n\nyear-old woman, she has been diagnosed at different times with schizophrenia,\n\npossible depression, and possible post-traumatic stress disorder. She has thus spent a\n\nlarge portion of her life—on and off since 1982—in hospitals and mental health\n\nfacilities for treatment. Most of her stays were not voluntary. Courts generally either\n\ncivilly committed her to these institutions or placed her therein during pending\n\ncriminal proceedings.\n\n One of those alleged crimes leads us to where we are today. In mid-October\n\n2014, Defendant allegedly called a United States district court judge and left a\n\nvoicemail conveying a variety of brutal and obscene threats. A grand jury\n\nsubsequently indicted Defendant for threatening to assault and murder a United\n\nStates judge in violation of 18 U.S.C. § 115(a)(1)(B). A forensic psychologist, Dr.\n\nLesli Johnson, later evaluated Defendant, concluded that she suffered from a\n\ndelusional disorder, and opined that her disorder would interfere with her ability to\n\nassist in her own defense. After reviewing Dr. Johnson’s report, the district court\n\nfound Defendant incompetent to stand trial under 18 U.S.C. § 4241(d). It thus\n\n 3\n\fcommitted her to the custody of the Attorney General for hospitalization to gauge\n\nwhether she could be restored to competency.\n\n The district court stayed its order of commitment so Defendant could appeal\n\nits competency determination to this Court. While that appeal was pending, the\n\nUnited States Marshals Service held Defendant at the Salt Lake County Jail in Utah.\n\nAnd while at the Salt Lake County Jail, jail employees forcibly injected Defendant\n\nwith the antipsychotic Prolixin Decanoate (“Prolixin”) against her will from\n\napproximately June 2016 to October 2016 without notifying her attorney. The\n\ndistrict court initially ordered the jail to stop this practice after Defendant’s attorney\n\nbrought an emergency motion to halt it. But after a hearing, the district court allowed\n\nthe jail to continue its forcible medication of Defendant on Harper grounds “after\n\nfinding [that] her mental state had deteriorated so severely to the point where she\n\npresented a significant danger to herself and to other inmates and officers.”\n\n On November 15, 2016—just two weeks after we affirmed the district court’s\n\ndetermination that Defendant was incompetent to stand trial, United States v. Osborn,\n\n664 F. App’x 708 (10th Cir. 2016) (unpublished)—the district court ordered the\n\nUnited States Marshals Service to transfer Defendant from the Salt Lake County Jail\n\nto the Federal Medical Center in Carswell, Texas (“FMC Carswell”). There—and in\n\naccordance with the district court’s previous order—forensic psychologist Dr. Diana\n\nSchoeller Hamilton and staff psychiatrist Dr. Jose R. Silvas, M.D. evaluated\n\nDefendant to determine whether she could be restored to competency.\n\n\n\n 4\n\f Neither Dr. Hamilton nor Dr. Silvas agreed with Dr. Johnson’s earlier\n\nconclusion that Defendant suffered from a delusional disorder. Instead, both\n\nconcluded—Dr. Hamilton first, and Dr. Silvas second after relying in part on Dr.\n\nHamilton’s findings—that Defendant suffered from schizophrenia. For her part, Dr.\n\nHamilton opined that Defendant was unlikely to regain competence to stand trial\n\n“without psychotropic medication.” Dr. Silvas went a step further: he noted that\n\n“[t]reatment with antipsychotic medication for [schizophrenia] is the established\n\ncommunity standard” and that such treatment had a “substantial probability” of\n\nrestoring Defendant’s competence.\n\n Dr. Hamilton’s and Dr. Silvas’s observations resulted in two Sell hearings—\n\nthe first on July 13, 2017, the second on September 27, 2017—to determine whether\n\nthe government could forcibly medicate Defendant to restore her competency.\n\nSeveral months later in early January 2018, and largely based on the testimonies of\n\nDr. Hamilton and Dr. Silvas at the Sell hearings, the district court issued a thoughtful\n\nopinion authorizing the government to forcibly medicate Defendant under Sell.\n\n In its opinion, the district court noted that “the parties do not dispute[] that\n\nDefendant is not currently dangerous to herself or to others.” So although just a little\n\nover a year prior the district court had allowed Salt Lake County Jail officials to\n\nforcibly medicate Defendant under Harper because she was a danger, the district\n\ncourt concluded that “involuntary commitment pursuant to Harper is unwarranted.”\n\nAfter determining that the government had met each of Sell’s stringent requirements,\n\nthe district court thus permitted the government to medicate Defendant with\n\n 5\n\fRisperdal Contra (“Risperdal”), another antipsychotic medication, every two weeks\n\nfor six months. The district court authorized an initial dose of 12.5 milligrams but\n\npermitted a maximum dose of 50 milligrams.\n\n Utilizing the collateral order exception to the final order rule of 28 U.S.C.\n\n§ 1291, Defendant now appeals the district court’s order allowing officials to forcibly\n\nmedicate her under Sell.1 Sell, 539 U.S. at 176–77; see also United States v.\n\nChavez, 734 F.3d 1247, 1249 (10th Cir. 2013). But after we heard oral arguments on\n\nthe merits of that order, the government informed us of a development of which both\n\nit and Defendant’s counsel only recently had learned: officials at FMC Carswell had\n\nsubjected Defendant to another Harper proceeding in July 2018 and have been\n\nforcibly medicating her with antipsychotic medication since that time.2 The officials\n\ninitially injected Defendant with 25-milligram doses of Risperdal—the same\n\nmedication, but double the starting dosage, the district court had authorized in its Sell\n\norder. They later increased Defendant’s dosage to 50 milligrams, which corresponds\n\nto the Sell order’s maximum authorized dosage.\n\n\n\n 1\n We stayed the district court’s Sell order pending resolution of this appeal.\n 2\n FMC Carswell officials conducted this second Harper proceeding because\nthey considered Defendant to be “gravely disabled.” Under our precedent, “a finding\nthat a patient is ‘gravely disabled’ includes a determination that the patient is\n‘dangerous to [herself].’” Jurasek v. Utah State Hosp., 158 F.3d 506, 512 n.2 (10th\nCir. 1998) (emphasis in original) (quoting Harper, 494 U.S. at 1040). The officials\nwere thus permitted to seek a Harper proceeding on that basis. See id.\n Further, when describing the second Harper proceeding throughout the course\nof this opinion, we use all-encompassing terms like “dangerousness” for the sake of\nsimplicity and consistency.\n 6\n\f In light of these changed circumstances, we asked the parties to submit\n\nsupplemental briefing addressing whether Defendant’s appeal is now moot. We also\n\nasked the parties to address whether we should nonetheless vacate the district court’s\n\nSell order even if it is not moot given the “general rule” that Harper proceedings\n\nshould precede Sell proceedings. United States v. Morrison, 415 F.3d 1180, 1186\n\n(10th Cir. 2005).3 We address both questions in turn.\n\n II.\n\n Although officials at FMC Carswell are now forcibly medicating Defendant\n\nwith Risperdal in dosages identical to those authorized under the Sell order, neither\n\nDefendant nor the government believes this case is moot. We agree.\n\n The mootness doctrine ensures that federal courts decide only actual cases or\n\ncontroversies. Brown v. Buhman, 822 F.3d 1151, 1163–64 (10th Cir. 2016); see also\n\nU.S. Const. art. III, § 2 (limiting the judicial power to “Cases” and “Controversies”).\n\nSpecifically, it “provides that although there may be an actual and justiciable\n\ncontroversy at the time the litigation is commenced, once that controversy ceases to\n\nexist, the federal court must dismiss the action for want of jurisdiction.” Jordan v.\n\nSosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quoting 15 James W. Moore & Martin\n\nH. Redish, Moore’s Federal Practice § 101.90, at 101–237 (3d ed. 2010) (italicization\n\n\n 3\n We also asked the government whether it would relinquish its reliance on the\ndistrict court’s Sell order given that, after the most recent Harper proceedings,\nDefendant has already been forcibly medicated with Risperdal. The government\nresponded that it “does not wish to relinquish future reliance on the Sell order”\nbecause “[t]he existence of a valid Sell order will allow for Defendant’s continued\nmedication if and when she no longer satisfies the Harper criteria.”\n 7\n\fomitted)); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\n\n1096, 1109 (10th Cir. 2010) (“We have no subject-matter jurisdiction if a case is\n\nmoot.”). A claim is thus moot “when a plaintiff”—or, for our purposes, a criminal\n\ndefendant—“loses a personal stake in the outcome because of some intervening\n\nevent.” EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir.\n\n2017).\n\n We evaluate mootness by considering “whether a favorable judicial decision\n\nwould have some effect in the real world.” Id. That mandate seemingly sounds the\n\ndeath knell for Defendant’s appeal. For even if we vacate the Sell order, FMC\n\nCarswell officials will still forcibly medicate Defendant with Risperdal under the\n\nmost recent Harper proceedings. So at first glance, vacating the Sell order will not\n\nhave any real-world effect, and Defendant seemingly has no personal stake in the\n\noutcome of her appeal.\n\n But the mootness doctrine contains an exception for “disputes that are capable\n\nof repetition, yet evading review.” Brown, 822 F.3d at 1166 (internal quotation\n\nmarks omitted). That exception “applies where (1) the challenged action is in its\n\nduration too short to be fully litigated prior to cessation or expiration, and (2) there is\n\na reasonable expectation that the same complaining party will be subject to the same\n\naction again.” Id. (quoting Fed. Election Comm’n v. Wis. Right to Life, Inc., 551\n\nU.S. 449, 462 (2007)).\n\n Defendant’s appeal meets these two requirements. First, the Sell order was in\n\nplace for only a few months before officials at FMC Carswell began forcibly\n\n 8\n\fmedicating Defendant with Risperdal under Harper. That short time frame did not\n\ngive Defendant an adequate opportunity to challenge the Sell order before it became\n\nexcessive and redundant.\n\n Second, if we dismiss this case as moot, officials at FMC Carswell may very\n\nwell attempt to medicate Defendant under the Sell order again in the future. Indeed,\n\ntheir right to medicate Defendant with Risperdal under Harper lasts only as long as\n\nshe remains a danger to herself or others. But once she is no longer a threat—a\n\npossibility that her medical history suggests—those officials cannot continue\n\nadministering Risperdal on that basis. Rather, they will need to take an entirely\n\ndifferent avenue if they wish to continue forcibly medicating her. And thus the\n\nparties will end up back at square one: the government will use the Sell order to\n\nforcibly medicate Defendant to render her competent to stand trial; Defendant will\n\nlikely appeal that order; and a panel of this Court will again dismiss that appeal as\n\nmoot if Defendant again becomes dangerous to herself or others and thus needs to be\n\nmedicated under Harper. This pattern could feasibly repeat in perpetuity. It\n\ntherefore “fit[s] comfortably” within the mootness exception for disputes that are\n\ncapable of repetition yet evading review. Wis. Right to Life, 551 U.S. at 462; cf.\n\nUnited States v. Grape, 549 F.3d 591, 597–98 (3d. Cir. 2008) (holding that\n\nintervening Harper proceedings did not moot the defendant’s appeal of a Sell order\n\nbecause the appeal met the requirements of the “voluntary cessation” exception to\n\nmootness).\n\n\n\n 9\n\f Accordingly, Defendant’s appeal is not moot, and we retain subject matter\n\njurisdiction over her appeal.\n\n III.\n\n Turning to the merits, we hold that courts generally should vacate a Sell order\n\nand begin anew when a defendant is forcibly medicated at a later date under Harper.\n\n The primary reason stems from the Supreme Court’s rationale in Sell—\n\nnamely, that Harper proceedings are generally more “objective and manageable” than\n\nSell proceedings and can thus “help to inform expert opinion and judicial\n\ndecisionmaking in respect to a request to administer drugs for trial competence\n\npurposes.” Sell, 539 U.S. at 182–83; see also United States v. White, 431 F.3d 431,\n\n435 (5th Cir. 2005) (“[M]edicating an inmate to alleviate dangerousness will, in most\n\ncases, obviate the need to do so to restore his competency . . . .”). Although the\n\nSupreme Court made this observation when advising courts to engage in Harper\n\nproceedings before entering a Sell order, see Sell, 539 U.S. at 181–83, we believe\n\nthis logic applies with equal force once the court has already entered a Sell order.\n\nAfter all, no matter the posture of the case, providing “an informed opinion about\n\nwhether . . . particular drugs are medically appropriate and necessary to control a\n\npatient’s potentially dangerous behavior (or to avoid serious harm to the patient\n\nhimself)” will generally be “easier” for a medical expert “than to try to balance harms\n\nand benefits related to the more quintessentially legal questions of trial fairness and\n\ncompetence.” Id. at 182. And that inherent objectivity still has great value even\n\nonce a court has already entered a Sell order. For instance, medical experts could\n\n 10\n\fforcibly medicate a defendant under Harper with the same or similar medication that\n\na court had earlier authorized but not yet executed under a Sell order. In that\n\nscenario, those experts would have the benefit of seeing the defendant’s response to\n\nthat medication for purposes of dangerousness and whether that response suggested\n\nthe defendant was likely to be restored to competency once forcible medication began\n\nunder Sell.\n\n Consider, for example, the facts of this case. The stayed Sell order authorized\n\nFMC Carswell officials to forcibly medicate Defendant with Risperdal, which they\n\nlater used to alleviate Defendant’s dangerousness under Harper. The officials,\n\ntherefore, have now had the opportunity to gauge Defendant’s response to Risperdal\n\nfor several months and can thus more accurately opine whether Risperdal may restore\n\nDefendant’s competency. Granted, FMC Carswell officials have not primarily been\n\nconcerned with competency restoration while forcibly medicating Defendant under\n\nHarper. They nonetheless possess evidence relevant to determining whether\n\nRisperdal will restore Defendant to competency by the very nature of the more\n\n“objective and manageable” Harper criteria. See, e.g., Sell, 539 U.S. at 183\n\n(observing that the “findings underlying” Harper proceedings “will help to inform”\n\nSell proceedings).\n\n Our holding today also reinforces the idea that Sell orders are strong medicines\n\nthat courts should not lightly dispense. As the Supreme Court itself pointed out, the\n\ngovernment should only forcibly medicate defendants to restore their competency for\n\ntrial in “rare” and “limited circumstances.” United States v. Valenzuela-Puentes, 479\n\n 11\n\fF.3d 1220, 1224 (10th Cir. 2007) (quoting Sell, 539 U.S. at 169, 180). Vacating Sell\n\norders if and when intervening Harper proceedings occur helps to keep Sell orders in\n\ntheir proper place as remedies of last resort.\n\n Further, our holding today prevents the government from gaming the system.\n\nWhen officials cannot immediately execute a Sell order, they may be tempted to\n\nachieve a comparable result in the meantime by using Harper proceedings to forcibly\n\nmedicate the defendant with the same or similar medication that the Sell order\n\nauthorized. Vacating the underlying Sell order discourages that possibility—however\n\nlikely or unlikely it may be—because it prevents the government from keeping that\n\norder in its back pocket once the intervening Harper proceedings end.\n\n We are not implying that intervening Harper proceedings necessarily or even\n\nusually suggest that the government has ill motives.4 To the contrary, we recognize\n\nthat mental illnesses wax and wane over time and that the government may often\n\nhave strong reasons for seeking forced medication under Harper to alleviate a\n\ndefendant’s dangerousness even after the entry of a Sell order. With that said, “the\n\nvital constitutional liberty interest at stake” in Sell hearings, United States v. Bradley,\n\n417 F.3d 1107, 1114 (10th Cir. 2005)— “avoiding the unwanted administration of\n\nantipsychotic drugs,” Sell, 539 U.S. at 178 (quoting Harper, 494 U.S. at 221)—\n\nweighs in favor of requiring the government to prove the continuing necessity of a\n\nSell order when the intervening Harper proceedings alone may be sufficient. The\n\n\n 4\n Indeed, we do not suggest the government or FMC Carswell officials acted\nwith any ill motives in this case.\n 12\n\fcomparatively slight burden on the government in having to seek a new Sell order is\n\na small price to pay to ensure that it does not infringe on the defendant’s\n\nconstitutional liberty interest in an unnecessary or roundabout manner.\n\n As a final note, we observe that “[t]here may be occasions when it is\n\nappropriate” to keep a Sell order in place even though the government forcibly\n\nmedicates a defendant at a later date under Harper. Morrison, 415 F.3d at 1186.\n\n“But it would be good practice to assume otherwise.” Id. Our holding today thus\n\nestablishes only a “general rule,” id., that courts should follow in the absence of any\n\nextenuating circumstances.\n\n IV.\n\n FMC Carswell officials forcibly medicated Defendant under Harper after the\n\ndistrict court had already authorized forcible medication under Sell. In light of this\n\ndevelopment, we vacate the underlying Sell order.\n\n We discern no extenuating circumstances suggesting that the Sell order should\n\nremain in place. In fact, the circumstances of this case suggest the opposite. As we\n\nmentioned previously, because officials have forcibly medicated Defendant with\n\nRisperdal for several months under Harper, they can now gauge the effect of that\n\ntreatment on Defendant. This will allow the officials to more accurately predict\n\nwhether antipsychotic medication could render Defendant competent.\n\n This is especially true when viewed in tandem with Dr. Silvas’s testimony at\n\nthe Sell hearings. The psychiatrist testified repeatedly that it was important for him\n\nto know whether Defendant had previously received antipsychotic medications and,\n\n 13\n\fif so, whether they were effective. But he also testified repeatedly that he was\n\nunfamiliar with those details of Defendant’s medical history. Because the district\n\ncourt relied so heavily on Dr. Silvas’s recommendations when granting its initial Sell\n\norder, these candid admissions under oath concern us. Dr. Silvas, however, can\n\nsupplement his previous testimony in this regard (if, of course, the government\n\nchooses to pursue a new Sell order on remand) by reviewing the results of\n\nDefendant’s forcible medication with Risperdal under Harper.\n\n We thus VACATE the district court’s Sell order and REMAND for further\n\nproceedings consistent with this opinion.5,6\n\n\n\n\n 5\n We pass no judgment today on whether the government maintains an\nimportant interest in forcibly medicating Defendant to render her competent for\ntrial—i.e., the first of the four Sell factors. With that said, Defendant has now spent\nover four years in pretrial detention. Thus, if the government chooses on remand to\ncontinue its quest to forcibly medicate Defendant under Sell, we note that “[t]he\nclock is ticking.” Valenzuela-Puentes, 479 F.3d at 1227.\n 6\n We DENY AS MOOT Defendant’s Motion to Expedite her case. We\nGRANT Defendant’s Motion to Seal the records attached to her Motion to Expedite.\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Joan OSBORN, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 23, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-4009\\n\\n JOAN OSBORN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. No. 2:15-CR-00107-WPJ-1)\\n _________________________________\\n\\nAmy B. Cleary, Assistant Federal Public Defender (Rene L. Valladares, Federal Public\\nDefender, and Cristen C. Thayer, Assistant Federal Public Defender, with her on the\\nbriefs), Office of the Federal Public Defender, Las Vegas, Nevada, for Defendant-\\nAppellant.\\n\\nSyrena C. Hargrove, Assistant United States Attorney (Bart M. Davis, United States\\nAttorney, with her on the brief), United States Attorney’s Office, District of Idaho, Boise,\\nIdaho, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HOLMES, BALDOCK, and CARSON, Circuit Judges.\\n _________________________________\\n\\nCARSON, Circuit Judge.\\n _________________________________\\n\\n In Sell v. United States, 539 U.S. 166, 169, 180–81 (2003), the Supreme Court\\n\\noutlined a demanding four-part test that, if satisfied, allows the government to\\n\\fforcibly medicate a mentally ill but nonviolent criminal defendant “to render that\\n\\ndefendant competent to stand trial.” That test is as follows:\\n\\n First, a court must find that important governmental interests are\\n at stake. . . .\\n ....\\n Second, the court must conclude that involuntary medication will\\n significantly further those concomitant state interests. . . .\\n Third, the court must conclude that involuntary medication is\\n necessary to further those interests. . . .\\n Fourth, . . . the court must conclude that administration of the drugs\\n is medically appropriate, i.e., in the patient’s best medical interest in light\\n of his medical condition.\\n\\nSell, 539 U.S. at 180–81 (emphases in original).\\n\\n But the Supreme Court cautioned that lower courts “need not consider whether\\n\\nto allow forced medication for that kind of purpose, if forced medication is warranted\\n\\nfor a different purpose.” Id. at 181–82 (emphasis in original). Specifically, courts\\n\\n“ordinarily” must first consider whether forced medication is in the defendant’s\\n\\nmedical interest because it safeguards him from himself or others, a circumstance\\n\\nwhich the Supreme Court previously addressed in Washington v. Harper, 494 U.S.\\n\\n210, 227 (1990). Sell, 539 U.S. at 183. The Supreme Court reasoned that the Harper\\n\\nstandard is “usually more ‘objective and manageable’ than the inquiry into whether\\n\\nmedication is permissible to render a defendant competent,” so addressing it first can\\n\\npotentially eliminate—or, at the very least, better inform—a Sell inquiry. Id. at 182–\\n\\n83 (quoting Riggins v. Nevada, 504 U.S. 127, 140 (1992) (Kennedy, J., concurring)).\\n\\n But what happens when changed circumstances necessitate that a defendant be\\n\\nforcibly medicated under Harper after the district court has already authorized forced\\n\\n\\n 2\\n\\fmedication under Sell? Does the Sell order stand, or should the court vacate the Sell\\n\\norder and start again on a clean slate? For the reasons we describe in more detail\\n\\nbelow, we hold that courts generally should vacate the Sell order and begin anew\\n\\narmed with the findings of the intervening Harper proceedings.\\n\\n I.\\n\\n Defendant Joan Osborn is one of the many individuals worldwide who must\\n\\nwake up each day and battle a severe and debilitating mental illness. A sixty-one-\\n\\nyear-old woman, she has been diagnosed at different times with schizophrenia,\\n\\npossible depression, and possible post-traumatic stress disorder. She has thus spent a\\n\\nlarge portion of her life—on and off since 1982—in hospitals and mental health\\n\\nfacilities for treatment. Most of her stays were not voluntary. Courts generally either\\n\\ncivilly committed her to these institutions or placed her therein during pending\\n\\ncriminal proceedings.\\n\\n One of those alleged crimes leads us to where we are today. In mid-October\\n\\n2014, Defendant allegedly called a United States district court judge and left a\\n\\nvoicemail conveying a variety of brutal and obscene threats. A grand jury\\n\\nsubsequently indicted Defendant for threatening to assault and murder a United\\n\\nStates judge in violation of 18 U.S.C. § 115(a)(1)(B). A forensic psychologist, Dr.\\n\\nLesli Johnson, later evaluated Defendant, concluded that she suffered from a\\n\\ndelusional disorder, and opined that her disorder would interfere with her ability to\\n\\nassist in her own defense. After reviewing Dr. Johnson’s report, the district court\\n\\nfound Defendant incompetent to stand trial under 18 U.S.C. § 4241(d). It thus\\n\\n 3\\n\\fcommitted her to the custody of the Attorney General for hospitalization to gauge\\n\\nwhether she could be restored to competency.\\n\\n The district court stayed its order of commitment so Defendant could appeal\\n\\nits competency determination to this Court. While that appeal was pending, the\\n\\nUnited States Marshals Service held Defendant at the Salt Lake County Jail in Utah.\\n\\nAnd while at the Salt Lake County Jail, jail employees forcibly injected Defendant\\n\\nwith the antipsychotic Prolixin Decanoate (“Prolixin”) against her will from\\n\\napproximately June 2016 to October 2016 without notifying her attorney. The\\n\\ndistrict court initially ordered the jail to stop this practice after Defendant’s attorney\\n\\nbrought an emergency motion to halt it. But after a hearing, the district court allowed\\n\\nthe jail to continue its forcible medication of Defendant on Harper grounds “after\\n\\nfinding [that] her mental state had deteriorated so severely to the point where she\\n\\npresented a significant danger to herself and to other inmates and officers.”\\n\\n On November 15, 2016—just two weeks after we affirmed the district court’s\\n\\ndetermination that Defendant was incompetent to stand trial, United States v. Osborn,\\n\\n664 F. App’x 708 (10th Cir. 2016) (unpublished)—the district court ordered the\\n\\nUnited States Marshals Service to transfer Defendant from the Salt Lake County Jail\\n\\nto the Federal Medical Center in Carswell, Texas (“FMC Carswell”). There—and in\\n\\naccordance with the district court’s previous order—forensic psychologist Dr. Diana\\n\\nSchoeller Hamilton and staff psychiatrist Dr. Jose R. Silvas, M.D. evaluated\\n\\nDefendant to determine whether she could be restored to competency.\\n\\n\\n\\n 4\\n\\f Neither Dr. Hamilton nor Dr. Silvas agreed with Dr. Johnson’s earlier\\n\\nconclusion that Defendant suffered from a delusional disorder. Instead, both\\n\\nconcluded—Dr. Hamilton first, and Dr. Silvas second after relying in part on Dr.\\n\\nHamilton’s findings—that Defendant suffered from schizophrenia. For her part, Dr.\\n\\nHamilton opined that Defendant was unlikely to regain competence to stand trial\\n\\n“without psychotropic medication.” Dr. Silvas went a step further: he noted that\\n\\n“[t]reatment with antipsychotic medication for [schizophrenia] is the established\\n\\ncommunity standard” and that such treatment had a “substantial probability” of\\n\\nrestoring Defendant’s competence.\\n\\n Dr. Hamilton’s and Dr. Silvas’s observations resulted in two Sell hearings—\\n\\nthe first on July 13, 2017, the second on September 27, 2017—to determine whether\\n\\nthe government could forcibly medicate Defendant to restore her competency.\\n\\nSeveral months later in early January 2018, and largely based on the testimonies of\\n\\nDr. Hamilton and Dr. Silvas at the Sell hearings, the district court issued a thoughtful\\n\\nopinion authorizing the government to forcibly medicate Defendant under Sell.\\n\\n In its opinion, the district court noted that “the parties do not dispute[] that\\n\\nDefendant is not currently dangerous to herself or to others.” So although just a little\\n\\nover a year prior the district court had allowed Salt Lake County Jail officials to\\n\\nforcibly medicate Defendant under Harper because she was a danger, the district\\n\\ncourt concluded that “involuntary commitment pursuant to Harper is unwarranted.”\\n\\nAfter determining that the government had met each of Sell’s stringent requirements,\\n\\nthe district court thus permitted the government to medicate Defendant with\\n\\n 5\\n\\fRisperdal Contra (“Risperdal”), another antipsychotic medication, every two weeks\\n\\nfor six months. The district court authorized an initial dose of 12.5 milligrams but\\n\\npermitted a maximum dose of 50 milligrams.\\n\\n Utilizing the collateral order exception to the final order rule of 28 U.S.C.\\n\\n§ 1291, Defendant now appeals the district court’s order allowing officials to forcibly\\n\\nmedicate her under Sell.1 Sell, 539 U.S. at 176–77; see also United States v.\\n\\nChavez, 734 F.3d 1247, 1249 (10th Cir. 2013). But after we heard oral arguments on\\n\\nthe merits of that order, the government informed us of a development of which both\\n\\nit and Defendant’s counsel only recently had learned: officials at FMC Carswell had\\n\\nsubjected Defendant to another Harper proceeding in July 2018 and have been\\n\\nforcibly medicating her with antipsychotic medication since that time.2 The officials\\n\\ninitially injected Defendant with 25-milligram doses of Risperdal—the same\\n\\nmedication, but double the starting dosage, the district court had authorized in its Sell\\n\\norder. They later increased Defendant’s dosage to 50 milligrams, which corresponds\\n\\nto the Sell order’s maximum authorized dosage.\\n\\n\\n\\n 1\\n We stayed the district court’s Sell order pending resolution of this appeal.\\n 2\\n FMC Carswell officials conducted this second Harper proceeding because\\nthey considered Defendant to be “gravely disabled.” Under our precedent, “a finding\\nthat a patient is ‘gravely disabled’ includes a determination that the patient is\\n‘dangerous to [herself].’” Jurasek v. Utah State Hosp., 158 F.3d 506, 512 n.2 (10th\\nCir. 1998) (emphasis in original) (quoting Harper, 494 U.S. at 1040). The officials\\nwere thus permitted to seek a Harper proceeding on that basis. See id.\\n Further, when describing the second Harper proceeding throughout the course\\nof this opinion, we use all-encompassing terms like “dangerousness” for the sake of\\nsimplicity and consistency.\\n 6\\n\\f In light of these changed circumstances, we asked the parties to submit\\n\\nsupplemental briefing addressing whether Defendant’s appeal is now moot. We also\\n\\nasked the parties to address whether we should nonetheless vacate the district court’s\\n\\nSell order even if it is not moot given the “general rule” that Harper proceedings\\n\\nshould precede Sell proceedings. United States v. Morrison, 415 F.3d 1180, 1186\\n\\n(10th Cir. 2005).3 We address both questions in turn.\\n\\n II.\\n\\n Although officials at FMC Carswell are now forcibly medicating Defendant\\n\\nwith Risperdal in dosages identical to those authorized under the Sell order, neither\\n\\nDefendant nor the government believes this case is moot. We agree.\\n\\n The mootness doctrine ensures that federal courts decide only actual cases or\\n\\ncontroversies. Brown v. Buhman, 822 F.3d 1151, 1163–64 (10th Cir. 2016); see also\\n\\nU.S. Const. art. III, § 2 (limiting the judicial power to “Cases” and “Controversies”).\\n\\nSpecifically, it “provides that although there may be an actual and justiciable\\n\\ncontroversy at the time the litigation is commenced, once that controversy ceases to\\n\\nexist, the federal court must dismiss the action for want of jurisdiction.” Jordan v.\\n\\nSosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quoting 15 James W. Moore & Martin\\n\\nH. Redish, Moore’s Federal Practice § 101.90, at 101–237 (3d ed. 2010) (italicization\\n\\n\\n 3\\n We also asked the government whether it would relinquish its reliance on the\\ndistrict court’s Sell order given that, after the most recent Harper proceedings,\\nDefendant has already been forcibly medicated with Risperdal. The government\\nresponded that it “does not wish to relinquish future reliance on the Sell order”\\nbecause “[t]he existence of a valid Sell order will allow for Defendant’s continued\\nmedication if and when she no longer satisfies the Harper criteria.”\\n 7\\n\\fomitted)); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d\\n\\n1096, 1109 (10th Cir. 2010) (“We have no subject-matter jurisdiction if a case is\\n\\nmoot.”). A claim is thus moot “when a plaintiff”—or, for our purposes, a criminal\\n\\ndefendant—“loses a personal stake in the outcome because of some intervening\\n\\nevent.” EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir.\\n\\n2017).\\n\\n We evaluate mootness by considering “whether a favorable judicial decision\\n\\nwould have some effect in the real world.” Id. That mandate seemingly sounds the\\n\\ndeath knell for Defendant’s appeal. For even if we vacate the Sell order, FMC\\n\\nCarswell officials will still forcibly medicate Defendant with Risperdal under the\\n\\nmost recent Harper proceedings. So at first glance, vacating the Sell order will not\\n\\nhave any real-world effect, and Defendant seemingly has no personal stake in the\\n\\noutcome of her appeal.\\n\\n But the mootness doctrine contains an exception for “disputes that are capable\\n\\nof repetition, yet evading review.” Brown, 822 F.3d at 1166 (internal quotation\\n\\nmarks omitted). That exception “applies where (1) the challenged action is in its\\n\\nduration too short to be fully litigated prior to cessation or expiration, and (2) there is\\n\\na reasonable expectation that the same complaining party will be subject to the same\\n\\naction again.” Id. (quoting Fed. Election Comm’n v. Wis. Right to Life, Inc., 551\\n\\nU.S. 449, 462 (2007)).\\n\\n Defendant’s appeal meets these two requirements. First, the Sell order was in\\n\\nplace for only a few months before officials at FMC Carswell began forcibly\\n\\n 8\\n\\fmedicating Defendant with Risperdal under Harper. That short time frame did not\\n\\ngive Defendant an adequate opportunity to challenge the Sell order before it became\\n\\nexcessive and redundant.\\n\\n Second, if we dismiss this case as moot, officials at FMC Carswell may very\\n\\nwell attempt to medicate Defendant under the Sell order again in the future. Indeed,\\n\\ntheir right to medicate Defendant with Risperdal under Harper lasts only as long as\\n\\nshe remains a danger to herself or others. But once she is no longer a threat—a\\n\\npossibility that her medical history suggests—those officials cannot continue\\n\\nadministering Risperdal on that basis. Rather, they will need to take an entirely\\n\\ndifferent avenue if they wish to continue forcibly medicating her. And thus the\\n\\nparties will end up back at square one: the government will use the Sell order to\\n\\nforcibly medicate Defendant to render her competent to stand trial; Defendant will\\n\\nlikely appeal that order; and a panel of this Court will again dismiss that appeal as\\n\\nmoot if Defendant again becomes dangerous to herself or others and thus needs to be\\n\\nmedicated under Harper. This pattern could feasibly repeat in perpetuity. It\\n\\ntherefore “fit[s] comfortably” within the mootness exception for disputes that are\\n\\ncapable of repetition yet evading review. Wis. Right to Life, 551 U.S. at 462; cf.\\n\\nUnited States v. Grape, 549 F.3d 591, 597–98 (3d. Cir. 2008) (holding that\\n\\nintervening Harper proceedings did not moot the defendant’s appeal of a Sell order\\n\\nbecause the appeal met the requirements of the “voluntary cessation” exception to\\n\\nmootness).\\n\\n\\n\\n 9\\n\\f Accordingly, Defendant’s appeal is not moot, and we retain subject matter\\n\\njurisdiction over her appeal.\\n\\n III.\\n\\n Turning to the merits, we hold that courts generally should vacate a Sell order\\n\\nand begin anew when a defendant is forcibly medicated at a later date under Harper.\\n\\n The primary reason stems from the Supreme Court’s rationale in Sell—\\n\\nnamely, that Harper proceedings are generally more “objective and manageable” than\\n\\nSell proceedings and can thus “help to inform expert opinion and judicial\\n\\ndecisionmaking in respect to a request to administer drugs for trial competence\\n\\npurposes.” Sell, 539 U.S. at 182–83; see also United States v. White, 431 F.3d 431,\\n\\n435 (5th Cir. 2005) (“[M]edicating an inmate to alleviate dangerousness will, in most\\n\\ncases, obviate the need to do so to restore his competency . . . .”). Although the\\n\\nSupreme Court made this observation when advising courts to engage in Harper\\n\\nproceedings before entering a Sell order, see Sell, 539 U.S. at 181–83, we believe\\n\\nthis logic applies with equal force once the court has already entered a Sell order.\\n\\nAfter all, no matter the posture of the case, providing “an informed opinion about\\n\\nwhether . . . particular drugs are medically appropriate and necessary to control a\\n\\npatient’s potentially dangerous behavior (or to avoid serious harm to the patient\\n\\nhimself)” will generally be “easier” for a medical expert “than to try to balance harms\\n\\nand benefits related to the more quintessentially legal questions of trial fairness and\\n\\ncompetence.” Id. at 182. And that inherent objectivity still has great value even\\n\\nonce a court has already entered a Sell order. For instance, medical experts could\\n\\n 10\\n\\fforcibly medicate a defendant under Harper with the same or similar medication that\\n\\na court had earlier authorized but not yet executed under a Sell order. In that\\n\\nscenario, those experts would have the benefit of seeing the defendant’s response to\\n\\nthat medication for purposes of dangerousness and whether that response suggested\\n\\nthe defendant was likely to be restored to competency once forcible medication began\\n\\nunder Sell.\\n\\n Consider, for example, the facts of this case. The stayed Sell order authorized\\n\\nFMC Carswell officials to forcibly medicate Defendant with Risperdal, which they\\n\\nlater used to alleviate Defendant’s dangerousness under Harper. The officials,\\n\\ntherefore, have now had the opportunity to gauge Defendant’s response to Risperdal\\n\\nfor several months and can thus more accurately opine whether Risperdal may restore\\n\\nDefendant’s competency. Granted, FMC Carswell officials have not primarily been\\n\\nconcerned with competency restoration while forcibly medicating Defendant under\\n\\nHarper. They nonetheless possess evidence relevant to determining whether\\n\\nRisperdal will restore Defendant to competency by the very nature of the more\\n\\n“objective and manageable” Harper criteria. See, e.g., Sell, 539 U.S. at 183\\n\\n(observing that the “findings underlying” Harper proceedings “will help to inform”\\n\\nSell proceedings).\\n\\n Our holding today also reinforces the idea that Sell orders are strong medicines\\n\\nthat courts should not lightly dispense. As the Supreme Court itself pointed out, the\\n\\ngovernment should only forcibly medicate defendants to restore their competency for\\n\\ntrial in “rare” and “limited circumstances.” United States v. Valenzuela-Puentes, 479\\n\\n 11\\n\\fF.3d 1220, 1224 (10th Cir. 2007) (quoting Sell, 539 U.S. at 169, 180). Vacating Sell\\n\\norders if and when intervening Harper proceedings occur helps to keep Sell orders in\\n\\ntheir proper place as remedies of last resort.\\n\\n Further, our holding today prevents the government from gaming the system.\\n\\nWhen officials cannot immediately execute a Sell order, they may be tempted to\\n\\nachieve a comparable result in the meantime by using Harper proceedings to forcibly\\n\\nmedicate the defendant with the same or similar medication that the Sell order\\n\\nauthorized. Vacating the underlying Sell order discourages that possibility—however\\n\\nlikely or unlikely it may be—because it prevents the government from keeping that\\n\\norder in its back pocket once the intervening Harper proceedings end.\\n\\n We are not implying that intervening Harper proceedings necessarily or even\\n\\nusually suggest that the government has ill motives.4 To the contrary, we recognize\\n\\nthat mental illnesses wax and wane over time and that the government may often\\n\\nhave strong reasons for seeking forced medication under Harper to alleviate a\\n\\ndefendant’s dangerousness even after the entry of a Sell order. With that said, “the\\n\\nvital constitutional liberty interest at stake” in Sell hearings, United States v. Bradley,\\n\\n417 F.3d 1107, 1114 (10th Cir. 2005)— “avoiding the unwanted administration of\\n\\nantipsychotic drugs,” Sell, 539 U.S. at 178 (quoting Harper, 494 U.S. at 221)—\\n\\nweighs in favor of requiring the government to prove the continuing necessity of a\\n\\nSell order when the intervening Harper proceedings alone may be sufficient. The\\n\\n\\n 4\\n Indeed, we do not suggest the government or FMC Carswell officials acted\\nwith any ill motives in this case.\\n 12\\n\\fcomparatively slight burden on the government in having to seek a new Sell order is\\n\\na small price to pay to ensure that it does not infringe on the defendant’s\\n\\nconstitutional liberty interest in an unnecessary or roundabout manner.\\n\\n As a final note, we observe that “[t]here may be occasions when it is\\n\\nappropriate” to keep a Sell order in place even though the government forcibly\\n\\nmedicates a defendant at a later date under Harper. Morrison, 415 F.3d at 1186.\\n\\n“But it would be good practice to assume otherwise.” Id. Our holding today thus\\n\\nestablishes only a “general rule,” id., that courts should follow in the absence of any\\n\\nextenuating circumstances.\\n\\n IV.\\n\\n FMC Carswell officials forcibly medicated Defendant under Harper after the\\n\\ndistrict court had already authorized forcible medication under Sell. In light of this\\n\\ndevelopment, we vacate the underlying Sell order.\\n\\n We discern no extenuating circumstances suggesting that the Sell order should\\n\\nremain in place. In fact, the circumstances of this case suggest the opposite. As we\\n\\nmentioned previously, because officials have forcibly medicated Defendant with\\n\\nRisperdal for several months under Harper, they can now gauge the effect of that\\n\\ntreatment on Defendant. This will allow the officials to more accurately predict\\n\\nwhether antipsychotic medication could render Defendant competent.\\n\\n This is especially true when viewed in tandem with Dr. Silvas’s testimony at\\n\\nthe Sell hearings. The psychiatrist testified repeatedly that it was important for him\\n\\nto know whether Defendant had previously received antipsychotic medications and,\\n\\n 13\\n\\fif so, whether they were effective. But he also testified repeatedly that he was\\n\\nunfamiliar with those details of Defendant’s medical history. Because the district\\n\\ncourt relied so heavily on Dr. Silvas’s recommendations when granting its initial Sell\\n\\norder, these candid admissions under oath concern us. Dr. Silvas, however, can\\n\\nsupplement his previous testimony in this regard (if, of course, the government\\n\\nchooses to pursue a new Sell order on remand) by reviewing the results of\\n\\nDefendant’s forcible medication with Risperdal under Harper.\\n\\n We thus VACATE the district court’s Sell order and REMAND for further\\n\\nproceedings consistent with this opinion.5,6\\n\\n\\n\\n\\n 5\\n We pass no judgment today on whether the government maintains an\\nimportant interest in forcibly medicating Defendant to render her competent for\\ntrial—i.e., the first of the four Sell factors. With that said, Defendant has now spent\\nover four years in pretrial detention. Thus, if the government chooses on remand to\\ncontinue its quest to forcibly medicate Defendant under Sell, we note that “[t]he\\nclock is ticking.” Valenzuela-Puentes, 479 F.3d at 1227.\\n 6\\n We DENY AS MOOT Defendant’s Motion to Expedite her case. We\\nGRANT Defendant’s Motion to Seal the records attached to her Motion to Expedite.\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1859,"cells":{"id":{"kind":"number","value":4612503,"string":"4,612,503"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Aaron Eugene COPELAND, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Copeland"},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"17-5125"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Matheson, Phillips, Eid\", \"parties\": \"\", \"opinions\": [{\"author\": \"MATHESON, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n PUBLISH April 23, 2019\\n\\n UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker\\n Clerk of Court\\n\\n FOR THE TENTH CIRCUIT\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-5125\\n\\n AARON EUGENE COPELAND,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)\\n _________________________________\\n\\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\\nPublic Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa,\\nOklahoma, for Defendant - Appellant.\\n\\nLeena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,\\nNorthern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -\\nAppellee.\\n _________________________________\\n\\nBefore MATHESON, PHILLIPS, and EID, Circuit Judges.\\n _________________________________\\n\\nMATHESON, Circuit Judge.\\n _________________________________\\n\\n In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of\\n\\na firearm. The district court imposed an enhanced sentence of 15 years in prison\\n\\nunder the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his\\n\\ftwo prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After\\n\\nhe brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we\\n\\nauthorized Mr. Copeland to bring a successive § 2255 motion to assert that his\\n\\nsentence is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015), which\\n\\nheld that the ACCA’s definition of violent felony in its residual clause is\\n\\nunconstitutionally vague.\\n\\n Mr. Copeland’s § 2255 motion claimed the sentencing court relied on the\\n\\nunconstitutional residual clause to find that his prior burglary was a violent felony\\n\\nand therefore the court should not have enhanced his sentence. The district court\\n\\ndenied the motion, finding that it did not sentence Mr. Copeland under the residual\\n\\nclause and that his motion accordingly could not rely on Johnson. Exercising\\n\\njurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.\\n\\n I. BACKGROUND\\n\\n To help understand the facts and issues that Mr. Copeland’s § 2255 motion\\n\\npresents, we sketch the legal landscape surrounding this case, including discussion of\\n\\nthe ACCA’s definitions of “violent felony,” the Supreme Court’s decision in\\n\\nJohnson, and the requirements for bringing second and successive § 2255 motions.\\n\\nWe then describe the district court proceedings in 2008 leading to Mr. Copeland’s\\n\\nsentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We\\n\\npresent additional legal background later in the opinion.\\n\\n\\n\\n\\n 2\\n\\f A. Legal Landscape\\n\\n The ACCA\\n\\n It is a federal crime “for any person . . . who has been convicted in any court\\n\\nof[] a crime punishable by imprisonment for a term exceeding one year . . . to . . .\\n\\npossess . . . any firearm or ammunition.” 18 U.S.C. § 922(g). A violation of this\\n\\nfelon-in-possession statute usually carries a maximum penalty of 10 years in prison.\\n\\n18 U.S.C. § 924(a)(2). But under the ACCA, a person who “has three previous\\n\\nconvictions . . . for a violent felony or serious drug offense, or both” is subject to a\\n\\nminimum sentence of 15 years. 18 U.S.C. § 924(e).\\n\\n This appeal concerns the meaning of “violent felony.” The ACCA defines a\\n\\n“violent felony” as “any crime punishable by imprisonment for a term exceeding one\\n\\nyear” that also:\\n\\n (1) “has as an element the use, attempted use, or threatened use of physical\\n force against the person of another,” id. § 924(e)(2)(B)(i)—the elements\\n clause;\\n\\n (2) “is burglary, arson, or extortion, [or] involves the use of explosives,” id.\\n § 924(e)(2)(B)(ii)—the enumerated clause; or\\n\\n (3) “otherwise involves conduct that presents a serious potential risk of\\n physical injury to another,” id. § 924(e)(2)(B)(ii)—the residual clause.\\n\\nOnly the enumerated and residual clauses are pertinent to this appeal. Note that\\n\\n“burglary” is listed as one of the offenses in the enumerated clause.\\n\\n Johnson v. United States\\n\\n In 2015, the Supreme Court held in Johnson that the ACCA’s residual clause\\n\\nis “unconstitutionally vague,” 135 S. Ct. at 2557, leaving only the elements and\\n\\n 3\\n\\fenumerated clauses to define a violent felony. In 2016, the Court held in Welch v.\\n\\nUnited States, 136 S. Ct. 1257 (2016), that Johnson “announced a substantive rule\\n\\nthat has retroactive effect in cases on collateral review.” Id. at 1268.\\n\\n Section 2255 and Second or Successive Motions\\n\\n A federal prisoner “claiming the right to be released upon the ground that the\\n\\nsentence was imposed in violation of the Constitution” may move the district court\\n\\nthat sentenced him “to vacate, set aside[,] or correct the sentence.” 28 U.S.C.\\n\\n§ 2255(a). “Before a federal prisoner may file a second or successive motion under\\n\\n§ 2255, the prisoner must first obtain an order from the appropriate court of appeals\\n\\nauthorizing the district court to consider the motion.” In re Cline, 531 F.3d 1249,\\n\\n1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).\\n\\n A circuit court may authorize a second or successive § 2255 motion in two\\n\\ncircumstances. This appeal turns on one of them—whether the motion “contain[s]\\n\\n. . . a new rule of constitutional law, made retroactive to cases on collateral review by\\n\\nthe Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).1 “A\\n\\nmotion ‘contains’ a new rule of constitutional law, as required by § 2255(h), if the\\n\\nclaim for which authorization is sought ‘relies on’ the new rule.” United States v.\\n\\nMurphy, 887 F.3d 1064, 1067 (10th Cir. 2018).\\n\\n\\n\\n\\n 1\\n The other circumstance is when “newly discovered evidence that, if proven\\nand viewed in light of the evidence as a whole, would be sufficient to establish by\\nclear and convincing evidence that no reasonable factfinder would have found the\\nmovant guilty of the offense.” 28 U.S.C. § 2255(h)(1).\\n 4\\n\\f A movant attempting to file a second or successive § 2255 motion must pass\\n\\ntwo gates. The first is obtaining authorization from the circuit court to file the\\n\\nmotion, which requires only “a prima facie showing to the court of appeals that the\\n\\nmotion satisfies the requirements of § 2255(h), defined as a sufficient showing of\\n\\npossible merit to warrant a fuller exploration by the district court.” Id. at 1068\\n\\n(quotations omitted). The second requires “a determination by the district court that\\n\\nthe petition does, in fact, satisfy those requirements.” Id. This appeal concerns the\\n\\nsecond gate.\\n\\n B. Mr. Copeland’s Guilty Plea and Sentencing\\n\\n In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm,\\n\\nin violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the\\n\\nproceedings leading to his plea and sentence.\\n\\n Change of Plea Hearing\\n\\n At Mr. Copeland’s change of plea hearing, the district court and the parties\\n\\ndiscussed whether Mr. Copeland had at least three prior offenses that qualified him\\n\\nfor an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two\\n\\npredicate serious drug offenses. See ROA, Vol. II at 13-15.\\n\\n The discussion turned to whether Mr. Copeland’s 1981 conviction in\\n\\nCalifornia for second-degree burglary was a § 924(e) violent felony. Mr. Copeland’s\\n\\ncounsel said:\\n\\n I’ve pulled the statutes there in California, and I was not able\\n to get the actual judgment and sentence. You have to do that\\n in writing, and it takes a lot of—a long time, more than I had.\\n 5\\n\\f But out of an abundance of caution, I certainly counseled Mr.\\n Copeland as to my concerns, and I hope I’m wrong.\\n\\nId. at 14. The district court then explained to Mr. Copeland,\\n\\n [W]hat we’re talking about is whether . . . second-degree\\n burglary . . . meets the definition of a violent felony under the\\n Armed Career Criminal Act. We won’t know until the\\n probation officer and your attorney get all the records from\\n California, compare your conviction to the statute, compare it\\n to the [U.S. Sentencing Guidelines (“Guidelines”)] to\\n determine whether you fall under the act or not.\\n\\nId. at 15.2\\n\\n The court asked the probation officer whether he had “any better information than\\n\\n[the court or the parties] on whether or not [the § 924(e) enhancement] applie[d].” Id. at\\n\\n16. The probation officer responded that he did not, but he added that, according to an\\n\\napplication note in U.S.S.G. § 4B1.4, “the definition of a crime of violence under the\\n\\n[G]uidelines is different than the one in the statute. And the one in the [G]uidelines\\n\\nlimits burglaries to residential, but the one in the statute does not limit it.” Id. at 16. The\\n\\ncourt asked, “So when we’re doing Armed Career Criminal Act, we’re going under the\\n\\nstatutory definition?” The probation officer affirmed the court’s understanding. Id.3\\n\\n The district court advised Mr. Copeland again that the “burglary charge” was a\\n\\n“sentencing factor[] that c[ould] enhance [his] sentence.” Id. at 28. Then Mr. Copeland\\n\\n\\n\\n 2\\n It is not clear why the court referred initially to the Guidelines.\\n 3\\n As explained below, in 2008, the enumerated clause in the Guidelines\\ndiffered from the one in § 924(e)(2)(B)(ii), but the residual clause in the Guidelines\\nwas identical to the one in § 924(e)(2)(B)(ii). See infra note 10. This suggests that\\nthe court’s colloquy with the probation officer concerned the enumerated clause.\\n 6\\n\\fpled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the\\n\\nproceedings by advising Mr. Copeland that the probation officer would prepare a\\n\\nPresentence Investigation Report (“PSR”), “[a]nd if there are any issues, particularly with\\n\\nregard to the Armed Career Criminal Act, we’ll have a sentencing hearing if that’s an\\n\\nissue.” Id. at 37-38.\\n\\n Presentence Investigation Report\\n\\n The PSR reported that Mr. Copeland had been convicted in 1981 of “Burglary\\n\\nSecond Degree” in Oakland Superior Court and sentenced to one year in jail and\\n\\nthree years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other\\n\\nmen “used a water meter cover to break a window and enter” a California shoe store.\\n\\nId. “The trio stole 104 pairs of shoes, valued at a total of $2,600. They were\\n\\napprehended due to a witness observing them run out of the store carrying large\\n\\nplastic bags and notifying police.” Id. The PSR did not reveal the source of this\\n\\ninformation. See id.\\n\\n The PSR advised that Mr. Copeland was “an armed career criminal under the\\n\\nprovisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree”\\n\\nand the two serious drug offenses. Id. at 6. It did not cite to which part of\\n\\n§ 924(e)(2)(B)(ii)—the enumerated clause or the now-unconstitutional residual\\n\\nclause—it relied on to categorize Mr. Copeland’s California second-degree burglary\\n\\nconviction as a violent felony. See id.\\n\\n\\n\\n\\n 7\\n\\f Sentencing Hearing\\n\\n At the sentencing hearing, Mr. Copeland, through counsel, stated he had no\\n\\nobjection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR’s\\n\\nfindings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison—\\n\\nthe statutory minimum under § 924(e)—and five years of supervised release. Id. at\\n\\n50. The court did not address its basis for treating California second-degree burglary\\n\\nas a violent felony.\\n\\n C. Post-Conviction § 2255 Proceedings\\n\\n Mr. Copeland did not appeal4 but filed several unsuccessful motions to\\n\\nchallenge his sentence under 28 U.S.C. § 2255.5 After Welch held that Johnson\\n\\napplies retroactively on collateral review, we granted Mr. Copeland’s request to file a\\n\\nsuccessive § 2255 motion to challenge his sentence on the ground that it was based\\n\\non the ACCA’s unconstitutional residual clause, in violation of Johnson. In re\\n\\nCopeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr.\\n\\n\\n 4\\n Mr. Copeland’s failure to file a direct appeal raising a residual clause\\nvagueness claim does not foreclose his § 2255 motion. The Government has not\\nobjected on this ground. And even assuming the procedural-default rule applies, a\\n“Johnson claim was not reasonably available during the time when [Mr. Copeland]\\ncould have filed a direct appeal, and this is sufficient to establish cause. Moreover, if\\n[Mr. Copeland] is correct regarding his Johnson claim . . . . [he] has demonstrated\\nactual prejudice.” United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018)\\n(quotations omitted).\\n 5\\n See In re Copeland, No. 15-5097 (10th Cir. Nov. 5, 2015); In re Copeland,\\nNo. 14-5035 (10th Cir. April 17, 2014); United States v. Copeland, 539 F. App’x\\n918, 919 (10th Cir. 2013); United States v. Copeland, 509 F. App’x 760, 761 (10th\\nCir. 2013); United States v. Copeland, No. 13-CV-0479-CVE-FHM, 2013 WL\\n4022062, at *1 (N.D. Okla. Aug. 6, 2013).\\n 8\\n\\fCopeland moved the district court under § 2255 to vacate, set aside, or correct his\\n\\nsentence. ROA, Vol. I at 32.\\n\\n The district court denied his motion. United States v. Copeland, No. 08-CR-\\n\\n0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found “there is\\n\\nno possibility that [Mr. Copeland’s] burglary conviction was treated as a violent\\n\\nfelony under the residual clause.” Id. at *3. The court pointed to the discussion at\\n\\nthe change of plea hearing: “The [c]ourt advised [Mr. Copeland] that it would not\\n\\nknow if he qualified for sentencing under the ACCA until the probation office and\\n\\nhis attorney gathered the necessary records to determine if his conviction qualified as\\n\\na generic burglary.”6 Id. (emphasis added). The court concluded: “[T]he evidence is\\n\\nclear that [Mr. Copeland’s] conviction for second[-]degree burglary was treated as a\\n\\nviolent felony under the enumerated offense clause of the ACCA.” Id.\\n\\n Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under\\n\\nthe enumerated clause, it concluded that “Johnson has no application in this case”\\n\\nand that any other arguments Mr. Copeland urged were beyond the scope of our\\n\\nauthorization of his successive § 2255 motion. Id. at *4.\\n\\n The district court entered judgment against Mr. Copeland, and Mr. Copeland\\n\\ntimely appealed. See Fed. R. App. P. 4(a)(1)(B)(i). We granted a certificate of\\n\\nappealability.\\n\\n\\n\\n\\n 6\\n As we explain below, the transcript of the change of plea hearing shows that\\nthe district court did not use the words “enumerated” or “generic.”\\n 9\\n\\f II. DISCUSSION\\n\\n We begin with our standard of review and the burden of proof. We then\\n\\nexplain how courts determine whether there is sufficient evidence of Johnson error to\\n\\ngrant relief on a § 2255 motion. We conclude that Mr. Copeland has met his burden\\n\\nto show his sentence was based on the residual clause.\\n\\n A. Standard of Review and Movant’s Burden\\n\\n Standard of Review – Johnson Error\\n\\n The parties disagree about the standard of review. Mr. Copeland argues it is de\\n\\nnovo. Aplt. Reply Br. at 2. The Government contends we review the district court’s\\n\\nfindings for clear error and its conclusions of law de novo. Aplee. Br. at 7. Our cases, in\\n\\nparticular those addressing a district court’s denial of a § 2255 movant’s Johnson-error\\n\\nclaim, support Mr. Copeland’s position.\\n\\n In recent cases, this court said, “On appeal from the denial of a § 2255 motion,\\n\\nordinarily we review the district court’s findings of fact for clear error and its conclusions\\n\\nof law de novo.” United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018); United\\n\\nStates v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (same quotation); see also United\\n\\nStates v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (similar quotation). This quotation\\n\\ncame from United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), which in turn\\n\\nquoted from United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). But Barrett\\n\\nand Rushin, neither of which concerned Johnson-related claims, both said more—that\\n\\n“where, as here, the district court does not hold an evidentiary hearing, but rather denies\\n\\nthe motion as a matter of law upon an uncontested trial record, our review is strictly de\\n 10\\n\\fnovo.” Barrett, 797 F.3d at 1213 (quotations and brackets omitted); Rushin, 642 F.3d at\\n\\n1302.\\n\\n This court also recently said in United States v. Murphy, 887 F.3d 1064, 1068\\n\\n(10th Cir. 2018), “We review the dismissal of a § 2255 motion de novo.” We cited\\n\\nSnyder for this statement. Id. Shortly thereafter, in an appeal from a district court ruling\\n\\nthat the movant had failed to show he had a Johnson claim to satisfy § 2255(h)(2), the\\n\\npanel, citing Murphy, again said, “We review the district court’s determination de novo.”\\n\\nUnited States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (emphasis omitted).\\n\\n We think the proper reading of these cases is that our review of a district court’s\\n\\ndenial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary\\n\\nhearing from which it made findings. Unless the district court had the benefit of\\n\\nobserving live testimony in an evidentiary hearing, this court can review the sentencing\\n\\nrecord and the relevant background law on equal footing with the district court.7\\n\\n The de novo standard is consistent with our other recent § 2255 cases raising\\n\\nJohnson-related claims. This court recently reaffirmed that we conduct a de novo review\\n\\nof a denial of a § 2255 motion when the district court did not hold an evidentiary hearing.\\n\\nUnited States v. Pullen, 913 F.3d 1270, 1275 (10th Cir. 2019) (quoting Barrett); United\\n\\nStates v. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017) (quoting Rushin).\\n\\n\\n 7\\n To support its preferred standard of review, the Government quotes United\\nStates v. Viera, 674 F.3d 1214 (10th Cir. 2012): this court “review[s] the district\\ncourt’s findings for clear error and its conclusions of law de novo.” Id. at 1217; see\\nAplee. Br. at 7. But Viera quotes Rushin for this proposition, and, as noted above,\\nRushin goes on to say that review is de novo when the district court has not held an\\nevidentiary hearing. 642 F.3d at 1302.\\n 11\\n\\f Standard of Review – Sentencing Record and Background Law\\n\\n The Driscoll panel also addressed the standard of review for the two steps leading\\n\\nto the ultimate determination of whether a sentencing court relied on the residual clause:\\n\\n“[W]e review the [district court’s] factual determinations about the sentencing record for\\n\\nclear error and the legal conclusions about the relevant background legal environment de\\n\\nnovo.” 892 F.3d at 1132-33. As applied to our consideration of the district court’s\\n\\nanalysis of the sentencing record, this statement is in tension with the rule that de novo\\n\\nreview applies when there was no district court evidentiary hearing. But, as the\\n\\ndiscussion below shows, any such tension does not affect our disposition in this case.\\n\\n Burden of Proof\\n\\n The § 2255 movant bears the burden of proving by a preponderance of the\\n\\nevidence that “it was use of the residual clause that led to the sentencing court’s\\n\\nenhancement of his sentence.” Driscoll, 892 F.3d at 1135 (quotations omitted); see\\n\\nalso Washington, 890 F.3d at 895-96.\\n\\n B. Legal Background\\n\\n To determine whether the sentencing court relied on the residual clause, we\\n\\nexamine (1) “the sentencing record to confirm that ‘there is no mention whatsoever of the\\n\\nresidual clause in the PSR or any of the other sentencing court pleadings or transcripts,’”\\n\\nand (2) “the ‘relevant background legal environment’ at the time of sentencing to\\n\\ndetermine whether the district court would have needed to rely on the residual clause.’”\\n\\nDriscoll, 892 F.3d at 1132 (quoting Snyder, 871 F.3d at 1130) (brackets omitted). It may\\n\\nnot be necessary to consult background law if the sentencing record “unambiguously”\\n 12\\n\\fshows the court relied on a clause other than the residual clause because background law\\n\\n“is only useful insofar as it helps to show the most likely reasoning of the district court.”\\n\\nId. at 1132 n.2.\\n\\n Sentencing Record\\n\\n In previous cases, we have examined the sentencing record for (1) references\\n\\nto the residual clause or another ACCA clause, see, e.g., Driscoll, 892 F.3d at 1133,\\n\\nand (2) information about a movant’s prior convictions, Lewis, 904 F.3d at 871;\\n\\nWashington, 890 F.3d at 896.\\n\\n First, express “mention” of either the residual, elements, or enumerated clause8\\n\\nby the sentencing judge at sentencing, in a court order, in a PSR adopted by the\\n\\nsentencing judge, or in a party’s motion may be relevant and even sufficient to show\\n\\nwhether the sentencing court relied on the residual clause. See Driscoll, 892 F.3d\\n\\n1133 n.2.\\n\\n Second, facts about the movant’s previous convictions contained in the PSR,\\n\\nsentencing hearing, or other parts of the district court docket, when viewed in light of\\n\\nbackground law, can often enable a court to determine “whether the district court\\n\\nrelied on the residual clause in sentencing.” Washington, 890 F.3d at 896; see also\\n\\nLewis, 904 F.3d at 871-72.\\n\\n\\n\\n\\n 8\\n We have used the word “mention,” or a variant thereof to describe review of\\nthe record to assess Johnson error. See Driscoll, 892 F.3d at 1133; Murphy, 887 F.3d\\nat 1068; Snyder, 871 F.3d at 1128.\\n 13\\n\\f Nothing in our previous opinions excludes our review of any relevant evidence\\n\\nin the sentencing record regarding whether the sentencing court relied on the residual\\n\\nclause. For example, the court, the parties, or other participants in sentencing, such\\n\\nas a probation officer, may have made statements consistent with use of a particular\\n\\nclause. Until now, we have addressed this type of record evidence only in an\\n\\nunpublished case, where we considered the sentencing judge’s comments in\\n\\nconcluding that the court relied on the enumerated clause to sentence the movant.\\n\\nSee United States v. Couchman, 720 F. App’x 501, 504-06 (10th Cir. 2018)\\n\\n(unpublished).\\n\\n Background Legal Environment\\n\\n “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of\\n\\nwhat the controlling law was at the time of sentencing and does not take into account\\n\\npost-sentencing decisions that may have clarified or corrected pre-sentencing\\n\\ndecisions.” Snyder, 871 F.3d at 1129. It includes case law (1) holding that particular\\n\\noffenses qualify as violent felonies under specific ACCA clauses and (2) instructing\\n\\nhow to determine whether an offense qualifies. See id. at 1129-30.\\n\\n The Driscoll decision explained that we examine the relevant background legal\\n\\nenvironment at the time of sentencing “to determine whether the district court would\\n\\nhave needed to rely on the residual clause.” 892 F.3d at 1132. If the court’s “only\\n\\noption was the residual clause” under the background law because it could not have\\n\\nrelied on the enumerated or elements clause, “we conclude that the sentencing court\\n\\nmust have relied on the residual clause.” Id. at 1135. When background law\\n\\n 14\\n\\fforeclosing the enumerated or elements clause is coupled with a silent or ambiguous\\n\\nrecord, the movant “has adequately shown it is more likely than not that the\\n\\nsentencing court relied on the residual clause to enhance his sentence.” Id.\\n\\n Accordingly, “[i]n Johnson cases . . . a court can often determine whether the\\n\\ndistrict court relied on the residual clause in sentencing by looking to the relevant\\n\\nbackground legal environment that existed at the time of the [movant’s] sentencing\\n\\nand the PSR and other relevant materials before the district court.” Washington, 890\\n\\nF.3d at 896 (quotations and brackets omitted). The movant may meet his burden to\\n\\nshow the court relied on the residual clause by establishing that the background law\\n\\ndid not permit reliance on the other clauses. See Driscoll, 892 F.3d at 1135; see also\\n\\nBeeman v. United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert. denied, No. 18-\\n\\n6385, 2019 WL 659904 (U.S. Feb. 19, 2019) (“Certainly, if the law was clear at the time\\n\\nof sentencing that only the residual clause would authorize a finding that the prior\\n\\nconviction was a violent felony, that circumstance would strongly point to a sentencing\\n\\nper the residual clause.”).\\n\\n C. Analysis\\n\\n The sentencing record does not explicitly mention which ACCA violent felony\\n\\nclause the district court relied on to enhance Mr. Copeland’s sentence, though the change\\n\\nof plea hearing contains statements pointing more to reliance on the enumerated clause\\n\\nthan the residual clause. The relevant background legal environment in 2008, however,\\n\\nprevented reliance on the enumerated clause and allowed reliance on the residual clause.\\n\\nUnder these circumstances, we think our cases, especially Driscoll, require us to\\n\\n 15\\n\\fconclude that the sentencing court must have relied on the residual clause. The district\\n\\ncourt therefore erred in denying Mr. Copeland’s § 2255 motion, and because the error\\n\\nwas harmful, we reverse.\\n\\n Sentencing Record\\n\\n We recounted evidence from the sentencing record in the background section\\n\\nabove. As in Snyder, Washington, and Driscoll, the record does not include any\\n\\nreference, explicit or implicit, to the residual clause, and Mr. Copeland does not contend\\n\\notherwise. It also does not include any explicit reference to the enumerated clause or\\n\\nterms associated with the clause, such as “generic burglary.” But it is not silent, either.\\n\\nThe discussions at the change of plea hearing and the PSR’s description of the burglary\\n\\noffense at least suggest the court relied on the enumerated clause. And the district\\n\\njudge’s statement and finding in 2017 that she did so are consistent with that suggestion.\\n\\nNonetheless, the sentencing record is not clear.\\n\\n a. Change of plea hearing\\n\\n Although the sentencing record contains no direct statement of which ACCA\\n\\nclause the court relied on to find Mr. Copeland’s offense to be a violent felony, two\\n\\nexchanges at the change of plea hearing support an inference that the district court\\n\\nsentenced Mr. Copeland under the enumerated clause.\\n\\n First, Mr. Copeland’s counsel stated, “I’ve pulled the statutes there in\\n\\nCalifornia, and I was not able to get the actual judgment and sentence. You have to\\n\\ndo that in writing . . . .” ROA, Vol. II at 14. A few moments later, the district court\\n\\nsaid to Mr. Copeland, “We won’t know [whether California second-degree burglary\\n\\n 16\\n\\fis a violent felony] until the probation officer and your attorney get all the records\\n\\nfrom California, compare your conviction to the statute, compare it to the sentencing\\n\\nguidelines to determine whether you fall under the act or not.” Id. at 15.\\n\\n The records mentioned in the court’s statement were likely intended to\\n\\ndetermine whether Mr. Copeland’s burglary conviction was an offense under the\\n\\nenumerated clause rather than the residual clause. This is so because the law in 2008,\\n\\nas we explain below, (1) was certain that records could be used for an enumerated\\n\\nclause determination, and (2) was less certain whether the court could use records of\\n\\na prior burglary conviction to determine that a prior offense was a violent felony\\n\\nunder the residual clause, United States v. Maldonado, 696 F.3d 1095, 1099 (10th\\n\\nCir. 2012) (stating the issue was undecided in the Tenth Circuit before 2012).9\\n\\n Second, the district court asked whether the probation officer had “any better\\n\\ninformation . . . on whether or not [the § 924(e) enhancement] applie[d].” ROA, Vol.\\n\\nII at 16. The probation officer pointed to the differences between the enumerated\\n\\nclauses in § 4B1.2(a) of the Guidelines and in the ACCA, noting that the ACCA\\n\\nclause was not confined to residential burglaries and the Guidelines clause was. The\\n\\ncourt responded, “So when we’re doing the Armed Career Criminal Act, we’re going\\n\\nunder the statutory definition?” Id. at 16. This exchange suggests the district court\\n\\nshared the probation officer’s understanding that the definition of generic burglary\\n\\n\\n 9\\n Although cases like Snyder and Driscoll appear to suggest that we should\\nexamine the sentencing record and the relevant background law as separate sequential\\nsteps, in some instances, as in the discussion above, we must refer to background law to\\nexplain the relevance of certain sentencing record facts.\\n 17\\n\\funder the enumerated clause mattered to Mr. Copeland’s sentencing. Only the\\n\\nenumerated clause differed between the statute and the Guidelines—there would have\\n\\nbeen no need to consider the difference to apply the residual clause.10\\n\\n b. Sentencing hearing\\n\\n At sentencing, Mr. Copeland did not object to the PSR, which described his\\n\\nprior burglary offense as breaking and entering a structure with intent to steal—the\\n\\nelements of generic burglary. Neither the court nor the parties commented on the\\n\\napplication of the ACCA, and the court “accept[ed] the [PSR] as its findings of fact.”\\n\\nROA, Vol. II at 44. The record does not show that the parties’ or the court’s\\n\\nunderstanding of the basis for an ACCA sentence changed in the three months\\n\\nbetween the change of plea hearing and the sentencing hearing. As discussed above,\\n\\nat the change of plea hearing the court suggested that the enumerated clause would be\\n\\nthe basis for enhancing the sentence for the prior burglary. The PSR’s description of\\n\\nthe burglary conviction confirmed that basis, and Mr. Copeland did not object to the\\n\\nPSR. No one mentioned the residual clause. Accordingly, the record indicates the\\n\\ncourt relied on the enumerated clause in sentencing Mr. Copeland under the ACCA.\\n\\n\\n\\n\\n 10\\n In 2008, the Guidelines defined “crime of violence” to mean an offense\\n“punishable by imprisonment for a term exceeding one year,” U.S.S.G. § 4B1.2(a)\\n(2008), that meets one of three criteria: (1) “has as an element the use attempted use\\nor threatened use of physical force against the person of another,” id. § 4B1.2(a)(1);\\n(2) “is burglary of a dwelling, arson or extortion, [or] involves use of explosives,” id.\\n§ 4B1.2(a)(2); (3) “otherwise involves conduct that presents a serious potential risk\\nof physical injury to another,” id.\\n 18\\n\\fBut, as we discuss next, the sentencing record is not as clear as the district court\\n\\nconcluded.\\n\\n c. Ambiguous sentencing record\\n\\n The district judge who denied Mr. Copeland’s § 2255 motion in 2017 was the\\n\\nsame judge who sentenced him in 2008. Because the district court did not specify\\n\\nwhether its denial of Mr. Copeland’s § 2255 motion was based at all on the judge’s\\n\\nmemory of the 2008 sentencing, we limit our review of the sentencing record to the\\n\\ntranscripts of the change of plea sentencing hearings and to the PSR.11 As explained\\n\\nbelow, we read that record as less conclusive about the basis for the ACCA\\n\\nsentencing enhancement than the district court’s reading.\\n\\n When it denied Mr. Copeland’s § 2255 motion in 2017, the district court found\\n\\nthat the sentencing record in 2008 unambiguously showed that it relied on the\\n\\nenumerated clause and not the residual clause to determine that Mr. Copeland’s\\n\\nburglary conviction was an ACCA violent felony. The court said, “[T]here is no\\n\\npossibility that [Mr. Copeland’s] burglary conviction was treated as a violent felony\\n\\nunder the residual clause.” Copeland, 2017 WL 4819108, at *3. It also said, “[T]he\\n\\nevidence is clear that [Mr. Copeland’s] conviction for second[-]degree burglary was\\n\\ntreated as a violent felony under the enumerated offense clause of the ACCA.” Id.\\n\\n\\n\\n 11\\n But see United States v. Scully, 798 F.2d 411, 412 (10th Cir. 1986)\\n(“Appellate courts have approved a district judge’s reliance on . . . memory to rule on\\nthe merits of a § 2255 motion where [the judge] supplements the record with personal\\nknowledge in situations where the record does not reflect one way or another whether\\na defendant’s allegations have any validity.”).\\n 19\\n\\f The record, however, is not so clear. The district court said in 2017 that “[t]he\\n\\n[c]ourt advised [Mr. Copeland in 2008] that it would not know if he qualified for\\n\\nsentencing under the ACCA until the probation office and his attorney gathered the\\n\\nnecessary records to determine if his conviction qualified as a generic burglary.”\\n\\nCopeland, 2017 WL 4819108, at *3 (emphasis added). But while the transcript of\\n\\nthe change of plea hearing does not rule out that the district court had generic\\n\\nburglary in mind, the transcript does not contain a specific reference to “generic\\n\\nburglary” or to the enumerated clause.\\n\\n Based on our review, the district court could have plausibly found from the\\n\\nsentencing record that it had relied on the enumerated clause rather than the residual\\n\\nclause. But we take issue with the district court’s conclusion that the sentencing\\n\\nrecord unambiguously supports this finding. The sentencing record, without any\\n\\nreference to the residual clause and only inferential references to the enumerated\\n\\nclause, is ambiguous.\\n\\n The district court in 2017 did not address the relevant background legal\\n\\nenvironment at the time of sentencing. But because the sentencing record is\\n\\nambiguous, we turn next to examine the relevant background law to inform our\\n\\nanalysis of whether the district court relied on the residual clause when it enhanced\\n\\nMr. Copeland’s sentence. See Driscoll, 892 F.3d at 1132 n.2 (explaining that “when\\n\\n\\n\\n\\n 20\\n\\f. . . we are presented with an ambiguous sentencing record,” we examine the relevant\\n\\nbackground law “to show the most likely reasoning of the sentencing court”).12\\n\\n Background legal environment\\n\\n As the following discussion shows, the relevant background law at the time of\\n\\nMr. Copeland’s sentencing in 2008 supports a finding that the district court could\\n\\nonly have relied on the residual clause to determine that his California burglary\\n\\nconviction was a violent felony under the ACCA.\\n\\n Taylor v. United States, 495 U.S. 575 (1990), was the primary source of relevant\\n\\nbackground law in 2008. Taylor used California burglary as an example of a crime that\\n\\nis broader than generic burglary and that could not generally qualify as an enumerated\\n\\nclause predicate offense. Id. at 591, 599. But Taylor also said that a burglary conviction\\n\\ncould qualify when the charging documents showed that the prior offense fell within the\\n\\ndefinition of generic burglary. Id. at 602. As we show below, however, additional\\n\\nbackground law about use of PSRs that contain information about a prior offense\\n\\ncombined with the record in this case would have prevented the sentencing court’s\\n\\nreliance on the enumerated clause.\\n\\n\\n 12\\n In our previous discussion of the standard of review, we noted that this court\\nin Driscoll said that “we review the factual determinations about the sentencing\\nrecord for clear error and the legal conclusions about the relevant background legal\\nenvironment de novo.” 892 F.3d at 1132-33. We also noted our cases generally call\\nfor de novo review when, as here, the district court did not conduct an evidentiary\\nhearing. This apparent tension does not affect our analysis of the sentencing record.\\nUnder either clear error or de novo review, the district court may not have erred in\\nconcluding that the sentencing record showed it had relied on the enumerated clause,\\nbut it did err in concluding that the record showed it had unambiguously relied on the\\nenumerated clause.\\n 21\\n\\f a. California burglary and generic burglary\\n\\n In Taylor, the Supreme Court held that a prior burglary conviction qualified as\\n\\nan ACCA predicate when the underlying statute required proof of all elements of\\n\\ngeneric burglary—“an unlawful or unprivileged entry into, or remaining in, a\\n\\nbuilding or other structure, with intent to commit a crime.” Id. at 598. If the statute\\n\\nswept more broadly than generic burglary, the prior conviction was not categorically\\n\\nan ACCA predicate under the enumerated clause. Id. at 599. Two features of the\\n\\nCalifornia burglary statute placed it outside the generic burglary definition.13 First, it\\n\\ndid not require unlawful entry: “California defines ‘burglary’ so broadly as to\\n\\ninclude shoplifting . . . .” Taylor, 495 U.S. at 591. Second, it criminalized entry into\\n\\nplaces other than buildings. Id. at 599. Accordingly, a conviction for California\\n\\nburglary—in either the first or second degree—could not categorically be an ACCA\\n\\npredicate under the enumerated clause. Id. at 591; see United States v. Strahl, 958\\n\\n\\n\\n 13\\n When Mr. Copeland was convicted of California second-degree burglary,\\nCalifornia Penal Code § 459 defined burglary as follows:\\n Every person who enters any house, room, apartment,\\n tenement, shop, warehouse, store, mill, barn, stable, outhouse,\\n or other building, tent, vessel, railroad car, trailer coach, . . .\\n inhabited camper, . . . vehicle . . . , aircraft . . . , mine or any\\n underground portion thereof, with intent to commit grand or\\n petit larceny or any felony is guilty of burglary. As used in\\n this chapter, “inhabited” means currently being use for\\n dwelling purposes, whether occupied or not.\\nCal. Penal Code § 459 (1981) (emphasis added). Burglary of inhabited dwelling\\nhouses and various other inhabited places was burglary in the first degree. Id.\\n§ 460(1). “All other kinds of burglary [were] of the second degree.” Id. § 460(2).\\nThe statute has been amended several times, and the current version includes\\nadditional locations that may be burglarized. See Cal. Penal Code § 459.\\n 22\\n\\fF.2d 980, 983 (10th Cir. 1992), overruling on other grounds recognized by United\\n\\nStates v. Trent, 767 F.3d 1046, 1058 n.2 (10th Cir. 2014).\\n\\n b. California burglary convictions on charges limited to elements of generic\\n burglary\\n\\n In Taylor, the Supreme Court said that a sentencing court could “go beyond\\n\\nthe mere fact of conviction in a narrow range of cases where a jury was actually\\n\\nrequired to find all the elements of generic burglary” to determine whether a prior\\n\\nburglary offense qualified as an ACCA predicate under the enumerated clause. Id. at\\n\\n602. Because the sentencing court’s task was to determine the elements of the\\n\\nburglary conviction and not “the facts underlying [it],” id. at 600, it could consult\\n\\nonly limited sources. These sources included the indictment or information and jury\\n\\ninstructions. Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the\\n\\nSupreme Court held this determination could be made about convictions following\\n\\nguilty pleas, and it expanded the list of permissible documents to include a “written\\n\\nplea agreement, transcript of [the] plea colloquy, and any explicit factual findings by\\n\\nthe trial judge to which the defendant assented.” Id. at 26; see also United States v.\\n\\nBarney, 955 F.2d 635, 639 (10th Cir. 1992). We refer to these materials as Shepard\\n\\ndocuments.14\\n\\n\\n\\n\\n 14\\n We did not use the phrase “Shepard documents” until 2012. See United\\nStates v. Cartwright, 678 F.3d 907, 918 n.4 (2012). But this shorthand phrase is\\nconsistent with the background legal environment when Mr. Copeland was sentenced.\\n 23\\n\\f c. Use of a PSR to show elements of generic burglary\\n\\n Although a sentencing court in 2008 could use Shepard documents to find that a\\n\\nconviction for California burglary fit within the definition of generic burglary, was it\\n\\npermissible to rely instead on a PSR’s description of the burglary offense? The sparse\\n\\ncase law at the time permitted a court to do so only when the PSR itself relied on Shepard\\n\\ndocuments.\\n\\n In United States v. Perez-Vargas, 414 F.3d 1282, 1283 (10th Cir. 2005),15 decided\\n\\nfour months after Shepard, the defendant challenged his sentence on direct appeal,\\n\\narguing the district court erred when it enhanced his Guidelines offense level based on\\n\\nfinding that his Colorado assault conviction was a crime of violence. Id. at 1283. This\\n\\ncourt reversed, holding that the sentencing court’s reliance on the PSR’s description of\\n\\nthe assault offense was insufficient. Id. at 1285-87. The description must be “supported\\n\\nby proof allowable under Taylor and Shepard.” Id. at 1285. The appellate record lacked\\n\\n“the ‘court documents’ relied on by the PSR. We thus [could not] evaluate whether the\\n\\nrecords would be acceptable under the strictures of Supreme Court precedent.” Id.\\n\\n Perez-Vargas provided, therefore, that when Mr. Copeland was sentenced, a court\\n\\ncould rely on a PSR’s description of a prior crime to find it was an enumerated-clause\\n\\noffense, but only when the PSR was backed by “proof allowable under Taylor and\\n\\nShepard.” See id.\\n\\n\\n\\n\\n 15\\n Perez-Vargas has been overruled on other grounds. United States v.\\nBettcher, 911 F.3d 1040, 1041 n.1 (10th Cir. 2018).\\n 24\\n\\f The Government states that we can find relevant background law about reliance on\\n\\nPSRs in a passage from our 2018 decision in United States v. Washington: “[T]his court\\n\\n. . . upheld a district court’s reliance on a PSR in enhancing a sentence under the ACCA\\n\\nwhere the PSR was based in part on court records and the defendant did not object to the\\n\\nPSR.” 890 F.3d at 897 n.6. The court cited United States v. Harris, 447 F.3d 1300,\\n\\n1305-06 (10th Cir. 2006), for this statement. Harris, however, was not directly on point\\n\\nto Mr. Copeland’s sentencing because it upheld a district court’s reliance on a PSR to\\n\\ndetermine whether prior ACCA predicate crimes were committed on different occasions,\\n\\nnot whether they were violent felonies. Id. at 1305-06.16\\n\\n Perez-Vargas appears to supply the most pertinent background legal authority\\n\\non when a court in the Tenth Circuit in 2008 could rely on a PSR to make an ACCA\\n\\nenumeration-clause determination. But even under Washington’s take on Harris, a\\n\\ncourt would have needed more than a defendant’s failure to object to a PSR’s\\n\\ndescription of a prior offense. There must be some proof that the PSR relied on court\\n\\nrecords before its description could serve as the basis for an enumerated-clause\\n\\noffense finding.17\\n\\n\\n 16\\n Determining whether a conviction is a crime of violence or a violent felony\\nrequires “a formal categorical approach, looking only to the statutory definitions of\\nthe prior offenses, and not to the particular facts underlying those convictions,”\\nPerez-Vargas, 414 F.3d at 1284, while determining whether prior convictions were\\ncommitted on different occasions is a finding of fact similar to other factual\\ndeterminations judges make in sentencing, United States v. Michel, 446 F.3d 1122,\\n1132-33 (10th Cir. 2006).\\n 17\\n Mr. Copeland urges us to consider Descamps v. United States, 570 U.S. 254\\n(2013), as part of the background legal environment, arguing it removed the modified\\n 25\\n\\f d. California burglary and the residual clause\\n\\n In 2008, background law regarding California burglary and the residual clause\\n\\nwas undeveloped in the Tenth Circuit. In our 2012 Maldonado decision, we said that\\n\\n“[t]his circuit has not yet determined whether California’s first[-]degree burglary\\n\\noffense is a violent felony.” 696 F.3d at 1098.18 Although “[n]either the Supreme\\n\\nCourt nor the Tenth Circuit ha[d] addressed whether [first-degree California\\n\\nburglary] is a violent felony under the residual clause” of the ACCA, Maldonado,\\n\\n696 F.3d at 1099, we had held that second-degree California burglary was not a crime\\n\\nof violence under the residual clause of U.S.S.G. § 4B1.2(1)(ii), United States v.\\n\\nSmith, 10 F.3d 724, 733 (10th Cir. 1993) (per curiam),19 which, as noted above, was\\n\\nworded identically to the ACCA residual clause. Mr. Copeland has not cited, and we\\n\\nhave not found, case law from the Supreme Court, the Tenth Circuit, or other circuits\\n\\n\\ncategorical approach from consideration of his prior burglary offense. We decline to\\ndo so because we must consider only the relevant background law in 2008 when Mr.\\nCopeland was sentenced. See Snyder, 871 F.3d at 1129.\\n 18\\n We held that California first-degree burglary was a violent felony under the\\nACCA residual clause, a holding that would not be allowed after the Supreme\\nCourt’s decision in Johnson that the ACCA residual clause is unconstitutionally\\nvague.\\n 19\\n In Smith we acknowledged “[t]his view”—that second-degree burglary is not\\na crime of violence—“is diametrically opposed to the position taken by Congress” in\\nthe ACCA. 10 F.3d at 732. Smith interpreted Congress as “stat[ing] that every\\nburglary inherently presents a serious potential risk of physical injury to another.”\\nId.\\n This view later found support in Leocal v. Ashcroft, 543 U.S. 1 (2004): “A\\nburglary would be covered under [the definition of crime of violence in 18 U.S.C.]\\n§ 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar\\nwill use force against a victim in completing the crime.” Id. at 10.\\n 26\\n\\fas of 2008 holding that a second-degree California burglary conviction could be an\\n\\nACCA residual clause offense.20\\n\\n Nonetheless, the Supreme Court’s 1990 decision in Taylor kept the door open to\\n\\nfinding second-degree California burglary to be a residual clause offense:\\n\\n Our present concern is only to determine what offenses\\n should count as “burglaries” for enhancement purposes. The\\n Government remains free to argue that any offense—\\n including offenses similar to generic burglary—should count\\n towards enhancement as one that “otherwise involves conduct\\n that presents a serious potential risk of physical injury to\\n another” under § 924(e)(2)(B)(ii).\\n\\n495 U.S. at 600 n.9.\\n\\n The Sentencing Record and the Background Law\\n\\n The sentencing record and the relevant background law stand in tension. The\\n\\nresidual clause was not mentioned in the sentencing record. The enumerated clause and\\n\\n“generic burglary” were not explicitly mentioned, either. But the discussions at the\\n\\nchange of plea hearing about obtaining the burglary conviction records and about the\\n\\ndifference between the enumerated clauses in the ACCA and the Guidelines suggested\\n\\nthe court was contemplating an enumerated-clause sentence. The description of the\\n\\nburglary offense in the PSR was consistent with generic burglary.\\n\\n In 2017, when the district court denied the § 2255 motion, the judge read the 2008\\n\\ntranscript as evincing reliance on the enumerated clause. As discussed above, the\\n\\n\\n 20\\n Mr. Copeland did cite, however, James v. United States, 550 U.S. 192\\n(2007) (applying ACCA residual clause to Florida attempted burglary); and United\\nStates v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993) (applying residual clause in 18\\nU.S.C. § 16(b) to Texas burglary).\\n 27\\n\\fsentencing record does not “reveal[] the sentencing court unambiguously relied on a\\n\\nclause other than the residual clause to enhance [Mr. Copeland’s] sentence under the\\n\\nACCA.” Driscoll, 892 F.3d at 1132 n.2 (emphasis added). The court made no “clear\\n\\npronouncement.” Lewis, 904 F.3d at 871. Nonetheless, the record still points to the\\n\\nenumerated clause as the basis for enhancement.\\n\\n By contrast, the relevant background law in 2008 permitted the court to rely on the\\n\\nenumerated clause only if Shepard documents or a PSR referring to them showed that the\\n\\nprior offense was generic burglary. But there were no Shepard documents in the record.\\n\\nAlthough the law regarding the use of Shepard documents was in its infancy, the few\\n\\nrelevant Tenth Circuit cases as of 2008 provided that the PSR at least needed to state it\\n\\nrelied on Shepard documents for its description of the offense to serve as the basis for a\\n\\ngeneric burglary finding. See Perez-Vargas, 414 F.3d at 1285.\\n\\n The relevant background law in 2008 lacked a decision holding that second-\\n\\ndegree California burglary qualified as a violent felony under the ACCA residual\\n\\nclause. See Washington, 890 F.3d at 897 (stating the movant “cites no authority\\n\\nindicating . . . second-degree burglary also qualified under the ACCA’s residual\\n\\nclause”). But Taylor kept the door open to that possibility.\\n\\n The Driscoll opinion’s analysis of Mr. Driscoll’s Nebraska burglary conviction is\\n\\ninstructive. Although the sentencing court had the “information”—the charging\\n\\ndocument—underlying the conviction, that document did not show that Mr. Driscoll had\\n\\n“burglarized a ‘building or structure’ within the generic definition of burglary.” 892 F.3d\\n\\nat 1134. The sentencing court could not have known whether he was prosecuted for\\n\\n 28\\n\\fburglarizing a building and therefore “could not have relied on the enumerated offenses\\n\\nclause because that would have violated Taylor.” Id. at 1135. Because the sentencing\\n\\nrecord was ambiguous “as to whether the sentencing court relied on the residual clause to\\n\\nenhance [Mr.] Driscoll’s sentence,” we concluded, based on the legal environment, that\\n\\n“the sentencing court must have relied on the residual clause, as any reliance on the\\n\\nenumerated offenses clause would have violated Taylor.” Id.\\n\\n As in Driscoll, the sentencing record here did not expressly mention the\\n\\nenumerated or the residual clauses. The court never used the words “enumerated clause”\\n\\nor “generic burglary.” At the change of plea hearing, the court’s colloquies with the\\n\\nlawyers and the probation officer indicated potential reliance on the enumerated clause—\\n\\nfar from conclusive or unambiguous evidence. The hearing occurred three months before\\n\\nsentencing. In the intervening period, the court could have picked a different basis for its\\n\\nsentence based on research, information (or lack of information) about Mr. Copeland’s\\n\\nprior conviction, or further reflection.\\n\\n Although Mr. Copeland’s sentencing record points more to the enumerated\\n\\nclause than the record did in Driscoll, Driscoll’s conclusion that the sentencing court\\n\\n“must have relied on the residual clause” due to the relevant background law, 892\\n\\nF.3d at 1135, determines the outcome here. Notwithstanding clues from the change\\n\\nof plea hearing that the court was contemplating the enumerated clause, the\\n\\napplicable law allowed an ACCA sentencing enhancement for the burglary\\n\\nconviction only under the residual clause. The background law points more strongly\\n\\ntoward the court’s use of the residual clause than the sentencing record points toward\\n\\n 29\\n\\fits use of the enumerated clause.21 It shows the sentencing court, with no Shepard\\n\\ndocuments to find “generic burglary,” could not have relied on the enumerated clause\\n\\nbut could have relied on the residual clause. As a result, Mr. Copeland “has\\n\\nadequately shown it is more likely than not that the sentencing court relied on the\\n\\nresidual clause to enhance his sentence.” Id.22\\n\\n This conclusion has two consequences. First, it means Mr. Copeland has satisfied\\n\\nthe requirements of 28 U.S.C. § 2255(h)(2) for a second or successive § 2255 motion by\\n\\nshowing that his claim relies on the “new rule of constitutional law” recognized in\\n\\n\\n\\n 21\\n The combination of the sentencing record and the relevant background law in\\nthis case stops short of a circumstance where (1) a sentencing court unambiguously stated\\nthat it relied on the ACCA enumerated or elements clause to enhance the sentence, and\\n(2) the relevant background law at the time of sentencing precluded reliance on the\\nenumerated or elements clause but allowed reliance on the residual clause.\\n We said in Driscoll that we “might” not need to consider the background law\\nwhen the sentencing court has unambiguously relied on a clause other than the residual\\nclause. Driscoll, 892 F.3d at 1132 n.2. But we have not explained when and how we\\nshould consider the background law in that circumstance and when we should not.\\n If we do not consider the background law in this scenario, the movant has failed to\\nshow a Johnson error, even though, under the law at the time of sentencing, the only\\nlegally permissible way to enhance the sentence would have been to rely on the residual\\nclause. If we do consider the background law, would we say that the court could not\\nhave relied on the enumerated clause, even though the court said it did, and that the\\nprisoner has shown a Johnson error?\\n Because this scenario does not describe our case, we do not attempt to resolve it.\\nWe mention it here, however, because we recognized the difficulty of this question while\\nanalyzing our case.\\n 22\\n We recently explained: “If, on the other hand, the sentencing court would\\nhave been unable to rely on the enumerated-offenses clause or the elements clause at\\nthe time of sentencing because doing so would have violated then-controlling law, we\\nmay instead deduce that the sentencing court must have relied on the residual\\nclause.” United States v. Neely, No. 17-8087, 2019 WL 761556, at *2 (10th Cir. Feb.\\n20, 2019) (unpublished) (quotations omitted).\\n 30\\n\\fJohnson that Welch “made retroactive to cases on collateral review.”23 Second, it means\\n\\nthat the district court committed a Johnson error in 2008 when it based Mr. Copeland’s\\n\\nsentence on the now-unconstitutional residual clause. We turn next to whether that error\\n\\nwas harmless.\\n\\n Harmless Error Analysis\\n\\n Even when a sentencing court erred by relying on the ACCA’s residual clause\\n\\nto enhance a sentence, we will grant habeas relief only if the error “‘had substantial\\n\\nand injurious effect or influence in determining’ his sentence.” Driscoll, 892 F.3d at\\n\\n1135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). More precisely,\\n\\n“[W]ould a sentencing judge, applying current law, determine that the movant’s\\n\\nconviction(s) still qualifies as a crime of violence under one or both of the still-valid\\n\\nACCA clauses and resentence him to the same length of imprisonment?” Lewis, 904\\n\\nF.3d at 873. If the answer is yes, we consider the error harmless. Id. “The\\n\\ngovernment bears the burden of proof on this issue.” Id. at 872 (quoting United\\n\\nStates v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018) (unpublished)).\\n\\n Applying “current law” to the harmless error analysis, id. at 873, we turn to\\n\\nDescamps v. United States, 570 U.S. 254 (2013). In Descamps, the Supreme Court\\n\\nsaid the California burglary statute does not list alternative elements, id. at 264, and\\n\\ntherefore “a conviction under that statute is never for generic burglary,” id. at 277.\\n\\n\\n 23\\n This is contrary to the district court’s conclusion that Mr. Copeland “has not\\nasserted a claim for relief under Johnson,” Copeland, 2017 WL 4819108, at *4,\\nwhich we take to be the court’s determination that Mr. Copeland could not pass the\\nsecond gate for a second or successive § 2255 motion.\\n 31\\n\\fAccordingly, a conviction under the California burglary statute is not an ACCA\\n\\npredicate. It fails under the elements clause because it lacks “as an element the use,\\n\\nattempted use, or threatened use of physical force against the person of another,”\\n\\ncompare 18 U.S.C. § 924(e), with Cal. Penal Code § 459; fails under the enumerated\\n\\nclause after Descamps, see 570 U.S. at 264; and cannot qualify under the residual\\n\\nclause because that clause is “unconstitutionally vague,” Johnson, 135 S. Ct. at 2557.\\n\\n Mr. Copeland had only two ACCA predicate offenses in 2008—his two drug\\n\\nconvictions. He lacks the required third ACCA predicate for an enhanced sentence\\n\\nbecause his California second-degree burglary does not qualify. He thus may not be\\n\\nsentenced, today, under the ACCA. The error in his 2008 sentence is therefore\\n\\nharmful.\\n\\n III. CONCLUSION\\n\\n Because Mr. Copeland has shown the district court relied on the residual\\n\\nclause when it sentenced him in 2008 and that his successive § 2255 motion relies on\\n\\nJohnson, he has passed the second gate of § 2255(h)(2) review. He further has\\n\\nshown that he should prevail on the merits.\\n\\n We therefore reverse the district court’s dismissal of Mr. Copeland’s § 2255\\n\\nmotion and remand with instructions to grant the motion to vacate, set aside the\\n\\nsentence, and resentence Mr. Copeland consistent with this opinion. In view of the\\n\\npotential consequence of this decision to Mr. Copeland’s custodial status, the\\n\\nmandate shall issue forthwith to enable the district court to conduct further\\n\\n\\n\\n 32\\n\\fproceedings on a prompt basis. Should the Government wish to petition for panel or\\n\\nen banc rehearing, we will consider a motion to recall the mandate.\\n\\n\\n\\n\\n 33\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389756/\", \"author_raw\": \"MATHESON, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"MATHESON"},"judge2":{"kind":"string","value":"PHILLIPS"},"judge3":{"kind":"string","value":"EID"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612503/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Aaron Eugene COPELAND, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n PUBLISH April 23, 2019\n\n UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker\n Clerk of Court\n\n FOR THE TENTH CIRCUIT\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 17-5125\n\n AARON EUGENE COPELAND,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the Northern District of Oklahoma\n (D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)\n _________________________________\n\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\nPublic Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa,\nOklahoma, for Defendant - Appellant.\n\nLeena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,\nNorthern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -\nAppellee.\n _________________________________\n\nBefore MATHESON, PHILLIPS, and EID, Circuit Judges.\n _________________________________\n\nMATHESON, Circuit Judge.\n _________________________________\n\n In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of\n\na firearm. The district court imposed an enhanced sentence of 15 years in prison\n\nunder the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his\n\ftwo prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After\n\nhe brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we\n\nauthorized Mr. Copeland to bring a successive § 2255 motion to assert that his\n\nsentence is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015), which\n\nheld that the ACCA’s definition of violent felony in its residual clause is\n\nunconstitutionally vague.\n\n Mr. Copeland’s § 2255 motion claimed the sentencing court relied on the\n\nunconstitutional residual clause to find that his prior burglary was a violent felony\n\nand therefore the court should not have enhanced his sentence. The district court\n\ndenied the motion, finding that it did not sentence Mr. Copeland under the residual\n\nclause and that his motion accordingly could not rely on Johnson. Exercising\n\njurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.\n\n I. BACKGROUND\n\n To help understand the facts and issues that Mr. Copeland’s § 2255 motion\n\npresents, we sketch the legal landscape surrounding this case, including discussion of\n\nthe ACCA’s definitions of “violent felony,” the Supreme Court’s decision in\n\nJohnson, and the requirements for bringing second and successive § 2255 motions.\n\nWe then describe the district court proceedings in 2008 leading to Mr. Copeland’s\n\nsentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We\n\npresent additional legal background later in the opinion.\n\n\n\n\n 2\n\f A. Legal Landscape\n\n The ACCA\n\n It is a federal crime “for any person . . . who has been convicted in any court\n\nof[] a crime punishable by imprisonment for a term exceeding one year . . . to . . .\n\npossess . . . any firearm or ammunition.” 18 U.S.C. § 922(g). A violation of this\n\nfelon-in-possession statute usually carries a maximum penalty of 10 years in prison.\n\n18 U.S.C. § 924(a)(2). But under the ACCA, a person who “has three previous\n\nconvictions . . . for a violent felony or serious drug offense, or both” is subject to a\n\nminimum sentence of 15 years. 18 U.S.C. § 924(e).\n\n This appeal concerns the meaning of “violent felony.” The ACCA defines a\n\n“violent felony” as “any crime punishable by imprisonment for a term exceeding one\n\nyear” that also:\n\n (1) “has as an element the use, attempted use, or threatened use of physical\n force against the person of another,” id. § 924(e)(2)(B)(i)—the elements\n clause;\n\n (2) “is burglary, arson, or extortion, [or] involves the use of explosives,” id.\n § 924(e)(2)(B)(ii)—the enumerated clause; or\n\n (3) “otherwise involves conduct that presents a serious potential risk of\n physical injury to another,” id. § 924(e)(2)(B)(ii)—the residual clause.\n\nOnly the enumerated and residual clauses are pertinent to this appeal. Note that\n\n“burglary” is listed as one of the offenses in the enumerated clause.\n\n Johnson v. United States\n\n In 2015, the Supreme Court held in Johnson that the ACCA’s residual clause\n\nis “unconstitutionally vague,” 135 S. Ct. at 2557, leaving only the elements and\n\n 3\n\fenumerated clauses to define a violent felony. In 2016, the Court held in Welch v.\n\nUnited States, 136 S. Ct. 1257 (2016), that Johnson “announced a substantive rule\n\nthat has retroactive effect in cases on collateral review.” Id. at 1268.\n\n Section 2255 and Second or Successive Motions\n\n A federal prisoner “claiming the right to be released upon the ground that the\n\nsentence was imposed in violation of the Constitution” may move the district court\n\nthat sentenced him “to vacate, set aside[,] or correct the sentence.” 28 U.S.C.\n\n§ 2255(a). “Before a federal prisoner may file a second or successive motion under\n\n§ 2255, the prisoner must first obtain an order from the appropriate court of appeals\n\nauthorizing the district court to consider the motion.” In re Cline, 531 F.3d 1249,\n\n1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).\n\n A circuit court may authorize a second or successive § 2255 motion in two\n\ncircumstances. This appeal turns on one of them—whether the motion “contain[s]\n\n. . . a new rule of constitutional law, made retroactive to cases on collateral review by\n\nthe Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).1 “A\n\nmotion ‘contains’ a new rule of constitutional law, as required by § 2255(h), if the\n\nclaim for which authorization is sought ‘relies on’ the new rule.” United States v.\n\nMurphy, 887 F.3d 1064, 1067 (10th Cir. 2018).\n\n\n\n\n 1\n The other circumstance is when “newly discovered evidence that, if proven\nand viewed in light of the evidence as a whole, would be sufficient to establish by\nclear and convincing evidence that no reasonable factfinder would have found the\nmovant guilty of the offense.” 28 U.S.C. § 2255(h)(1).\n 4\n\f A movant attempting to file a second or successive § 2255 motion must pass\n\ntwo gates. The first is obtaining authorization from the circuit court to file the\n\nmotion, which requires only “a prima facie showing to the court of appeals that the\n\nmotion satisfies the requirements of § 2255(h), defined as a sufficient showing of\n\npossible merit to warrant a fuller exploration by the district court.” Id. at 1068\n\n(quotations omitted). The second requires “a determination by the district court that\n\nthe petition does, in fact, satisfy those requirements.” Id. This appeal concerns the\n\nsecond gate.\n\n B. Mr. Copeland’s Guilty Plea and Sentencing\n\n In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm,\n\nin violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the\n\nproceedings leading to his plea and sentence.\n\n Change of Plea Hearing\n\n At Mr. Copeland’s change of plea hearing, the district court and the parties\n\ndiscussed whether Mr. Copeland had at least three prior offenses that qualified him\n\nfor an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two\n\npredicate serious drug offenses. See ROA, Vol. II at 13-15.\n\n The discussion turned to whether Mr. Copeland’s 1981 conviction in\n\nCalifornia for second-degree burglary was a § 924(e) violent felony. Mr. Copeland’s\n\ncounsel said:\n\n I’ve pulled the statutes there in California, and I was not able\n to get the actual judgment and sentence. You have to do that\n in writing, and it takes a lot of—a long time, more than I had.\n 5\n\f But out of an abundance of caution, I certainly counseled Mr.\n Copeland as to my concerns, and I hope I’m wrong.\n\nId. at 14. The district court then explained to Mr. Copeland,\n\n [W]hat we’re talking about is whether . . . second-degree\n burglary . . . meets the definition of a violent felony under the\n Armed Career Criminal Act. We won’t know until the\n probation officer and your attorney get all the records from\n California, compare your conviction to the statute, compare it\n to the [U.S. Sentencing Guidelines (“Guidelines”)] to\n determine whether you fall under the act or not.\n\nId. at 15.2\n\n The court asked the probation officer whether he had “any better information than\n\n[the court or the parties] on whether or not [the § 924(e) enhancement] applie[d].” Id. at\n\n16. The probation officer responded that he did not, but he added that, according to an\n\napplication note in U.S.S.G. § 4B1.4, “the definition of a crime of violence under the\n\n[G]uidelines is different than the one in the statute. And the one in the [G]uidelines\n\nlimits burglaries to residential, but the one in the statute does not limit it.” Id. at 16. The\n\ncourt asked, “So when we’re doing Armed Career Criminal Act, we’re going under the\n\nstatutory definition?” The probation officer affirmed the court’s understanding. Id.3\n\n The district court advised Mr. Copeland again that the “burglary charge” was a\n\n“sentencing factor[] that c[ould] enhance [his] sentence.” Id. at 28. Then Mr. Copeland\n\n\n\n 2\n It is not clear why the court referred initially to the Guidelines.\n 3\n As explained below, in 2008, the enumerated clause in the Guidelines\ndiffered from the one in § 924(e)(2)(B)(ii), but the residual clause in the Guidelines\nwas identical to the one in § 924(e)(2)(B)(ii). See infra note 10. This suggests that\nthe court’s colloquy with the probation officer concerned the enumerated clause.\n 6\n\fpled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the\n\nproceedings by advising Mr. Copeland that the probation officer would prepare a\n\nPresentence Investigation Report (“PSR”), “[a]nd if there are any issues, particularly with\n\nregard to the Armed Career Criminal Act, we’ll have a sentencing hearing if that’s an\n\nissue.” Id. at 37-38.\n\n Presentence Investigation Report\n\n The PSR reported that Mr. Copeland had been convicted in 1981 of “Burglary\n\nSecond Degree” in Oakland Superior Court and sentenced to one year in jail and\n\nthree years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other\n\nmen “used a water meter cover to break a window and enter” a California shoe store.\n\nId. “The trio stole 104 pairs of shoes, valued at a total of $2,600. They were\n\napprehended due to a witness observing them run out of the store carrying large\n\nplastic bags and notifying police.” Id. The PSR did not reveal the source of this\n\ninformation. See id.\n\n The PSR advised that Mr. Copeland was “an armed career criminal under the\n\nprovisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree”\n\nand the two serious drug offenses. Id. at 6. It did not cite to which part of\n\n§ 924(e)(2)(B)(ii)—the enumerated clause or the now-unconstitutional residual\n\nclause—it relied on to categorize Mr. Copeland’s California second-degree burglary\n\nconviction as a violent felony. See id.\n\n\n\n\n 7\n\f Sentencing Hearing\n\n At the sentencing hearing, Mr. Copeland, through counsel, stated he had no\n\nobjection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR’s\n\nfindings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison—\n\nthe statutory minimum under § 924(e)—and five years of supervised release. Id. at\n\n50. The court did not address its basis for treating California second-degree burglary\n\nas a violent felony.\n\n C. Post-Conviction § 2255 Proceedings\n\n Mr. Copeland did not appeal4 but filed several unsuccessful motions to\n\nchallenge his sentence under 28 U.S.C. § 2255.5 After Welch held that Johnson\n\napplies retroactively on collateral review, we granted Mr. Copeland’s request to file a\n\nsuccessive § 2255 motion to challenge his sentence on the ground that it was based\n\non the ACCA’s unconstitutional residual clause, in violation of Johnson. In re\n\nCopeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr.\n\n\n 4\n Mr. Copeland’s failure to file a direct appeal raising a residual clause\nvagueness claim does not foreclose his § 2255 motion. The Government has not\nobjected on this ground. And even assuming the procedural-default rule applies, a\n“Johnson claim was not reasonably available during the time when [Mr. Copeland]\ncould have filed a direct appeal, and this is sufficient to establish cause. Moreover, if\n[Mr. Copeland] is correct regarding his Johnson claim . . . . [he] has demonstrated\nactual prejudice.” United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018)\n(quotations omitted).\n 5\n See In re Copeland, No. 15-5097 (10th Cir. Nov. 5, 2015); In re Copeland,\nNo. 14-5035 (10th Cir. April 17, 2014); United States v. Copeland, 539 F. App’x\n918, 919 (10th Cir. 2013); United States v. Copeland, 509 F. App’x 760, 761 (10th\nCir. 2013); United States v. Copeland, No. 13-CV-0479-CVE-FHM, 2013 WL\n4022062, at *1 (N.D. Okla. Aug. 6, 2013).\n 8\n\fCopeland moved the district court under § 2255 to vacate, set aside, or correct his\n\nsentence. ROA, Vol. I at 32.\n\n The district court denied his motion. United States v. Copeland, No. 08-CR-\n\n0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found “there is\n\nno possibility that [Mr. Copeland’s] burglary conviction was treated as a violent\n\nfelony under the residual clause.” Id. at *3. The court pointed to the discussion at\n\nthe change of plea hearing: “The [c]ourt advised [Mr. Copeland] that it would not\n\nknow if he qualified for sentencing under the ACCA until the probation office and\n\nhis attorney gathered the necessary records to determine if his conviction qualified as\n\na generic burglary.”6 Id. (emphasis added). The court concluded: “[T]he evidence is\n\nclear that [Mr. Copeland’s] conviction for second[-]degree burglary was treated as a\n\nviolent felony under the enumerated offense clause of the ACCA.” Id.\n\n Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under\n\nthe enumerated clause, it concluded that “Johnson has no application in this case”\n\nand that any other arguments Mr. Copeland urged were beyond the scope of our\n\nauthorization of his successive § 2255 motion. Id. at *4.\n\n The district court entered judgment against Mr. Copeland, and Mr. Copeland\n\ntimely appealed. See Fed. R. App. P. 4(a)(1)(B)(i). We granted a certificate of\n\nappealability.\n\n\n\n\n 6\n As we explain below, the transcript of the change of plea hearing shows that\nthe district court did not use the words “enumerated” or “generic.”\n 9\n\f II. DISCUSSION\n\n We begin with our standard of review and the burden of proof. We then\n\nexplain how courts determine whether there is sufficient evidence of Johnson error to\n\ngrant relief on a § 2255 motion. We conclude that Mr. Copeland has met his burden\n\nto show his sentence was based on the residual clause.\n\n A. Standard of Review and Movant’s Burden\n\n Standard of Review – Johnson Error\n\n The parties disagree about the standard of review. Mr. Copeland argues it is de\n\nnovo. Aplt. Reply Br. at 2. The Government contends we review the district court’s\n\nfindings for clear error and its conclusions of law de novo. Aplee. Br. at 7. Our cases, in\n\nparticular those addressing a district court’s denial of a § 2255 movant’s Johnson-error\n\nclaim, support Mr. Copeland’s position.\n\n In recent cases, this court said, “On appeal from the denial of a § 2255 motion,\n\nordinarily we review the district court’s findings of fact for clear error and its conclusions\n\nof law de novo.” United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018); United\n\nStates v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (same quotation); see also United\n\nStates v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (similar quotation). This quotation\n\ncame from United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), which in turn\n\nquoted from United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). But Barrett\n\nand Rushin, neither of which concerned Johnson-related claims, both said more—that\n\n“where, as here, the district court does not hold an evidentiary hearing, but rather denies\n\nthe motion as a matter of law upon an uncontested trial record, our review is strictly de\n 10\n\fnovo.” Barrett, 797 F.3d at 1213 (quotations and brackets omitted); Rushin, 642 F.3d at\n\n1302.\n\n This court also recently said in United States v. Murphy, 887 F.3d 1064, 1068\n\n(10th Cir. 2018), “We review the dismissal of a § 2255 motion de novo.” We cited\n\nSnyder for this statement. Id. Shortly thereafter, in an appeal from a district court ruling\n\nthat the movant had failed to show he had a Johnson claim to satisfy § 2255(h)(2), the\n\npanel, citing Murphy, again said, “We review the district court’s determination de novo.”\n\nUnited States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (emphasis omitted).\n\n We think the proper reading of these cases is that our review of a district court’s\n\ndenial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary\n\nhearing from which it made findings. Unless the district court had the benefit of\n\nobserving live testimony in an evidentiary hearing, this court can review the sentencing\n\nrecord and the relevant background law on equal footing with the district court.7\n\n The de novo standard is consistent with our other recent § 2255 cases raising\n\nJohnson-related claims. This court recently reaffirmed that we conduct a de novo review\n\nof a denial of a § 2255 motion when the district court did not hold an evidentiary hearing.\n\nUnited States v. Pullen, 913 F.3d 1270, 1275 (10th Cir. 2019) (quoting Barrett); United\n\nStates v. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017) (quoting Rushin).\n\n\n 7\n To support its preferred standard of review, the Government quotes United\nStates v. Viera, 674 F.3d 1214 (10th Cir. 2012): this court “review[s] the district\ncourt’s findings for clear error and its conclusions of law de novo.” Id. at 1217; see\nAplee. Br. at 7. But Viera quotes Rushin for this proposition, and, as noted above,\nRushin goes on to say that review is de novo when the district court has not held an\nevidentiary hearing. 642 F.3d at 1302.\n 11\n\f Standard of Review – Sentencing Record and Background Law\n\n The Driscoll panel also addressed the standard of review for the two steps leading\n\nto the ultimate determination of whether a sentencing court relied on the residual clause:\n\n“[W]e review the [district court’s] factual determinations about the sentencing record for\n\nclear error and the legal conclusions about the relevant background legal environment de\n\nnovo.” 892 F.3d at 1132-33. As applied to our consideration of the district court’s\n\nanalysis of the sentencing record, this statement is in tension with the rule that de novo\n\nreview applies when there was no district court evidentiary hearing. But, as the\n\ndiscussion below shows, any such tension does not affect our disposition in this case.\n\n Burden of Proof\n\n The § 2255 movant bears the burden of proving by a preponderance of the\n\nevidence that “it was use of the residual clause that led to the sentencing court’s\n\nenhancement of his sentence.” Driscoll, 892 F.3d at 1135 (quotations omitted); see\n\nalso Washington, 890 F.3d at 895-96.\n\n B. Legal Background\n\n To determine whether the sentencing court relied on the residual clause, we\n\nexamine (1) “the sentencing record to confirm that ‘there is no mention whatsoever of the\n\nresidual clause in the PSR or any of the other sentencing court pleadings or transcripts,’”\n\nand (2) “the ‘relevant background legal environment’ at the time of sentencing to\n\ndetermine whether the district court would have needed to rely on the residual clause.’”\n\nDriscoll, 892 F.3d at 1132 (quoting Snyder, 871 F.3d at 1130) (brackets omitted). It may\n\nnot be necessary to consult background law if the sentencing record “unambiguously”\n 12\n\fshows the court relied on a clause other than the residual clause because background law\n\n“is only useful insofar as it helps to show the most likely reasoning of the district court.”\n\nId. at 1132 n.2.\n\n Sentencing Record\n\n In previous cases, we have examined the sentencing record for (1) references\n\nto the residual clause or another ACCA clause, see, e.g., Driscoll, 892 F.3d at 1133,\n\nand (2) information about a movant’s prior convictions, Lewis, 904 F.3d at 871;\n\nWashington, 890 F.3d at 896.\n\n First, express “mention” of either the residual, elements, or enumerated clause8\n\nby the sentencing judge at sentencing, in a court order, in a PSR adopted by the\n\nsentencing judge, or in a party’s motion may be relevant and even sufficient to show\n\nwhether the sentencing court relied on the residual clause. See Driscoll, 892 F.3d\n\n1133 n.2.\n\n Second, facts about the movant’s previous convictions contained in the PSR,\n\nsentencing hearing, or other parts of the district court docket, when viewed in light of\n\nbackground law, can often enable a court to determine “whether the district court\n\nrelied on the residual clause in sentencing.” Washington, 890 F.3d at 896; see also\n\nLewis, 904 F.3d at 871-72.\n\n\n\n\n 8\n We have used the word “mention,” or a variant thereof to describe review of\nthe record to assess Johnson error. See Driscoll, 892 F.3d at 1133; Murphy, 887 F.3d\nat 1068; Snyder, 871 F.3d at 1128.\n 13\n\f Nothing in our previous opinions excludes our review of any relevant evidence\n\nin the sentencing record regarding whether the sentencing court relied on the residual\n\nclause. For example, the court, the parties, or other participants in sentencing, such\n\nas a probation officer, may have made statements consistent with use of a particular\n\nclause. Until now, we have addressed this type of record evidence only in an\n\nunpublished case, where we considered the sentencing judge’s comments in\n\nconcluding that the court relied on the enumerated clause to sentence the movant.\n\nSee United States v. Couchman, 720 F. App’x 501, 504-06 (10th Cir. 2018)\n\n(unpublished).\n\n Background Legal Environment\n\n “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of\n\nwhat the controlling law was at the time of sentencing and does not take into account\n\npost-sentencing decisions that may have clarified or corrected pre-sentencing\n\ndecisions.” Snyder, 871 F.3d at 1129. It includes case law (1) holding that particular\n\noffenses qualify as violent felonies under specific ACCA clauses and (2) instructing\n\nhow to determine whether an offense qualifies. See id. at 1129-30.\n\n The Driscoll decision explained that we examine the relevant background legal\n\nenvironment at the time of sentencing “to determine whether the district court would\n\nhave needed to rely on the residual clause.” 892 F.3d at 1132. If the court’s “only\n\noption was the residual clause” under the background law because it could not have\n\nrelied on the enumerated or elements clause, “we conclude that the sentencing court\n\nmust have relied on the residual clause.” Id. at 1135. When background law\n\n 14\n\fforeclosing the enumerated or elements clause is coupled with a silent or ambiguous\n\nrecord, the movant “has adequately shown it is more likely than not that the\n\nsentencing court relied on the residual clause to enhance his sentence.” Id.\n\n Accordingly, “[i]n Johnson cases . . . a court can often determine whether the\n\ndistrict court relied on the residual clause in sentencing by looking to the relevant\n\nbackground legal environment that existed at the time of the [movant’s] sentencing\n\nand the PSR and other relevant materials before the district court.” Washington, 890\n\nF.3d at 896 (quotations and brackets omitted). The movant may meet his burden to\n\nshow the court relied on the residual clause by establishing that the background law\n\ndid not permit reliance on the other clauses. See Driscoll, 892 F.3d at 1135; see also\n\nBeeman v. United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert. denied, No. 18-\n\n6385, 2019 WL 659904 (U.S. Feb. 19, 2019) (“Certainly, if the law was clear at the time\n\nof sentencing that only the residual clause would authorize a finding that the prior\n\nconviction was a violent felony, that circumstance would strongly point to a sentencing\n\nper the residual clause.”).\n\n C. Analysis\n\n The sentencing record does not explicitly mention which ACCA violent felony\n\nclause the district court relied on to enhance Mr. Copeland’s sentence, though the change\n\nof plea hearing contains statements pointing more to reliance on the enumerated clause\n\nthan the residual clause. The relevant background legal environment in 2008, however,\n\nprevented reliance on the enumerated clause and allowed reliance on the residual clause.\n\nUnder these circumstances, we think our cases, especially Driscoll, require us to\n\n 15\n\fconclude that the sentencing court must have relied on the residual clause. The district\n\ncourt therefore erred in denying Mr. Copeland’s § 2255 motion, and because the error\n\nwas harmful, we reverse.\n\n Sentencing Record\n\n We recounted evidence from the sentencing record in the background section\n\nabove. As in Snyder, Washington, and Driscoll, the record does not include any\n\nreference, explicit or implicit, to the residual clause, and Mr. Copeland does not contend\n\notherwise. It also does not include any explicit reference to the enumerated clause or\n\nterms associated with the clause, such as “generic burglary.” But it is not silent, either.\n\nThe discussions at the change of plea hearing and the PSR’s description of the burglary\n\noffense at least suggest the court relied on the enumerated clause. And the district\n\njudge’s statement and finding in 2017 that she did so are consistent with that suggestion.\n\nNonetheless, the sentencing record is not clear.\n\n a. Change of plea hearing\n\n Although the sentencing record contains no direct statement of which ACCA\n\nclause the court relied on to find Mr. Copeland’s offense to be a violent felony, two\n\nexchanges at the change of plea hearing support an inference that the district court\n\nsentenced Mr. Copeland under the enumerated clause.\n\n First, Mr. Copeland’s counsel stated, “I’ve pulled the statutes there in\n\nCalifornia, and I was not able to get the actual judgment and sentence. You have to\n\ndo that in writing . . . .” ROA, Vol. II at 14. A few moments later, the district court\n\nsaid to Mr. Copeland, “We won’t know [whether California second-degree burglary\n\n 16\n\fis a violent felony] until the probation officer and your attorney get all the records\n\nfrom California, compare your conviction to the statute, compare it to the sentencing\n\nguidelines to determine whether you fall under the act or not.” Id. at 15.\n\n The records mentioned in the court’s statement were likely intended to\n\ndetermine whether Mr. Copeland’s burglary conviction was an offense under the\n\nenumerated clause rather than the residual clause. This is so because the law in 2008,\n\nas we explain below, (1) was certain that records could be used for an enumerated\n\nclause determination, and (2) was less certain whether the court could use records of\n\na prior burglary conviction to determine that a prior offense was a violent felony\n\nunder the residual clause, United States v. Maldonado, 696 F.3d 1095, 1099 (10th\n\nCir. 2012) (stating the issue was undecided in the Tenth Circuit before 2012).9\n\n Second, the district court asked whether the probation officer had “any better\n\ninformation . . . on whether or not [the § 924(e) enhancement] applie[d].” ROA, Vol.\n\nII at 16. The probation officer pointed to the differences between the enumerated\n\nclauses in § 4B1.2(a) of the Guidelines and in the ACCA, noting that the ACCA\n\nclause was not confined to residential burglaries and the Guidelines clause was. The\n\ncourt responded, “So when we’re doing the Armed Career Criminal Act, we’re going\n\nunder the statutory definition?” Id. at 16. This exchange suggests the district court\n\nshared the probation officer’s understanding that the definition of generic burglary\n\n\n 9\n Although cases like Snyder and Driscoll appear to suggest that we should\nexamine the sentencing record and the relevant background law as separate sequential\nsteps, in some instances, as in the discussion above, we must refer to background law to\nexplain the relevance of certain sentencing record facts.\n 17\n\funder the enumerated clause mattered to Mr. Copeland’s sentencing. Only the\n\nenumerated clause differed between the statute and the Guidelines—there would have\n\nbeen no need to consider the difference to apply the residual clause.10\n\n b. Sentencing hearing\n\n At sentencing, Mr. Copeland did not object to the PSR, which described his\n\nprior burglary offense as breaking and entering a structure with intent to steal—the\n\nelements of generic burglary. Neither the court nor the parties commented on the\n\napplication of the ACCA, and the court “accept[ed] the [PSR] as its findings of fact.”\n\nROA, Vol. II at 44. The record does not show that the parties’ or the court’s\n\nunderstanding of the basis for an ACCA sentence changed in the three months\n\nbetween the change of plea hearing and the sentencing hearing. As discussed above,\n\nat the change of plea hearing the court suggested that the enumerated clause would be\n\nthe basis for enhancing the sentence for the prior burglary. The PSR’s description of\n\nthe burglary conviction confirmed that basis, and Mr. Copeland did not object to the\n\nPSR. No one mentioned the residual clause. Accordingly, the record indicates the\n\ncourt relied on the enumerated clause in sentencing Mr. Copeland under the ACCA.\n\n\n\n\n 10\n In 2008, the Guidelines defined “crime of violence” to mean an offense\n“punishable by imprisonment for a term exceeding one year,” U.S.S.G. § 4B1.2(a)\n(2008), that meets one of three criteria: (1) “has as an element the use attempted use\nor threatened use of physical force against the person of another,” id. § 4B1.2(a)(1);\n(2) “is burglary of a dwelling, arson or extortion, [or] involves use of explosives,” id.\n§ 4B1.2(a)(2); (3) “otherwise involves conduct that presents a serious potential risk\nof physical injury to another,” id.\n 18\n\fBut, as we discuss next, the sentencing record is not as clear as the district court\n\nconcluded.\n\n c. Ambiguous sentencing record\n\n The district judge who denied Mr. Copeland’s § 2255 motion in 2017 was the\n\nsame judge who sentenced him in 2008. Because the district court did not specify\n\nwhether its denial of Mr. Copeland’s § 2255 motion was based at all on the judge’s\n\nmemory of the 2008 sentencing, we limit our review of the sentencing record to the\n\ntranscripts of the change of plea sentencing hearings and to the PSR.11 As explained\n\nbelow, we read that record as less conclusive about the basis for the ACCA\n\nsentencing enhancement than the district court’s reading.\n\n When it denied Mr. Copeland’s § 2255 motion in 2017, the district court found\n\nthat the sentencing record in 2008 unambiguously showed that it relied on the\n\nenumerated clause and not the residual clause to determine that Mr. Copeland’s\n\nburglary conviction was an ACCA violent felony. The court said, “[T]here is no\n\npossibility that [Mr. Copeland’s] burglary conviction was treated as a violent felony\n\nunder the residual clause.” Copeland, 2017 WL 4819108, at *3. It also said, “[T]he\n\nevidence is clear that [Mr. Copeland’s] conviction for second[-]degree burglary was\n\ntreated as a violent felony under the enumerated offense clause of the ACCA.” Id.\n\n\n\n 11\n But see United States v. Scully, 798 F.2d 411, 412 (10th Cir. 1986)\n(“Appellate courts have approved a district judge’s reliance on . . . memory to rule on\nthe merits of a § 2255 motion where [the judge] supplements the record with personal\nknowledge in situations where the record does not reflect one way or another whether\na defendant’s allegations have any validity.”).\n 19\n\f The record, however, is not so clear. The district court said in 2017 that “[t]he\n\n[c]ourt advised [Mr. Copeland in 2008] that it would not know if he qualified for\n\nsentencing under the ACCA until the probation office and his attorney gathered the\n\nnecessary records to determine if his conviction qualified as a generic burglary.”\n\nCopeland, 2017 WL 4819108, at *3 (emphasis added). But while the transcript of\n\nthe change of plea hearing does not rule out that the district court had generic\n\nburglary in mind, the transcript does not contain a specific reference to “generic\n\nburglary” or to the enumerated clause.\n\n Based on our review, the district court could have plausibly found from the\n\nsentencing record that it had relied on the enumerated clause rather than the residual\n\nclause. But we take issue with the district court’s conclusion that the sentencing\n\nrecord unambiguously supports this finding. The sentencing record, without any\n\nreference to the residual clause and only inferential references to the enumerated\n\nclause, is ambiguous.\n\n The district court in 2017 did not address the relevant background legal\n\nenvironment at the time of sentencing. But because the sentencing record is\n\nambiguous, we turn next to examine the relevant background law to inform our\n\nanalysis of whether the district court relied on the residual clause when it enhanced\n\nMr. Copeland’s sentence. See Driscoll, 892 F.3d at 1132 n.2 (explaining that “when\n\n\n\n\n 20\n\f. . . we are presented with an ambiguous sentencing record,” we examine the relevant\n\nbackground law “to show the most likely reasoning of the sentencing court”).12\n\n Background legal environment\n\n As the following discussion shows, the relevant background law at the time of\n\nMr. Copeland’s sentencing in 2008 supports a finding that the district court could\n\nonly have relied on the residual clause to determine that his California burglary\n\nconviction was a violent felony under the ACCA.\n\n Taylor v. United States, 495 U.S. 575 (1990), was the primary source of relevant\n\nbackground law in 2008. Taylor used California burglary as an example of a crime that\n\nis broader than generic burglary and that could not generally qualify as an enumerated\n\nclause predicate offense. Id. at 591, 599. But Taylor also said that a burglary conviction\n\ncould qualify when the charging documents showed that the prior offense fell within the\n\ndefinition of generic burglary. Id. at 602. As we show below, however, additional\n\nbackground law about use of PSRs that contain information about a prior offense\n\ncombined with the record in this case would have prevented the sentencing court’s\n\nreliance on the enumerated clause.\n\n\n 12\n In our previous discussion of the standard of review, we noted that this court\nin Driscoll said that “we review the factual determinations about the sentencing\nrecord for clear error and the legal conclusions about the relevant background legal\nenvironment de novo.” 892 F.3d at 1132-33. We also noted our cases generally call\nfor de novo review when, as here, the district court did not conduct an evidentiary\nhearing. This apparent tension does not affect our analysis of the sentencing record.\nUnder either clear error or de novo review, the district court may not have erred in\nconcluding that the sentencing record showed it had relied on the enumerated clause,\nbut it did err in concluding that the record showed it had unambiguously relied on the\nenumerated clause.\n 21\n\f a. California burglary and generic burglary\n\n In Taylor, the Supreme Court held that a prior burglary conviction qualified as\n\nan ACCA predicate when the underlying statute required proof of all elements of\n\ngeneric burglary—“an unlawful or unprivileged entry into, or remaining in, a\n\nbuilding or other structure, with intent to commit a crime.” Id. at 598. If the statute\n\nswept more broadly than generic burglary, the prior conviction was not categorically\n\nan ACCA predicate under the enumerated clause. Id. at 599. Two features of the\n\nCalifornia burglary statute placed it outside the generic burglary definition.13 First, it\n\ndid not require unlawful entry: “California defines ‘burglary’ so broadly as to\n\ninclude shoplifting . . . .” Taylor, 495 U.S. at 591. Second, it criminalized entry into\n\nplaces other than buildings. Id. at 599. Accordingly, a conviction for California\n\nburglary—in either the first or second degree—could not categorically be an ACCA\n\npredicate under the enumerated clause. Id. at 591; see United States v. Strahl, 958\n\n\n\n 13\n When Mr. Copeland was convicted of California second-degree burglary,\nCalifornia Penal Code § 459 defined burglary as follows:\n Every person who enters any house, room, apartment,\n tenement, shop, warehouse, store, mill, barn, stable, outhouse,\n or other building, tent, vessel, railroad car, trailer coach, . . .\n inhabited camper, . . . vehicle . . . , aircraft . . . , mine or any\n underground portion thereof, with intent to commit grand or\n petit larceny or any felony is guilty of burglary. As used in\n this chapter, “inhabited” means currently being use for\n dwelling purposes, whether occupied or not.\nCal. Penal Code § 459 (1981) (emphasis added). Burglary of inhabited dwelling\nhouses and various other inhabited places was burglary in the first degree. Id.\n§ 460(1). “All other kinds of burglary [were] of the second degree.” Id. § 460(2).\nThe statute has been amended several times, and the current version includes\nadditional locations that may be burglarized. See Cal. Penal Code § 459.\n 22\n\fF.2d 980, 983 (10th Cir. 1992), overruling on other grounds recognized by United\n\nStates v. Trent, 767 F.3d 1046, 1058 n.2 (10th Cir. 2014).\n\n b. California burglary convictions on charges limited to elements of generic\n burglary\n\n In Taylor, the Supreme Court said that a sentencing court could “go beyond\n\nthe mere fact of conviction in a narrow range of cases where a jury was actually\n\nrequired to find all the elements of generic burglary” to determine whether a prior\n\nburglary offense qualified as an ACCA predicate under the enumerated clause. Id. at\n\n602. Because the sentencing court’s task was to determine the elements of the\n\nburglary conviction and not “the facts underlying [it],” id. at 600, it could consult\n\nonly limited sources. These sources included the indictment or information and jury\n\ninstructions. Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the\n\nSupreme Court held this determination could be made about convictions following\n\nguilty pleas, and it expanded the list of permissible documents to include a “written\n\nplea agreement, transcript of [the] plea colloquy, and any explicit factual findings by\n\nthe trial judge to which the defendant assented.” Id. at 26; see also United States v.\n\nBarney, 955 F.2d 635, 639 (10th Cir. 1992). We refer to these materials as Shepard\n\ndocuments.14\n\n\n\n\n 14\n We did not use the phrase “Shepard documents” until 2012. See United\nStates v. Cartwright, 678 F.3d 907, 918 n.4 (2012). But this shorthand phrase is\nconsistent with the background legal environment when Mr. Copeland was sentenced.\n 23\n\f c. Use of a PSR to show elements of generic burglary\n\n Although a sentencing court in 2008 could use Shepard documents to find that a\n\nconviction for California burglary fit within the definition of generic burglary, was it\n\npermissible to rely instead on a PSR’s description of the burglary offense? The sparse\n\ncase law at the time permitted a court to do so only when the PSR itself relied on Shepard\n\ndocuments.\n\n In United States v. Perez-Vargas, 414 F.3d 1282, 1283 (10th Cir. 2005),15 decided\n\nfour months after Shepard, the defendant challenged his sentence on direct appeal,\n\narguing the district court erred when it enhanced his Guidelines offense level based on\n\nfinding that his Colorado assault conviction was a crime of violence. Id. at 1283. This\n\ncourt reversed, holding that the sentencing court’s reliance on the PSR’s description of\n\nthe assault offense was insufficient. Id. at 1285-87. The description must be “supported\n\nby proof allowable under Taylor and Shepard.” Id. at 1285. The appellate record lacked\n\n“the ‘court documents’ relied on by the PSR. We thus [could not] evaluate whether the\n\nrecords would be acceptable under the strictures of Supreme Court precedent.” Id.\n\n Perez-Vargas provided, therefore, that when Mr. Copeland was sentenced, a court\n\ncould rely on a PSR’s description of a prior crime to find it was an enumerated-clause\n\noffense, but only when the PSR was backed by “proof allowable under Taylor and\n\nShepard.” See id.\n\n\n\n\n 15\n Perez-Vargas has been overruled on other grounds. United States v.\nBettcher, 911 F.3d 1040, 1041 n.1 (10th Cir. 2018).\n 24\n\f The Government states that we can find relevant background law about reliance on\n\nPSRs in a passage from our 2018 decision in United States v. Washington: “[T]his court\n\n. . . upheld a district court’s reliance on a PSR in enhancing a sentence under the ACCA\n\nwhere the PSR was based in part on court records and the defendant did not object to the\n\nPSR.” 890 F.3d at 897 n.6. The court cited United States v. Harris, 447 F.3d 1300,\n\n1305-06 (10th Cir. 2006), for this statement. Harris, however, was not directly on point\n\nto Mr. Copeland’s sentencing because it upheld a district court’s reliance on a PSR to\n\ndetermine whether prior ACCA predicate crimes were committed on different occasions,\n\nnot whether they were violent felonies. Id. at 1305-06.16\n\n Perez-Vargas appears to supply the most pertinent background legal authority\n\non when a court in the Tenth Circuit in 2008 could rely on a PSR to make an ACCA\n\nenumeration-clause determination. But even under Washington’s take on Harris, a\n\ncourt would have needed more than a defendant’s failure to object to a PSR’s\n\ndescription of a prior offense. There must be some proof that the PSR relied on court\n\nrecords before its description could serve as the basis for an enumerated-clause\n\noffense finding.17\n\n\n 16\n Determining whether a conviction is a crime of violence or a violent felony\nrequires “a formal categorical approach, looking only to the statutory definitions of\nthe prior offenses, and not to the particular facts underlying those convictions,”\nPerez-Vargas, 414 F.3d at 1284, while determining whether prior convictions were\ncommitted on different occasions is a finding of fact similar to other factual\ndeterminations judges make in sentencing, United States v. Michel, 446 F.3d 1122,\n1132-33 (10th Cir. 2006).\n 17\n Mr. Copeland urges us to consider Descamps v. United States, 570 U.S. 254\n(2013), as part of the background legal environment, arguing it removed the modified\n 25\n\f d. California burglary and the residual clause\n\n In 2008, background law regarding California burglary and the residual clause\n\nwas undeveloped in the Tenth Circuit. In our 2012 Maldonado decision, we said that\n\n“[t]his circuit has not yet determined whether California’s first[-]degree burglary\n\noffense is a violent felony.” 696 F.3d at 1098.18 Although “[n]either the Supreme\n\nCourt nor the Tenth Circuit ha[d] addressed whether [first-degree California\n\nburglary] is a violent felony under the residual clause” of the ACCA, Maldonado,\n\n696 F.3d at 1099, we had held that second-degree California burglary was not a crime\n\nof violence under the residual clause of U.S.S.G. § 4B1.2(1)(ii), United States v.\n\nSmith, 10 F.3d 724, 733 (10th Cir. 1993) (per curiam),19 which, as noted above, was\n\nworded identically to the ACCA residual clause. Mr. Copeland has not cited, and we\n\nhave not found, case law from the Supreme Court, the Tenth Circuit, or other circuits\n\n\ncategorical approach from consideration of his prior burglary offense. We decline to\ndo so because we must consider only the relevant background law in 2008 when Mr.\nCopeland was sentenced. See Snyder, 871 F.3d at 1129.\n 18\n We held that California first-degree burglary was a violent felony under the\nACCA residual clause, a holding that would not be allowed after the Supreme\nCourt’s decision in Johnson that the ACCA residual clause is unconstitutionally\nvague.\n 19\n In Smith we acknowledged “[t]his view”—that second-degree burglary is not\na crime of violence—“is diametrically opposed to the position taken by Congress” in\nthe ACCA. 10 F.3d at 732. Smith interpreted Congress as “stat[ing] that every\nburglary inherently presents a serious potential risk of physical injury to another.”\nId.\n This view later found support in Leocal v. Ashcroft, 543 U.S. 1 (2004): “A\nburglary would be covered under [the definition of crime of violence in 18 U.S.C.]\n§ 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar\nwill use force against a victim in completing the crime.” Id. at 10.\n 26\n\fas of 2008 holding that a second-degree California burglary conviction could be an\n\nACCA residual clause offense.20\n\n Nonetheless, the Supreme Court’s 1990 decision in Taylor kept the door open to\n\nfinding second-degree California burglary to be a residual clause offense:\n\n Our present concern is only to determine what offenses\n should count as “burglaries” for enhancement purposes. The\n Government remains free to argue that any offense—\n including offenses similar to generic burglary—should count\n towards enhancement as one that “otherwise involves conduct\n that presents a serious potential risk of physical injury to\n another” under § 924(e)(2)(B)(ii).\n\n495 U.S. at 600 n.9.\n\n The Sentencing Record and the Background Law\n\n The sentencing record and the relevant background law stand in tension. The\n\nresidual clause was not mentioned in the sentencing record. The enumerated clause and\n\n“generic burglary” were not explicitly mentioned, either. But the discussions at the\n\nchange of plea hearing about obtaining the burglary conviction records and about the\n\ndifference between the enumerated clauses in the ACCA and the Guidelines suggested\n\nthe court was contemplating an enumerated-clause sentence. The description of the\n\nburglary offense in the PSR was consistent with generic burglary.\n\n In 2017, when the district court denied the § 2255 motion, the judge read the 2008\n\ntranscript as evincing reliance on the enumerated clause. As discussed above, the\n\n\n 20\n Mr. Copeland did cite, however, James v. United States, 550 U.S. 192\n(2007) (applying ACCA residual clause to Florida attempted burglary); and United\nStates v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993) (applying residual clause in 18\nU.S.C. § 16(b) to Texas burglary).\n 27\n\fsentencing record does not “reveal[] the sentencing court unambiguously relied on a\n\nclause other than the residual clause to enhance [Mr. Copeland’s] sentence under the\n\nACCA.” Driscoll, 892 F.3d at 1132 n.2 (emphasis added). The court made no “clear\n\npronouncement.” Lewis, 904 F.3d at 871. Nonetheless, the record still points to the\n\nenumerated clause as the basis for enhancement.\n\n By contrast, the relevant background law in 2008 permitted the court to rely on the\n\nenumerated clause only if Shepard documents or a PSR referring to them showed that the\n\nprior offense was generic burglary. But there were no Shepard documents in the record.\n\nAlthough the law regarding the use of Shepard documents was in its infancy, the few\n\nrelevant Tenth Circuit cases as of 2008 provided that the PSR at least needed to state it\n\nrelied on Shepard documents for its description of the offense to serve as the basis for a\n\ngeneric burglary finding. See Perez-Vargas, 414 F.3d at 1285.\n\n The relevant background law in 2008 lacked a decision holding that second-\n\ndegree California burglary qualified as a violent felony under the ACCA residual\n\nclause. See Washington, 890 F.3d at 897 (stating the movant “cites no authority\n\nindicating . . . second-degree burglary also qualified under the ACCA’s residual\n\nclause”). But Taylor kept the door open to that possibility.\n\n The Driscoll opinion’s analysis of Mr. Driscoll’s Nebraska burglary conviction is\n\ninstructive. Although the sentencing court had the “information”—the charging\n\ndocument—underlying the conviction, that document did not show that Mr. Driscoll had\n\n“burglarized a ‘building or structure’ within the generic definition of burglary.” 892 F.3d\n\nat 1134. The sentencing court could not have known whether he was prosecuted for\n\n 28\n\fburglarizing a building and therefore “could not have relied on the enumerated offenses\n\nclause because that would have violated Taylor.” Id. at 1135. Because the sentencing\n\nrecord was ambiguous “as to whether the sentencing court relied on the residual clause to\n\nenhance [Mr.] Driscoll’s sentence,” we concluded, based on the legal environment, that\n\n“the sentencing court must have relied on the residual clause, as any reliance on the\n\nenumerated offenses clause would have violated Taylor.” Id.\n\n As in Driscoll, the sentencing record here did not expressly mention the\n\nenumerated or the residual clauses. The court never used the words “enumerated clause”\n\nor “generic burglary.” At the change of plea hearing, the court’s colloquies with the\n\nlawyers and the probation officer indicated potential reliance on the enumerated clause—\n\nfar from conclusive or unambiguous evidence. The hearing occurred three months before\n\nsentencing. In the intervening period, the court could have picked a different basis for its\n\nsentence based on research, information (or lack of information) about Mr. Copeland’s\n\nprior conviction, or further reflection.\n\n Although Mr. Copeland’s sentencing record points more to the enumerated\n\nclause than the record did in Driscoll, Driscoll’s conclusion that the sentencing court\n\n“must have relied on the residual clause” due to the relevant background law, 892\n\nF.3d at 1135, determines the outcome here. Notwithstanding clues from the change\n\nof plea hearing that the court was contemplating the enumerated clause, the\n\napplicable law allowed an ACCA sentencing enhancement for the burglary\n\nconviction only under the residual clause. The background law points more strongly\n\ntoward the court’s use of the residual clause than the sentencing record points toward\n\n 29\n\fits use of the enumerated clause.21 It shows the sentencing court, with no Shepard\n\ndocuments to find “generic burglary,” could not have relied on the enumerated clause\n\nbut could have relied on the residual clause. As a result, Mr. Copeland “has\n\nadequately shown it is more likely than not that the sentencing court relied on the\n\nresidual clause to enhance his sentence.” Id.22\n\n This conclusion has two consequences. First, it means Mr. Copeland has satisfied\n\nthe requirements of 28 U.S.C. § 2255(h)(2) for a second or successive § 2255 motion by\n\nshowing that his claim relies on the “new rule of constitutional law” recognized in\n\n\n\n 21\n The combination of the sentencing record and the relevant background law in\nthis case stops short of a circumstance where (1) a sentencing court unambiguously stated\nthat it relied on the ACCA enumerated or elements clause to enhance the sentence, and\n(2) the relevant background law at the time of sentencing precluded reliance on the\nenumerated or elements clause but allowed reliance on the residual clause.\n We said in Driscoll that we “might” not need to consider the background law\nwhen the sentencing court has unambiguously relied on a clause other than the residual\nclause. Driscoll, 892 F.3d at 1132 n.2. But we have not explained when and how we\nshould consider the background law in that circumstance and when we should not.\n If we do not consider the background law in this scenario, the movant has failed to\nshow a Johnson error, even though, under the law at the time of sentencing, the only\nlegally permissible way to enhance the sentence would have been to rely on the residual\nclause. If we do consider the background law, would we say that the court could not\nhave relied on the enumerated clause, even though the court said it did, and that the\nprisoner has shown a Johnson error?\n Because this scenario does not describe our case, we do not attempt to resolve it.\nWe mention it here, however, because we recognized the difficulty of this question while\nanalyzing our case.\n 22\n We recently explained: “If, on the other hand, the sentencing court would\nhave been unable to rely on the enumerated-offenses clause or the elements clause at\nthe time of sentencing because doing so would have violated then-controlling law, we\nmay instead deduce that the sentencing court must have relied on the residual\nclause.” United States v. Neely, No. 17-8087, 2019 WL 761556, at *2 (10th Cir. Feb.\n20, 2019) (unpublished) (quotations omitted).\n 30\n\fJohnson that Welch “made retroactive to cases on collateral review.”23 Second, it means\n\nthat the district court committed a Johnson error in 2008 when it based Mr. Copeland’s\n\nsentence on the now-unconstitutional residual clause. We turn next to whether that error\n\nwas harmless.\n\n Harmless Error Analysis\n\n Even when a sentencing court erred by relying on the ACCA’s residual clause\n\nto enhance a sentence, we will grant habeas relief only if the error “‘had substantial\n\nand injurious effect or influence in determining’ his sentence.” Driscoll, 892 F.3d at\n\n1135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). More precisely,\n\n“[W]ould a sentencing judge, applying current law, determine that the movant’s\n\nconviction(s) still qualifies as a crime of violence under one or both of the still-valid\n\nACCA clauses and resentence him to the same length of imprisonment?” Lewis, 904\n\nF.3d at 873. If the answer is yes, we consider the error harmless. Id. “The\n\ngovernment bears the burden of proof on this issue.” Id. at 872 (quoting United\n\nStates v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018) (unpublished)).\n\n Applying “current law” to the harmless error analysis, id. at 873, we turn to\n\nDescamps v. United States, 570 U.S. 254 (2013). In Descamps, the Supreme Court\n\nsaid the California burglary statute does not list alternative elements, id. at 264, and\n\ntherefore “a conviction under that statute is never for generic burglary,” id. at 277.\n\n\n 23\n This is contrary to the district court’s conclusion that Mr. Copeland “has not\nasserted a claim for relief under Johnson,” Copeland, 2017 WL 4819108, at *4,\nwhich we take to be the court’s determination that Mr. Copeland could not pass the\nsecond gate for a second or successive § 2255 motion.\n 31\n\fAccordingly, a conviction under the California burglary statute is not an ACCA\n\npredicate. It fails under the elements clause because it lacks “as an element the use,\n\nattempted use, or threatened use of physical force against the person of another,”\n\ncompare 18 U.S.C. § 924(e), with Cal. Penal Code § 459; fails under the enumerated\n\nclause after Descamps, see 570 U.S. at 264; and cannot qualify under the residual\n\nclause because that clause is “unconstitutionally vague,” Johnson, 135 S. Ct. at 2557.\n\n Mr. Copeland had only two ACCA predicate offenses in 2008—his two drug\n\nconvictions. He lacks the required third ACCA predicate for an enhanced sentence\n\nbecause his California second-degree burglary does not qualify. He thus may not be\n\nsentenced, today, under the ACCA. The error in his 2008 sentence is therefore\n\nharmful.\n\n III. CONCLUSION\n\n Because Mr. Copeland has shown the district court relied on the residual\n\nclause when it sentenced him in 2008 and that his successive § 2255 motion relies on\n\nJohnson, he has passed the second gate of § 2255(h)(2) review. He further has\n\nshown that he should prevail on the merits.\n\n We therefore reverse the district court’s dismissal of Mr. Copeland’s § 2255\n\nmotion and remand with instructions to grant the motion to vacate, set aside the\n\nsentence, and resentence Mr. Copeland consistent with this opinion. In view of the\n\npotential consequence of this decision to Mr. Copeland’s custodial status, the\n\nmandate shall issue forthwith to enable the district court to conduct further\n\n\n\n 32\n\fproceedings on a prompt basis. Should the Government wish to petition for panel or\n\nen banc rehearing, we will consider a motion to recall the mandate.\n\n\n\n\n 33\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Aaron Eugene COPELAND, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n PUBLISH April 23, 2019\\n\\n UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker\\n Clerk of Court\\n\\n FOR THE TENTH CIRCUIT\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 17-5125\\n\\n AARON EUGENE COPELAND,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)\\n _________________________________\\n\\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\\nPublic Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa,\\nOklahoma, for Defendant - Appellant.\\n\\nLeena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,\\nNorthern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -\\nAppellee.\\n _________________________________\\n\\nBefore MATHESON, PHILLIPS, and EID, Circuit Judges.\\n _________________________________\\n\\nMATHESON, Circuit Judge.\\n _________________________________\\n\\n In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of\\n\\na firearm. The district court imposed an enhanced sentence of 15 years in prison\\n\\nunder the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his\\n\\ftwo prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After\\n\\nhe brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we\\n\\nauthorized Mr. Copeland to bring a successive § 2255 motion to assert that his\\n\\nsentence is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015), which\\n\\nheld that the ACCA’s definition of violent felony in its residual clause is\\n\\nunconstitutionally vague.\\n\\n Mr. Copeland’s § 2255 motion claimed the sentencing court relied on the\\n\\nunconstitutional residual clause to find that his prior burglary was a violent felony\\n\\nand therefore the court should not have enhanced his sentence. The district court\\n\\ndenied the motion, finding that it did not sentence Mr. Copeland under the residual\\n\\nclause and that his motion accordingly could not rely on Johnson. Exercising\\n\\njurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.\\n\\n I. BACKGROUND\\n\\n To help understand the facts and issues that Mr. Copeland’s § 2255 motion\\n\\npresents, we sketch the legal landscape surrounding this case, including discussion of\\n\\nthe ACCA’s definitions of “violent felony,” the Supreme Court’s decision in\\n\\nJohnson, and the requirements for bringing second and successive § 2255 motions.\\n\\nWe then describe the district court proceedings in 2008 leading to Mr. Copeland’s\\n\\nsentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We\\n\\npresent additional legal background later in the opinion.\\n\\n\\n\\n\\n 2\\n\\f A. Legal Landscape\\n\\n The ACCA\\n\\n It is a federal crime “for any person . . . who has been convicted in any court\\n\\nof[] a crime punishable by imprisonment for a term exceeding one year . . . to . . .\\n\\npossess . . . any firearm or ammunition.” 18 U.S.C. § 922(g). A violation of this\\n\\nfelon-in-possession statute usually carries a maximum penalty of 10 years in prison.\\n\\n18 U.S.C. § 924(a)(2). But under the ACCA, a person who “has three previous\\n\\nconvictions . . . for a violent felony or serious drug offense, or both” is subject to a\\n\\nminimum sentence of 15 years. 18 U.S.C. § 924(e).\\n\\n This appeal concerns the meaning of “violent felony.” The ACCA defines a\\n\\n“violent felony” as “any crime punishable by imprisonment for a term exceeding one\\n\\nyear” that also:\\n\\n (1) “has as an element the use, attempted use, or threatened use of physical\\n force against the person of another,” id. § 924(e)(2)(B)(i)—the elements\\n clause;\\n\\n (2) “is burglary, arson, or extortion, [or] involves the use of explosives,” id.\\n § 924(e)(2)(B)(ii)—the enumerated clause; or\\n\\n (3) “otherwise involves conduct that presents a serious potential risk of\\n physical injury to another,” id. § 924(e)(2)(B)(ii)—the residual clause.\\n\\nOnly the enumerated and residual clauses are pertinent to this appeal. Note that\\n\\n“burglary” is listed as one of the offenses in the enumerated clause.\\n\\n Johnson v. United States\\n\\n In 2015, the Supreme Court held in Johnson that the ACCA’s residual clause\\n\\nis “unconstitutionally vague,” 135 S. Ct. at 2557, leaving only the elements and\\n\\n 3\\n\\fenumerated clauses to define a violent felony. In 2016, the Court held in Welch v.\\n\\nUnited States, 136 S. Ct. 1257 (2016), that Johnson “announced a substantive rule\\n\\nthat has retroactive effect in cases on collateral review.” Id. at 1268.\\n\\n Section 2255 and Second or Successive Motions\\n\\n A federal prisoner “claiming the right to be released upon the ground that the\\n\\nsentence was imposed in violation of the Constitution” may move the district court\\n\\nthat sentenced him “to vacate, set aside[,] or correct the sentence.” 28 U.S.C.\\n\\n§ 2255(a). “Before a federal prisoner may file a second or successive motion under\\n\\n§ 2255, the prisoner must first obtain an order from the appropriate court of appeals\\n\\nauthorizing the district court to consider the motion.” In re Cline, 531 F.3d 1249,\\n\\n1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).\\n\\n A circuit court may authorize a second or successive § 2255 motion in two\\n\\ncircumstances. This appeal turns on one of them—whether the motion “contain[s]\\n\\n. . . a new rule of constitutional law, made retroactive to cases on collateral review by\\n\\nthe Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).1 “A\\n\\nmotion ‘contains’ a new rule of constitutional law, as required by § 2255(h), if the\\n\\nclaim for which authorization is sought ‘relies on’ the new rule.” United States v.\\n\\nMurphy, 887 F.3d 1064, 1067 (10th Cir. 2018).\\n\\n\\n\\n\\n 1\\n The other circumstance is when “newly discovered evidence that, if proven\\nand viewed in light of the evidence as a whole, would be sufficient to establish by\\nclear and convincing evidence that no reasonable factfinder would have found the\\nmovant guilty of the offense.” 28 U.S.C. § 2255(h)(1).\\n 4\\n\\f A movant attempting to file a second or successive § 2255 motion must pass\\n\\ntwo gates. The first is obtaining authorization from the circuit court to file the\\n\\nmotion, which requires only “a prima facie showing to the court of appeals that the\\n\\nmotion satisfies the requirements of § 2255(h), defined as a sufficient showing of\\n\\npossible merit to warrant a fuller exploration by the district court.” Id. at 1068\\n\\n(quotations omitted). The second requires “a determination by the district court that\\n\\nthe petition does, in fact, satisfy those requirements.” Id. This appeal concerns the\\n\\nsecond gate.\\n\\n B. Mr. Copeland’s Guilty Plea and Sentencing\\n\\n In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm,\\n\\nin violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the\\n\\nproceedings leading to his plea and sentence.\\n\\n Change of Plea Hearing\\n\\n At Mr. Copeland’s change of plea hearing, the district court and the parties\\n\\ndiscussed whether Mr. Copeland had at least three prior offenses that qualified him\\n\\nfor an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two\\n\\npredicate serious drug offenses. See ROA, Vol. II at 13-15.\\n\\n The discussion turned to whether Mr. Copeland’s 1981 conviction in\\n\\nCalifornia for second-degree burglary was a § 924(e) violent felony. Mr. Copeland’s\\n\\ncounsel said:\\n\\n I’ve pulled the statutes there in California, and I was not able\\n to get the actual judgment and sentence. You have to do that\\n in writing, and it takes a lot of—a long time, more than I had.\\n 5\\n\\f But out of an abundance of caution, I certainly counseled Mr.\\n Copeland as to my concerns, and I hope I’m wrong.\\n\\nId. at 14. The district court then explained to Mr. Copeland,\\n\\n [W]hat we’re talking about is whether . . . second-degree\\n burglary . . . meets the definition of a violent felony under the\\n Armed Career Criminal Act. We won’t know until the\\n probation officer and your attorney get all the records from\\n California, compare your conviction to the statute, compare it\\n to the [U.S. Sentencing Guidelines (“Guidelines”)] to\\n determine whether you fall under the act or not.\\n\\nId. at 15.2\\n\\n The court asked the probation officer whether he had “any better information than\\n\\n[the court or the parties] on whether or not [the § 924(e) enhancement] applie[d].” Id. at\\n\\n16. The probation officer responded that he did not, but he added that, according to an\\n\\napplication note in U.S.S.G. § 4B1.4, “the definition of a crime of violence under the\\n\\n[G]uidelines is different than the one in the statute. And the one in the [G]uidelines\\n\\nlimits burglaries to residential, but the one in the statute does not limit it.” Id. at 16. The\\n\\ncourt asked, “So when we’re doing Armed Career Criminal Act, we’re going under the\\n\\nstatutory definition?” The probation officer affirmed the court’s understanding. Id.3\\n\\n The district court advised Mr. Copeland again that the “burglary charge” was a\\n\\n“sentencing factor[] that c[ould] enhance [his] sentence.” Id. at 28. Then Mr. Copeland\\n\\n\\n\\n 2\\n It is not clear why the court referred initially to the Guidelines.\\n 3\\n As explained below, in 2008, the enumerated clause in the Guidelines\\ndiffered from the one in § 924(e)(2)(B)(ii), but the residual clause in the Guidelines\\nwas identical to the one in § 924(e)(2)(B)(ii). See infra note 10. This suggests that\\nthe court’s colloquy with the probation officer concerned the enumerated clause.\\n 6\\n\\fpled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the\\n\\nproceedings by advising Mr. Copeland that the probation officer would prepare a\\n\\nPresentence Investigation Report (“PSR”), “[a]nd if there are any issues, particularly with\\n\\nregard to the Armed Career Criminal Act, we’ll have a sentencing hearing if that’s an\\n\\nissue.” Id. at 37-38.\\n\\n Presentence Investigation Report\\n\\n The PSR reported that Mr. Copeland had been convicted in 1981 of “Burglary\\n\\nSecond Degree” in Oakland Superior Court and sentenced to one year in jail and\\n\\nthree years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other\\n\\nmen “used a water meter cover to break a window and enter” a California shoe store.\\n\\nId. “The trio stole 104 pairs of shoes, valued at a total of $2,600. They were\\n\\napprehended due to a witness observing them run out of the store carrying large\\n\\nplastic bags and notifying police.” Id. The PSR did not reveal the source of this\\n\\ninformation. See id.\\n\\n The PSR advised that Mr. Copeland was “an armed career criminal under the\\n\\nprovisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree”\\n\\nand the two serious drug offenses. Id. at 6. It did not cite to which part of\\n\\n§ 924(e)(2)(B)(ii)—the enumerated clause or the now-unconstitutional residual\\n\\nclause—it relied on to categorize Mr. Copeland’s California second-degree burglary\\n\\nconviction as a violent felony. See id.\\n\\n\\n\\n\\n 7\\n\\f Sentencing Hearing\\n\\n At the sentencing hearing, Mr. Copeland, through counsel, stated he had no\\n\\nobjection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR’s\\n\\nfindings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison—\\n\\nthe statutory minimum under § 924(e)—and five years of supervised release. Id. at\\n\\n50. The court did not address its basis for treating California second-degree burglary\\n\\nas a violent felony.\\n\\n C. Post-Conviction § 2255 Proceedings\\n\\n Mr. Copeland did not appeal4 but filed several unsuccessful motions to\\n\\nchallenge his sentence under 28 U.S.C. § 2255.5 After Welch held that Johnson\\n\\napplies retroactively on collateral review, we granted Mr. Copeland’s request to file a\\n\\nsuccessive § 2255 motion to challenge his sentence on the ground that it was based\\n\\non the ACCA’s unconstitutional residual clause, in violation of Johnson. In re\\n\\nCopeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr.\\n\\n\\n 4\\n Mr. Copeland’s failure to file a direct appeal raising a residual clause\\nvagueness claim does not foreclose his § 2255 motion. The Government has not\\nobjected on this ground. And even assuming the procedural-default rule applies, a\\n“Johnson claim was not reasonably available during the time when [Mr. Copeland]\\ncould have filed a direct appeal, and this is sufficient to establish cause. Moreover, if\\n[Mr. Copeland] is correct regarding his Johnson claim . . . . [he] has demonstrated\\nactual prejudice.” United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018)\\n(quotations omitted).\\n 5\\n See In re Copeland, No. 15-5097 (10th Cir. Nov. 5, 2015); In re Copeland,\\nNo. 14-5035 (10th Cir. April 17, 2014); United States v. Copeland, 539 F. App’x\\n918, 919 (10th Cir. 2013); United States v. Copeland, 509 F. App’x 760, 761 (10th\\nCir. 2013); United States v. Copeland, No. 13-CV-0479-CVE-FHM, 2013 WL\\n4022062, at *1 (N.D. Okla. Aug. 6, 2013).\\n 8\\n\\fCopeland moved the district court under § 2255 to vacate, set aside, or correct his\\n\\nsentence. ROA, Vol. I at 32.\\n\\n The district court denied his motion. United States v. Copeland, No. 08-CR-\\n\\n0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found “there is\\n\\nno possibility that [Mr. Copeland’s] burglary conviction was treated as a violent\\n\\nfelony under the residual clause.” Id. at *3. The court pointed to the discussion at\\n\\nthe change of plea hearing: “The [c]ourt advised [Mr. Copeland] that it would not\\n\\nknow if he qualified for sentencing under the ACCA until the probation office and\\n\\nhis attorney gathered the necessary records to determine if his conviction qualified as\\n\\na generic burglary.”6 Id. (emphasis added). The court concluded: “[T]he evidence is\\n\\nclear that [Mr. Copeland’s] conviction for second[-]degree burglary was treated as a\\n\\nviolent felony under the enumerated offense clause of the ACCA.” Id.\\n\\n Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under\\n\\nthe enumerated clause, it concluded that “Johnson has no application in this case”\\n\\nand that any other arguments Mr. Copeland urged were beyond the scope of our\\n\\nauthorization of his successive § 2255 motion. Id. at *4.\\n\\n The district court entered judgment against Mr. Copeland, and Mr. Copeland\\n\\ntimely appealed. See Fed. R. App. P. 4(a)(1)(B)(i). We granted a certificate of\\n\\nappealability.\\n\\n\\n\\n\\n 6\\n As we explain below, the transcript of the change of plea hearing shows that\\nthe district court did not use the words “enumerated” or “generic.”\\n 9\\n\\f II. DISCUSSION\\n\\n We begin with our standard of review and the burden of proof. We then\\n\\nexplain how courts determine whether there is sufficient evidence of Johnson error to\\n\\ngrant relief on a § 2255 motion. We conclude that Mr. Copeland has met his burden\\n\\nto show his sentence was based on the residual clause.\\n\\n A. Standard of Review and Movant’s Burden\\n\\n Standard of Review – Johnson Error\\n\\n The parties disagree about the standard of review. Mr. Copeland argues it is de\\n\\nnovo. Aplt. Reply Br. at 2. The Government contends we review the district court’s\\n\\nfindings for clear error and its conclusions of law de novo. Aplee. Br. at 7. Our cases, in\\n\\nparticular those addressing a district court’s denial of a § 2255 movant’s Johnson-error\\n\\nclaim, support Mr. Copeland’s position.\\n\\n In recent cases, this court said, “On appeal from the denial of a § 2255 motion,\\n\\nordinarily we review the district court’s findings of fact for clear error and its conclusions\\n\\nof law de novo.” United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018); United\\n\\nStates v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (same quotation); see also United\\n\\nStates v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (similar quotation). This quotation\\n\\ncame from United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), which in turn\\n\\nquoted from United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). But Barrett\\n\\nand Rushin, neither of which concerned Johnson-related claims, both said more—that\\n\\n“where, as here, the district court does not hold an evidentiary hearing, but rather denies\\n\\nthe motion as a matter of law upon an uncontested trial record, our review is strictly de\\n 10\\n\\fnovo.” Barrett, 797 F.3d at 1213 (quotations and brackets omitted); Rushin, 642 F.3d at\\n\\n1302.\\n\\n This court also recently said in United States v. Murphy, 887 F.3d 1064, 1068\\n\\n(10th Cir. 2018), “We review the dismissal of a § 2255 motion de novo.” We cited\\n\\nSnyder for this statement. Id. Shortly thereafter, in an appeal from a district court ruling\\n\\nthat the movant had failed to show he had a Johnson claim to satisfy § 2255(h)(2), the\\n\\npanel, citing Murphy, again said, “We review the district court’s determination de novo.”\\n\\nUnited States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (emphasis omitted).\\n\\n We think the proper reading of these cases is that our review of a district court’s\\n\\ndenial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary\\n\\nhearing from which it made findings. Unless the district court had the benefit of\\n\\nobserving live testimony in an evidentiary hearing, this court can review the sentencing\\n\\nrecord and the relevant background law on equal footing with the district court.7\\n\\n The de novo standard is consistent with our other recent § 2255 cases raising\\n\\nJohnson-related claims. This court recently reaffirmed that we conduct a de novo review\\n\\nof a denial of a § 2255 motion when the district court did not hold an evidentiary hearing.\\n\\nUnited States v. Pullen, 913 F.3d 1270, 1275 (10th Cir. 2019) (quoting Barrett); United\\n\\nStates v. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017) (quoting Rushin).\\n\\n\\n 7\\n To support its preferred standard of review, the Government quotes United\\nStates v. Viera, 674 F.3d 1214 (10th Cir. 2012): this court “review[s] the district\\ncourt’s findings for clear error and its conclusions of law de novo.” Id. at 1217; see\\nAplee. Br. at 7. But Viera quotes Rushin for this proposition, and, as noted above,\\nRushin goes on to say that review is de novo when the district court has not held an\\nevidentiary hearing. 642 F.3d at 1302.\\n 11\\n\\f Standard of Review – Sentencing Record and Background Law\\n\\n The Driscoll panel also addressed the standard of review for the two steps leading\\n\\nto the ultimate determination of whether a sentencing court relied on the residual clause:\\n\\n“[W]e review the [district court’s] factual determinations about the sentencing record for\\n\\nclear error and the legal conclusions about the relevant background legal environment de\\n\\nnovo.” 892 F.3d at 1132-33. As applied to our consideration of the district court’s\\n\\nanalysis of the sentencing record, this statement is in tension with the rule that de novo\\n\\nreview applies when there was no district court evidentiary hearing. But, as the\\n\\ndiscussion below shows, any such tension does not affect our disposition in this case.\\n\\n Burden of Proof\\n\\n The § 2255 movant bears the burden of proving by a preponderance of the\\n\\nevidence that “it was use of the residual clause that led to the sentencing court’s\\n\\nenhancement of his sentence.” Driscoll, 892 F.3d at 1135 (quotations omitted); see\\n\\nalso Washington, 890 F.3d at 895-96.\\n\\n B. Legal Background\\n\\n To determine whether the sentencing court relied on the residual clause, we\\n\\nexamine (1) “the sentencing record to confirm that ‘there is no mention whatsoever of the\\n\\nresidual clause in the PSR or any of the other sentencing court pleadings or transcripts,’”\\n\\nand (2) “the ‘relevant background legal environment’ at the time of sentencing to\\n\\ndetermine whether the district court would have needed to rely on the residual clause.’”\\n\\nDriscoll, 892 F.3d at 1132 (quoting Snyder, 871 F.3d at 1130) (brackets omitted). It may\\n\\nnot be necessary to consult background law if the sentencing record “unambiguously”\\n 12\\n\\fshows the court relied on a clause other than the residual clause because background law\\n\\n“is only useful insofar as it helps to show the most likely reasoning of the district court.”\\n\\nId. at 1132 n.2.\\n\\n Sentencing Record\\n\\n In previous cases, we have examined the sentencing record for (1) references\\n\\nto the residual clause or another ACCA clause, see, e.g., Driscoll, 892 F.3d at 1133,\\n\\nand (2) information about a movant’s prior convictions, Lewis, 904 F.3d at 871;\\n\\nWashington, 890 F.3d at 896.\\n\\n First, express “mention” of either the residual, elements, or enumerated clause8\\n\\nby the sentencing judge at sentencing, in a court order, in a PSR adopted by the\\n\\nsentencing judge, or in a party’s motion may be relevant and even sufficient to show\\n\\nwhether the sentencing court relied on the residual clause. See Driscoll, 892 F.3d\\n\\n1133 n.2.\\n\\n Second, facts about the movant’s previous convictions contained in the PSR,\\n\\nsentencing hearing, or other parts of the district court docket, when viewed in light of\\n\\nbackground law, can often enable a court to determine “whether the district court\\n\\nrelied on the residual clause in sentencing.” Washington, 890 F.3d at 896; see also\\n\\nLewis, 904 F.3d at 871-72.\\n\\n\\n\\n\\n 8\\n We have used the word “mention,” or a variant thereof to describe review of\\nthe record to assess Johnson error. See Driscoll, 892 F.3d at 1133; Murphy, 887 F.3d\\nat 1068; Snyder, 871 F.3d at 1128.\\n 13\\n\\f Nothing in our previous opinions excludes our review of any relevant evidence\\n\\nin the sentencing record regarding whether the sentencing court relied on the residual\\n\\nclause. For example, the court, the parties, or other participants in sentencing, such\\n\\nas a probation officer, may have made statements consistent with use of a particular\\n\\nclause. Until now, we have addressed this type of record evidence only in an\\n\\nunpublished case, where we considered the sentencing judge’s comments in\\n\\nconcluding that the court relied on the enumerated clause to sentence the movant.\\n\\nSee United States v. Couchman, 720 F. App’x 501, 504-06 (10th Cir. 2018)\\n\\n(unpublished).\\n\\n Background Legal Environment\\n\\n “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of\\n\\nwhat the controlling law was at the time of sentencing and does not take into account\\n\\npost-sentencing decisions that may have clarified or corrected pre-sentencing\\n\\ndecisions.” Snyder, 871 F.3d at 1129. It includes case law (1) holding that particular\\n\\noffenses qualify as violent felonies under specific ACCA clauses and (2) instructing\\n\\nhow to determine whether an offense qualifies. See id. at 1129-30.\\n\\n The Driscoll decision explained that we examine the relevant background legal\\n\\nenvironment at the time of sentencing “to determine whether the district court would\\n\\nhave needed to rely on the residual clause.” 892 F.3d at 1132. If the court’s “only\\n\\noption was the residual clause” under the background law because it could not have\\n\\nrelied on the enumerated or elements clause, “we conclude that the sentencing court\\n\\nmust have relied on the residual clause.” Id. at 1135. When background law\\n\\n 14\\n\\fforeclosing the enumerated or elements clause is coupled with a silent or ambiguous\\n\\nrecord, the movant “has adequately shown it is more likely than not that the\\n\\nsentencing court relied on the residual clause to enhance his sentence.” Id.\\n\\n Accordingly, “[i]n Johnson cases . . . a court can often determine whether the\\n\\ndistrict court relied on the residual clause in sentencing by looking to the relevant\\n\\nbackground legal environment that existed at the time of the [movant’s] sentencing\\n\\nand the PSR and other relevant materials before the district court.” Washington, 890\\n\\nF.3d at 896 (quotations and brackets omitted). The movant may meet his burden to\\n\\nshow the court relied on the residual clause by establishing that the background law\\n\\ndid not permit reliance on the other clauses. See Driscoll, 892 F.3d at 1135; see also\\n\\nBeeman v. United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert. denied, No. 18-\\n\\n6385, 2019 WL 659904 (U.S. Feb. 19, 2019) (“Certainly, if the law was clear at the time\\n\\nof sentencing that only the residual clause would authorize a finding that the prior\\n\\nconviction was a violent felony, that circumstance would strongly point to a sentencing\\n\\nper the residual clause.”).\\n\\n C. Analysis\\n\\n The sentencing record does not explicitly mention which ACCA violent felony\\n\\nclause the district court relied on to enhance Mr. Copeland’s sentence, though the change\\n\\nof plea hearing contains statements pointing more to reliance on the enumerated clause\\n\\nthan the residual clause. The relevant background legal environment in 2008, however,\\n\\nprevented reliance on the enumerated clause and allowed reliance on the residual clause.\\n\\nUnder these circumstances, we think our cases, especially Driscoll, require us to\\n\\n 15\\n\\fconclude that the sentencing court must have relied on the residual clause. The district\\n\\ncourt therefore erred in denying Mr. Copeland’s § 2255 motion, and because the error\\n\\nwas harmful, we reverse.\\n\\n Sentencing Record\\n\\n We recounted evidence from the sentencing record in the background section\\n\\nabove. As in Snyder, Washington, and Driscoll, the record does not include any\\n\\nreference, explicit or implicit, to the residual clause, and Mr. Copeland does not contend\\n\\notherwise. It also does not include any explicit reference to the enumerated clause or\\n\\nterms associated with the clause, such as “generic burglary.” But it is not silent, either.\\n\\nThe discussions at the change of plea hearing and the PSR’s description of the burglary\\n\\noffense at least suggest the court relied on the enumerated clause. And the district\\n\\njudge’s statement and finding in 2017 that she did so are consistent with that suggestion.\\n\\nNonetheless, the sentencing record is not clear.\\n\\n a. Change of plea hearing\\n\\n Although the sentencing record contains no direct statement of which ACCA\\n\\nclause the court relied on to find Mr. Copeland’s offense to be a violent felony, two\\n\\nexchanges at the change of plea hearing support an inference that the district court\\n\\nsentenced Mr. Copeland under the enumerated clause.\\n\\n First, Mr. Copeland’s counsel stated, “I’ve pulled the statutes there in\\n\\nCalifornia, and I was not able to get the actual judgment and sentence. You have to\\n\\ndo that in writing . . . .” ROA, Vol. II at 14. A few moments later, the district court\\n\\nsaid to Mr. Copeland, “We won’t know [whether California second-degree burglary\\n\\n 16\\n\\fis a violent felony] until the probation officer and your attorney get all the records\\n\\nfrom California, compare your conviction to the statute, compare it to the sentencing\\n\\nguidelines to determine whether you fall under the act or not.” Id. at 15.\\n\\n The records mentioned in the court’s statement were likely intended to\\n\\ndetermine whether Mr. Copeland’s burglary conviction was an offense under the\\n\\nenumerated clause rather than the residual clause. This is so because the law in 2008,\\n\\nas we explain below, (1) was certain that records could be used for an enumerated\\n\\nclause determination, and (2) was less certain whether the court could use records of\\n\\na prior burglary conviction to determine that a prior offense was a violent felony\\n\\nunder the residual clause, United States v. Maldonado, 696 F.3d 1095, 1099 (10th\\n\\nCir. 2012) (stating the issue was undecided in the Tenth Circuit before 2012).9\\n\\n Second, the district court asked whether the probation officer had “any better\\n\\ninformation . . . on whether or not [the § 924(e) enhancement] applie[d].” ROA, Vol.\\n\\nII at 16. The probation officer pointed to the differences between the enumerated\\n\\nclauses in § 4B1.2(a) of the Guidelines and in the ACCA, noting that the ACCA\\n\\nclause was not confined to residential burglaries and the Guidelines clause was. The\\n\\ncourt responded, “So when we’re doing the Armed Career Criminal Act, we’re going\\n\\nunder the statutory definition?” Id. at 16. This exchange suggests the district court\\n\\nshared the probation officer’s understanding that the definition of generic burglary\\n\\n\\n 9\\n Although cases like Snyder and Driscoll appear to suggest that we should\\nexamine the sentencing record and the relevant background law as separate sequential\\nsteps, in some instances, as in the discussion above, we must refer to background law to\\nexplain the relevance of certain sentencing record facts.\\n 17\\n\\funder the enumerated clause mattered to Mr. Copeland’s sentencing. Only the\\n\\nenumerated clause differed between the statute and the Guidelines—there would have\\n\\nbeen no need to consider the difference to apply the residual clause.10\\n\\n b. Sentencing hearing\\n\\n At sentencing, Mr. Copeland did not object to the PSR, which described his\\n\\nprior burglary offense as breaking and entering a structure with intent to steal—the\\n\\nelements of generic burglary. Neither the court nor the parties commented on the\\n\\napplication of the ACCA, and the court “accept[ed] the [PSR] as its findings of fact.”\\n\\nROA, Vol. II at 44. The record does not show that the parties’ or the court’s\\n\\nunderstanding of the basis for an ACCA sentence changed in the three months\\n\\nbetween the change of plea hearing and the sentencing hearing. As discussed above,\\n\\nat the change of plea hearing the court suggested that the enumerated clause would be\\n\\nthe basis for enhancing the sentence for the prior burglary. The PSR’s description of\\n\\nthe burglary conviction confirmed that basis, and Mr. Copeland did not object to the\\n\\nPSR. No one mentioned the residual clause. Accordingly, the record indicates the\\n\\ncourt relied on the enumerated clause in sentencing Mr. Copeland under the ACCA.\\n\\n\\n\\n\\n 10\\n In 2008, the Guidelines defined “crime of violence” to mean an offense\\n“punishable by imprisonment for a term exceeding one year,” U.S.S.G. § 4B1.2(a)\\n(2008), that meets one of three criteria: (1) “has as an element the use attempted use\\nor threatened use of physical force against the person of another,” id. § 4B1.2(a)(1);\\n(2) “is burglary of a dwelling, arson or extortion, [or] involves use of explosives,” id.\\n§ 4B1.2(a)(2); (3) “otherwise involves conduct that presents a serious potential risk\\nof physical injury to another,” id.\\n 18\\n\\fBut, as we discuss next, the sentencing record is not as clear as the district court\\n\\nconcluded.\\n\\n c. Ambiguous sentencing record\\n\\n The district judge who denied Mr. Copeland’s § 2255 motion in 2017 was the\\n\\nsame judge who sentenced him in 2008. Because the district court did not specify\\n\\nwhether its denial of Mr. Copeland’s § 2255 motion was based at all on the judge’s\\n\\nmemory of the 2008 sentencing, we limit our review of the sentencing record to the\\n\\ntranscripts of the change of plea sentencing hearings and to the PSR.11 As explained\\n\\nbelow, we read that record as less conclusive about the basis for the ACCA\\n\\nsentencing enhancement than the district court’s reading.\\n\\n When it denied Mr. Copeland’s § 2255 motion in 2017, the district court found\\n\\nthat the sentencing record in 2008 unambiguously showed that it relied on the\\n\\nenumerated clause and not the residual clause to determine that Mr. Copeland’s\\n\\nburglary conviction was an ACCA violent felony. The court said, “[T]here is no\\n\\npossibility that [Mr. Copeland’s] burglary conviction was treated as a violent felony\\n\\nunder the residual clause.” Copeland, 2017 WL 4819108, at *3. It also said, “[T]he\\n\\nevidence is clear that [Mr. Copeland’s] conviction for second[-]degree burglary was\\n\\ntreated as a violent felony under the enumerated offense clause of the ACCA.” Id.\\n\\n\\n\\n 11\\n But see United States v. Scully, 798 F.2d 411, 412 (10th Cir. 1986)\\n(“Appellate courts have approved a district judge’s reliance on . . . memory to rule on\\nthe merits of a § 2255 motion where [the judge] supplements the record with personal\\nknowledge in situations where the record does not reflect one way or another whether\\na defendant’s allegations have any validity.”).\\n 19\\n\\f The record, however, is not so clear. The district court said in 2017 that “[t]he\\n\\n[c]ourt advised [Mr. Copeland in 2008] that it would not know if he qualified for\\n\\nsentencing under the ACCA until the probation office and his attorney gathered the\\n\\nnecessary records to determine if his conviction qualified as a generic burglary.”\\n\\nCopeland, 2017 WL 4819108, at *3 (emphasis added). But while the transcript of\\n\\nthe change of plea hearing does not rule out that the district court had generic\\n\\nburglary in mind, the transcript does not contain a specific reference to “generic\\n\\nburglary” or to the enumerated clause.\\n\\n Based on our review, the district court could have plausibly found from the\\n\\nsentencing record that it had relied on the enumerated clause rather than the residual\\n\\nclause. But we take issue with the district court’s conclusion that the sentencing\\n\\nrecord unambiguously supports this finding. The sentencing record, without any\\n\\nreference to the residual clause and only inferential references to the enumerated\\n\\nclause, is ambiguous.\\n\\n The district court in 2017 did not address the relevant background legal\\n\\nenvironment at the time of sentencing. But because the sentencing record is\\n\\nambiguous, we turn next to examine the relevant background law to inform our\\n\\nanalysis of whether the district court relied on the residual clause when it enhanced\\n\\nMr. Copeland’s sentence. See Driscoll, 892 F.3d at 1132 n.2 (explaining that “when\\n\\n\\n\\n\\n 20\\n\\f. . . we are presented with an ambiguous sentencing record,” we examine the relevant\\n\\nbackground law “to show the most likely reasoning of the sentencing court”).12\\n\\n Background legal environment\\n\\n As the following discussion shows, the relevant background law at the time of\\n\\nMr. Copeland’s sentencing in 2008 supports a finding that the district court could\\n\\nonly have relied on the residual clause to determine that his California burglary\\n\\nconviction was a violent felony under the ACCA.\\n\\n Taylor v. United States, 495 U.S. 575 (1990), was the primary source of relevant\\n\\nbackground law in 2008. Taylor used California burglary as an example of a crime that\\n\\nis broader than generic burglary and that could not generally qualify as an enumerated\\n\\nclause predicate offense. Id. at 591, 599. But Taylor also said that a burglary conviction\\n\\ncould qualify when the charging documents showed that the prior offense fell within the\\n\\ndefinition of generic burglary. Id. at 602. As we show below, however, additional\\n\\nbackground law about use of PSRs that contain information about a prior offense\\n\\ncombined with the record in this case would have prevented the sentencing court’s\\n\\nreliance on the enumerated clause.\\n\\n\\n 12\\n In our previous discussion of the standard of review, we noted that this court\\nin Driscoll said that “we review the factual determinations about the sentencing\\nrecord for clear error and the legal conclusions about the relevant background legal\\nenvironment de novo.” 892 F.3d at 1132-33. We also noted our cases generally call\\nfor de novo review when, as here, the district court did not conduct an evidentiary\\nhearing. This apparent tension does not affect our analysis of the sentencing record.\\nUnder either clear error or de novo review, the district court may not have erred in\\nconcluding that the sentencing record showed it had relied on the enumerated clause,\\nbut it did err in concluding that the record showed it had unambiguously relied on the\\nenumerated clause.\\n 21\\n\\f a. California burglary and generic burglary\\n\\n In Taylor, the Supreme Court held that a prior burglary conviction qualified as\\n\\nan ACCA predicate when the underlying statute required proof of all elements of\\n\\ngeneric burglary—“an unlawful or unprivileged entry into, or remaining in, a\\n\\nbuilding or other structure, with intent to commit a crime.” Id. at 598. If the statute\\n\\nswept more broadly than generic burglary, the prior conviction was not categorically\\n\\nan ACCA predicate under the enumerated clause. Id. at 599. Two features of the\\n\\nCalifornia burglary statute placed it outside the generic burglary definition.13 First, it\\n\\ndid not require unlawful entry: “California defines ‘burglary’ so broadly as to\\n\\ninclude shoplifting . . . .” Taylor, 495 U.S. at 591. Second, it criminalized entry into\\n\\nplaces other than buildings. Id. at 599. Accordingly, a conviction for California\\n\\nburglary—in either the first or second degree—could not categorically be an ACCA\\n\\npredicate under the enumerated clause. Id. at 591; see United States v. Strahl, 958\\n\\n\\n\\n 13\\n When Mr. Copeland was convicted of California second-degree burglary,\\nCalifornia Penal Code § 459 defined burglary as follows:\\n Every person who enters any house, room, apartment,\\n tenement, shop, warehouse, store, mill, barn, stable, outhouse,\\n or other building, tent, vessel, railroad car, trailer coach, . . .\\n inhabited camper, . . . vehicle . . . , aircraft . . . , mine or any\\n underground portion thereof, with intent to commit grand or\\n petit larceny or any felony is guilty of burglary. As used in\\n this chapter, “inhabited” means currently being use for\\n dwelling purposes, whether occupied or not.\\nCal. Penal Code § 459 (1981) (emphasis added). Burglary of inhabited dwelling\\nhouses and various other inhabited places was burglary in the first degree. Id.\\n§ 460(1). “All other kinds of burglary [were] of the second degree.” Id. § 460(2).\\nThe statute has been amended several times, and the current version includes\\nadditional locations that may be burglarized. See Cal. Penal Code § 459.\\n 22\\n\\fF.2d 980, 983 (10th Cir. 1992), overruling on other grounds recognized by United\\n\\nStates v. Trent, 767 F.3d 1046, 1058 n.2 (10th Cir. 2014).\\n\\n b. California burglary convictions on charges limited to elements of generic\\n burglary\\n\\n In Taylor, the Supreme Court said that a sentencing court could “go beyond\\n\\nthe mere fact of conviction in a narrow range of cases where a jury was actually\\n\\nrequired to find all the elements of generic burglary” to determine whether a prior\\n\\nburglary offense qualified as an ACCA predicate under the enumerated clause. Id. at\\n\\n602. Because the sentencing court’s task was to determine the elements of the\\n\\nburglary conviction and not “the facts underlying [it],” id. at 600, it could consult\\n\\nonly limited sources. These sources included the indictment or information and jury\\n\\ninstructions. Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the\\n\\nSupreme Court held this determination could be made about convictions following\\n\\nguilty pleas, and it expanded the list of permissible documents to include a “written\\n\\nplea agreement, transcript of [the] plea colloquy, and any explicit factual findings by\\n\\nthe trial judge to which the defendant assented.” Id. at 26; see also United States v.\\n\\nBarney, 955 F.2d 635, 639 (10th Cir. 1992). We refer to these materials as Shepard\\n\\ndocuments.14\\n\\n\\n\\n\\n 14\\n We did not use the phrase “Shepard documents” until 2012. See United\\nStates v. Cartwright, 678 F.3d 907, 918 n.4 (2012). But this shorthand phrase is\\nconsistent with the background legal environment when Mr. Copeland was sentenced.\\n 23\\n\\f c. Use of a PSR to show elements of generic burglary\\n\\n Although a sentencing court in 2008 could use Shepard documents to find that a\\n\\nconviction for California burglary fit within the definition of generic burglary, was it\\n\\npermissible to rely instead on a PSR’s description of the burglary offense? The sparse\\n\\ncase law at the time permitted a court to do so only when the PSR itself relied on Shepard\\n\\ndocuments.\\n\\n In United States v. Perez-Vargas, 414 F.3d 1282, 1283 (10th Cir. 2005),15 decided\\n\\nfour months after Shepard, the defendant challenged his sentence on direct appeal,\\n\\narguing the district court erred when it enhanced his Guidelines offense level based on\\n\\nfinding that his Colorado assault conviction was a crime of violence. Id. at 1283. This\\n\\ncourt reversed, holding that the sentencing court’s reliance on the PSR’s description of\\n\\nthe assault offense was insufficient. Id. at 1285-87. The description must be “supported\\n\\nby proof allowable under Taylor and Shepard.” Id. at 1285. The appellate record lacked\\n\\n“the ‘court documents’ relied on by the PSR. We thus [could not] evaluate whether the\\n\\nrecords would be acceptable under the strictures of Supreme Court precedent.” Id.\\n\\n Perez-Vargas provided, therefore, that when Mr. Copeland was sentenced, a court\\n\\ncould rely on a PSR’s description of a prior crime to find it was an enumerated-clause\\n\\noffense, but only when the PSR was backed by “proof allowable under Taylor and\\n\\nShepard.” See id.\\n\\n\\n\\n\\n 15\\n Perez-Vargas has been overruled on other grounds. United States v.\\nBettcher, 911 F.3d 1040, 1041 n.1 (10th Cir. 2018).\\n 24\\n\\f The Government states that we can find relevant background law about reliance on\\n\\nPSRs in a passage from our 2018 decision in United States v. Washington: “[T]his court\\n\\n. . . upheld a district court’s reliance on a PSR in enhancing a sentence under the ACCA\\n\\nwhere the PSR was based in part on court records and the defendant did not object to the\\n\\nPSR.” 890 F.3d at 897 n.6. The court cited United States v. Harris, 447 F.3d 1300,\\n\\n1305-06 (10th Cir. 2006), for this statement. Harris, however, was not directly on point\\n\\nto Mr. Copeland’s sentencing because it upheld a district court’s reliance on a PSR to\\n\\ndetermine whether prior ACCA predicate crimes were committed on different occasions,\\n\\nnot whether they were violent felonies. Id. at 1305-06.16\\n\\n Perez-Vargas appears to supply the most pertinent background legal authority\\n\\non when a court in the Tenth Circuit in 2008 could rely on a PSR to make an ACCA\\n\\nenumeration-clause determination. But even under Washington’s take on Harris, a\\n\\ncourt would have needed more than a defendant’s failure to object to a PSR’s\\n\\ndescription of a prior offense. There must be some proof that the PSR relied on court\\n\\nrecords before its description could serve as the basis for an enumerated-clause\\n\\noffense finding.17\\n\\n\\n 16\\n Determining whether a conviction is a crime of violence or a violent felony\\nrequires “a formal categorical approach, looking only to the statutory definitions of\\nthe prior offenses, and not to the particular facts underlying those convictions,”\\nPerez-Vargas, 414 F.3d at 1284, while determining whether prior convictions were\\ncommitted on different occasions is a finding of fact similar to other factual\\ndeterminations judges make in sentencing, United States v. Michel, 446 F.3d 1122,\\n1132-33 (10th Cir. 2006).\\n 17\\n Mr. Copeland urges us to consider Descamps v. United States, 570 U.S. 254\\n(2013), as part of the background legal environment, arguing it removed the modified\\n 25\\n\\f d. California burglary and the residual clause\\n\\n In 2008, background law regarding California burglary and the residual clause\\n\\nwas undeveloped in the Tenth Circuit. In our 2012 Maldonado decision, we said that\\n\\n“[t]his circuit has not yet determined whether California’s first[-]degree burglary\\n\\noffense is a violent felony.” 696 F.3d at 1098.18 Although “[n]either the Supreme\\n\\nCourt nor the Tenth Circuit ha[d] addressed whether [first-degree California\\n\\nburglary] is a violent felony under the residual clause” of the ACCA, Maldonado,\\n\\n696 F.3d at 1099, we had held that second-degree California burglary was not a crime\\n\\nof violence under the residual clause of U.S.S.G. § 4B1.2(1)(ii), United States v.\\n\\nSmith, 10 F.3d 724, 733 (10th Cir. 1993) (per curiam),19 which, as noted above, was\\n\\nworded identically to the ACCA residual clause. Mr. Copeland has not cited, and we\\n\\nhave not found, case law from the Supreme Court, the Tenth Circuit, or other circuits\\n\\n\\ncategorical approach from consideration of his prior burglary offense. We decline to\\ndo so because we must consider only the relevant background law in 2008 when Mr.\\nCopeland was sentenced. See Snyder, 871 F.3d at 1129.\\n 18\\n We held that California first-degree burglary was a violent felony under the\\nACCA residual clause, a holding that would not be allowed after the Supreme\\nCourt’s decision in Johnson that the ACCA residual clause is unconstitutionally\\nvague.\\n 19\\n In Smith we acknowledged “[t]his view”—that second-degree burglary is not\\na crime of violence—“is diametrically opposed to the position taken by Congress” in\\nthe ACCA. 10 F.3d at 732. Smith interpreted Congress as “stat[ing] that every\\nburglary inherently presents a serious potential risk of physical injury to another.”\\nId.\\n This view later found support in Leocal v. Ashcroft, 543 U.S. 1 (2004): “A\\nburglary would be covered under [the definition of crime of violence in 18 U.S.C.]\\n§ 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar\\nwill use force against a victim in completing the crime.” Id. at 10.\\n 26\\n\\fas of 2008 holding that a second-degree California burglary conviction could be an\\n\\nACCA residual clause offense.20\\n\\n Nonetheless, the Supreme Court’s 1990 decision in Taylor kept the door open to\\n\\nfinding second-degree California burglary to be a residual clause offense:\\n\\n Our present concern is only to determine what offenses\\n should count as “burglaries” for enhancement purposes. The\\n Government remains free to argue that any offense—\\n including offenses similar to generic burglary—should count\\n towards enhancement as one that “otherwise involves conduct\\n that presents a serious potential risk of physical injury to\\n another” under § 924(e)(2)(B)(ii).\\n\\n495 U.S. at 600 n.9.\\n\\n The Sentencing Record and the Background Law\\n\\n The sentencing record and the relevant background law stand in tension. The\\n\\nresidual clause was not mentioned in the sentencing record. The enumerated clause and\\n\\n“generic burglary” were not explicitly mentioned, either. But the discussions at the\\n\\nchange of plea hearing about obtaining the burglary conviction records and about the\\n\\ndifference between the enumerated clauses in the ACCA and the Guidelines suggested\\n\\nthe court was contemplating an enumerated-clause sentence. The description of the\\n\\nburglary offense in the PSR was consistent with generic burglary.\\n\\n In 2017, when the district court denied the § 2255 motion, the judge read the 2008\\n\\ntranscript as evincing reliance on the enumerated clause. As discussed above, the\\n\\n\\n 20\\n Mr. Copeland did cite, however, James v. United States, 550 U.S. 192\\n(2007) (applying ACCA residual clause to Florida attempted burglary); and United\\nStates v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993) (applying residual clause in 18\\nU.S.C. § 16(b) to Texas burglary).\\n 27\\n\\fsentencing record does not “reveal[] the sentencing court unambiguously relied on a\\n\\nclause other than the residual clause to enhance [Mr. Copeland’s] sentence under the\\n\\nACCA.” Driscoll, 892 F.3d at 1132 n.2 (emphasis added). The court made no “clear\\n\\npronouncement.” Lewis, 904 F.3d at 871. Nonetheless, the record still points to the\\n\\nenumerated clause as the basis for enhancement.\\n\\n By contrast, the relevant background law in 2008 permitted the court to rely on the\\n\\nenumerated clause only if Shepard documents or a PSR referring to them showed that the\\n\\nprior offense was generic burglary. But there were no Shepard documents in the record.\\n\\nAlthough the law regarding the use of Shepard documents was in its infancy, the few\\n\\nrelevant Tenth Circuit cases as of 2008 provided that the PSR at least needed to state it\\n\\nrelied on Shepard documents for its description of the offense to serve as the basis for a\\n\\ngeneric burglary finding. See Perez-Vargas, 414 F.3d at 1285.\\n\\n The relevant background law in 2008 lacked a decision holding that second-\\n\\ndegree California burglary qualified as a violent felony under the ACCA residual\\n\\nclause. See Washington, 890 F.3d at 897 (stating the movant “cites no authority\\n\\nindicating . . . second-degree burglary also qualified under the ACCA’s residual\\n\\nclause”). But Taylor kept the door open to that possibility.\\n\\n The Driscoll opinion’s analysis of Mr. Driscoll’s Nebraska burglary conviction is\\n\\ninstructive. Although the sentencing court had the “information”—the charging\\n\\ndocument—underlying the conviction, that document did not show that Mr. Driscoll had\\n\\n“burglarized a ‘building or structure’ within the generic definition of burglary.” 892 F.3d\\n\\nat 1134. The sentencing court could not have known whether he was prosecuted for\\n\\n 28\\n\\fburglarizing a building and therefore “could not have relied on the enumerated offenses\\n\\nclause because that would have violated Taylor.” Id. at 1135. Because the sentencing\\n\\nrecord was ambiguous “as to whether the sentencing court relied on the residual clause to\\n\\nenhance [Mr.] Driscoll’s sentence,” we concluded, based on the legal environment, that\\n\\n“the sentencing court must have relied on the residual clause, as any reliance on the\\n\\nenumerated offenses clause would have violated Taylor.” Id.\\n\\n As in Driscoll, the sentencing record here did not expressly mention the\\n\\nenumerated or the residual clauses. The court never used the words “enumerated clause”\\n\\nor “generic burglary.” At the change of plea hearing, the court’s colloquies with the\\n\\nlawyers and the probation officer indicated potential reliance on the enumerated clause—\\n\\nfar from conclusive or unambiguous evidence. The hearing occurred three months before\\n\\nsentencing. In the intervening period, the court could have picked a different basis for its\\n\\nsentence based on research, information (or lack of information) about Mr. Copeland’s\\n\\nprior conviction, or further reflection.\\n\\n Although Mr. Copeland’s sentencing record points more to the enumerated\\n\\nclause than the record did in Driscoll, Driscoll’s conclusion that the sentencing court\\n\\n“must have relied on the residual clause” due to the relevant background law, 892\\n\\nF.3d at 1135, determines the outcome here. Notwithstanding clues from the change\\n\\nof plea hearing that the court was contemplating the enumerated clause, the\\n\\napplicable law allowed an ACCA sentencing enhancement for the burglary\\n\\nconviction only under the residual clause. The background law points more strongly\\n\\ntoward the court’s use of the residual clause than the sentencing record points toward\\n\\n 29\\n\\fits use of the enumerated clause.21 It shows the sentencing court, with no Shepard\\n\\ndocuments to find “generic burglary,” could not have relied on the enumerated clause\\n\\nbut could have relied on the residual clause. As a result, Mr. Copeland “has\\n\\nadequately shown it is more likely than not that the sentencing court relied on the\\n\\nresidual clause to enhance his sentence.” Id.22\\n\\n This conclusion has two consequences. First, it means Mr. Copeland has satisfied\\n\\nthe requirements of 28 U.S.C. § 2255(h)(2) for a second or successive § 2255 motion by\\n\\nshowing that his claim relies on the “new rule of constitutional law” recognized in\\n\\n\\n\\n 21\\n The combination of the sentencing record and the relevant background law in\\nthis case stops short of a circumstance where (1) a sentencing court unambiguously stated\\nthat it relied on the ACCA enumerated or elements clause to enhance the sentence, and\\n(2) the relevant background law at the time of sentencing precluded reliance on the\\nenumerated or elements clause but allowed reliance on the residual clause.\\n We said in Driscoll that we “might” not need to consider the background law\\nwhen the sentencing court has unambiguously relied on a clause other than the residual\\nclause. Driscoll, 892 F.3d at 1132 n.2. But we have not explained when and how we\\nshould consider the background law in that circumstance and when we should not.\\n If we do not consider the background law in this scenario, the movant has failed to\\nshow a Johnson error, even though, under the law at the time of sentencing, the only\\nlegally permissible way to enhance the sentence would have been to rely on the residual\\nclause. If we do consider the background law, would we say that the court could not\\nhave relied on the enumerated clause, even though the court said it did, and that the\\nprisoner has shown a Johnson error?\\n Because this scenario does not describe our case, we do not attempt to resolve it.\\nWe mention it here, however, because we recognized the difficulty of this question while\\nanalyzing our case.\\n 22\\n We recently explained: “If, on the other hand, the sentencing court would\\nhave been unable to rely on the enumerated-offenses clause or the elements clause at\\nthe time of sentencing because doing so would have violated then-controlling law, we\\nmay instead deduce that the sentencing court must have relied on the residual\\nclause.” United States v. Neely, No. 17-8087, 2019 WL 761556, at *2 (10th Cir. Feb.\\n20, 2019) (unpublished) (quotations omitted).\\n 30\\n\\fJohnson that Welch “made retroactive to cases on collateral review.”23 Second, it means\\n\\nthat the district court committed a Johnson error in 2008 when it based Mr. Copeland’s\\n\\nsentence on the now-unconstitutional residual clause. We turn next to whether that error\\n\\nwas harmless.\\n\\n Harmless Error Analysis\\n\\n Even when a sentencing court erred by relying on the ACCA’s residual clause\\n\\nto enhance a sentence, we will grant habeas relief only if the error “‘had substantial\\n\\nand injurious effect or influence in determining’ his sentence.” Driscoll, 892 F.3d at\\n\\n1135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). More precisely,\\n\\n“[W]ould a sentencing judge, applying current law, determine that the movant’s\\n\\nconviction(s) still qualifies as a crime of violence under one or both of the still-valid\\n\\nACCA clauses and resentence him to the same length of imprisonment?” Lewis, 904\\n\\nF.3d at 873. If the answer is yes, we consider the error harmless. Id. “The\\n\\ngovernment bears the burden of proof on this issue.” Id. at 872 (quoting United\\n\\nStates v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018) (unpublished)).\\n\\n Applying “current law” to the harmless error analysis, id. at 873, we turn to\\n\\nDescamps v. United States, 570 U.S. 254 (2013). In Descamps, the Supreme Court\\n\\nsaid the California burglary statute does not list alternative elements, id. at 264, and\\n\\ntherefore “a conviction under that statute is never for generic burglary,” id. at 277.\\n\\n\\n 23\\n This is contrary to the district court’s conclusion that Mr. Copeland “has not\\nasserted a claim for relief under Johnson,” Copeland, 2017 WL 4819108, at *4,\\nwhich we take to be the court’s determination that Mr. Copeland could not pass the\\nsecond gate for a second or successive § 2255 motion.\\n 31\\n\\fAccordingly, a conviction under the California burglary statute is not an ACCA\\n\\npredicate. It fails under the elements clause because it lacks “as an element the use,\\n\\nattempted use, or threatened use of physical force against the person of another,”\\n\\ncompare 18 U.S.C. § 924(e), with Cal. Penal Code § 459; fails under the enumerated\\n\\nclause after Descamps, see 570 U.S. at 264; and cannot qualify under the residual\\n\\nclause because that clause is “unconstitutionally vague,” Johnson, 135 S. Ct. at 2557.\\n\\n Mr. Copeland had only two ACCA predicate offenses in 2008—his two drug\\n\\nconvictions. He lacks the required third ACCA predicate for an enhanced sentence\\n\\nbecause his California second-degree burglary does not qualify. He thus may not be\\n\\nsentenced, today, under the ACCA. The error in his 2008 sentence is therefore\\n\\nharmful.\\n\\n III. CONCLUSION\\n\\n Because Mr. Copeland has shown the district court relied on the residual\\n\\nclause when it sentenced him in 2008 and that his successive § 2255 motion relies on\\n\\nJohnson, he has passed the second gate of § 2255(h)(2) review. He further has\\n\\nshown that he should prevail on the merits.\\n\\n We therefore reverse the district court’s dismissal of Mr. Copeland’s § 2255\\n\\nmotion and remand with instructions to grant the motion to vacate, set aside the\\n\\nsentence, and resentence Mr. Copeland consistent with this opinion. In view of the\\n\\npotential consequence of this decision to Mr. Copeland’s custodial status, the\\n\\nmandate shall issue forthwith to enable the district court to conduct further\\n\\n\\n\\n 32\\n\\fproceedings on a prompt basis. Should the Government wish to petition for panel or\\n\\nen banc rehearing, we will consider a motion to recall the mandate.\\n\\n\\n\\n\\n 33\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1860,"cells":{"id":{"kind":"number","value":4612505,"string":"4,612,505"},"name":{"kind":"string","value":"Benjamin GRICE and Kayla Patchett, Plaintiffs - Appellants, v. CVR ENERGY, INC. and CVR Refining, LP, Defendants - Appellees, and Flowserve Corporation; Flowserve US, Inc.; Doug Richison; And John Doe Engineering Company, Defendants."},"name_abbreviation":{"kind":"string","value":"Grice v. CVR Energy, Inc."},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"17-5079"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, McKay, Carson\", \"parties\": \"\", \"opinions\": [{\"author\": \"TYMKOVICH, Chief Judge\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH April 23, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\n BENJAMIN GRICE and KAYLA\\n PATCHETT,\\n\\n Plaintiffs - Appellants,\\n v. No. 17-5079\\n CVR ENERGY, INC. and CVR\\n REFINING, LP,\\n\\n Defendants - Appellees,\\n and\\n FLOWSERVE CORPORATION;\\n FLOWSERVE US, INC.; DOUG\\n RICHISON; and JOHN DOE\\n ENGINEERING COMPANY,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE NORTHERN DISTRICT OF OKLAHOMA\\n (D.C. NO. 4:16-CV-00459-GKF-FHM)\\n\\n\\nMichael D. Robbins, Doyle Restrepo Harvin & Robbins, L.L.P. (Michael Patrick\\nDoyle, Doyle LLP, Houston, Texas, and James Eloi Doyle, Doyle Restrepo Harvin\\n& Robbins, L.L.P., Houston, Texas, with him on the briefs), Houston, Texas, for\\nAppellants.\\n\\nLee M. Smithyman (Arthur E. Rhodes with him on the brief), Smithyman &\\nZakoura, Chartered, Overland Park, Kansas, for Appellees.\\n\\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Benjamin Grice suffered severe burns after an oil pump exploded at the\\n\\nrefinery where he worked. He and his wife brought suit against the refinery’s two\\n\\nparent corporations, CVR Energy and CVR Refining. They alleged the parent\\n\\ncompanies assumed responsibility for workplace safety at the oil refinery by\\n\\nentering into a services agreement for the benefit of Grice’s employer, Coffeyville\\n\\nResources. The district court granted summary judgment in favor of the parent\\n\\ncompanies, concluding that the agreement did not obligate them to provide safety\\n\\nservices to the oil refinery.\\n\\n We first conclude that CVR Refining must be dismissed as a party under 28\\n\\nU.S.C. § 1332, to preserve complete diversity of citizenship. We then affirm the\\n\\ndistrict court’s grant of summary judgment in favor of CVR Energy. The\\n\\ncompany did not have a duty to Grice to maintain the oil pump since the services\\n\\nagreement was for administrative and legal services and not for safety services\\n\\nthat would subject CVR Energy to liability under Kansas law.\\n\\n I. Background\\n\\n Benjamin Grice worked for Coffeyville Resources Refining & Marketing\\n\\n(Coffeyville) as a refinery employee. While he was on shift, a leak sprung in a\\n\\n\\n -2-\\n\\frefinery pump, causing flammable hydrocarbons to pool on the unit floor. The\\n\\nhydrocarbons ignited when Grice and three coworkers responded to the leak. The\\n\\nresulting explosion severely burned Grice and killed one of his coworkers.\\n\\n The cause of the leak and explosion is undisputed. Excessive wear and tear\\n\\nallowed the pump’s rotating parts to contact and shatter the pump’s seal. It is\\n\\nalso undisputed that a double mechanical seal would have prevented the leakage\\n\\nof flammable hydrocarbons. Coffeyville had commissioned a Process Hazard\\n\\nAnalysis study before the accident that recommended an upgrade from a single to\\n\\na double mechanical seal, and the company had scheduled to replace and upgrade\\n\\nthe seals sometime after the accident occurred.\\n\\n Grice received workers’ compensation benefits for his injuries,\\n\\nextinguishing any civil claims against Coffeyville. Grice and his wife then filed\\n\\ntort claims against Coffeyville’s two parent corporations—CVR Energy and CVR\\n\\nRefining. CVR Energy indirectly owns sixty-six percent of CVR Refining, which\\n\\nin turn indirectly owns one-hundred percent of Coffeyville.\\n\\n The Grices argued to the district court that CVR Energy assumed\\n\\nresponsibility for workplace safety by entering into a services agreement with\\n\\nCVR Refining. CVR Energy and CVR Refining executed the agreement in 2012\\n\\nfor the benefit of the two parties’ six mutual subsidiaries engaged in the business\\n\\nof refining and transporting oil, including Coffeyville. The services CVR Energy\\n\\n\\n -3-\\n\\fwas to perform for these six subsidiaries included providing “safety and\\n\\nenvironmental advice” and managing the subsidiaries’ “day-to-day business and\\n\\noperations.” App. 191. Included within those enumerated services, according to\\n\\nthe Grices’ interpretation of the agreement, was the obligation to ensure\\n\\nworkplace safety by maintaining refinery equipment.\\n\\n Following discovery, both parties filed motions for summary judgment.\\n\\nThe district court denied the Grices’ motion, noting there existed genuine issues\\n\\nof material fact. The court concluded that there were questions as to “(1) whether\\n\\nthe parties intended the Services Agreement as a safety services contract or cost-\\n\\nallocation mechanism; and (2) if a safety services contract was intended, the\\n\\nscope and nature of the duties owed by CVR Energy to Coffeyville employees.”\\n\\nGrice v. CVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 1100906, at *4\\n\\n(N.D. Okla. Mar. 23, 2017). But the district court later reversed course and\\n\\ngranted CVR Energy and CVR Refining’s motion for summary judgment after\\n\\nfurther considering extrinsic evidence. The court concluded the agreement was\\n\\nbest read “to provide a cost-allocation mechanism for shared services,” Grice v.\\n\\nCVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 3032221, at *5 (N.D.\\n\\nOkla. July 17, 2017), and therefore CVR Energy was not responsible for Grice’s\\n\\ninjuries.\\n\\n\\n\\n\\n -4-\\n\\f II. Jurisdiction\\n\\n We must first determine our jurisdiction in this diversity matter. When our\\n\\njurisdiction relies solely on diversity of citizenship under 28 U.S.C. § 1332, each\\n\\ndefendant must be diverse from each plaintiff. See, e.g., Ravenswood Inv. Co.,\\n\\nL.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011). The parties\\n\\nconcede that the case lacked complete diversity when the complaint was filed\\n\\nbecause CVR Refining had unitholders in Kansas (the resident state of the\\n\\nGrices), a disclosure not revealed until this appeal was pending. There is no\\n\\ndispute, therefore, that the district court was without jurisdiction to rule on the\\n\\nmerits of the case.\\n\\n But this fact does not necessarily divest our court of jurisdiction. The\\n\\nSupreme Court has clarified that appellate courts may cure this type of\\n\\njurisdictional defect by dismissing a jurisdiction-spoiling dispensable party on\\n\\nappeal. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 827 (1989). We\\n\\nexercise this authority here because we find that CVR Refining is a dispensable\\n\\nparty.\\n\\n CVR Refining submitted its diversity-jurisdiction disclosure statement\\n\\nduring the briefing stage, as required under Tenth Circuit Local Rule 26.1(A),\\n\\n“identifying its members and their states of citizenship.” The company stated\\n\\nonly that “common units are owned by thousands of public unitholders.” Supp.\\n\\n\\n -5-\\n\\fDisclosure Statement (filed Apr. 6, 2018). In response, the Grices filed a Notice\\n\\nof Potential Noncompliance. Notice (filed Apr. 24, 2018). They asserted that\\n\\nmaster limited partnerships, like CVR Refining, are citizens in every state in\\n\\nwhich a unitholder resides. See Grynberg v. Kinder Moran Energy Partners,\\n\\nL.P., 805 F.3d 901, 905 (10th Cir. 2015). This would require CVR Refining to\\n\\ndisclose the citizenship of all its unitholders.\\n\\n CVR Refining conceded in response that the case lacked complete diversity\\n\\nunder Grynberg because, “given the number of public unitholders, the existence\\n\\nof Kansas and Oklahoma unitholders is almost certain.” Response to Notice\\n\\n(filed May 9, 2018). We must therefore assume that CVR Refining’s presence in\\n\\nthis case destroys diversity jurisdiction.\\n\\n We may restore complete diversity among the parties, however, if CVR\\n\\nRefining is a dispensable party under Rule 19 of the Federal Rules of Civil\\n\\nProcedure. See Newman-Green, 490 U.S. at 827–29. Under Rule 19, a party is an\\n\\nindispensable party if (1) “in that person’s absence, the court cannot accord\\n\\ncomplete relief among existing parties” or (2) proceeding without that party\\n\\nwould “impair or impede the person’s ability to protect [an] interest” or “leave an\\n\\nexisting party subject to a substantial risk of incurring double, multiple, or\\n\\notherwise inconsistent obligations because of the interest.” Fed. R. Civ. P. 19.\\n\\nThe inquiry, in other words, is mainly one of prejudice. See Ravenswood Inv.\\n\\n\\n -6-\\n\\fCo., 651 F.3d at 1225. If “one or more parties will be unfairly prejudiced by\\n\\ndismissing” a defendant, the “court must dismiss the case in its entirety for lack\\n\\nof jurisdiction.” Id. at 1226.\\n\\n We conclude that no party will be unfairly prejudiced if we dismiss CVR\\n\\nRefining and reach the merits of this case. CVR Energy maintains it will not\\n\\nsuffer prejudice if this court dismisses CVR Refining. And the Grices conceded\\n\\nat oral argument that they also would not be prejudiced. This is because\\n\\ndismissing CVR Refining does not deny the Grices a legal forum. They are free\\n\\nto refile their claims against the dismissed party in state court, putting them in the\\n\\nsame situation (of needing to refile) as if this court dismissed the case entirely for\\n\\nlack of jurisdiction.\\n\\n We note that we dismiss CVR Refining on appeal only because the party is\\n\\nclearly a dispensable party. Ordinarily we would remand to the district court to\\n\\nmake this determination because, as the Supreme Court indicated, when factual\\n\\ndisputes arise the district court is “in a better position to make the prejudice\\n\\ndetermination” under Rule 19. Newman-Green, 490 U.S. at 838. Further, the\\n\\nNewman-Green Court tells us to exercise our authority to dismiss jurisdiction-\\n\\nspoiling parties “sparingly.” Id.\\n\\n\\n\\n\\n -7-\\n\\f We therefore dismiss CVR Refining advisedly, doing so because neither\\n\\nparty has identified a factual dispute nor argued that the remaining parties would\\n\\nsuffer unfair prejudice if we reach the merits of the appeal.\\n\\n III. Analysis\\n\\n The Grices challenge the district court’s summary judgment determination\\n\\nthat CVR Energy owed no duty to Grice. The district court concluded the\\n\\nServices Agreement was merely a cost-allocation mechanism, not an agreement\\n\\nwhereby CVR Energy assumed responsibility for workplace safety at Coffeyville.\\n\\nWe review this grant of summary judgment de novo, “applying the same standard\\n\\nas the district court.” Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246\\n\\n(10th Cir. 2010). We apply Kansas tort law to this case, which arises in\\n\\ndiversity. 1\\n\\n A. Assumption of Duty to Third Parties\\n\\n The Grices sue under a theory of assumption of liability. Under this theory\\n\\na person or entity voluntarily assumes a duty to a third party and therefore\\n\\nliability for harm resulting from a failure to exercise reasonable care. See\\n\\n\\n\\n 1\\n We apply Kansas law despite this case arising out of the Northern District\\nof Oklahoma. The district court applied Kansas law, likely because the accident\\noccurred in Kansas. The Grices do not challenge this determination as error,\\nmerely suggesting that the law of Kansas does not differ in any material respect\\nfrom that of Oklahoma and Texas, as these states have all adopted the Second\\nRestatement of Torts. We therefore do not perform a choice-of-law analysis.\\n\\n -8-\\n\\fSchmeck v. Shawnee, 651 P.2d 585, 597 (Kan. 1982). The Grices contend that\\n\\nCVR Energy assumed this liability through the Services Agreement whereby the\\n\\ncompany assumed responsibility for maintaining safe work sites on the premises\\n\\nof its subsidiaries.\\n\\n CVR Energy has liability only to the extent it voluntarily assumed a duty to\\n\\nGrice because a parent corporation is not ordinarily liable for the negligence of its\\n\\nindependent subsidiary. See Birmingham v. Experian Info. Sols., Inc., 633 F.3d\\n\\n1006, 1018 (10th Cir. 2011) (“A subsidiary corporation is presumed to be a\\n\\nseparate and distinct entity from its parent corporation.”) (citation omitted). As\\n\\nthe Supreme Court has noted, “[i]t is a general principle of corporate law deeply\\n\\n‘ingrained in our economic and legal systems’ that a parent corporation . . . is not\\n\\nliable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61\\n\\n(1998) (citation omitted).\\n\\n But under Kansas law an exception exists. Kansas has adopted the Second\\n\\nRestatement of Torts, and under the Restatement a parent can be responsible for\\n\\nthe acts of its subsidiary in certain circumstances. The Second Restatement\\n\\nestablishes that “[o]ne who undertakes, gratuitously or for consideration, to\\n\\nrender services to another . . . is subject to liability to the third person for\\n\\nphysical harm resulting from his failure to exercise reasonable care” if “he has\\n\\nundertaken to perform a duty owed by the other to the third person.”\\n\\n\\n -9-\\n\\fR ESTATEMENT (S ECOND ) OF T ORTS § 324A. Kansas has specifically adopted this\\n\\nstandard, and “the principles embodied in § 324A [of the Restatement] have long\\n\\nbeen recognized by” Kansas courts. Schmeck, 651 P.2d at 597. Kansas law thus\\n\\nrequires the Grices to demonstrate that CVR Energy took “affirmative action that\\n\\ncould be construed as an intentional undertaking” to render comprehensive\\n\\nworkplace-safety services to Coffeyville. See Gooch v. Bethel A.M.E. Church,\\n\\n792 P.2d 993, 998 (Kan. 1990); see also Hauptman v. WMC, Inc., 224 P.3d 1175,\\n\\n1192 (Kan. Ct. App. 2010) (noting that “the evidence must show the defendant\\n\\ndid more than act, but through affirmative action assumed an obligation”).\\n\\n The Grices contend the Services Agreement unambiguously proves CVR\\n\\nEnergy “affirmatively undertook duties that were necessary to protect Grice from\\n\\nharm.” Aplt. Br. at 26. If this were true, the Services Agreement would be a\\n\\nsufficient undertaking because a duty under § 324A may arise from a contractual\\n\\nundertaking. See Cessna Aircraft Co. v. Metro Topeka Airport Auth., 940 P.2d\\n\\n84, 92 (Kan. Ct. App. 1997). We disagree with the Grices’ reading of the\\n\\nServices Agreement, however.\\n\\n B. Characterization of the Services Agreement\\n\\n The Grices first argue the Services Agreement required CVR Energy to\\n\\nprovide comprehensive safety services to Coffeyville and functioned not as a\\n\\nmere cost-allocation agreement. They point to the many services the agreement\\n\\n\\n -10-\\n\\fobligated CVR Energy to perform, such as providing “safety and environmental\\n\\nadvice,” managing Coffeyville’s “day-to-day business and operations,” and\\n\\nmanaging the subsidiary’s “property and assets in the ordinary course of\\n\\nbusiness.” App. 191. These, the Grices argue, are not the type of services a cost-\\n\\nallocation agreement contemplates or a parent corporation ordinarily performs for\\n\\na subsidiary. The district court disagreed, finding the agreement was a mere cost-\\n\\nallocation mechanism.\\n\\n The Grices also argue the Services Agreement cannot be a cost-allocation\\n\\nmechanism because the agreement expressly characterizes CVR Energy “as an\\n\\nindependent contractor.” Id. at 179. Moreover, the Grices presented evidence to\\n\\nthe district court that the defendants held the agreement out to the SEC as more\\n\\nthan a cost-allocation agreement. Their expert explained that CVR Refining\\n\\nchose to disclose the agreement in SEC filings and, had the agreement been “[a]\\n\\nmere cost or accounting allocation protocol,” the agreement “would not be\\n\\ndisclosed as a material contract under SEC Regulation S-K.” Id. at 430, 831–33.\\n\\nIn the Grices’ view, CVR Refining “held out to the investing public that CV[R\\n\\nEnergy] was under a duty to perform the Services in the Agreement, so the public\\n\\nwould have relied on the fact that CVR Energy would be ‘conduct[ing] a\\n\\nsubstantial portion of [Coffeyville’s] day-to-day business operations.’” Aplt.\\n\\nBr. 19.\\n\\n\\n -11-\\n\\f CVR Energy counters with provisions from the agreement that indicate the\\n\\nparties were merely attempting to allocate costs. For instance, the Services\\n\\nAgreement contemplates that the parties would share executive personnel. CVR\\n\\nEnergy was to provide “services in capacities equivalent to capacities of corporate\\n\\nexecutive officers, except that the persons serving in such capacities shall serve in\\n\\nsuch capacities as Shared Personnel.” App. 191. The agreement also described\\n\\nhow the parties would share (pro rata) all office costs, some insurance premiums,\\n\\n“services provided by outside vendors,” and “depreciation and amortization.” Id.\\n\\nat 167. This suggests that the Services Agreement merely created a system where\\n\\nCVR Energy and its subsidiaries would share in the costs of operating the\\n\\nbusinesses.\\n\\n Despite the parties’ insistence on these points, however, neither position is\\n\\ndispositive. Even if the agreement is a classic contract for services—a view for\\n\\nwhich there is some supporting evidence—the real question is one of contract\\n\\ninterpretation. The inquiry is whether workplace safety is one of the “services”\\n\\nthe agreement obligated CVR Energy to perform. This is because § 324A\\n\\nsupports liability only when a person assumes a duty to render specific services.\\n\\nAnd it is axiomatic that not every services agreement requires the obligor to\\n\\nassume responsibility over the entirety of the obligee’s operations, just as not\\n\\nevery independent contractor assumes full responsibility. The scope of the\\n\\n\\n -12-\\n\\fservices set out within the four corners of the contract, therefore, will determine\\n\\nthe entirety of CVR Energy’s obligations and liability. See Honeycutt v. City of\\n\\nWichita, 836 P.2d 1128, 1137 (Kan. 1992) (“The extent of the undertaking should\\n\\ndefine the scope of the duty.”).\\n\\n C. Language of the Services Agreement\\n\\n With these principles in mind, we turn to the language of the Services\\n\\nAgreement. The Grices highlight several phrases in the agreement that suggest\\n\\nCVR Energy assumed responsibility for large portions of its subsidiaries’\\n\\noperations. The agreement states that “CVR is willing to undertake . . . to\\n\\nprovide services necessary to operate the business conducted by the Refining\\n\\nSubs.” App. 161. These contractual obligations include “[s]afety and\\n\\nenvironmental advice,” management of Coffeyville’s “day-to-day business and\\n\\noperations,” and management of the subsidiary’s “property and assets.” Id. at\\n\\n191.\\n\\n These provisions are not, however, the unequivocal descriptions the Grices\\n\\ncontend. Granted, CVR Energy did agree to “[m]anage the Services Recipients’\\n\\nday-to-day business and operations,” id., which without further context might\\n\\nstrongly support the Grices’ interpretation. The phrase “day-to-day business and\\n\\noperations” taken in isolation suggests that CVR Energy was obligated to run the\\n\\nwhole show, which undoubtedly includes workplace safety at a business such as\\n\\n\\n -13-\\n\\fan oil refinery. And CVR Energy did provide safety services, at least in the form\\n\\nof “[s]afety and environmental advice.” Id.\\n\\n But these provisions—without context—are vague at a minimum. There is\\n\\nlittle hint regarding the scope and nature of the management services or the safety\\n\\nadvice. One plausible interpretation of “management,” for instance, suggests top-\\n\\nto-bottom control over a business. Management could also refer to overseeing\\n\\nprojects from a high level and ensuring projects generally unfold in a certain way.\\n\\nAnd “business and operations” could refer to administrative or organizational\\n\\nservices rather than maintenance or inspections.\\n\\n Another provision with almost identical language sharpens this ambiguity.\\n\\nOne part of the agreement requires CVR Energy to manage its subsidiaries’ “day-\\n\\nto-day business and operations,” while another provision notes that “[p]ersonnel\\n\\nperforming the actual day-to-day business and operations of the Refining Subs at\\n\\nthe refinery or operating level will be employed by the Refining Subs.” Id. at 167\\n\\n(emphasis added). So the agreement simultaneously requires CVR Energy to\\n\\nmanage “the day-to-day business and operations” while noting that Coffeyville\\n\\npersonnel will perform “the actual day-to-day business and operations.”\\n\\n These ambiguities highlight the necessity of considering each provision in\\n\\nlight of the entire agreement. See Cellport Sys., Inc. v. Peiker Acustic GMGH &\\n\\nCo. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (noting that it is “error to interpret\\n\\n\\n -14-\\n\\fwords in [a] contract ‘alone and out of context’”) (citation omitted). And when\\n\\nwe interpret the contractual provisions in context, the scope of the phrases “day-\\n\\nto-day business and operations” and “assets and property” comes into clear focus,\\n\\nforeclosing the Grices’ interpretation.\\n\\n For instance, immediately following the phrase “day-to-day business and\\n\\noperations,” the agreement clarifies that these services include “managing\\n\\n[Coffeyville’s] liquidity and capital resources and compliance with applicable\\n\\nlaw.” App. 191. This suggests that “business and operations” carries its narrower\\n\\nconnotation because courts should interpret terms in light of the characteristics of\\n\\nassociated terms. See Antonin Scalia & Bryan A. Garner, Reading Law: The\\n\\ninterpretation of Legal Texts 197–98 (2012) (explaining the noscitur a sociis\\n\\ncanon). In this case, the associated terms are the specific services (managing\\n\\nliquidity and compliance with the law) following the general phrase (managing\\n\\n“business and operations”).\\n\\n CVR Energy’s obligations are further clarified by the Services Agreement’s\\n\\nreference to many high-level administrative services and, more persuasively, its\\n\\ntotal lack of reference to maintenance- or inspection-type services. The\\n\\nagreement, for instance, requires CVR Energy to provide “administrative and\\n\\nprofessional services, including legal, accounting, human resources, insurance,\\n\\ntax, credit, finance, government affairs, and regulatory affairs.” App. 191. The\\n\\n\\n -15-\\n\\fServices Agreement also requires CVR Energy to “establish[] and maintain[]\\n\\nbooks and records”; recommend “capital raising activities, . . . structured\\n\\nfinancings or other capital market transactions”; recommend “third party services\\n\\nproviders” such as “accountants, lawyers or experts”; “manage or oversee\\n\\nlitigation, administrative or regulatory proceedings, investigations or any other\\n\\nreview of the Services Recipients’ business or operations”; “establish and\\n\\nmaintain appropriate insurance policies”; and recommend “the payment of\\n\\ndividends or other distributions on the equity interests of the Services\\n\\nRecipients.” Id.\\n\\n The Services Agreement also states that CVR Energy would provide\\n\\n“[s]afety and environmental advice” to its subsidiaries. Id. There would be no\\n\\nreason to give safety advice to Coffeyville if CVR Energy was ultimately\\n\\nresponsible for workplace safety from the ground up. If that were the case, CVR\\n\\nEnergy would be implementing safety procedures and ordering inspections—not\\n\\nadvising Coffeyville to do so. This suggests a level of control over the safety\\n\\noperations similar to ordinary parental oversight in managing the business and\\n\\noperations of its subsidiaries.\\n\\n In sum, none of the enumerated services prompts us to interpret “day-to-day\\n\\nbusiness and operations” in its broadest sense. No specifically listed service, in\\n\\nother words, even remotely resembles services such as maintenance, inspections,\\n\\n\\n -16-\\n\\for general workplace safety. All the enumerated services are administrative or\\n\\nlegal in nature. So we must interpret CVR Energy’s obligation to provide\\n\\nmanagement of Coffeyville’s “business and operations” and “assets and property”\\n\\nparallel to its obligations under the more specifically enumerated services. Cf.\\n\\nUnited States v. Rowland, 826 F.3d 100, 109 (2d Cir. 2016) (Courts should “avoid\\n\\nascribing to one word a meaning so broad that it is inconsistent with its\\n\\naccompanying words, thus giving [it] unintended breadth”).\\n\\n D. Extrinsic Evidence\\n\\n We could affirm the district court based on the language of the Services\\n\\nAgreement without resorting to extrinsic evidence. But the manner in which the\\n\\nparties treated the agreement also supports the district court’s interpretation of the\\n\\nagreement. The Grices have failed to present any evidence that CVR Energy,\\n\\nCVR Refining, or Coffeyville treated the agreement as one obligating CVR\\n\\nEnergy to provide comprehensive safety services.\\n\\n CVR Refining’s Chief Financial Officer indicated that her understanding\\n\\nwas always that CVR Energy’s obligation to manage day-to-day business and\\n\\noperations was limited to administrative tasks such as paying bills, tracking\\n\\ninvoices, allocating insurance payments for subsidiaries, and accounting support.\\n\\nAnd the CFO’s understanding seems to be the general understanding, at least\\n\\nregarding safety issues.\\n\\n\\n -17-\\n\\f Undisputed evidence CVR Energy submitted by affidavit and deposition\\n\\ntestimony supports this conclusion. As the district court explained, the record\\n\\ncontains no evidence that CVR Energy was directly involved in ensuring safety or\\n\\nproper maintenance: “In simplest terms, [Coffeyville] ‘had its own safety program\\n\\nand . . . director over which [CVR] had no direct authority.’ Coffeyville owned\\n\\nand operated refinery property and machinery; had its own safety department,\\n\\nmanager, and personnel; and conducted its own inspections and repairs.” Grice,\\n\\n2017 WL 3032221, at *3. Moreover, no record evidence suggests that a CVR\\n\\nEnergy employee reviewed the 2010 Process Hazard Analysis, the study\\n\\nCoffeyville managers commissioned that recommended double seals on refinery\\n\\npumps. And in the five years preceding the accident, no CVR Energy employee\\n\\nentered, inspected, or reviewed the isomerization unit, the pump, or the\\n\\nisomerization equipment. Coffeyville’s engineers and safety department\\n\\nperformed all these tasks, and Coffeyville—not CVR Energy—set the schedule\\n\\nfor when updates such as the conversion to double seals would occur.\\n\\n The only evidence the Grices have presented to rebut CVR Energy’s\\n\\nshowing is that corporate executives had a daily phone call with Coffeyville\\n\\nregarding safety, the company tracked open and past-due maintenance projects,\\n\\nand approved the budget for maintenance projects. As the district court noted,\\n\\n“To be sure, CVR offered strategic direction, developed general safety policies,\\n\\n\\n -18-\\n\\foffered technical support, and monitored compliance with general OSHA safety\\n\\nregulations.” Grice, 2017 WL 303221, at *3. The Grices’ proffered evidence\\n\\nmight demonstrate that the agreement was more than a cost-allocation mechanism.\\n\\nBut it does not rebut CVR Energy’s showing that the company merely oversaw\\n\\nCoffeyville’s operations from a high level, consistent with the language of the\\n\\nServices Agreement.\\n\\n The Grices needed to proffer more to survive summary judgment. All the\\n\\nGrices can show from the record is that CVR Energy gave advice and monitored\\n\\nthe progress of safety issues. And this is insufficient because “[t]he extent of the\\n\\nundertaking should define the scope of the duty.” Honeycutt, 836 P.2d at 1137.\\n\\nThe extrinsic evidence, therefore, supports the district court’s interpretation of the\\n\\ncontract. The Services Agreement was one for oversight and administrative\\n\\nservices, so CVR Energy did not assume a duty to Grice by undertaking to\\n\\nprovide comprehensive safety services to Coffeyville.\\n\\n IV. Conclusion\\n\\n CVR Energy did not assume a duty to provide workplace safety for\\n\\nemployees of its subsidiaries. We therefore AFFIRM the decision of the district\\n\\ncourt granting summary judgment to CVR Energy. 2\\n\\n\\n\\n 2\\n We also deny the Grices’ Motion for Leave to File a Reply to CVR\\nRefining’s Response to Appellants’ Notice of Potential Non-Compliance.\\n\\n -19-\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389758/\", \"author_raw\": \"TYMKOVICH, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"CARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612505/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Benjamin GRICE and Kayla Patchett, Plaintiffs - Appellants, v. CVR ENERGY, INC. and CVR Refining, LP, Defendants - Appellees, and Flowserve Corporation; Flowserve US, Inc.; Doug Richison; And John Doe Engineering Company, Defendants.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH April 23, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\n BENJAMIN GRICE and KAYLA\n PATCHETT,\n\n Plaintiffs - Appellants,\n v. No. 17-5079\n CVR ENERGY, INC. and CVR\n REFINING, LP,\n\n Defendants - Appellees,\n and\n FLOWSERVE CORPORATION;\n FLOWSERVE US, INC.; DOUG\n RICHISON; and JOHN DOE\n ENGINEERING COMPANY,\n\n Defendants.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE NORTHERN DISTRICT OF OKLAHOMA\n (D.C. NO. 4:16-CV-00459-GKF-FHM)\n\n\nMichael D. Robbins, Doyle Restrepo Harvin & Robbins, L.L.P. (Michael Patrick\nDoyle, Doyle LLP, Houston, Texas, and James Eloi Doyle, Doyle Restrepo Harvin\n& Robbins, L.L.P., Houston, Texas, with him on the briefs), Houston, Texas, for\nAppellants.\n\nLee M. Smithyman (Arthur E. Rhodes with him on the brief), Smithyman &\nZakoura, Chartered, Overland Park, Kansas, for Appellees.\n\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\n\n\nTYMKOVICH, Chief Judge.\n\n\n Benjamin Grice suffered severe burns after an oil pump exploded at the\n\nrefinery where he worked. He and his wife brought suit against the refinery’s two\n\nparent corporations, CVR Energy and CVR Refining. They alleged the parent\n\ncompanies assumed responsibility for workplace safety at the oil refinery by\n\nentering into a services agreement for the benefit of Grice’s employer, Coffeyville\n\nResources. The district court granted summary judgment in favor of the parent\n\ncompanies, concluding that the agreement did not obligate them to provide safety\n\nservices to the oil refinery.\n\n We first conclude that CVR Refining must be dismissed as a party under 28\n\nU.S.C. § 1332, to preserve complete diversity of citizenship. We then affirm the\n\ndistrict court’s grant of summary judgment in favor of CVR Energy. The\n\ncompany did not have a duty to Grice to maintain the oil pump since the services\n\nagreement was for administrative and legal services and not for safety services\n\nthat would subject CVR Energy to liability under Kansas law.\n\n I. Background\n\n Benjamin Grice worked for Coffeyville Resources Refining & Marketing\n\n(Coffeyville) as a refinery employee. While he was on shift, a leak sprung in a\n\n\n -2-\n\frefinery pump, causing flammable hydrocarbons to pool on the unit floor. The\n\nhydrocarbons ignited when Grice and three coworkers responded to the leak. The\n\nresulting explosion severely burned Grice and killed one of his coworkers.\n\n The cause of the leak and explosion is undisputed. Excessive wear and tear\n\nallowed the pump’s rotating parts to contact and shatter the pump’s seal. It is\n\nalso undisputed that a double mechanical seal would have prevented the leakage\n\nof flammable hydrocarbons. Coffeyville had commissioned a Process Hazard\n\nAnalysis study before the accident that recommended an upgrade from a single to\n\na double mechanical seal, and the company had scheduled to replace and upgrade\n\nthe seals sometime after the accident occurred.\n\n Grice received workers’ compensation benefits for his injuries,\n\nextinguishing any civil claims against Coffeyville. Grice and his wife then filed\n\ntort claims against Coffeyville’s two parent corporations—CVR Energy and CVR\n\nRefining. CVR Energy indirectly owns sixty-six percent of CVR Refining, which\n\nin turn indirectly owns one-hundred percent of Coffeyville.\n\n The Grices argued to the district court that CVR Energy assumed\n\nresponsibility for workplace safety by entering into a services agreement with\n\nCVR Refining. CVR Energy and CVR Refining executed the agreement in 2012\n\nfor the benefit of the two parties’ six mutual subsidiaries engaged in the business\n\nof refining and transporting oil, including Coffeyville. The services CVR Energy\n\n\n -3-\n\fwas to perform for these six subsidiaries included providing “safety and\n\nenvironmental advice” and managing the subsidiaries’ “day-to-day business and\n\noperations.” App. 191. Included within those enumerated services, according to\n\nthe Grices’ interpretation of the agreement, was the obligation to ensure\n\nworkplace safety by maintaining refinery equipment.\n\n Following discovery, both parties filed motions for summary judgment.\n\nThe district court denied the Grices’ motion, noting there existed genuine issues\n\nof material fact. The court concluded that there were questions as to “(1) whether\n\nthe parties intended the Services Agreement as a safety services contract or cost-\n\nallocation mechanism; and (2) if a safety services contract was intended, the\n\nscope and nature of the duties owed by CVR Energy to Coffeyville employees.”\n\nGrice v. CVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 1100906, at *4\n\n(N.D. Okla. Mar. 23, 2017). But the district court later reversed course and\n\ngranted CVR Energy and CVR Refining’s motion for summary judgment after\n\nfurther considering extrinsic evidence. The court concluded the agreement was\n\nbest read “to provide a cost-allocation mechanism for shared services,” Grice v.\n\nCVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 3032221, at *5 (N.D.\n\nOkla. July 17, 2017), and therefore CVR Energy was not responsible for Grice’s\n\ninjuries.\n\n\n\n\n -4-\n\f II. Jurisdiction\n\n We must first determine our jurisdiction in this diversity matter. When our\n\njurisdiction relies solely on diversity of citizenship under 28 U.S.C. § 1332, each\n\ndefendant must be diverse from each plaintiff. See, e.g., Ravenswood Inv. Co.,\n\nL.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011). The parties\n\nconcede that the case lacked complete diversity when the complaint was filed\n\nbecause CVR Refining had unitholders in Kansas (the resident state of the\n\nGrices), a disclosure not revealed until this appeal was pending. There is no\n\ndispute, therefore, that the district court was without jurisdiction to rule on the\n\nmerits of the case.\n\n But this fact does not necessarily divest our court of jurisdiction. The\n\nSupreme Court has clarified that appellate courts may cure this type of\n\njurisdictional defect by dismissing a jurisdiction-spoiling dispensable party on\n\nappeal. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 827 (1989). We\n\nexercise this authority here because we find that CVR Refining is a dispensable\n\nparty.\n\n CVR Refining submitted its diversity-jurisdiction disclosure statement\n\nduring the briefing stage, as required under Tenth Circuit Local Rule 26.1(A),\n\n“identifying its members and their states of citizenship.” The company stated\n\nonly that “common units are owned by thousands of public unitholders.” Supp.\n\n\n -5-\n\fDisclosure Statement (filed Apr. 6, 2018). In response, the Grices filed a Notice\n\nof Potential Noncompliance. Notice (filed Apr. 24, 2018). They asserted that\n\nmaster limited partnerships, like CVR Refining, are citizens in every state in\n\nwhich a unitholder resides. See Grynberg v. Kinder Moran Energy Partners,\n\nL.P., 805 F.3d 901, 905 (10th Cir. 2015). This would require CVR Refining to\n\ndisclose the citizenship of all its unitholders.\n\n CVR Refining conceded in response that the case lacked complete diversity\n\nunder Grynberg because, “given the number of public unitholders, the existence\n\nof Kansas and Oklahoma unitholders is almost certain.” Response to Notice\n\n(filed May 9, 2018). We must therefore assume that CVR Refining’s presence in\n\nthis case destroys diversity jurisdiction.\n\n We may restore complete diversity among the parties, however, if CVR\n\nRefining is a dispensable party under Rule 19 of the Federal Rules of Civil\n\nProcedure. See Newman-Green, 490 U.S. at 827–29. Under Rule 19, a party is an\n\nindispensable party if (1) “in that person’s absence, the court cannot accord\n\ncomplete relief among existing parties” or (2) proceeding without that party\n\nwould “impair or impede the person’s ability to protect [an] interest” or “leave an\n\nexisting party subject to a substantial risk of incurring double, multiple, or\n\notherwise inconsistent obligations because of the interest.” Fed. R. Civ. P. 19.\n\nThe inquiry, in other words, is mainly one of prejudice. See Ravenswood Inv.\n\n\n -6-\n\fCo., 651 F.3d at 1225. If “one or more parties will be unfairly prejudiced by\n\ndismissing” a defendant, the “court must dismiss the case in its entirety for lack\n\nof jurisdiction.” Id. at 1226.\n\n We conclude that no party will be unfairly prejudiced if we dismiss CVR\n\nRefining and reach the merits of this case. CVR Energy maintains it will not\n\nsuffer prejudice if this court dismisses CVR Refining. And the Grices conceded\n\nat oral argument that they also would not be prejudiced. This is because\n\ndismissing CVR Refining does not deny the Grices a legal forum. They are free\n\nto refile their claims against the dismissed party in state court, putting them in the\n\nsame situation (of needing to refile) as if this court dismissed the case entirely for\n\nlack of jurisdiction.\n\n We note that we dismiss CVR Refining on appeal only because the party is\n\nclearly a dispensable party. Ordinarily we would remand to the district court to\n\nmake this determination because, as the Supreme Court indicated, when factual\n\ndisputes arise the district court is “in a better position to make the prejudice\n\ndetermination” under Rule 19. Newman-Green, 490 U.S. at 838. Further, the\n\nNewman-Green Court tells us to exercise our authority to dismiss jurisdiction-\n\nspoiling parties “sparingly.” Id.\n\n\n\n\n -7-\n\f We therefore dismiss CVR Refining advisedly, doing so because neither\n\nparty has identified a factual dispute nor argued that the remaining parties would\n\nsuffer unfair prejudice if we reach the merits of the appeal.\n\n III. Analysis\n\n The Grices challenge the district court’s summary judgment determination\n\nthat CVR Energy owed no duty to Grice. The district court concluded the\n\nServices Agreement was merely a cost-allocation mechanism, not an agreement\n\nwhereby CVR Energy assumed responsibility for workplace safety at Coffeyville.\n\nWe review this grant of summary judgment de novo, “applying the same standard\n\nas the district court.” Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246\n\n(10th Cir. 2010). We apply Kansas tort law to this case, which arises in\n\ndiversity. 1\n\n A. Assumption of Duty to Third Parties\n\n The Grices sue under a theory of assumption of liability. Under this theory\n\na person or entity voluntarily assumes a duty to a third party and therefore\n\nliability for harm resulting from a failure to exercise reasonable care. See\n\n\n\n 1\n We apply Kansas law despite this case arising out of the Northern District\nof Oklahoma. The district court applied Kansas law, likely because the accident\noccurred in Kansas. The Grices do not challenge this determination as error,\nmerely suggesting that the law of Kansas does not differ in any material respect\nfrom that of Oklahoma and Texas, as these states have all adopted the Second\nRestatement of Torts. We therefore do not perform a choice-of-law analysis.\n\n -8-\n\fSchmeck v. Shawnee, 651 P.2d 585, 597 (Kan. 1982). The Grices contend that\n\nCVR Energy assumed this liability through the Services Agreement whereby the\n\ncompany assumed responsibility for maintaining safe work sites on the premises\n\nof its subsidiaries.\n\n CVR Energy has liability only to the extent it voluntarily assumed a duty to\n\nGrice because a parent corporation is not ordinarily liable for the negligence of its\n\nindependent subsidiary. See Birmingham v. Experian Info. Sols., Inc., 633 F.3d\n\n1006, 1018 (10th Cir. 2011) (“A subsidiary corporation is presumed to be a\n\nseparate and distinct entity from its parent corporation.”) (citation omitted). As\n\nthe Supreme Court has noted, “[i]t is a general principle of corporate law deeply\n\n‘ingrained in our economic and legal systems’ that a parent corporation . . . is not\n\nliable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61\n\n(1998) (citation omitted).\n\n But under Kansas law an exception exists. Kansas has adopted the Second\n\nRestatement of Torts, and under the Restatement a parent can be responsible for\n\nthe acts of its subsidiary in certain circumstances. The Second Restatement\n\nestablishes that “[o]ne who undertakes, gratuitously or for consideration, to\n\nrender services to another . . . is subject to liability to the third person for\n\nphysical harm resulting from his failure to exercise reasonable care” if “he has\n\nundertaken to perform a duty owed by the other to the third person.”\n\n\n -9-\n\fR ESTATEMENT (S ECOND ) OF T ORTS § 324A. Kansas has specifically adopted this\n\nstandard, and “the principles embodied in § 324A [of the Restatement] have long\n\nbeen recognized by” Kansas courts. Schmeck, 651 P.2d at 597. Kansas law thus\n\nrequires the Grices to demonstrate that CVR Energy took “affirmative action that\n\ncould be construed as an intentional undertaking” to render comprehensive\n\nworkplace-safety services to Coffeyville. See Gooch v. Bethel A.M.E. Church,\n\n792 P.2d 993, 998 (Kan. 1990); see also Hauptman v. WMC, Inc., 224 P.3d 1175,\n\n1192 (Kan. Ct. App. 2010) (noting that “the evidence must show the defendant\n\ndid more than act, but through affirmative action assumed an obligation”).\n\n The Grices contend the Services Agreement unambiguously proves CVR\n\nEnergy “affirmatively undertook duties that were necessary to protect Grice from\n\nharm.” Aplt. Br. at 26. If this were true, the Services Agreement would be a\n\nsufficient undertaking because a duty under § 324A may arise from a contractual\n\nundertaking. See Cessna Aircraft Co. v. Metro Topeka Airport Auth., 940 P.2d\n\n84, 92 (Kan. Ct. App. 1997). We disagree with the Grices’ reading of the\n\nServices Agreement, however.\n\n B. Characterization of the Services Agreement\n\n The Grices first argue the Services Agreement required CVR Energy to\n\nprovide comprehensive safety services to Coffeyville and functioned not as a\n\nmere cost-allocation agreement. They point to the many services the agreement\n\n\n -10-\n\fobligated CVR Energy to perform, such as providing “safety and environmental\n\nadvice,” managing Coffeyville’s “day-to-day business and operations,” and\n\nmanaging the subsidiary’s “property and assets in the ordinary course of\n\nbusiness.” App. 191. These, the Grices argue, are not the type of services a cost-\n\nallocation agreement contemplates or a parent corporation ordinarily performs for\n\na subsidiary. The district court disagreed, finding the agreement was a mere cost-\n\nallocation mechanism.\n\n The Grices also argue the Services Agreement cannot be a cost-allocation\n\nmechanism because the agreement expressly characterizes CVR Energy “as an\n\nindependent contractor.” Id. at 179. Moreover, the Grices presented evidence to\n\nthe district court that the defendants held the agreement out to the SEC as more\n\nthan a cost-allocation agreement. Their expert explained that CVR Refining\n\nchose to disclose the agreement in SEC filings and, had the agreement been “[a]\n\nmere cost or accounting allocation protocol,” the agreement “would not be\n\ndisclosed as a material contract under SEC Regulation S-K.” Id. at 430, 831–33.\n\nIn the Grices’ view, CVR Refining “held out to the investing public that CV[R\n\nEnergy] was under a duty to perform the Services in the Agreement, so the public\n\nwould have relied on the fact that CVR Energy would be ‘conduct[ing] a\n\nsubstantial portion of [Coffeyville’s] day-to-day business operations.’” Aplt.\n\nBr. 19.\n\n\n -11-\n\f CVR Energy counters with provisions from the agreement that indicate the\n\nparties were merely attempting to allocate costs. For instance, the Services\n\nAgreement contemplates that the parties would share executive personnel. CVR\n\nEnergy was to provide “services in capacities equivalent to capacities of corporate\n\nexecutive officers, except that the persons serving in such capacities shall serve in\n\nsuch capacities as Shared Personnel.” App. 191. The agreement also described\n\nhow the parties would share (pro rata) all office costs, some insurance premiums,\n\n“services provided by outside vendors,” and “depreciation and amortization.” Id.\n\nat 167. This suggests that the Services Agreement merely created a system where\n\nCVR Energy and its subsidiaries would share in the costs of operating the\n\nbusinesses.\n\n Despite the parties’ insistence on these points, however, neither position is\n\ndispositive. Even if the agreement is a classic contract for services—a view for\n\nwhich there is some supporting evidence—the real question is one of contract\n\ninterpretation. The inquiry is whether workplace safety is one of the “services”\n\nthe agreement obligated CVR Energy to perform. This is because § 324A\n\nsupports liability only when a person assumes a duty to render specific services.\n\nAnd it is axiomatic that not every services agreement requires the obligor to\n\nassume responsibility over the entirety of the obligee’s operations, just as not\n\nevery independent contractor assumes full responsibility. The scope of the\n\n\n -12-\n\fservices set out within the four corners of the contract, therefore, will determine\n\nthe entirety of CVR Energy’s obligations and liability. See Honeycutt v. City of\n\nWichita, 836 P.2d 1128, 1137 (Kan. 1992) (“The extent of the undertaking should\n\ndefine the scope of the duty.”).\n\n C. Language of the Services Agreement\n\n With these principles in mind, we turn to the language of the Services\n\nAgreement. The Grices highlight several phrases in the agreement that suggest\n\nCVR Energy assumed responsibility for large portions of its subsidiaries’\n\noperations. The agreement states that “CVR is willing to undertake . . . to\n\nprovide services necessary to operate the business conducted by the Refining\n\nSubs.” App. 161. These contractual obligations include “[s]afety and\n\nenvironmental advice,” management of Coffeyville’s “day-to-day business and\n\noperations,” and management of the subsidiary’s “property and assets.” Id. at\n\n191.\n\n These provisions are not, however, the unequivocal descriptions the Grices\n\ncontend. Granted, CVR Energy did agree to “[m]anage the Services Recipients’\n\nday-to-day business and operations,” id., which without further context might\n\nstrongly support the Grices’ interpretation. The phrase “day-to-day business and\n\noperations” taken in isolation suggests that CVR Energy was obligated to run the\n\nwhole show, which undoubtedly includes workplace safety at a business such as\n\n\n -13-\n\fan oil refinery. And CVR Energy did provide safety services, at least in the form\n\nof “[s]afety and environmental advice.” Id.\n\n But these provisions—without context—are vague at a minimum. There is\n\nlittle hint regarding the scope and nature of the management services or the safety\n\nadvice. One plausible interpretation of “management,” for instance, suggests top-\n\nto-bottom control over a business. Management could also refer to overseeing\n\nprojects from a high level and ensuring projects generally unfold in a certain way.\n\nAnd “business and operations” could refer to administrative or organizational\n\nservices rather than maintenance or inspections.\n\n Another provision with almost identical language sharpens this ambiguity.\n\nOne part of the agreement requires CVR Energy to manage its subsidiaries’ “day-\n\nto-day business and operations,” while another provision notes that “[p]ersonnel\n\nperforming the actual day-to-day business and operations of the Refining Subs at\n\nthe refinery or operating level will be employed by the Refining Subs.” Id. at 167\n\n(emphasis added). So the agreement simultaneously requires CVR Energy to\n\nmanage “the day-to-day business and operations” while noting that Coffeyville\n\npersonnel will perform “the actual day-to-day business and operations.”\n\n These ambiguities highlight the necessity of considering each provision in\n\nlight of the entire agreement. See Cellport Sys., Inc. v. Peiker Acustic GMGH &\n\nCo. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (noting that it is “error to interpret\n\n\n -14-\n\fwords in [a] contract ‘alone and out of context’”) (citation omitted). And when\n\nwe interpret the contractual provisions in context, the scope of the phrases “day-\n\nto-day business and operations” and “assets and property” comes into clear focus,\n\nforeclosing the Grices’ interpretation.\n\n For instance, immediately following the phrase “day-to-day business and\n\noperations,” the agreement clarifies that these services include “managing\n\n[Coffeyville’s] liquidity and capital resources and compliance with applicable\n\nlaw.” App. 191. This suggests that “business and operations” carries its narrower\n\nconnotation because courts should interpret terms in light of the characteristics of\n\nassociated terms. See Antonin Scalia & Bryan A. Garner, Reading Law: The\n\ninterpretation of Legal Texts 197–98 (2012) (explaining the noscitur a sociis\n\ncanon). In this case, the associated terms are the specific services (managing\n\nliquidity and compliance with the law) following the general phrase (managing\n\n“business and operations”).\n\n CVR Energy’s obligations are further clarified by the Services Agreement’s\n\nreference to many high-level administrative services and, more persuasively, its\n\ntotal lack of reference to maintenance- or inspection-type services. The\n\nagreement, for instance, requires CVR Energy to provide “administrative and\n\nprofessional services, including legal, accounting, human resources, insurance,\n\ntax, credit, finance, government affairs, and regulatory affairs.” App. 191. The\n\n\n -15-\n\fServices Agreement also requires CVR Energy to “establish[] and maintain[]\n\nbooks and records”; recommend “capital raising activities, . . . structured\n\nfinancings or other capital market transactions”; recommend “third party services\n\nproviders” such as “accountants, lawyers or experts”; “manage or oversee\n\nlitigation, administrative or regulatory proceedings, investigations or any other\n\nreview of the Services Recipients’ business or operations”; “establish and\n\nmaintain appropriate insurance policies”; and recommend “the payment of\n\ndividends or other distributions on the equity interests of the Services\n\nRecipients.” Id.\n\n The Services Agreement also states that CVR Energy would provide\n\n“[s]afety and environmental advice” to its subsidiaries. Id. There would be no\n\nreason to give safety advice to Coffeyville if CVR Energy was ultimately\n\nresponsible for workplace safety from the ground up. If that were the case, CVR\n\nEnergy would be implementing safety procedures and ordering inspections—not\n\nadvising Coffeyville to do so. This suggests a level of control over the safety\n\noperations similar to ordinary parental oversight in managing the business and\n\noperations of its subsidiaries.\n\n In sum, none of the enumerated services prompts us to interpret “day-to-day\n\nbusiness and operations” in its broadest sense. No specifically listed service, in\n\nother words, even remotely resembles services such as maintenance, inspections,\n\n\n -16-\n\for general workplace safety. All the enumerated services are administrative or\n\nlegal in nature. So we must interpret CVR Energy’s obligation to provide\n\nmanagement of Coffeyville’s “business and operations” and “assets and property”\n\nparallel to its obligations under the more specifically enumerated services. Cf.\n\nUnited States v. Rowland, 826 F.3d 100, 109 (2d Cir. 2016) (Courts should “avoid\n\nascribing to one word a meaning so broad that it is inconsistent with its\n\naccompanying words, thus giving [it] unintended breadth”).\n\n D. Extrinsic Evidence\n\n We could affirm the district court based on the language of the Services\n\nAgreement without resorting to extrinsic evidence. But the manner in which the\n\nparties treated the agreement also supports the district court’s interpretation of the\n\nagreement. The Grices have failed to present any evidence that CVR Energy,\n\nCVR Refining, or Coffeyville treated the agreement as one obligating CVR\n\nEnergy to provide comprehensive safety services.\n\n CVR Refining’s Chief Financial Officer indicated that her understanding\n\nwas always that CVR Energy’s obligation to manage day-to-day business and\n\noperations was limited to administrative tasks such as paying bills, tracking\n\ninvoices, allocating insurance payments for subsidiaries, and accounting support.\n\nAnd the CFO’s understanding seems to be the general understanding, at least\n\nregarding safety issues.\n\n\n -17-\n\f Undisputed evidence CVR Energy submitted by affidavit and deposition\n\ntestimony supports this conclusion. As the district court explained, the record\n\ncontains no evidence that CVR Energy was directly involved in ensuring safety or\n\nproper maintenance: “In simplest terms, [Coffeyville] ‘had its own safety program\n\nand . . . director over which [CVR] had no direct authority.’ Coffeyville owned\n\nand operated refinery property and machinery; had its own safety department,\n\nmanager, and personnel; and conducted its own inspections and repairs.” Grice,\n\n2017 WL 3032221, at *3. Moreover, no record evidence suggests that a CVR\n\nEnergy employee reviewed the 2010 Process Hazard Analysis, the study\n\nCoffeyville managers commissioned that recommended double seals on refinery\n\npumps. And in the five years preceding the accident, no CVR Energy employee\n\nentered, inspected, or reviewed the isomerization unit, the pump, or the\n\nisomerization equipment. Coffeyville’s engineers and safety department\n\nperformed all these tasks, and Coffeyville—not CVR Energy—set the schedule\n\nfor when updates such as the conversion to double seals would occur.\n\n The only evidence the Grices have presented to rebut CVR Energy’s\n\nshowing is that corporate executives had a daily phone call with Coffeyville\n\nregarding safety, the company tracked open and past-due maintenance projects,\n\nand approved the budget for maintenance projects. As the district court noted,\n\n“To be sure, CVR offered strategic direction, developed general safety policies,\n\n\n -18-\n\foffered technical support, and monitored compliance with general OSHA safety\n\nregulations.” Grice, 2017 WL 303221, at *3. The Grices’ proffered evidence\n\nmight demonstrate that the agreement was more than a cost-allocation mechanism.\n\nBut it does not rebut CVR Energy’s showing that the company merely oversaw\n\nCoffeyville’s operations from a high level, consistent with the language of the\n\nServices Agreement.\n\n The Grices needed to proffer more to survive summary judgment. All the\n\nGrices can show from the record is that CVR Energy gave advice and monitored\n\nthe progress of safety issues. And this is insufficient because “[t]he extent of the\n\nundertaking should define the scope of the duty.” Honeycutt, 836 P.2d at 1137.\n\nThe extrinsic evidence, therefore, supports the district court’s interpretation of the\n\ncontract. The Services Agreement was one for oversight and administrative\n\nservices, so CVR Energy did not assume a duty to Grice by undertaking to\n\nprovide comprehensive safety services to Coffeyville.\n\n IV. Conclusion\n\n CVR Energy did not assume a duty to provide workplace safety for\n\nemployees of its subsidiaries. We therefore AFFIRM the decision of the district\n\ncourt granting summary judgment to CVR Energy. 2\n\n\n\n 2\n We also deny the Grices’ Motion for Leave to File a Reply to CVR\nRefining’s Response to Appellants’ Notice of Potential Non-Compliance.\n\n -19-\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Benjamin GRICE and Kayla Patchett, Plaintiffs - Appellants, v. CVR ENERGY, INC. and CVR Refining, LP, Defendants - Appellees, and Flowserve Corporation; Flowserve US, Inc.; Doug Richison; And John Doe Engineering Company, Defendants.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH April 23, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\n BENJAMIN GRICE and KAYLA\\n PATCHETT,\\n\\n Plaintiffs - Appellants,\\n v. No. 17-5079\\n CVR ENERGY, INC. and CVR\\n REFINING, LP,\\n\\n Defendants - Appellees,\\n and\\n FLOWSERVE CORPORATION;\\n FLOWSERVE US, INC.; DOUG\\n RICHISON; and JOHN DOE\\n ENGINEERING COMPANY,\\n\\n Defendants.\\n\\n\\n APPEAL FROM THE UNITED STATES DISTRICT COURT\\n FOR THE NORTHERN DISTRICT OF OKLAHOMA\\n (D.C. NO. 4:16-CV-00459-GKF-FHM)\\n\\n\\nMichael D. Robbins, Doyle Restrepo Harvin & Robbins, L.L.P. (Michael Patrick\\nDoyle, Doyle LLP, Houston, Texas, and James Eloi Doyle, Doyle Restrepo Harvin\\n& Robbins, L.L.P., Houston, Texas, with him on the briefs), Houston, Texas, for\\nAppellants.\\n\\nLee M. Smithyman (Arthur E. Rhodes with him on the brief), Smithyman &\\nZakoura, Chartered, Overland Park, Kansas, for Appellees.\\n\\fBefore TYMKOVICH, Chief Judge, McKAY, and CARSON, Circuit Judges.\\n\\n\\nTYMKOVICH, Chief Judge.\\n\\n\\n Benjamin Grice suffered severe burns after an oil pump exploded at the\\n\\nrefinery where he worked. He and his wife brought suit against the refinery’s two\\n\\nparent corporations, CVR Energy and CVR Refining. They alleged the parent\\n\\ncompanies assumed responsibility for workplace safety at the oil refinery by\\n\\nentering into a services agreement for the benefit of Grice’s employer, Coffeyville\\n\\nResources. The district court granted summary judgment in favor of the parent\\n\\ncompanies, concluding that the agreement did not obligate them to provide safety\\n\\nservices to the oil refinery.\\n\\n We first conclude that CVR Refining must be dismissed as a party under 28\\n\\nU.S.C. § 1332, to preserve complete diversity of citizenship. We then affirm the\\n\\ndistrict court’s grant of summary judgment in favor of CVR Energy. The\\n\\ncompany did not have a duty to Grice to maintain the oil pump since the services\\n\\nagreement was for administrative and legal services and not for safety services\\n\\nthat would subject CVR Energy to liability under Kansas law.\\n\\n I. Background\\n\\n Benjamin Grice worked for Coffeyville Resources Refining & Marketing\\n\\n(Coffeyville) as a refinery employee. While he was on shift, a leak sprung in a\\n\\n\\n -2-\\n\\frefinery pump, causing flammable hydrocarbons to pool on the unit floor. The\\n\\nhydrocarbons ignited when Grice and three coworkers responded to the leak. The\\n\\nresulting explosion severely burned Grice and killed one of his coworkers.\\n\\n The cause of the leak and explosion is undisputed. Excessive wear and tear\\n\\nallowed the pump’s rotating parts to contact and shatter the pump’s seal. It is\\n\\nalso undisputed that a double mechanical seal would have prevented the leakage\\n\\nof flammable hydrocarbons. Coffeyville had commissioned a Process Hazard\\n\\nAnalysis study before the accident that recommended an upgrade from a single to\\n\\na double mechanical seal, and the company had scheduled to replace and upgrade\\n\\nthe seals sometime after the accident occurred.\\n\\n Grice received workers’ compensation benefits for his injuries,\\n\\nextinguishing any civil claims against Coffeyville. Grice and his wife then filed\\n\\ntort claims against Coffeyville’s two parent corporations—CVR Energy and CVR\\n\\nRefining. CVR Energy indirectly owns sixty-six percent of CVR Refining, which\\n\\nin turn indirectly owns one-hundred percent of Coffeyville.\\n\\n The Grices argued to the district court that CVR Energy assumed\\n\\nresponsibility for workplace safety by entering into a services agreement with\\n\\nCVR Refining. CVR Energy and CVR Refining executed the agreement in 2012\\n\\nfor the benefit of the two parties’ six mutual subsidiaries engaged in the business\\n\\nof refining and transporting oil, including Coffeyville. The services CVR Energy\\n\\n\\n -3-\\n\\fwas to perform for these six subsidiaries included providing “safety and\\n\\nenvironmental advice” and managing the subsidiaries’ “day-to-day business and\\n\\noperations.” App. 191. Included within those enumerated services, according to\\n\\nthe Grices’ interpretation of the agreement, was the obligation to ensure\\n\\nworkplace safety by maintaining refinery equipment.\\n\\n Following discovery, both parties filed motions for summary judgment.\\n\\nThe district court denied the Grices’ motion, noting there existed genuine issues\\n\\nof material fact. The court concluded that there were questions as to “(1) whether\\n\\nthe parties intended the Services Agreement as a safety services contract or cost-\\n\\nallocation mechanism; and (2) if a safety services contract was intended, the\\n\\nscope and nature of the duties owed by CVR Energy to Coffeyville employees.”\\n\\nGrice v. CVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 1100906, at *4\\n\\n(N.D. Okla. Mar. 23, 2017). But the district court later reversed course and\\n\\ngranted CVR Energy and CVR Refining’s motion for summary judgment after\\n\\nfurther considering extrinsic evidence. The court concluded the agreement was\\n\\nbest read “to provide a cost-allocation mechanism for shared services,” Grice v.\\n\\nCVR Energy, Inc., No. 16-CV-459-GKF-FHM, 2017 WL 3032221, at *5 (N.D.\\n\\nOkla. July 17, 2017), and therefore CVR Energy was not responsible for Grice’s\\n\\ninjuries.\\n\\n\\n\\n\\n -4-\\n\\f II. Jurisdiction\\n\\n We must first determine our jurisdiction in this diversity matter. When our\\n\\njurisdiction relies solely on diversity of citizenship under 28 U.S.C. § 1332, each\\n\\ndefendant must be diverse from each plaintiff. See, e.g., Ravenswood Inv. Co.,\\n\\nL.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223 (10th Cir. 2011). The parties\\n\\nconcede that the case lacked complete diversity when the complaint was filed\\n\\nbecause CVR Refining had unitholders in Kansas (the resident state of the\\n\\nGrices), a disclosure not revealed until this appeal was pending. There is no\\n\\ndispute, therefore, that the district court was without jurisdiction to rule on the\\n\\nmerits of the case.\\n\\n But this fact does not necessarily divest our court of jurisdiction. The\\n\\nSupreme Court has clarified that appellate courts may cure this type of\\n\\njurisdictional defect by dismissing a jurisdiction-spoiling dispensable party on\\n\\nappeal. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 827 (1989). We\\n\\nexercise this authority here because we find that CVR Refining is a dispensable\\n\\nparty.\\n\\n CVR Refining submitted its diversity-jurisdiction disclosure statement\\n\\nduring the briefing stage, as required under Tenth Circuit Local Rule 26.1(A),\\n\\n“identifying its members and their states of citizenship.” The company stated\\n\\nonly that “common units are owned by thousands of public unitholders.” Supp.\\n\\n\\n -5-\\n\\fDisclosure Statement (filed Apr. 6, 2018). In response, the Grices filed a Notice\\n\\nof Potential Noncompliance. Notice (filed Apr. 24, 2018). They asserted that\\n\\nmaster limited partnerships, like CVR Refining, are citizens in every state in\\n\\nwhich a unitholder resides. See Grynberg v. Kinder Moran Energy Partners,\\n\\nL.P., 805 F.3d 901, 905 (10th Cir. 2015). This would require CVR Refining to\\n\\ndisclose the citizenship of all its unitholders.\\n\\n CVR Refining conceded in response that the case lacked complete diversity\\n\\nunder Grynberg because, “given the number of public unitholders, the existence\\n\\nof Kansas and Oklahoma unitholders is almost certain.” Response to Notice\\n\\n(filed May 9, 2018). We must therefore assume that CVR Refining’s presence in\\n\\nthis case destroys diversity jurisdiction.\\n\\n We may restore complete diversity among the parties, however, if CVR\\n\\nRefining is a dispensable party under Rule 19 of the Federal Rules of Civil\\n\\nProcedure. See Newman-Green, 490 U.S. at 827–29. Under Rule 19, a party is an\\n\\nindispensable party if (1) “in that person’s absence, the court cannot accord\\n\\ncomplete relief among existing parties” or (2) proceeding without that party\\n\\nwould “impair or impede the person’s ability to protect [an] interest” or “leave an\\n\\nexisting party subject to a substantial risk of incurring double, multiple, or\\n\\notherwise inconsistent obligations because of the interest.” Fed. R. Civ. P. 19.\\n\\nThe inquiry, in other words, is mainly one of prejudice. See Ravenswood Inv.\\n\\n\\n -6-\\n\\fCo., 651 F.3d at 1225. If “one or more parties will be unfairly prejudiced by\\n\\ndismissing” a defendant, the “court must dismiss the case in its entirety for lack\\n\\nof jurisdiction.” Id. at 1226.\\n\\n We conclude that no party will be unfairly prejudiced if we dismiss CVR\\n\\nRefining and reach the merits of this case. CVR Energy maintains it will not\\n\\nsuffer prejudice if this court dismisses CVR Refining. And the Grices conceded\\n\\nat oral argument that they also would not be prejudiced. This is because\\n\\ndismissing CVR Refining does not deny the Grices a legal forum. They are free\\n\\nto refile their claims against the dismissed party in state court, putting them in the\\n\\nsame situation (of needing to refile) as if this court dismissed the case entirely for\\n\\nlack of jurisdiction.\\n\\n We note that we dismiss CVR Refining on appeal only because the party is\\n\\nclearly a dispensable party. Ordinarily we would remand to the district court to\\n\\nmake this determination because, as the Supreme Court indicated, when factual\\n\\ndisputes arise the district court is “in a better position to make the prejudice\\n\\ndetermination” under Rule 19. Newman-Green, 490 U.S. at 838. Further, the\\n\\nNewman-Green Court tells us to exercise our authority to dismiss jurisdiction-\\n\\nspoiling parties “sparingly.” Id.\\n\\n\\n\\n\\n -7-\\n\\f We therefore dismiss CVR Refining advisedly, doing so because neither\\n\\nparty has identified a factual dispute nor argued that the remaining parties would\\n\\nsuffer unfair prejudice if we reach the merits of the appeal.\\n\\n III. Analysis\\n\\n The Grices challenge the district court’s summary judgment determination\\n\\nthat CVR Energy owed no duty to Grice. The district court concluded the\\n\\nServices Agreement was merely a cost-allocation mechanism, not an agreement\\n\\nwhereby CVR Energy assumed responsibility for workplace safety at Coffeyville.\\n\\nWe review this grant of summary judgment de novo, “applying the same standard\\n\\nas the district court.” Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246\\n\\n(10th Cir. 2010). We apply Kansas tort law to this case, which arises in\\n\\ndiversity. 1\\n\\n A. Assumption of Duty to Third Parties\\n\\n The Grices sue under a theory of assumption of liability. Under this theory\\n\\na person or entity voluntarily assumes a duty to a third party and therefore\\n\\nliability for harm resulting from a failure to exercise reasonable care. See\\n\\n\\n\\n 1\\n We apply Kansas law despite this case arising out of the Northern District\\nof Oklahoma. The district court applied Kansas law, likely because the accident\\noccurred in Kansas. The Grices do not challenge this determination as error,\\nmerely suggesting that the law of Kansas does not differ in any material respect\\nfrom that of Oklahoma and Texas, as these states have all adopted the Second\\nRestatement of Torts. We therefore do not perform a choice-of-law analysis.\\n\\n -8-\\n\\fSchmeck v. Shawnee, 651 P.2d 585, 597 (Kan. 1982). The Grices contend that\\n\\nCVR Energy assumed this liability through the Services Agreement whereby the\\n\\ncompany assumed responsibility for maintaining safe work sites on the premises\\n\\nof its subsidiaries.\\n\\n CVR Energy has liability only to the extent it voluntarily assumed a duty to\\n\\nGrice because a parent corporation is not ordinarily liable for the negligence of its\\n\\nindependent subsidiary. See Birmingham v. Experian Info. Sols., Inc., 633 F.3d\\n\\n1006, 1018 (10th Cir. 2011) (“A subsidiary corporation is presumed to be a\\n\\nseparate and distinct entity from its parent corporation.”) (citation omitted). As\\n\\nthe Supreme Court has noted, “[i]t is a general principle of corporate law deeply\\n\\n‘ingrained in our economic and legal systems’ that a parent corporation . . . is not\\n\\nliable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61\\n\\n(1998) (citation omitted).\\n\\n But under Kansas law an exception exists. Kansas has adopted the Second\\n\\nRestatement of Torts, and under the Restatement a parent can be responsible for\\n\\nthe acts of its subsidiary in certain circumstances. The Second Restatement\\n\\nestablishes that “[o]ne who undertakes, gratuitously or for consideration, to\\n\\nrender services to another . . . is subject to liability to the third person for\\n\\nphysical harm resulting from his failure to exercise reasonable care” if “he has\\n\\nundertaken to perform a duty owed by the other to the third person.”\\n\\n\\n -9-\\n\\fR ESTATEMENT (S ECOND ) OF T ORTS § 324A. Kansas has specifically adopted this\\n\\nstandard, and “the principles embodied in § 324A [of the Restatement] have long\\n\\nbeen recognized by” Kansas courts. Schmeck, 651 P.2d at 597. Kansas law thus\\n\\nrequires the Grices to demonstrate that CVR Energy took “affirmative action that\\n\\ncould be construed as an intentional undertaking” to render comprehensive\\n\\nworkplace-safety services to Coffeyville. See Gooch v. Bethel A.M.E. Church,\\n\\n792 P.2d 993, 998 (Kan. 1990); see also Hauptman v. WMC, Inc., 224 P.3d 1175,\\n\\n1192 (Kan. Ct. App. 2010) (noting that “the evidence must show the defendant\\n\\ndid more than act, but through affirmative action assumed an obligation”).\\n\\n The Grices contend the Services Agreement unambiguously proves CVR\\n\\nEnergy “affirmatively undertook duties that were necessary to protect Grice from\\n\\nharm.” Aplt. Br. at 26. If this were true, the Services Agreement would be a\\n\\nsufficient undertaking because a duty under § 324A may arise from a contractual\\n\\nundertaking. See Cessna Aircraft Co. v. Metro Topeka Airport Auth., 940 P.2d\\n\\n84, 92 (Kan. Ct. App. 1997). We disagree with the Grices’ reading of the\\n\\nServices Agreement, however.\\n\\n B. Characterization of the Services Agreement\\n\\n The Grices first argue the Services Agreement required CVR Energy to\\n\\nprovide comprehensive safety services to Coffeyville and functioned not as a\\n\\nmere cost-allocation agreement. They point to the many services the agreement\\n\\n\\n -10-\\n\\fobligated CVR Energy to perform, such as providing “safety and environmental\\n\\nadvice,” managing Coffeyville’s “day-to-day business and operations,” and\\n\\nmanaging the subsidiary’s “property and assets in the ordinary course of\\n\\nbusiness.” App. 191. These, the Grices argue, are not the type of services a cost-\\n\\nallocation agreement contemplates or a parent corporation ordinarily performs for\\n\\na subsidiary. The district court disagreed, finding the agreement was a mere cost-\\n\\nallocation mechanism.\\n\\n The Grices also argue the Services Agreement cannot be a cost-allocation\\n\\nmechanism because the agreement expressly characterizes CVR Energy “as an\\n\\nindependent contractor.” Id. at 179. Moreover, the Grices presented evidence to\\n\\nthe district court that the defendants held the agreement out to the SEC as more\\n\\nthan a cost-allocation agreement. Their expert explained that CVR Refining\\n\\nchose to disclose the agreement in SEC filings and, had the agreement been “[a]\\n\\nmere cost or accounting allocation protocol,” the agreement “would not be\\n\\ndisclosed as a material contract under SEC Regulation S-K.” Id. at 430, 831–33.\\n\\nIn the Grices’ view, CVR Refining “held out to the investing public that CV[R\\n\\nEnergy] was under a duty to perform the Services in the Agreement, so the public\\n\\nwould have relied on the fact that CVR Energy would be ‘conduct[ing] a\\n\\nsubstantial portion of [Coffeyville’s] day-to-day business operations.’” Aplt.\\n\\nBr. 19.\\n\\n\\n -11-\\n\\f CVR Energy counters with provisions from the agreement that indicate the\\n\\nparties were merely attempting to allocate costs. For instance, the Services\\n\\nAgreement contemplates that the parties would share executive personnel. CVR\\n\\nEnergy was to provide “services in capacities equivalent to capacities of corporate\\n\\nexecutive officers, except that the persons serving in such capacities shall serve in\\n\\nsuch capacities as Shared Personnel.” App. 191. The agreement also described\\n\\nhow the parties would share (pro rata) all office costs, some insurance premiums,\\n\\n“services provided by outside vendors,” and “depreciation and amortization.” Id.\\n\\nat 167. This suggests that the Services Agreement merely created a system where\\n\\nCVR Energy and its subsidiaries would share in the costs of operating the\\n\\nbusinesses.\\n\\n Despite the parties’ insistence on these points, however, neither position is\\n\\ndispositive. Even if the agreement is a classic contract for services—a view for\\n\\nwhich there is some supporting evidence—the real question is one of contract\\n\\ninterpretation. The inquiry is whether workplace safety is one of the “services”\\n\\nthe agreement obligated CVR Energy to perform. This is because § 324A\\n\\nsupports liability only when a person assumes a duty to render specific services.\\n\\nAnd it is axiomatic that not every services agreement requires the obligor to\\n\\nassume responsibility over the entirety of the obligee’s operations, just as not\\n\\nevery independent contractor assumes full responsibility. The scope of the\\n\\n\\n -12-\\n\\fservices set out within the four corners of the contract, therefore, will determine\\n\\nthe entirety of CVR Energy’s obligations and liability. See Honeycutt v. City of\\n\\nWichita, 836 P.2d 1128, 1137 (Kan. 1992) (“The extent of the undertaking should\\n\\ndefine the scope of the duty.”).\\n\\n C. Language of the Services Agreement\\n\\n With these principles in mind, we turn to the language of the Services\\n\\nAgreement. The Grices highlight several phrases in the agreement that suggest\\n\\nCVR Energy assumed responsibility for large portions of its subsidiaries’\\n\\noperations. The agreement states that “CVR is willing to undertake . . . to\\n\\nprovide services necessary to operate the business conducted by the Refining\\n\\nSubs.” App. 161. These contractual obligations include “[s]afety and\\n\\nenvironmental advice,” management of Coffeyville’s “day-to-day business and\\n\\noperations,” and management of the subsidiary’s “property and assets.” Id. at\\n\\n191.\\n\\n These provisions are not, however, the unequivocal descriptions the Grices\\n\\ncontend. Granted, CVR Energy did agree to “[m]anage the Services Recipients’\\n\\nday-to-day business and operations,” id., which without further context might\\n\\nstrongly support the Grices’ interpretation. The phrase “day-to-day business and\\n\\noperations” taken in isolation suggests that CVR Energy was obligated to run the\\n\\nwhole show, which undoubtedly includes workplace safety at a business such as\\n\\n\\n -13-\\n\\fan oil refinery. And CVR Energy did provide safety services, at least in the form\\n\\nof “[s]afety and environmental advice.” Id.\\n\\n But these provisions—without context—are vague at a minimum. There is\\n\\nlittle hint regarding the scope and nature of the management services or the safety\\n\\nadvice. One plausible interpretation of “management,” for instance, suggests top-\\n\\nto-bottom control over a business. Management could also refer to overseeing\\n\\nprojects from a high level and ensuring projects generally unfold in a certain way.\\n\\nAnd “business and operations” could refer to administrative or organizational\\n\\nservices rather than maintenance or inspections.\\n\\n Another provision with almost identical language sharpens this ambiguity.\\n\\nOne part of the agreement requires CVR Energy to manage its subsidiaries’ “day-\\n\\nto-day business and operations,” while another provision notes that “[p]ersonnel\\n\\nperforming the actual day-to-day business and operations of the Refining Subs at\\n\\nthe refinery or operating level will be employed by the Refining Subs.” Id. at 167\\n\\n(emphasis added). So the agreement simultaneously requires CVR Energy to\\n\\nmanage “the day-to-day business and operations” while noting that Coffeyville\\n\\npersonnel will perform “the actual day-to-day business and operations.”\\n\\n These ambiguities highlight the necessity of considering each provision in\\n\\nlight of the entire agreement. See Cellport Sys., Inc. v. Peiker Acustic GMGH &\\n\\nCo. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (noting that it is “error to interpret\\n\\n\\n -14-\\n\\fwords in [a] contract ‘alone and out of context’”) (citation omitted). And when\\n\\nwe interpret the contractual provisions in context, the scope of the phrases “day-\\n\\nto-day business and operations” and “assets and property” comes into clear focus,\\n\\nforeclosing the Grices’ interpretation.\\n\\n For instance, immediately following the phrase “day-to-day business and\\n\\noperations,” the agreement clarifies that these services include “managing\\n\\n[Coffeyville’s] liquidity and capital resources and compliance with applicable\\n\\nlaw.” App. 191. This suggests that “business and operations” carries its narrower\\n\\nconnotation because courts should interpret terms in light of the characteristics of\\n\\nassociated terms. See Antonin Scalia & Bryan A. Garner, Reading Law: The\\n\\ninterpretation of Legal Texts 197–98 (2012) (explaining the noscitur a sociis\\n\\ncanon). In this case, the associated terms are the specific services (managing\\n\\nliquidity and compliance with the law) following the general phrase (managing\\n\\n“business and operations”).\\n\\n CVR Energy’s obligations are further clarified by the Services Agreement’s\\n\\nreference to many high-level administrative services and, more persuasively, its\\n\\ntotal lack of reference to maintenance- or inspection-type services. The\\n\\nagreement, for instance, requires CVR Energy to provide “administrative and\\n\\nprofessional services, including legal, accounting, human resources, insurance,\\n\\ntax, credit, finance, government affairs, and regulatory affairs.” App. 191. The\\n\\n\\n -15-\\n\\fServices Agreement also requires CVR Energy to “establish[] and maintain[]\\n\\nbooks and records”; recommend “capital raising activities, . . . structured\\n\\nfinancings or other capital market transactions”; recommend “third party services\\n\\nproviders” such as “accountants, lawyers or experts”; “manage or oversee\\n\\nlitigation, administrative or regulatory proceedings, investigations or any other\\n\\nreview of the Services Recipients’ business or operations”; “establish and\\n\\nmaintain appropriate insurance policies”; and recommend “the payment of\\n\\ndividends or other distributions on the equity interests of the Services\\n\\nRecipients.” Id.\\n\\n The Services Agreement also states that CVR Energy would provide\\n\\n“[s]afety and environmental advice” to its subsidiaries. Id. There would be no\\n\\nreason to give safety advice to Coffeyville if CVR Energy was ultimately\\n\\nresponsible for workplace safety from the ground up. If that were the case, CVR\\n\\nEnergy would be implementing safety procedures and ordering inspections—not\\n\\nadvising Coffeyville to do so. This suggests a level of control over the safety\\n\\noperations similar to ordinary parental oversight in managing the business and\\n\\noperations of its subsidiaries.\\n\\n In sum, none of the enumerated services prompts us to interpret “day-to-day\\n\\nbusiness and operations” in its broadest sense. No specifically listed service, in\\n\\nother words, even remotely resembles services such as maintenance, inspections,\\n\\n\\n -16-\\n\\for general workplace safety. All the enumerated services are administrative or\\n\\nlegal in nature. So we must interpret CVR Energy’s obligation to provide\\n\\nmanagement of Coffeyville’s “business and operations” and “assets and property”\\n\\nparallel to its obligations under the more specifically enumerated services. Cf.\\n\\nUnited States v. Rowland, 826 F.3d 100, 109 (2d Cir. 2016) (Courts should “avoid\\n\\nascribing to one word a meaning so broad that it is inconsistent with its\\n\\naccompanying words, thus giving [it] unintended breadth”).\\n\\n D. Extrinsic Evidence\\n\\n We could affirm the district court based on the language of the Services\\n\\nAgreement without resorting to extrinsic evidence. But the manner in which the\\n\\nparties treated the agreement also supports the district court’s interpretation of the\\n\\nagreement. The Grices have failed to present any evidence that CVR Energy,\\n\\nCVR Refining, or Coffeyville treated the agreement as one obligating CVR\\n\\nEnergy to provide comprehensive safety services.\\n\\n CVR Refining’s Chief Financial Officer indicated that her understanding\\n\\nwas always that CVR Energy’s obligation to manage day-to-day business and\\n\\noperations was limited to administrative tasks such as paying bills, tracking\\n\\ninvoices, allocating insurance payments for subsidiaries, and accounting support.\\n\\nAnd the CFO’s understanding seems to be the general understanding, at least\\n\\nregarding safety issues.\\n\\n\\n -17-\\n\\f Undisputed evidence CVR Energy submitted by affidavit and deposition\\n\\ntestimony supports this conclusion. As the district court explained, the record\\n\\ncontains no evidence that CVR Energy was directly involved in ensuring safety or\\n\\nproper maintenance: “In simplest terms, [Coffeyville] ‘had its own safety program\\n\\nand . . . director over which [CVR] had no direct authority.’ Coffeyville owned\\n\\nand operated refinery property and machinery; had its own safety department,\\n\\nmanager, and personnel; and conducted its own inspections and repairs.” Grice,\\n\\n2017 WL 3032221, at *3. Moreover, no record evidence suggests that a CVR\\n\\nEnergy employee reviewed the 2010 Process Hazard Analysis, the study\\n\\nCoffeyville managers commissioned that recommended double seals on refinery\\n\\npumps. And in the five years preceding the accident, no CVR Energy employee\\n\\nentered, inspected, or reviewed the isomerization unit, the pump, or the\\n\\nisomerization equipment. Coffeyville’s engineers and safety department\\n\\nperformed all these tasks, and Coffeyville—not CVR Energy—set the schedule\\n\\nfor when updates such as the conversion to double seals would occur.\\n\\n The only evidence the Grices have presented to rebut CVR Energy’s\\n\\nshowing is that corporate executives had a daily phone call with Coffeyville\\n\\nregarding safety, the company tracked open and past-due maintenance projects,\\n\\nand approved the budget for maintenance projects. As the district court noted,\\n\\n“To be sure, CVR offered strategic direction, developed general safety policies,\\n\\n\\n -18-\\n\\foffered technical support, and monitored compliance with general OSHA safety\\n\\nregulations.” Grice, 2017 WL 303221, at *3. The Grices’ proffered evidence\\n\\nmight demonstrate that the agreement was more than a cost-allocation mechanism.\\n\\nBut it does not rebut CVR Energy’s showing that the company merely oversaw\\n\\nCoffeyville’s operations from a high level, consistent with the language of the\\n\\nServices Agreement.\\n\\n The Grices needed to proffer more to survive summary judgment. All the\\n\\nGrices can show from the record is that CVR Energy gave advice and monitored\\n\\nthe progress of safety issues. And this is insufficient because “[t]he extent of the\\n\\nundertaking should define the scope of the duty.” Honeycutt, 836 P.2d at 1137.\\n\\nThe extrinsic evidence, therefore, supports the district court’s interpretation of the\\n\\ncontract. The Services Agreement was one for oversight and administrative\\n\\nservices, so CVR Energy did not assume a duty to Grice by undertaking to\\n\\nprovide comprehensive safety services to Coffeyville.\\n\\n IV. Conclusion\\n\\n CVR Energy did not assume a duty to provide workplace safety for\\n\\nemployees of its subsidiaries. We therefore AFFIRM the decision of the district\\n\\ncourt granting summary judgment to CVR Energy. 2\\n\\n\\n\\n 2\\n We also deny the Grices’ Motion for Leave to File a Reply to CVR\\nRefining’s Response to Appellants’ Notice of Potential Non-Compliance.\\n\\n -19-\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1861,"cells":{"id":{"kind":"number","value":8443988,"string":"8,443,988"},"name":{"kind":"string","value":"AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. David James BURNS Robin Burns, as personal representative of Tyler Burns, and Dora Sam"},"name_abbreviation":{"kind":"string","value":"Am. Nat'l Prop. v. Burns"},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"No. 18-8006"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Holmes\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415422/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"HOLMES"},"judge2":{"kind":"string","value":"HOLMES"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443988/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. David James BURNS Robin Burns, as personal representative of Tyler Burns, and Dora Sam\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. David James BURNS Robin Burns, as personal representative of Tyler Burns, and Dora Sam\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1862,"cells":{"id":{"kind":"number","value":4613630,"string":"4,613,630"},"name":{"kind":"string","value":"Jeremy Lee SCARLETT, on Behalf of Himself and All Others Similarly Situated, Et Al., Plaintiffs-Appellants, v. AIR METHODS CORPORATION; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee. Randal Cowen; Keith Kranhold, Executor of the Estate of Kenneth Kranhold; Griff Hughes; Lana Hughes; Yolanda O'Neale, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. Air Methods Corporation; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee."},"name_abbreviation":{"kind":"string","value":"Scarlett v. Air Methods Corporation"},"decision_date":{"kind":"string","value":"2019-04-25"},"docket_number":{"kind":"string","value":"18-1247; 18-1249"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Lucero, Moritz\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRISCOE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 25, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nJEREMY LEE SCARLETT, on behalf of\\nhimself and all others similarly situated, et\\nal.,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1247\\n\\nAIR METHODS CORPORATION;\\nROCKY MOUNTAIN HOLDINGS LLC,\\n\\n Defendants - Appellees.\\n\\n-----------------------------\\n\\nUNITED STATES OF AMERICA,\\n\\n Intervenor - Appellee.\\n\\n–––––––––––––––––––––––––––––––––––\\n\\nRANDAL COWEN; KEITH\\nKRANHOLD, Executor of the Estate of\\nKenneth Kranhold; GRIFF HUGHES;\\nLANA HUGHES; YOLANDA O’NEALE,\\non behalf of themselves and all others\\nsimilarly situated,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1249\\n\\nAIR METHODS CORPORATION;\\nROCKY MOUNTAIN HOLDINGS LLC,\\n\\n Defendants - Appellees.\\n\\f ------------------------------\\n\\n UNITED STATES OF AMERICA,\\n\\n Intervenor - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (Lead D.C. No. 1:16-CV-02723-RBJ)\\n _________________________________\\n\\nEdward L. White, Edward L. White, P.C., Edmond, Oklahoma (Kerry D. Green, Edward\\nL. White, P.C., Edmond, Oklahoma; Thomas Melvin Rogers, III, and Abby Caroline\\nHarder, Lewis Roca Rothberger Christie, LLP, Denver, Colorado; Mario A. Pacella,\\nStrom Law Firm, LLC, Columbia, South Carolina; Troy M. Frederick, Frederick Law\\nGroup, PLLC, Indiana, Pennsylvania; S. Alex Yaffe, Foshee & Yaffe, Oklahoma City,\\nOklahoma; Andrew P. Campbell and Stephen D. Wadsworth, Campbell Guin, LLC,\\nBirmingham, Alabama; and Noble K. McIntyre, McIntyre Law Firm, Oklahoma City,\\nOklahoma, with him on the briefs), appearing for Appellants Jeremy Scarlett, Edward\\nAdams, Joel Griffith, Gary Supeau, Reid Hardy, Michael Robertson, Jenny Stephens,\\nHeather Bartley, Judd Bartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy\\nVanzant, Thomas Wade, Jonathan Burleson, Jennier McCloskey, Warren Larson, Johnny\\nAlexander, Kathleen Gore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis,\\nAngela Wallace, Joelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, William\\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller, and\\nRussell Fulford.\\n\\nRichard J. Burke (Jamie Weiss and Zachary A. Jacobs, with him on the briefs), Quantum\\nLegal, LLC, Highland Park, Illinois, appearing for Appellants Randal Cowen, Keith\\nKranhold, Griff Hughes, Lana Hughes, and Yolanda O’Neale.\\n\\nLewis S. Yelin, Attorney, Appellate Staff, Civil Division, United States Department of\\nJustice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Jason R. Dunn,\\nUnited States Attorney, and Michael S. Raab, Attorney, Appellate Staff, Civil Division,\\nUnited States Department of Justice, Washington, DC; Steven G. Bradbury, General\\nCounsel, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, and\\nCharles E. Enloe, Trial Attorney, Department of Transportation, Washington, DC, with\\nhim on the brief), appearing for Intervenor United States of America.\\n\\nChristina F. Gomez, Holland & Hart LLP, Denver, Colorado (Matthew J. Smith and\\nJessica J. Smith, Holland & Hart LLP, Denver, Colorado; and David A. King and\\n\\n 2\\n\\fMichael A. Cottone, Bass, Berry & Sims, PLC, Nashville, Tennessee, with her on the\\nbrief), appearing for Appellees Air Methods Corporation and Rocky Mountain Holdings\\nLLC.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n This is an appeal from the dismissal of two putative class action complaints as\\n\\npre-empted by the Airline Deregulation Act (ADA), 49 U.S.C. § 41713. Defendants-\\n\\nAppellees Air Methods Corporation and Rocky Mountain Holdings, LLC provide air\\n\\nambulance services, which means that they fly sick and injured individuals to hospitals\\n\\nfor medical treatment. These flights are expensive; patients are regularly charged tens of\\n\\nthousands of dollars per flight. Defendants provided air ambulance services to Plaintiffs-\\n\\nAppellants, or in some cases to their minor children. Plaintiffs dispute their obligation to\\n\\npay the full amounts charged by Defendants because Plaintiffs claim to have never\\n\\nagreed with Defendants on a price for their services.\\n\\n Plaintiffs filed suit, asserting jurisdiction under the Class Action Fairness Act,\\n\\n28 U.S.C. § 1332(d), to determine what, if any, amounts they owe Defendants. Plaintiffs\\n\\nalso seek to recover any excess payments already made to Defendants. Defendants\\n\\nmoved to dismiss, arguing that Plaintiffs’ claims are pre-empted by the ADA. The\\n\\ndistrict court agreed and dismissed Plaintiffs’ claims with prejudice. Exercising\\n\\njurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand\\n\\nfor further proceedings.\\n\\n\\n 3\\n\\f I\\n\\n The ADA was enacted in 1978 after Congress “determin[ed] that maximum\\n\\nreliance on competitive market forces would best further efficiency, innovation, and low\\n\\nprices as well as variety and quality of air transportation services.” Morales v. Trans\\n\\nWorld Airlines, Inc., 504 U.S. 374, 378 (1992) (quotation marks, alteration, and ellipsis\\n\\nomitted). The enactment of the ADA marked the end of an era when the federal\\n\\ngovernment and the states regulated airfares. “To ensure that the States would not undo\\n\\nfederal deregulation with regulation of their own, the ADA included a pre-emption\\n\\nprovision.” Id. Per the pre-emption provision, “a State . . . may not enact or enforce a\\n\\nlaw, regulation, or other provision having the force and effect of law related to a price,\\n\\nroute, or service of an air carrier that may provide air transportation under this subpart.”\\n\\n49 U.S.C. § 41713(b)(1). The scope of the pre-emption provision lies at the heart of this\\n\\nappeal.\\n\\n\\n\\n\\n 4\\n\\f There are two groups of plaintiffs—the Scarlett Plaintiffs1 and the Cowen\\n\\nPlaintiffs.2 Because each group of plaintiffs pursues distinct claims, we discuss their\\n\\nallegations separately. “We review a district court’s dismissal of a complaint under Rule\\n\\n12(b)(6) de novo.” Rosenfield v. HSBC Bank, 681 F.3d 1172, 1178 (10th Cir. 2012). In\\n\\ndoing so, we “accept as true all well-pleaded factual allegations . . . and view these\\n\\nallegations in the light most favorable to the plaintiff.” Id. (quotation marks omitted).\\n\\nA. The Scarlett Plaintiffs\\n\\n The Scarlett Plaintiffs allege that Defendants have sent them bills for air\\n\\nambulance services provided to them or their children. The average bill is for $47,000,\\n\\nbut no bill has been paid in full. The Scarlett Plaintiffs further allege that “Defendants’\\n\\ncharges for air transport [were] not disclosed . . . in any way in advance of transport.”\\n\\nApp. Vol. III at 385. Most of the Scarlett Plaintiffs are insured; the average insurance\\n\\npayment for Defendants’ services is $12,000. But that leaves a substantial outstanding\\n\\nbalance on each bill. Defendants seek payment of the outstanding balances by hiring\\n\\n\\n\\n\\n 1\\n Plaintiffs in Appeal No. 18-1247 are Edward Adams, Joel Griffith, Gary\\nSupeau, Reid Hardy, Michael Robertson, Jenny Stephens, Heather Bartley, Judd\\nBartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy Vanzant, Thomas Wade,\\nJonathan Burleson, Jennifer McCloskey, Warren Larson, Johnny Alexander, Kathleen\\nGore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis, Angela Wallace,\\nJoelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, Jeremy Scarlett, William\\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller,\\nand Russell Fulford (collectively, the “Scarlett Plaintiffs”).\\n 2\\n Plaintiffs in Appeal No. 18-1249 are Randal Cowen, Keith Kranhold, Griff\\nHughes, Lana Hughes, and Yolanda O’Neale (collectively, the “Cowen Plaintiffs”).\\n 5\\n\\fdebt collectors and filing breach of contract lawsuits in state court. This practice is called\\n\\nbalance billing.\\n\\n The Scarlett Plaintiffs’ Consolidated Class Action Complaint contains two causes\\n\\nof action. First, the Scarlett Plaintiffs allege that Defendants have breached implied\\n\\ncontracts for the air ambulance services by charging more than “the fair market value of\\n\\n[their] services.” Id. at 391. The Scarlett Plaintiffs seek “damages in the amount of the\\n\\novercharges levied by Defendants.” Id. at 392. Second, the Scarlett Plaintiffs seek\\n\\nexpansive declaratory and injunctive relief. They desire a declaration stating (1) “that the\\n\\nADA . . . does not apply to air ambulance carriers;” (2) that the ADA does not pre-empt\\n\\ntheir “breach of implied contract claims;” (3) that there are no enforceable contracts\\n\\nbetween the Scarlett Plaintiffs and Defendants because they never agreed on the price of\\n\\nthe air ambulance services; (4) that Defendants have been unjustly enriched by charging\\n\\nmore than the fair market value of their services; and (5) that the ADA’s pre-emption\\n\\nprovision violates the procedural and substantive components of the Due Process Clause\\n\\nof the Fifth Amendment. Id. at 392–97. The Scarlett Plaintiffs also seek to permanently\\n\\nenjoin Defendants’ billing practices.\\n\\n Defendants moved to dismiss, arguing that the Scarlett “Plaintiffs’ lawsuit is\\n\\npre[-]empted by the ADA because their claims rely on state laws . . . to challenge an air\\n\\ncarriers’ [sic] prices.” App. Vol. IV at 577. Defendants also argued that the due process\\n\\nclaim fails because the Scarlett Plaintiffs are afforded adequate process via the\\n\\nDepartment of Transportation’s complaint procedures, and Congress did not act\\n\\narbitrarily when enacting the ADA’s pre-emption provision.\\n\\n 6\\n\\f The United States intervened to defend the constitutionality of the ADA and offer\\n\\nits interpretation of how the ADA’s pre-emption provision applies to the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim. The government agreed with Defendants\\n\\nthat the Scarlett Plaintiffs had not alleged a violation of their procedural or substantive\\n\\ndue process rights. As to the pre-emption question, the government argued that the\\n\\ndistrict court first “need[ed] to determine whether, under the applicable state law [for\\n\\neach plaintiff’s claim], the parties entered into an implied contract,” App. Vol. V at 809,\\n\\nand then needed to assess whether the “terms . . . are enforceable consistent with the\\n\\nADA,” id. at 811.\\n\\n The district court granted Defendants’ motion to dismiss. First, the district court\\n\\nfound that Defendants may assert the ADA’s pre-emption provision as a defense because,\\n\\nunder the ADA, they are air carriers who may provide air transportation. Turning to the\\n\\nmerits of the complaint, the district court found that “the ADA pre[-]empts the Scarlett\\n\\nPlaintiffs’ claims for breach of [implied] contract and injunctive and declaratory relief.”\\n\\nId. at 860 (emphasis omitted). The district court was “convinced that the . . . case\\n\\ndepends on the application of state common law . . . to prevent unjust enrichment.” Id.\\n\\nFinally, the district court found that the Scarlett Plaintiffs failed to plead a violation of the\\n\\nprocedural or substantive components of the Due Process Clause of the Fifth\\n\\nAmendment.\\n\\nB. The Cowen Plaintiffs\\n\\n The Cowen Plaintiffs allege that Defendants have sent them bills for providing air\\n\\nambulance services to them, their children, and their decedents. The average bill was for\\n\\n 7\\n\\f$48,500. None of the Cowen Plaintiffs have fully paid their bills, either because their\\n\\nhealth insurance only covered a portion of the bill or because they do not have health\\n\\ninsurance. The average insurance payment to Defendants was $7,400. Defendants have\\n\\nhired, or in some cases threatened to hire, a collection agency to recoup the unpaid\\n\\nbalances.\\n\\n The Cowen Plaintiffs’ Second Amended Complaint contains three causes of\\n\\naction. First, the Cowen Plaintiffs seek a declaratory judgment encompassing thirteen\\n\\ncumulative declarations. As we read the Cowen Plaintiffs’ complaint, the requested\\n\\ndeclaratory judgment would state one of two things: the Cowen Plaintiffs did not enter\\n\\ninto contracts with Defendants because they did not agree on a price; or, in the\\n\\nalternative, any contractual relationship that exists between the Cowen Plaintiffs and\\n\\nDefendants is implied under federal common law. Second, assuming there are valid\\n\\ncontracts between the Cowen Plaintiffs and Defendants under federal common law, the\\n\\nCowen Plaintiffs allege that “Defendants breached their contract[s] . . . by invoicing and\\n\\nbalance billing . . . for charged amounts in excess of the reasonable value of the services\\n\\nprovided.” App. Vol. II at 316. Third, assuming there are no valid contracts between the\\n\\nCowen Plaintiffs and Defendants, the Cowen Plaintiffs allege that they “are entitled to\\n\\nrestitution of all sums paid [to Defendants] greater than the reasonable value of the\\n\\nservices provided” under a theory of “unjust[] enrich[ment].” Id. at 318.\\n\\n Defendants moved to dismiss. They argued that “[t]o the extent [the Cowen]\\n\\nPlaintiffs seek to rely on state law to challenge Defendants’ prices, such claims are\\n\\npre[-]empted by the ADA.” App. Vol. III at 564. Defendants then addressed the claims\\n\\n 8\\n\\farising under federal common law and argued that “Congress has [not] granted federal\\n\\ncourts authority to create federal common law” regarding contract claims against air\\n\\nambulances. Id. at 566. Finally, Defendants argued that the Cowen Plaintiffs “cannot\\n\\nstate a claim for equitable restitution” “because [they] . . . do[] not identify any particular\\n\\nfunds in Defendants’ possession that supposedly belong to Plaintiffs.” Id. at 570.\\n\\n The district court granted the motion to dismiss. First, the district court interpreted\\n\\nthe claim for declaratory relief narrowly, to seek only a declaration that “federal common\\n\\nlaw is applicable” to the Cowen Plaintiffs’ claims. App. Vol. V at 865. Based on this\\n\\nfinding, the district court reasoned that all of the Cowen Plaintiffs’ claims depend on the\\n\\nexistence of federal common law. Because the district court found that there is no federal\\n\\ncommon law governing claims against air ambulance companies, the district court\\n\\ndecided that the Cowen Plaintiffs’ claims failed.\\n\\n “Because [the district court found that all] plaintiffs’ claims are pre[-]empted by\\n\\nthe ADA as a matter of law, [the district court dismissed] both complaints . . . with\\n\\nprejudice.” App. Vol. V at 868. All plaintiffs timely appealed.\\n\\n II\\n\\n Before reaching the substance of the parties’ pre-emption arguments, we must\\n\\ndetermine whether Defendants can assert the ADA’s pre-emption provision as a defense.\\n\\nWe have previously applied the ADA’s pre-emption provision to prohibit state regulation\\n\\nof air ambulance rates. EagleMed LLC v. Cox, 868 F.3d 893, 904–05 (10th Cir. 2017)\\n\\n(holding that state regulation of air ambulance prices was “pre[-]empted by the [ADA] to\\n\\nthe extent [the state law] set maximum reimbursement rates for air-ambulance services,”\\n\\n 9\\n\\fbut noting that no party “argue[d] that air ambulances are not ‘air carriers’ under the\\n\\nstatute”); Schneberger v. Air Evac EMS, Inc., 749 F. App’x 670, 673 n.4 (10th Cir. 2018)\\n\\n(same). We have never been called upon to directly answer the question of whether air\\n\\nambulances are covered by the ADA.\\n\\n Whether Defendants can raise the ADA’s pre-emption provision as a defense is a\\n\\nquestion of statutory interpretation. “We review de novo a district court’s statutory\\n\\nconstruction.” Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610, 613 (10th\\n\\nCir. 2018). “Our first step in interpreting a statute is to determine whether the language\\n\\nat issue has a plain and unambiguous meaning with regard to the particular dispute in the\\n\\ncase.” Id. (quotation marks omitted). “Our inquiry ends there if the statutory language is\\n\\nunambiguous and the statutory scheme is coherent and consistent.” Id. (quotation marks\\n\\nomitted). “We evaluate statutory language by examining the language itself, the specific\\n\\ncontext in which that language is used, and the broader context of the statute as a whole.”\\n\\nId. (quotation marks omitted).\\n\\n The ADA’s pre-emption provision says: “[A] State . . . may not enact or enforce a\\n\\nlaw, regulation, or other provision having the force and effect of law related to a price,\\n\\nroute, or service of an air carrier that may provide air transportation under this subpart.”\\n\\n49 U.S.C. § 41713(b)(1). “‘[A]ir carrier’ means a citizen of the United States\\n\\nundertaking by any means, directly or indirectly, to provide air transportation.” Id.\\n\\n§ 40102(a)(2). As is relevant for this appeal, “‘air transportation’ means . . . interstate air\\n\\ntransportation.” Id. § 40102(a)(5). “‘[I]nterstate air transportation’ means the\\n\\n\\n\\n 10\\n\\ftransportation of passengers . . . by aircraft as a common carrier for compensation”\\n\\nbetween two states. Id. § 40102(a)(25).\\n\\n The ADA’s pre-emption provision “expresses a ‘broad pre-emptive purpose.’”\\n\\nNorthwest, Inc. v. Ginsberg, 572 U.S. 273, 280 (2014) (quoting Morales, 504 U.S. at\\n\\n383). It applies to “provision[s] having the force and effect of law related to a price . . .\\n\\nof an air carrier that may provide air transportation,” 49 U.S.C. § 41713(b)(1) (emphasis\\n\\nadded), which includes “interstate air transportation,” id. § 40102(a)(5). “[M]ay” means\\n\\n“[t]o be permitted to.” May, Black’s Law Dictionary (10th ed. 2014). Defendants are\\n\\npermitted to provide interstate air transportation because they have been certified to do so\\n\\nby the Department of Transportation, pursuant to 49 U.S.C. § 41101 and 14 C.F.R.\\n\\n§ 298.1. Therefore, Defendants “may provide” interstate flights.\\n\\n Even though Defendants “may provide air transportation,” the Scarlett Plaintiffs\\n\\nargue that Defendants are not “air carriers” because they also provide intrastate flights.\\n\\nBut the definition of “air carrier” is expansive and encompasses companies that provide\\n\\nboth intrastate and interstate flights. A company is an air carrier when it is “undertaking\\n\\nby any means, directly or indirectly, to provide air transportation.” 49 U.S.C.\\n\\n§ 40102(a)(2) (emphasis added). To “undertake” means “[t]o take on an obligation or\\n\\ntask.” Undertake, Black’s Law Dictionary (10th ed. 2014). Defendants have obtained\\n\\nthe necessary certifications to provide interstate flights and, in fact, do provide interstate\\n\\nflights. Under the plain meaning of § 40102(a)(2), Defendants have undertaken to\\n\\nprovide air transportation.\\n\\n\\n\\n 11\\n\\f Finally, the Scarlett Plaintiffs argue that we should analyze whether Defendants\\n\\nare air carriers on a flight-by-flight basis. The Scarlett Plaintiffs point to nothing in the\\n\\ntext or structure of the ADA that would indicate such an approach is appropriate.\\n\\nAllowing states to regulate the prices of intrastate flights would have far-reaching effects,\\n\\nincluding in the commercial air travel market. Under the Scarlett Plaintiffs’\\n\\nunderstanding of the ADA, even commercial airlines that primarily provide international\\n\\nand interstate flights would be subject to regulation in each state where they provide\\n\\nintrastate flights. Such an outcome, in which states could exert substantial regulatory\\n\\npower over airlines, is inconsistent with Congress’s stated goal of deregulating air travel\\n\\nand leaving regulation to “competitive market forces.” Morales, 504 U.S. at 378.\\n\\nTherefore, the district court correctly found that Defendants may raise the ADA’s\\n\\npre-emption provision as a defense.\\n\\n III\\n\\n The central issue on appeal is whether Plaintiffs’ claims are pre-empted by the\\n\\nADA. “[P]re[-]emption [is] a legal issue subject to de novo review.” Cerveny v. Aventis,\\n\\nInc., 855 F.3d 1091, 1096 (10th Cir. 2017). Under the ADA, “a State . . . may not enact\\n\\nor enforce a law, regulation, or other provision having the force and effect of law related\\n\\nto a price, route, or service of an air carrier that may provide air transportation under this\\n\\nsubpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has “recognized that the key\\n\\nphrase [in § 41713(b)(1),] ‘related to[,]’ expresses a ‘broad pre-emptive purpose.’”\\n\\nGinsberg, 572 U.S. at 280 (quoting Morales, 504 U.S. at 383). Accordingly, the Court\\n\\nhas “held that a claim ‘relates to rates, routes, or services,’ within the meaning of the\\n\\n 12\\n\\fADA, if the claim ‘has a connection with, or reference to, airline rates, routes, or\\n\\nservices.’” Id. (alterations omitted) (quoting Morales, 504 U.S. at 384).\\n\\n Shortly after noting the breadth of the ADA’s pre-emption provision, the Supreme\\n\\nCourt recognized an exception in American Airlines, Inc. v. Wolens, 513 U.S. 219\\n\\n(1995)—“the ADA pre-emption provision” does not bar “breach-of-contract claims”\\n\\nagainst airlines. Ginsberg, 572 U.S. at 281. “‘Terms and conditions airlines offer and\\n\\npassengers accept,’ [the Court explained], ‘are privately ordered obligations and thus do\\n\\nnot amount to a State’s enactment or enforcement of any law, rule, regulation, standard,\\n\\nor other provision having the force and effect of law within the meaning of the ADA pre-\\n\\nemption provision.’” Id. (alterations omitted) (quoting Wolens, 513 U.S. at 228–29).\\n\\n The Court clarified the scope of the Wolens exception in Ginsberg. At issue in\\n\\nGinsberg was whether the ADA pre-empted a claim that an airline violated an implied\\n\\ncovenant of good faith and fair dealing. Id. at 285. The Court explained that “common-\\n\\nlaw rules fall comfortably within the language of the ADA pre-emption provision”\\n\\nbecause “common-law rule[s] clearly ha[ve] ‘the force and effect of law.’” Id. at 281–82\\n\\n(quoting 49 U.S.C. § 41713(b)(1)). The good faith and fair dealing claim at issue in\\n\\nGinsberg was pre-empted for two independent reasons—the applicable state law did not\\n\\nallow private parties to contract around the covenant, and the state law applied for policy\\n\\nreasons. Id. at 286–88. In reaching this holding, the Court left us with two rules. First,\\n\\n“[w]hen the law of a State does not authorize parties to free themselves from [a]\\n\\ncovenant, a breach of covenant claim is pre-empted under the reasoning of Wolens.” Id.\\n\\nat 287. Second, “[w]hen the application of [an] implied covenant depends on state\\n\\n 13\\n\\fpolicy, a breach of implied covenant claim cannot be viewed as simply an attempt to\\n\\nvindicate the parties’ implicit understanding of the contract.” Id. at 288.\\n\\n Therefore, to survive the ADA’s pre-emption provision, a claim that has a\\n\\nconnection to the price of an air carrier’s service must satisfy Wolens and Ginsberg. The\\n\\nparties do not dispute that Plaintiffs’ claims relate to the price of Defendants’ air\\n\\nambulance services. This appeal therefore turns on whether Plaintiffs’ claims satisfy\\n\\nWolens and Ginsberg. Though the claims raised by the Scarlett Plaintiffs and those\\n\\nraised by the Cowen Plaintiffs are not identical, for purposes of our analysis, there are\\n\\nthree types of claims at issue on appeal. First, all Plaintiffs allege that they formed\\n\\nimplied contracts with Defendants for the provision of air ambulance services. Plaintiffs\\n\\nfurther allege that Defendants have breached these contracts by charging more than the\\n\\nreasonable value of the air ambulance services. Second, in the alternative, all Plaintiffs\\n\\nseek a declaration that there are no enforceable contracts between Plaintiffs and\\n\\nDefendants because the parties never agreed on a price for the air ambulance services.\\n\\nThird, all Plaintiffs allege that Defendants have been unjustly enriched by collecting\\n\\nmore than the reasonable value of their air ambulance services.\\n\\n Before discussing whether Plaintiffs’ claims survive the ADA’s pre-emption\\n\\nprovision, we address the government’s arguments about the impact of Dan’s City Used\\n\\nCars, Inc. v. Pelkey, 569 U.S. 251 (2013), on the analytical framework established in\\n\\nWolens and Ginsberg. In Dan’s City, the Supreme Court was faced with the question of\\n\\nwhether the Federal Aviation Administration Authorization Act of 1994 (FAAAA)\\n\\n“pre[-]empts a vehicle owner’s state-law claims against a towing company regarding the\\n\\n 14\\n\\fcompany’s post-towing disposal of the vehicle.” 569 U.S. at 259. The FAAAA’s\\n\\npre-emption provision generally “tracks the ADA’s air-carrier pre[-]emption provision,”\\n\\nbut its reach is “massively limit[ed]” because it only applies to claims related to “the\\n\\ntransportation of property.” Id. at 261 (quotation marks omitted).\\n\\n The towing company in Dan’s City towed the plaintiff’s car. Id. at 258. When the\\n\\nplaintiff did not promptly claim his car, the towing company sold it, retaining the\\n\\nproceeds as payment for towing and storing the car. Id. State law permitted the towing\\n\\ncompany’s actions, subject to certain conditions. Id. at 257–58. The plaintiff sued the\\n\\ntowing company, alleging that the towing company failed to comply with the statutory\\n\\nconditions necessary to lawfully sell his car. Id. at 259. The plaintiff’s claims were\\n\\ndismissed as pre-empted by the FAAAA. Id. The Supreme Court held that the claims\\n\\nshould have been allowed to proceed. Id. at 261.\\n\\n The towing company argued that its actions were “related to [its] towing service,”\\n\\nand therefore pre–empted, because “selling [the plaintiff’s] car was the means by which\\n\\n[the towing company] obtained payment for the tow.” Id. at 265 (quotation marks\\n\\nomitted). The Court rejected this argument because the towing company was trying to\\n\\n“have it both ways.” Id. The towing company “c[ould not] rely on [the state’s]\\n\\nregulatory framework as authorization for the sale of [the plaintiff’s] car, yet argue that\\n\\n[the plaintiff’s] claims, invoking the same state-law regime, are pre[-]empted.” Id.\\n\\nAdopting the towing company’s argument “would . . . leave vehicle owners without any\\n\\nrecourse for damages [and] it would eliminate the sole legal authorization for a towing\\n\\ncompany’s disposal of stored vehicles that go unclaimed.” Id. There would be “no law\\n\\n 15\\n\\f[to] govern resolution of a non-contract-based dispute arising from a towing company’s\\n\\ndisposal of a vehicle previously towed or afford a remedy for wrongful disposal.” Id.\\n\\nThe Court did not think that “such [a] design c[ould] be attributed to a rational\\n\\nCongress.” Id.\\n\\n Relying on Dan’s City, the government argues that “if [D]efendants rely on state\\n\\nequitable principles as the basis for their compensation, they cannot at the same time\\n\\nprevent [P]laintiffs from relying on those same principles to argue that [D]efendants’\\n\\ncharges are unreasonable.” Gov’t Br. at 21–22. The government’s argument appeals to a\\n\\nsense of fairness and reason, but its sweeping scope goes unacknowledged. Just one year\\n\\nafter deciding Dan’s City, the Court held that the ADA pre-empts implied common law\\n\\nclaims that attempt to vindicate “community standards of decency, fairness, or\\n\\nreasonableness.” Ginsberg, 572 U.S. at 286 (quotation marks omitted). We need not\\n\\nattempt to rationalize the government’s interpretation of Dan’s City with the Court’s\\n\\nsubsequent holding in Ginsberg at this time because the premise of the government’s\\n\\nargument is flawed.\\n\\n Defendants argued in the district court that Plaintiffs have “a contractual\\n\\nobligation to pay for the air carrier services they received.” App. Vol. IV at 626 n.2\\n\\n(emphasis added). The district court understood Defendants to argue that Plaintiffs have\\n\\na contractual obligation to pay, though the district court also recognized that “Defendants,\\n\\nfor their part, never explain what kind of agreement they think exists.” App. Vol. V at\\n\\n857. The Scarlett Plaintiffs similarly understood “Defendants [to] have repeatedly\\n\\ninvoked . . . state court jurisdiction to determine their right to recover [from Plaintiffs]\\n\\n 16\\n\\funder contract theories.” App. Vol. IV at 594. The Cowen Plaintiffs believe Defendants\\n\\n“have initiated collection efforts . . . to recover their contract rate/charged amount.” Id. at\\n\\n608. Even the government understood Defendants “not [to] dispute . . . that [Plaintiffs]\\n\\nhave a contractual obligation to pay.” App. Vol. V. at 809 (quotation marks omitted).\\n\\nBut at oral argument, Defendants argued that Plaintiffs’ obligation to pay arises under\\n\\nquantum meruit or a contract implied-in-law, which are equitable theories. Oral\\n\\nArgument at 32:57–41:29.\\n\\n We will not base our analysis on an argument first made at oral argument.\\n\\nAdamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 (10th Cir. 2016).\\n\\nAdmittedly, it is confusing (and at least a little concerning) that Defendants have filed\\n\\nlawsuits in state court to collect payments allegedly owed without a consistent legal\\n\\ntheory of why Plaintiffs owe them money.3 But the merits of Defendants’ state court\\n\\nclaims against Plaintiffs are not before us in this appeal. If Defendants in fact rely on\\n\\nequitable principles in their state court lawsuits against Plaintiffs, Plaintiffs remain free to\\n\\nraise Dan’s City and argue that Defendants are trying to have it both ways.\\n\\n But for the purpose of this appeal, all parties proceeded in the district court based\\n\\non Defendants’ representation that they believe Plaintiffs “have a contractual obligation\\n\\nto pay for the air carrier services they received.” App. Vol. IV 626 n.2. We rely on that\\n\\nrepresentation and conclude that Dan’s City is inapplicable. When Defendants proceed\\n\\n\\n 3\\n During oral argument on their motions to dismiss, the district court asked\\nDefendants, “Why do [Plaintiffs] owe you money?” App. Vol. IV at 699.\\nDefendants responded, “[I]t could be an express contract. It could be a contract\\nimplied in fact. It could be a contract implied in law.” Id. at 700–01.\\n 17\\n\\fin state court on contractual claims and argue, in this court, that we apply the pre-emption\\n\\nprinciples from Wolens and Ginsberg, we are not faced with a situation in which “the\\n\\npre[-]emption urged by [Defendants] . . . would eliminate the sole legal authorization” for\\n\\nDefendants’ actions in state court. Dan’s City, 569 U.S. at 265. Just the opposite.\\n\\nWolens and Ginsberg hold that a standard breach of contract claim is not pre-empted by\\n\\nthe ADA. Ginsberg, 572 U.S. at 281, 286–88.\\n\\n Accordingly, we now analyze whether Plaintiffs’ claims are pre-empted under\\n\\nWolens and Ginsberg.\\n\\n\\n\\n\\nA. Breach of Implied Contract\\n\\n All Plaintiffs allege that Defendants have breached implied contractual\\n\\nrelationships with them by charging more than the reasonable value of their air\\n\\nambulance services.4 While the Scarlett Plaintiffs allege that these implied contracts\\n\\narise under state common law, the Cowen Plaintiffs allege that the implied contracts arise\\n\\nunder federal common law. Because no federal common law exists to “resolv[e] . . . the\\n\\n\\n 4\\n In their briefing on appeal, the Scarlett Plaintiffs argue that they also alleged\\nthe existence of express contracts between themselves and Defendants. Scarlett Aplt.\\nReply Br. at 4. But, in their operative complaint, the Scarlett Plaintiffs only assert a\\nclaim for “Breach of Implied Contract.” App. Vol. III at 389. In that claim, the\\nScarlett Plaintiffs allege that they “did not enter into either a written or oral\\nagreement or [agree on] specific terms” with Defendants. Id. at 390. The Scarlett\\nPlaintiffs cannot now attempt to amend their claim to allege a breach of express\\ncontract.\\n\\n (continued . . .)\\n 18\\n\\frange of contract claims relating to airline rates,” Wolens, 513 U.S. at 232, the district\\n\\ncourt correctly dismissed the Cowen Plaintiffs’ breach of implied contract claim for\\n\\nfailure to state a claim. Therefore, we confine our discussion to the Scarlett Plaintiffs’\\n\\nclaim under state common law.\\n\\n As the district court recognized, there are three types of contracts: express,\\n\\nimplied-in-fact, and implied-in-law.5 Hercules, Inc. v. United States, 516 U.S. 417, 423–\\n\\n24 (1996). “An agreement implied in fact is ‘founded upon a meeting of minds, which,\\n\\nalthough not embodied in an express contract, is inferred, as a fact, from conduct of the\\n\\nparties showing, in the light of the surrounding circumstances, their tacit understanding.’”\\n\\nHercules, 516 U.S. at 424 (quoting Baltimore & Ohio R.R. v. United States, 261 U.S.\\n\\n592, 597 (1923)). “By contrast, an agreement implied in law is a ‘fiction of law’ where\\n\\n‘a promise is imputed to perform a legal duty, as to repay money obtained by fraud or\\n\\nduress.’” Id. (quoting Baltimore & Ohio R.R., 261 U.S. at 597).\\n\\n\\n\\n\\n 5\\n The Restatement of Contracts draws the same distinctions. “Contracts are\\noften spoken of as express or implied. The distinction involves, however, no\\ndifference in legal effect, but lies merely in the mode of manifesting assent.”\\nRestatement (Second) of Contracts § 4 cmt. a (1981) (Am. Law Inst., updated 2019).\\n“As opposed to the inferred from fact (‘implied in fact’) contract, the ‘implied in law’\\nquasi-contract is no contract at all, but a form of the remedy of restitution.” Id. § 4,\\nnote, cmt. b. “Quasi-contracts have often been called implied contracts or contracts\\nimplied in law; but, unlike true contracts, quasi-contracts are not based on the\\napparent intention of the parties to undertake the performances in question, nor are\\nthey promises. They are obligations created by law for reasons of justice.” Id. § 4\\ncmt. b.\\n\\n (continued . . .)\\n 19\\n\\f The state law relevant to each plaintiff’s claim draws a similar distinction between\\n\\nexpress or implied-in-fact contracts (which are formed upon the mutual assent of the\\n\\nparties) and implied-in-law contracts (which courts enforce when there was no mutual\\n\\nassent).6 The Scarlett Plaintiffs argue that they formed implied contracts with\\n\\nDefendants, even though they never agreed on a price. But the Scarlett Plaintiffs do not\\n\\nspecify whether they have formed implied-in-law or implied-in-fact contracts. The\\n\\ndistinction is critical for our pre-emption analysis because breach of contract claims\\n\\npremised on implied-in-law contracts are necessarily pre-empted for lack of mutual\\n\\nassent. Enforcing an implied-in-law contract “cannot be viewed as simply an attempt to\\n\\nvindicate the parties’ implicit understanding of the contract,” Ginsberg, 572 U.S. at 288,\\n\\nbecause an implied-in-law contract is an “obligation[] created by law for reasons of\\n\\njustice,” Restatement (Second) of Contracts § 4 cmt. b.\\n\\n\\n\\n\\n 6\\n See Turfgrass Grp., Inc. v. Ga. Cold Storage Co., 816 S.E.2d 716, 720 (Ga.\\nCt. App. 2018); Ward v. Ward, 797 S.E.2d 525, 529 (N.C. Ct. App. 2017); Rogers v.\\nWright, 2016 WY 10, ¶ 45, 366 P.3d 1264, 1278 (Wyo. 2016); Allegro, Inc. v. Scully,\\n791 S.E.2d 140, 145–46 (S.C. 2016); Fortula v. Univ. of Kentucky, 438 S.W.3d 303,\\n308–09 (Ky. 2014); Stacey v. Peed, 142 So. 3d 529, 531 (Ala. 2013); City of\\nScottsbluff v. Waste Connections of Neb., Inc., 809 N.W.2d 725, 737–38 (Neb. 2011);\\nZoeller v. E. Chi. Second Century, Inc., 904 N.E.2d 213, 220–21 (Ind. 2009); Mann\\nFrankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009);\\nMacsuga v. Moreno, 2003 OK 24, ¶ 19, 66 P.3d 409, 413; Kaiser Invs., Inc. v. Linn\\nAgriprises, Inc., 538 So. 2d 409, 413–14 (Miss. 1989); Jezmura v. Jezmura, 330\\nN.E.2d 414, 420 (N.Y. 1975); Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13\\n(Fla. 1973); Lach v. Fleth, 64 A.2d 821, 826 (Pa. 1949); Bailey v. Interstate\\nAirmotive, 219 S.W.2d 333, 338 (Mo. 1949); Cascaden v. Magryta, 225 N.W. 511,\\n512 (Mich. 1929).\\n (continued . . .)\\n 20\\n\\f Conversely, a breach of contract claim premised on an implied-in-fact contract\\n\\ncould survive the ADA’s pre-emption provision. Two questions are critical to the\\n\\ninquiry.7 The first is whether the relevant state law allows the parties to contract around\\n\\nthe implied price term. Ginsberg, 572 U.S. at 286–88. The second is whether the\\n\\nimplied price term is “use[d] . . . to effectuate [the] intentions of the parties or to protect\\n\\ntheir reasonable expectations, . . . [or] to ensure that a party does not violate community\\n\\nstandards of decency, fairness, or reasonableness.” Id. at 286 (quotation marks and\\n\\ncitations omitted). If the parties can contract around the implied price term and the\\n\\nimplied price term “effectuate[s] the intentions of [the] parties or . . . protect[s] their\\n\\nreasonable expectations,” then the claim is not pre-empted. Id. at 286–88; see also\\n\\nSchneberger, 749 F. App’x at 678 (explaining that the Wolens “exception applies to\\n\\ncommon-law contract doctrines but only insofar as the doctrines serve ‘to effectuate the\\n\\nintentions of parties or to protect their reasonable expectations’” (quoting Ginsberg, 572\\n\\nU.S. at 286)). A court could then supply an implied price term consistent with the\\n\\nparties’ agreement when the implied-in-fact contract was formed. But if the claim fails\\n\\n\\n 7\\n We do not address the equally important question of whether, under the\\nsubstantive state law applicable to a plaintiff’s claim, two parties can form an\\nimplied-in-fact contract without agreeing on a price. See Restatement (Second) of\\nContracts § 33 cmt. a (1981) (Am. Law Inst., updated 2019) (“[T]he actions of the\\nparties may show conclusively that they have intended to conclude a binding\\nagreement, even though one or more terms are missing or are left to be agreed upon.\\nIn such cases courts endeavor, if possible, to attach a sufficiently definite meaning to\\nthe bargain.”); id. § 33 cmt. e (discussing the circumstances under which an\\nindefinite price term will defeat contract formation). If the state law relevant to a\\nplaintiff’s claim does not recognize an implied-in-fact contract without agreement on\\na price, then the plaintiff’s allegation would fall short, not because it is pre–empted,\\nbut for failure to state a claim.\\n 21\\n\\feither requirement, it is pre-empted. Ginsberg, 572 U.S. at 287–88 (explaining that each\\n\\nrequirement is an “independent basis” for pre-emption).\\n\\n The district court found that “[t]he facts in this case do not give rise to an\\n\\nimplied-in-fact contract” because the Scarlett “Plaintiffs have not alleged any meeting of\\n\\nthe minds or conduct between the parties by which [it] . . . could infer that they had an\\n\\nagreement.” App. Vol. V at 858. Therefore, the district court “understood [the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim] as a request that [it] . . . invoke state law that\\n\\nimplies an obligation to pay for a service . . . to achieve equity and avoid injustice”—\\n\\nessentially “a contract implied in law.” Id. Because the district court found that the\\n\\nScarlett Plaintiffs relied on implied-in-law contracts, the district court dismissed their\\n\\nbreach of implied contract claim as pre-empted by the ADA. Id. at 858–59. In effect, the\\n\\ndistrict court made two findings. First, the district court found that the Scarlett Plaintiffs\\n\\nfail to allege the existence of any implied-in-fact contracts. Second, the district court\\n\\nfound that, insofar as the Scarlett Plaintiffs’ claim relies on implied-in-law contracts, the\\n\\nclaim is pre-empted by the ADA.\\n\\n On appeal, the Scarlett Plaintiffs do not contest the second finding, that claims\\n\\nbased on implied-in-law contracts are pre-empted by the ADA. Rather, the Scarlett\\n\\nPlaintiffs focus on the district court’s first finding and argue that some of those\\n\\ntransported by Defendants “may have entered implied-in-fact contracts by expressly\\n\\nstating a desire to be transported because many of them were possessed of their faculties\\n\\n\\n\\n\\n 22\\n\\fat the time of transport.”8 Scarlett Aplt. Br. at 16. But this allegation—that the Scarlett\\n\\nPlaintiffs “stat[ed] a desire to be transported” and therefore entered into an\\n\\nimplied-in-fact contract—does not appear in the Scarlett Plaintiffs’ complaint.\\n\\n To the contrary, the Scarlett Plaintiffs allege that “[p]rior to Defendants’\\n\\nundertaking to provide air ambulance transport services, no negotiation of contract terms\\n\\ntook place and Plaintiffs and Defendants did not enter into either a written or oral\\n\\nagreement or [agree on] specific terms.” App. Vol. III at 390. Moreover, in their\\n\\nopposition to Defendants’ motion to dismiss, the Scarlett Plaintiffs argued that “[it] is\\n\\nundisputed Defendants transport patients with no . . . prior mutual assent to [the] terms of\\n\\nthe transport . . . due to exigent circumstances.” App. Vol. IV at 589. The Scarlett\\n\\nPlaintiffs cannot now argue that the district court erred in agreeing with a proposition that\\n\\nthey themselves presented as undisputed. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d\\n\\n1225, 1229–30 (10th Cir. 2003) (explaining that invited error doctrine prohibits a party\\n\\nfrom making an argument in district court and later “advocating a contrary position on\\n\\nappeal”).\\n\\n\\n\\n\\n 8\\n In their Reply Brief, the Scarlett Plaintiffs argue that “[m]ultiple named\\nplaintiffs alleged execution of a written ‘Authorization and Consent’ form contract\\nprovided by Defendants prior to transport, in which they promised to ‘be personally\\nand fully responsible for payment of [Defendants’] charges,’ though the form\\ncontract gave no disclosure of what those charges might be.” Scarlett Aplt. Reply Br.\\nat 4. Setting aside the fact that this argument contradicts the allegation in the Scarlett\\nPlaintiffs’ complaint that they “did not enter into . . . written . . . agreement[s]” with\\nDefendants, App. Vol. III at 390, we have previously explained that the Scarlett\\nPlaintiffs do not assert a claim for breach of express contract. The Scarlett Plaintiffs\\nonly allege a claim for breach of implied contract. Id. at 389.\\n 23\\n\\f Even if we were to look past the inconsistent positions taken by the Scarlett\\n\\nPlaintiffs here and in the district court, their one sentence argument about the creation of\\n\\nimplied-in-fact contracts would not warrant reversal given the fact-intensive inquiry\\n\\nrequired to determine whether an implied-in-fact contract was formed. The Scarlett\\n\\nPlaintiffs’ argument is accompanied by a single citation to the record and no citation to\\n\\napplicable state contract law, which does not sufficiently support its argument that it\\n\\nadequately alleged the existence of implied-in-fact contracts. See id. at 1232 (explaining\\n\\nthat “superficial argument [wa]s insufficient to garner appellate review,” in part because\\n\\nthe party did “not offer[] any record citations or legal authority in support of its\\n\\nargument”). Therefore, we will not disturb the district court’s dismissal of the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim.\\n\\nB. Declaratory Judgment Regarding Existence of Enforceable Contracts\\n\\n All Plaintiffs seek declarations that they have no contractual obligation to pay\\n\\nDefendants’ bills because they never agreed on a price for Defendants’ air ambulance\\n\\nservices. The district court dismissed the claims for relief under the Declaratory\\n\\nJudgment Act, 28 U.S.C. § 2201, as pre-empted by the ADA. The Scarlett Plaintiffs do\\n\\nnot discuss their declaratory judgment claim in their briefing on appeal and have\\n\\ntherefore abandoned the issue. Stender v. Archstone-Smith Operating Tr., 910 F.3d 1107,\\n\\n1117 (10th Cir. 2018). In contrast, the Cowen Plaintiffs raise the issue on appeal and\\n\\nargue that their claim for declaratory judgment is not pre-empted because there is a ripe\\n\\ncontroversy about the existence of a contractual relationship. Defendants argue that “the\\n\\ndistrict court was correct to dismiss” Plaintiffs’ declaratory judgment claims because they\\n\\n 24\\n\\frelied on “contract theories . . . to impose price terms on” Defendants. Aple. Br. at 27.\\n\\nDefendants maintain that the district court did not need to decide whether “the parties . . .\\n\\nenter[ed] into any enforceable contracts” to “dispos[e] of [the Cowen Plaintiffs’] claims.”\\n\\nId. at 43. But Defendants misstate and misinterpret the relief that the Cowen Plaintiffs\\n\\nseek, at least with respect to the declaration that no contracts were formed.9\\n\\n As previously discussed, the district court can enforce contractual “terms and\\n\\nconditions . . . offer[ed by Defendants] and . . . accept[ed]” by Plaintiffs without running\\n\\nafoul of the ADA’s pre-emption provision. Ginsberg, 572 U.S. at 281 (alteration\\n\\nomitted) (quoting Wolens, 513 U.S. at 228–29). To enforce a contract, a court must first\\n\\nconfirm that a contract exists. Defendants have offered no reason why a court that can\\n\\nenforce a contract would be prohibited from “declar[ing] the rights and other legal\\n\\nrelations” arising from a contractual relationship, or lack thereof. 28 U.S.C. § 2201.\\n\\nThough “[t]he Declaratory Judgment Act does not extend the jurisdiction of federal\\n\\ncourts[,] it [does] enlarge[] the range of remedies available.” Prier v. Steed, 456 F.3d\\n\\n1209, 1212 (10th Cir. 2006) (quotation marks and alterations omitted).\\n\\n\\n\\n\\n 9\\n Three paragraphs of the Cowen Plaintiffs’ declaratory judgment claim relate\\nto contract formation. The Cowen Plaintiffs seek the following declarations: that\\n“Defendants and Plaintiffs . . . did not enter into any express contracts for Plaintiffs\\n. . . to pay the amounts charged by the Defendants for the transportation services it\\nprovided;” that “Defendants have engaged in collection efforts against Plaintiffs . . .\\nfor amounts that Plaintiffs . . . did not expressly agree to pay;” and that “Defendants\\nhave engaged in collection efforts against Plaintiffs . . . for amounts concerning\\nwhich there was no mutual assent manifest by the Plaintiffs . . . prior to the rendering\\nof the services charged for.” App. Vol. II at 314.\\n 25\\n\\f Therefore, the ADA does not prohibit a court from declaring that, because the\\n\\nparties never agreed on a price, no express or implied-in-fact contracts were formed. To\\n\\nenter such a declaration, a court would only need to examine whether there was the\\n\\nnecessary mutual assent to form a contract. See Data Mfg., Inc. v. United Parcel Serv.,\\n\\nInc., 557 F.3d 849, 854 (8th Cir. 2009) (“Under Wolens, the issue of whether [a plaintiff]\\n\\nagreed to [a] fee as part of its contract with [a defendant] reads . . . like a . . . claim solely\\n\\nbetween the parties that does not derive from the enactment or enforcement of state\\n\\nlaw.”); Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 289–90 (5th Cir. 2002)\\n\\n(holding that defendant could raise fraudulent inducement as defense in breach of\\n\\ncontract action without offending the ADA’s pre-emption provision because “fraudulent\\n\\nconduct precludes the requisite mutual assent”); United Airlines, Inc. v. Mesa Airlines,\\n\\nInc., 219 F.3d 605, 609 (7th Cir. 2000) (“When all a state does is . . . determine whether\\n\\nagreement was reached, or whether instead one party acted under duress, it transgresses\\n\\nno federal rule.”); cf. Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602, 608 (8th Cir. 2018)\\n\\n(holding that ADA pre-empted claim for declaration that no contract existed between an\\n\\nair ambulance company and a patient because it was “not a contract-based claim” “as\\n\\npleaded” given that it was “asserted on a class-wide basis, independent of the relationship\\n\\nbetween an air-ambulance operator and a particular patient”).\\n\\n Accordingly, the district court erred in interpreting the Cowen Defendants’\\n\\ndeclaratory judgment claim narrowly—to seek only a declaration that “federal common\\n\\nlaw is applicable,” App. Vol. V at 865—and then finding that the claim was pre-empted.\\n\\nOn remand, the district court can examine each of the Cowen Plaintiffs’ allegations under\\n\\n 26\\n\\fthe applicable state law to determine whether an express or implied-in-fact contract was\\n\\nformed.\\n\\nC. Claims for Unjust Enrichment\\n\\n Neither set of Plaintiffs adequately challenges the district court’s dismissal of their\\n\\nunjust enrichment claims. The Scarlett Plaintiffs do not mention unjust enrichment in\\n\\ntheir Opening or Reply Briefs and have therefore abandoned the issue. Stender, 910 F.3d\\n\\nat 1117. The Cowen Plaintiffs, perplexingly, argue that their unjust enrichment claim\\n\\nsurvives pre-emption because “unjust enrichment is an equitable doctrine that only\\n\\napplies if there is no contract.” Cowen Aplt. Br. at 39. The ADA’s pre-emption\\n\\nprovision prohibits courts from imposing an equitable remedy in the absence of a contract\\n\\nbecause the remedy would reflect the court’s policy judgments, not the parties’ mutual\\n\\nassent. Wolens, 513 U.S. at 232–33. Therefore, the district court did not err when\\n\\ndismissing the Cowen Plaintiffs’ unjust enrichment claim as pre-empted by the ADA.\\n\\n Before moving on from our pre-emption analysis, we reiterate that “[t]here is\\n\\ncertainly some persuasive force to the . . . argument that federal pre[-]emption of state\\n\\nregulations in this field is not serving the congressional purpose of furthering efficiency,\\n\\ninnovation, and low prices that was a motivating force behind the” ADA. EagleMed, 868\\n\\nF.3d at 903 (quotation marks and alteration omitted).\\n\\n Due to the [ADA’s] broad pre[-]emption provision, states have been\\n unable to prevent air ambulance service providers from imposing\\n exorbitant fees on patients who wrongly assume their insurance will\\n cover the charges and are not in a position to discover otherwise or\\n engaging in other unscrupulous pricing behaviors that would not be\\n sustainable in a true free market but are easily perpetuated in the\\n warped market of air-ambulance services.\\n\\n 27\\n\\fId. (quotation marks and ellipsis omitted). But as we have explained before, “[a]ny\\n\\ndeficiency in the plain language of the [ADA] or the scope of its coverage must be\\n\\ncorrected by Congress, not this court.” Id. at 904.\\n\\n We also note that, though the ADA limits patients’ abilities to challenge the prices\\n\\ncharged by air ambulance companies, patients are not without recourse. As just\\n\\ndiscussed, once an air ambulance company asserts that a patient has a contractual\\n\\nobligation to pay his bill, that patient can sue for declaratory relief to confirm that he is so\\n\\nobligated. If an air ambulance company has breached a contractual duty owed to one of\\n\\nits patients, that patient can sue for breach of contract. And individuals might be\\n\\nprotected against improper debt collection methods by the Fair Debt Collection Practices\\n\\nAct, 15 U.S.C. §§ 1692–1692p, or an analogous state statute.\\n\\n Finally, “Congress has given the Department of Transportation (DOT) the general\\n\\nauthority to prohibit and punish unfair and deceptive practices in air transportation and in\\n\\nthe sale of air transportation.” Ginsberg, 572 U.S. at 288–89 (referring to 49 U.S.C.\\n\\n§ 41712(a)). Just this past fall, Congress expanded the DOT’s authority to regulate air\\n\\nambulances. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186.\\n\\nUnder the new law, the DOT “shall review aviation consumer complaints received that\\n\\nallege a violation of law and, as appropriate, pursue enforcement or corrective actions\\n\\nthat would be in the public interest.” Id. at 3337. “In considering which cases to pursue\\n\\nfor enforcement or corrective action . . . the [DOT] shall consider” “unfair and deceptive\\n\\npractices by air carriers (including air ambulance operators),” “the terms and conditions\\n\\n\\n 28\\n\\fagreed to between passengers and air carriers (including air ambulance operators),” and\\n\\nthe “protection of air ambulance consumers.” Id.\\n\\n IV\\n\\n The Scarlett Plaintiffs allege that “the ADA is unconstitutional as applied to air\\n\\nambulance carriers and their patients,” App. Vol. III at 394, because the ADA violates the\\n\\nprocedural and substantive components of the Due Process Clause of the Fifth\\n\\nAmendment, id. at 395–96. We “review[] a challenge to the constitutionality of a statute\\n\\nde novo.” Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008)\\n\\n(emphasis omitted).\\n\\n Plaintiffs argue that the ADA violates the procedural component of the Due\\n\\nProcess Clause of the Fifth Amendment by depriving them of a “state law cause of action\\n\\nto contest the price [of air ambulance services that] Defendants seek to impose.” Scarlett\\n\\nAplt. Br. at 32. “To assess whether an individual was denied procedural due process,\\n\\ncourts must engage in a two-step inquiry: (1) did the individual possess a protected\\n\\ninterest such that the due process protections were applicable; and, if so, then (2) was the\\n\\nindividual afforded an appropriate level of process.” Guttman v. Khalsa, 669 F.3d 1101,\\n\\n1113–14 (10th Cir. 2012) (quotation marks omitted). Plaintiffs’ procedural due process\\n\\nclaim fails at the first step because “a person has no property, no vested interest, in any\\n\\nrule of the common law.” Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S.\\n\\n59, 88 n.32 (1978) (alteration omitted) (quoting Second Emp’rs’ Liab. Cases, 223 U.S. 1,\\n\\n50 (1912)). “The Constitution does not forbid the creation of new rights, or the abolition\\n\\nof old ones recognized by the common law, to attain a permissible legislative object,\\n\\n 29\\n\\fdespite the fact that otherwise settled expectations may be upset thereby.” Id. (quotation\\n\\nmarks and citations omitted). And, as just discussed, Plaintiffs have various avenues for\\n\\nchallenging their obligation to pay Defendants’ bills, undermining Plaintiffs’ allegations\\n\\nthat the ADA has deprived them of a way to “contest the price” of Defendants’ services.\\n\\n The Scarlett Plaintiffs argue the ADA violates the substantive component of the\\n\\nFifth Amendment’s Due Process Clause because, while the ADA was meant to lower\\n\\nprices for air travel, prices for air ambulance services have “skyrocket[ed].” Scarlett\\n\\nAplt. Br. at 37. Plaintiffs have not alleged a substantive due process violation because\\n\\nthe “protection against economic legislation interfering with property interests . . . is\\n\\nseverely limited.” KT&G Corp. v. Attorney Gen., 535 F.3d 1114, 1142 (10th Cir. 2008).\\n\\n To comport with the limited scope of substantive due process\\n protection, economic legislation need only be rationally related to a\\n legitimate government interest. Under rational basis review,\\n therefore, there is no need for mathematical precision in the fit\\n between justification and means, and the law need not be in every\\n respect logically consistent with its aims to be constitutional. It is\\n enough that there is an evil at hand for correction, and that it might\\n be thought that the particular legislative measure was a rational way\\n to correct it. Moreover, economic legislation comes to the Court\\n with a presumption of constitutionality, and the burden is on one\\n complaining of a due process violation to establish that the\\n legislature has acted in an arbitrary and irrational way. Thus, it is\\n difficult to exaggerate the burden that a party must overcome to\\n demonstrate that economic legislation fails rational basis review.\\n\\nId. (quotation marks omitted).\\n\\n The parties agree that, as intended by Congress when it deregulated the air travel\\n\\nindustry by passing the ADA, the price of most air travel has fallen. That the ADA did\\n\\nnot cause its desired effect in all corners of the air travel industry does not render the\\n\\n\\n 30\\n\\fADA’s pre-emption provision irrational. Id. At most, the high price of air ambulance\\n\\nservices shows that the ADA is imperfect. Such a showing does not establish a\\n\\nsubstantive due process violation.\\n\\n V\\n\\n Finally, the Scarlett Plaintiffs argue that Defendants are judicially estopped from\\n\\nraising the ADA’s pre-emption provision as a defense to Plaintiffs’ contract-based claims\\n\\nbecause “Defendants have filed multiple state-court breach-of-contract suits in multiple\\n\\nstates to collect their charges, and they have also filed proof of claim forms in\\n\\nbankruptcies as well as filing claims against estates—all alleging a right to recover based\\n\\non contracts and NOT asserting pre[-]emption.” Scarlett Aplt. Br. at 27. The district\\n\\ncourt declined to apply judicial estoppel because “we have held that judicial estoppel\\n\\nonly applies when the position to be estopped is one of fact, not one of law.” BancInsure,\\n\\nInc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015). On appeal, the Scarlett Plaintiffs\\n\\nargue that we should broaden our view of judicial estoppel to include legal positions.\\n\\n We need not revisit our prior ruling regarding judicial estoppel because the\\n\\nScarlett Plaintiffs have not alleged facts sufficient to invoke judicial estoppel.\\n\\n The circumstances in which judicial estoppel applies are “not\\n reducible to any general formulation of principle,” [New Hampshire\\n v. Maine, 532 U.S. 742, 750 (2001)]; nevertheless, the Supreme\\n Court has identified three relevant factors. First, courts ask whether\\n a party’s later position is “clearly inconsistent” with its former\\n position. Id. Second, courts ask whether the party “succeeded in\\n persuading a court to accept that party’s earlier position, so that\\n judicial acceptance of an inconsistent position in a later proceeding\\n would create the perception that either the first or the second court\\n was misled.” Id. (internal quotation marks omitted). And third,\\n courts consider “whether the party seeking to assert an inconsistent\\n\\n 31\\n\\f position would derive an unfair advantage or impose an unfair\\n detriment on the opposing party if not estopped.” Id. at 751.\\n\\nBancInsure, 796 F.3d at 1240. The Scarlett Plaintiffs have not shown that Defendants\\n\\nhave “succeeded in persuading a court to accept” their position that state courts can\\n\\nenforce patients’ alleged contractual obligation to pay their air ambulance bills.\\n\\nTherefore, even if judicial estoppel encompassed legal positions, the doctrine would not\\n\\napply in this case. Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 1209–10 (10th\\n\\nCir. 2017).\\n\\n VI\\n\\n We AFFIRM the district court’s dismissal of all Plaintiffs’ breach of implied\\n\\ncontract claims, the Scarlett Plaintiffs’ declaratory judgment claim, all Plaintiffs’ unjust\\n\\nenrichment claims, and the Scarlett Plaintiffs’ due process claims; we REVERSE the\\n\\ndistrict court’s dismissal of the Cowen Plaintiffs’ declaratory judgment claim, only with\\n\\nrespect to the existence of contracts between the Cowen Plaintiffs and Defendants; and\\n\\nwe REMAND for further proceedings.\\n\\n\\n\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4390883/\", \"author_raw\": \"BRISCOE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"MORITZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4613630/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jeremy Lee SCARLETT, on Behalf of Himself and All Others Similarly Situated, Et Al., Plaintiffs-Appellants, v. AIR METHODS CORPORATION; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee. Randal Cowen; Keith Kranhold, Executor of the Estate of Kenneth Kranhold; Griff Hughes; Lana Hughes; Yolanda O'Neale, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. Air Methods Corporation; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-25\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 25, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\nJEREMY LEE SCARLETT, on behalf of\nhimself and all others similarly situated, et\nal.,\n\n Plaintiffs - Appellants,\n\nv. No. 18-1247\n\nAIR METHODS CORPORATION;\nROCKY MOUNTAIN HOLDINGS LLC,\n\n Defendants - Appellees.\n\n-----------------------------\n\nUNITED STATES OF AMERICA,\n\n Intervenor - Appellee.\n\n–––––––––––––––––––––––––––––––––––\n\nRANDAL COWEN; KEITH\nKRANHOLD, Executor of the Estate of\nKenneth Kranhold; GRIFF HUGHES;\nLANA HUGHES; YOLANDA O’NEALE,\non behalf of themselves and all others\nsimilarly situated,\n\n Plaintiffs - Appellants,\n\nv. No. 18-1249\n\nAIR METHODS CORPORATION;\nROCKY MOUNTAIN HOLDINGS LLC,\n\n Defendants - Appellees.\n\f ------------------------------\n\n UNITED STATES OF AMERICA,\n\n Intervenor - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (Lead D.C. No. 1:16-CV-02723-RBJ)\n _________________________________\n\nEdward L. White, Edward L. White, P.C., Edmond, Oklahoma (Kerry D. Green, Edward\nL. White, P.C., Edmond, Oklahoma; Thomas Melvin Rogers, III, and Abby Caroline\nHarder, Lewis Roca Rothberger Christie, LLP, Denver, Colorado; Mario A. Pacella,\nStrom Law Firm, LLC, Columbia, South Carolina; Troy M. Frederick, Frederick Law\nGroup, PLLC, Indiana, Pennsylvania; S. Alex Yaffe, Foshee & Yaffe, Oklahoma City,\nOklahoma; Andrew P. Campbell and Stephen D. Wadsworth, Campbell Guin, LLC,\nBirmingham, Alabama; and Noble K. McIntyre, McIntyre Law Firm, Oklahoma City,\nOklahoma, with him on the briefs), appearing for Appellants Jeremy Scarlett, Edward\nAdams, Joel Griffith, Gary Supeau, Reid Hardy, Michael Robertson, Jenny Stephens,\nHeather Bartley, Judd Bartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy\nVanzant, Thomas Wade, Jonathan Burleson, Jennier McCloskey, Warren Larson, Johnny\nAlexander, Kathleen Gore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis,\nAngela Wallace, Joelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, William\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller, and\nRussell Fulford.\n\nRichard J. Burke (Jamie Weiss and Zachary A. Jacobs, with him on the briefs), Quantum\nLegal, LLC, Highland Park, Illinois, appearing for Appellants Randal Cowen, Keith\nKranhold, Griff Hughes, Lana Hughes, and Yolanda O’Neale.\n\nLewis S. Yelin, Attorney, Appellate Staff, Civil Division, United States Department of\nJustice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Jason R. Dunn,\nUnited States Attorney, and Michael S. Raab, Attorney, Appellate Staff, Civil Division,\nUnited States Department of Justice, Washington, DC; Steven G. Bradbury, General\nCounsel, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, and\nCharles E. Enloe, Trial Attorney, Department of Transportation, Washington, DC, with\nhim on the brief), appearing for Intervenor United States of America.\n\nChristina F. Gomez, Holland & Hart LLP, Denver, Colorado (Matthew J. Smith and\nJessica J. Smith, Holland & Hart LLP, Denver, Colorado; and David A. King and\n\n 2\n\fMichael A. Cottone, Bass, Berry & Sims, PLC, Nashville, Tennessee, with her on the\nbrief), appearing for Appellees Air Methods Corporation and Rocky Mountain Holdings\nLLC.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n This is an appeal from the dismissal of two putative class action complaints as\n\npre-empted by the Airline Deregulation Act (ADA), 49 U.S.C. § 41713. Defendants-\n\nAppellees Air Methods Corporation and Rocky Mountain Holdings, LLC provide air\n\nambulance services, which means that they fly sick and injured individuals to hospitals\n\nfor medical treatment. These flights are expensive; patients are regularly charged tens of\n\nthousands of dollars per flight. Defendants provided air ambulance services to Plaintiffs-\n\nAppellants, or in some cases to their minor children. Plaintiffs dispute their obligation to\n\npay the full amounts charged by Defendants because Plaintiffs claim to have never\n\nagreed with Defendants on a price for their services.\n\n Plaintiffs filed suit, asserting jurisdiction under the Class Action Fairness Act,\n\n28 U.S.C. § 1332(d), to determine what, if any, amounts they owe Defendants. Plaintiffs\n\nalso seek to recover any excess payments already made to Defendants. Defendants\n\nmoved to dismiss, arguing that Plaintiffs’ claims are pre-empted by the ADA. The\n\ndistrict court agreed and dismissed Plaintiffs’ claims with prejudice. Exercising\n\njurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand\n\nfor further proceedings.\n\n\n 3\n\f I\n\n The ADA was enacted in 1978 after Congress “determin[ed] that maximum\n\nreliance on competitive market forces would best further efficiency, innovation, and low\n\nprices as well as variety and quality of air transportation services.” Morales v. Trans\n\nWorld Airlines, Inc., 504 U.S. 374, 378 (1992) (quotation marks, alteration, and ellipsis\n\nomitted). The enactment of the ADA marked the end of an era when the federal\n\ngovernment and the states regulated airfares. “To ensure that the States would not undo\n\nfederal deregulation with regulation of their own, the ADA included a pre-emption\n\nprovision.” Id. Per the pre-emption provision, “a State . . . may not enact or enforce a\n\nlaw, regulation, or other provision having the force and effect of law related to a price,\n\nroute, or service of an air carrier that may provide air transportation under this subpart.”\n\n49 U.S.C. § 41713(b)(1). The scope of the pre-emption provision lies at the heart of this\n\nappeal.\n\n\n\n\n 4\n\f There are two groups of plaintiffs—the Scarlett Plaintiffs1 and the Cowen\n\nPlaintiffs.2 Because each group of plaintiffs pursues distinct claims, we discuss their\n\nallegations separately. “We review a district court’s dismissal of a complaint under Rule\n\n12(b)(6) de novo.” Rosenfield v. HSBC Bank, 681 F.3d 1172, 1178 (10th Cir. 2012). In\n\ndoing so, we “accept as true all well-pleaded factual allegations . . . and view these\n\nallegations in the light most favorable to the plaintiff.” Id. (quotation marks omitted).\n\nA. The Scarlett Plaintiffs\n\n The Scarlett Plaintiffs allege that Defendants have sent them bills for air\n\nambulance services provided to them or their children. The average bill is for $47,000,\n\nbut no bill has been paid in full. The Scarlett Plaintiffs further allege that “Defendants’\n\ncharges for air transport [were] not disclosed . . . in any way in advance of transport.”\n\nApp. Vol. III at 385. Most of the Scarlett Plaintiffs are insured; the average insurance\n\npayment for Defendants’ services is $12,000. But that leaves a substantial outstanding\n\nbalance on each bill. Defendants seek payment of the outstanding balances by hiring\n\n\n\n\n 1\n Plaintiffs in Appeal No. 18-1247 are Edward Adams, Joel Griffith, Gary\nSupeau, Reid Hardy, Michael Robertson, Jenny Stephens, Heather Bartley, Judd\nBartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy Vanzant, Thomas Wade,\nJonathan Burleson, Jennifer McCloskey, Warren Larson, Johnny Alexander, Kathleen\nGore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis, Angela Wallace,\nJoelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, Jeremy Scarlett, William\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller,\nand Russell Fulford (collectively, the “Scarlett Plaintiffs”).\n 2\n Plaintiffs in Appeal No. 18-1249 are Randal Cowen, Keith Kranhold, Griff\nHughes, Lana Hughes, and Yolanda O’Neale (collectively, the “Cowen Plaintiffs”).\n 5\n\fdebt collectors and filing breach of contract lawsuits in state court. This practice is called\n\nbalance billing.\n\n The Scarlett Plaintiffs’ Consolidated Class Action Complaint contains two causes\n\nof action. First, the Scarlett Plaintiffs allege that Defendants have breached implied\n\ncontracts for the air ambulance services by charging more than “the fair market value of\n\n[their] services.” Id. at 391. The Scarlett Plaintiffs seek “damages in the amount of the\n\novercharges levied by Defendants.” Id. at 392. Second, the Scarlett Plaintiffs seek\n\nexpansive declaratory and injunctive relief. They desire a declaration stating (1) “that the\n\nADA . . . does not apply to air ambulance carriers;” (2) that the ADA does not pre-empt\n\ntheir “breach of implied contract claims;” (3) that there are no enforceable contracts\n\nbetween the Scarlett Plaintiffs and Defendants because they never agreed on the price of\n\nthe air ambulance services; (4) that Defendants have been unjustly enriched by charging\n\nmore than the fair market value of their services; and (5) that the ADA’s pre-emption\n\nprovision violates the procedural and substantive components of the Due Process Clause\n\nof the Fifth Amendment. Id. at 392–97. The Scarlett Plaintiffs also seek to permanently\n\nenjoin Defendants’ billing practices.\n\n Defendants moved to dismiss, arguing that the Scarlett “Plaintiffs’ lawsuit is\n\npre[-]empted by the ADA because their claims rely on state laws . . . to challenge an air\n\ncarriers’ [sic] prices.” App. Vol. IV at 577. Defendants also argued that the due process\n\nclaim fails because the Scarlett Plaintiffs are afforded adequate process via the\n\nDepartment of Transportation’s complaint procedures, and Congress did not act\n\narbitrarily when enacting the ADA’s pre-emption provision.\n\n 6\n\f The United States intervened to defend the constitutionality of the ADA and offer\n\nits interpretation of how the ADA’s pre-emption provision applies to the Scarlett\n\nPlaintiffs’ breach of implied contract claim. The government agreed with Defendants\n\nthat the Scarlett Plaintiffs had not alleged a violation of their procedural or substantive\n\ndue process rights. As to the pre-emption question, the government argued that the\n\ndistrict court first “need[ed] to determine whether, under the applicable state law [for\n\neach plaintiff’s claim], the parties entered into an implied contract,” App. Vol. V at 809,\n\nand then needed to assess whether the “terms . . . are enforceable consistent with the\n\nADA,” id. at 811.\n\n The district court granted Defendants’ motion to dismiss. First, the district court\n\nfound that Defendants may assert the ADA’s pre-emption provision as a defense because,\n\nunder the ADA, they are air carriers who may provide air transportation. Turning to the\n\nmerits of the complaint, the district court found that “the ADA pre[-]empts the Scarlett\n\nPlaintiffs’ claims for breach of [implied] contract and injunctive and declaratory relief.”\n\nId. at 860 (emphasis omitted). The district court was “convinced that the . . . case\n\ndepends on the application of state common law . . . to prevent unjust enrichment.” Id.\n\nFinally, the district court found that the Scarlett Plaintiffs failed to plead a violation of the\n\nprocedural or substantive components of the Due Process Clause of the Fifth\n\nAmendment.\n\nB. The Cowen Plaintiffs\n\n The Cowen Plaintiffs allege that Defendants have sent them bills for providing air\n\nambulance services to them, their children, and their decedents. The average bill was for\n\n 7\n\f$48,500. None of the Cowen Plaintiffs have fully paid their bills, either because their\n\nhealth insurance only covered a portion of the bill or because they do not have health\n\ninsurance. The average insurance payment to Defendants was $7,400. Defendants have\n\nhired, or in some cases threatened to hire, a collection agency to recoup the unpaid\n\nbalances.\n\n The Cowen Plaintiffs’ Second Amended Complaint contains three causes of\n\naction. First, the Cowen Plaintiffs seek a declaratory judgment encompassing thirteen\n\ncumulative declarations. As we read the Cowen Plaintiffs’ complaint, the requested\n\ndeclaratory judgment would state one of two things: the Cowen Plaintiffs did not enter\n\ninto contracts with Defendants because they did not agree on a price; or, in the\n\nalternative, any contractual relationship that exists between the Cowen Plaintiffs and\n\nDefendants is implied under federal common law. Second, assuming there are valid\n\ncontracts between the Cowen Plaintiffs and Defendants under federal common law, the\n\nCowen Plaintiffs allege that “Defendants breached their contract[s] . . . by invoicing and\n\nbalance billing . . . for charged amounts in excess of the reasonable value of the services\n\nprovided.” App. Vol. II at 316. Third, assuming there are no valid contracts between the\n\nCowen Plaintiffs and Defendants, the Cowen Plaintiffs allege that they “are entitled to\n\nrestitution of all sums paid [to Defendants] greater than the reasonable value of the\n\nservices provided” under a theory of “unjust[] enrich[ment].” Id. at 318.\n\n Defendants moved to dismiss. They argued that “[t]o the extent [the Cowen]\n\nPlaintiffs seek to rely on state law to challenge Defendants’ prices, such claims are\n\npre[-]empted by the ADA.” App. Vol. III at 564. Defendants then addressed the claims\n\n 8\n\farising under federal common law and argued that “Congress has [not] granted federal\n\ncourts authority to create federal common law” regarding contract claims against air\n\nambulances. Id. at 566. Finally, Defendants argued that the Cowen Plaintiffs “cannot\n\nstate a claim for equitable restitution” “because [they] . . . do[] not identify any particular\n\nfunds in Defendants’ possession that supposedly belong to Plaintiffs.” Id. at 570.\n\n The district court granted the motion to dismiss. First, the district court interpreted\n\nthe claim for declaratory relief narrowly, to seek only a declaration that “federal common\n\nlaw is applicable” to the Cowen Plaintiffs’ claims. App. Vol. V at 865. Based on this\n\nfinding, the district court reasoned that all of the Cowen Plaintiffs’ claims depend on the\n\nexistence of federal common law. Because the district court found that there is no federal\n\ncommon law governing claims against air ambulance companies, the district court\n\ndecided that the Cowen Plaintiffs’ claims failed.\n\n “Because [the district court found that all] plaintiffs’ claims are pre[-]empted by\n\nthe ADA as a matter of law, [the district court dismissed] both complaints . . . with\n\nprejudice.” App. Vol. V at 868. All plaintiffs timely appealed.\n\n II\n\n Before reaching the substance of the parties’ pre-emption arguments, we must\n\ndetermine whether Defendants can assert the ADA’s pre-emption provision as a defense.\n\nWe have previously applied the ADA’s pre-emption provision to prohibit state regulation\n\nof air ambulance rates. EagleMed LLC v. Cox, 868 F.3d 893, 904–05 (10th Cir. 2017)\n\n(holding that state regulation of air ambulance prices was “pre[-]empted by the [ADA] to\n\nthe extent [the state law] set maximum reimbursement rates for air-ambulance services,”\n\n 9\n\fbut noting that no party “argue[d] that air ambulances are not ‘air carriers’ under the\n\nstatute”); Schneberger v. Air Evac EMS, Inc., 749 F. App’x 670, 673 n.4 (10th Cir. 2018)\n\n(same). We have never been called upon to directly answer the question of whether air\n\nambulances are covered by the ADA.\n\n Whether Defendants can raise the ADA’s pre-emption provision as a defense is a\n\nquestion of statutory interpretation. “We review de novo a district court’s statutory\n\nconstruction.” Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610, 613 (10th\n\nCir. 2018). “Our first step in interpreting a statute is to determine whether the language\n\nat issue has a plain and unambiguous meaning with regard to the particular dispute in the\n\ncase.” Id. (quotation marks omitted). “Our inquiry ends there if the statutory language is\n\nunambiguous and the statutory scheme is coherent and consistent.” Id. (quotation marks\n\nomitted). “We evaluate statutory language by examining the language itself, the specific\n\ncontext in which that language is used, and the broader context of the statute as a whole.”\n\nId. (quotation marks omitted).\n\n The ADA’s pre-emption provision says: “[A] State . . . may not enact or enforce a\n\nlaw, regulation, or other provision having the force and effect of law related to a price,\n\nroute, or service of an air carrier that may provide air transportation under this subpart.”\n\n49 U.S.C. § 41713(b)(1). “‘[A]ir carrier’ means a citizen of the United States\n\nundertaking by any means, directly or indirectly, to provide air transportation.” Id.\n\n§ 40102(a)(2). As is relevant for this appeal, “‘air transportation’ means . . . interstate air\n\ntransportation.” Id. § 40102(a)(5). “‘[I]nterstate air transportation’ means the\n\n\n\n 10\n\ftransportation of passengers . . . by aircraft as a common carrier for compensation”\n\nbetween two states. Id. § 40102(a)(25).\n\n The ADA’s pre-emption provision “expresses a ‘broad pre-emptive purpose.’”\n\nNorthwest, Inc. v. Ginsberg, 572 U.S. 273, 280 (2014) (quoting Morales, 504 U.S. at\n\n383). It applies to “provision[s] having the force and effect of law related to a price . . .\n\nof an air carrier that may provide air transportation,” 49 U.S.C. § 41713(b)(1) (emphasis\n\nadded), which includes “interstate air transportation,” id. § 40102(a)(5). “[M]ay” means\n\n“[t]o be permitted to.” May, Black’s Law Dictionary (10th ed. 2014). Defendants are\n\npermitted to provide interstate air transportation because they have been certified to do so\n\nby the Department of Transportation, pursuant to 49 U.S.C. § 41101 and 14 C.F.R.\n\n§ 298.1. Therefore, Defendants “may provide” interstate flights.\n\n Even though Defendants “may provide air transportation,” the Scarlett Plaintiffs\n\nargue that Defendants are not “air carriers” because they also provide intrastate flights.\n\nBut the definition of “air carrier” is expansive and encompasses companies that provide\n\nboth intrastate and interstate flights. A company is an air carrier when it is “undertaking\n\nby any means, directly or indirectly, to provide air transportation.” 49 U.S.C.\n\n§ 40102(a)(2) (emphasis added). To “undertake” means “[t]o take on an obligation or\n\ntask.” Undertake, Black’s Law Dictionary (10th ed. 2014). Defendants have obtained\n\nthe necessary certifications to provide interstate flights and, in fact, do provide interstate\n\nflights. Under the plain meaning of § 40102(a)(2), Defendants have undertaken to\n\nprovide air transportation.\n\n\n\n 11\n\f Finally, the Scarlett Plaintiffs argue that we should analyze whether Defendants\n\nare air carriers on a flight-by-flight basis. The Scarlett Plaintiffs point to nothing in the\n\ntext or structure of the ADA that would indicate such an approach is appropriate.\n\nAllowing states to regulate the prices of intrastate flights would have far-reaching effects,\n\nincluding in the commercial air travel market. Under the Scarlett Plaintiffs’\n\nunderstanding of the ADA, even commercial airlines that primarily provide international\n\nand interstate flights would be subject to regulation in each state where they provide\n\nintrastate flights. Such an outcome, in which states could exert substantial regulatory\n\npower over airlines, is inconsistent with Congress’s stated goal of deregulating air travel\n\nand leaving regulation to “competitive market forces.” Morales, 504 U.S. at 378.\n\nTherefore, the district court correctly found that Defendants may raise the ADA’s\n\npre-emption provision as a defense.\n\n III\n\n The central issue on appeal is whether Plaintiffs’ claims are pre-empted by the\n\nADA. “[P]re[-]emption [is] a legal issue subject to de novo review.” Cerveny v. Aventis,\n\nInc., 855 F.3d 1091, 1096 (10th Cir. 2017). Under the ADA, “a State . . . may not enact\n\nor enforce a law, regulation, or other provision having the force and effect of law related\n\nto a price, route, or service of an air carrier that may provide air transportation under this\n\nsubpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has “recognized that the key\n\nphrase [in § 41713(b)(1),] ‘related to[,]’ expresses a ‘broad pre-emptive purpose.’”\n\nGinsberg, 572 U.S. at 280 (quoting Morales, 504 U.S. at 383). Accordingly, the Court\n\nhas “held that a claim ‘relates to rates, routes, or services,’ within the meaning of the\n\n 12\n\fADA, if the claim ‘has a connection with, or reference to, airline rates, routes, or\n\nservices.’” Id. (alterations omitted) (quoting Morales, 504 U.S. at 384).\n\n Shortly after noting the breadth of the ADA’s pre-emption provision, the Supreme\n\nCourt recognized an exception in American Airlines, Inc. v. Wolens, 513 U.S. 219\n\n(1995)—“the ADA pre-emption provision” does not bar “breach-of-contract claims”\n\nagainst airlines. Ginsberg, 572 U.S. at 281. “‘Terms and conditions airlines offer and\n\npassengers accept,’ [the Court explained], ‘are privately ordered obligations and thus do\n\nnot amount to a State’s enactment or enforcement of any law, rule, regulation, standard,\n\nor other provision having the force and effect of law within the meaning of the ADA pre-\n\nemption provision.’” Id. (alterations omitted) (quoting Wolens, 513 U.S. at 228–29).\n\n The Court clarified the scope of the Wolens exception in Ginsberg. At issue in\n\nGinsberg was whether the ADA pre-empted a claim that an airline violated an implied\n\ncovenant of good faith and fair dealing. Id. at 285. The Court explained that “common-\n\nlaw rules fall comfortably within the language of the ADA pre-emption provision”\n\nbecause “common-law rule[s] clearly ha[ve] ‘the force and effect of law.’” Id. at 281–82\n\n(quoting 49 U.S.C. § 41713(b)(1)). The good faith and fair dealing claim at issue in\n\nGinsberg was pre-empted for two independent reasons—the applicable state law did not\n\nallow private parties to contract around the covenant, and the state law applied for policy\n\nreasons. Id. at 286–88. In reaching this holding, the Court left us with two rules. First,\n\n“[w]hen the law of a State does not authorize parties to free themselves from [a]\n\ncovenant, a breach of covenant claim is pre-empted under the reasoning of Wolens.” Id.\n\nat 287. Second, “[w]hen the application of [an] implied covenant depends on state\n\n 13\n\fpolicy, a breach of implied covenant claim cannot be viewed as simply an attempt to\n\nvindicate the parties’ implicit understanding of the contract.” Id. at 288.\n\n Therefore, to survive the ADA’s pre-emption provision, a claim that has a\n\nconnection to the price of an air carrier’s service must satisfy Wolens and Ginsberg. The\n\nparties do not dispute that Plaintiffs’ claims relate to the price of Defendants’ air\n\nambulance services. This appeal therefore turns on whether Plaintiffs’ claims satisfy\n\nWolens and Ginsberg. Though the claims raised by the Scarlett Plaintiffs and those\n\nraised by the Cowen Plaintiffs are not identical, for purposes of our analysis, there are\n\nthree types of claims at issue on appeal. First, all Plaintiffs allege that they formed\n\nimplied contracts with Defendants for the provision of air ambulance services. Plaintiffs\n\nfurther allege that Defendants have breached these contracts by charging more than the\n\nreasonable value of the air ambulance services. Second, in the alternative, all Plaintiffs\n\nseek a declaration that there are no enforceable contracts between Plaintiffs and\n\nDefendants because the parties never agreed on a price for the air ambulance services.\n\nThird, all Plaintiffs allege that Defendants have been unjustly enriched by collecting\n\nmore than the reasonable value of their air ambulance services.\n\n Before discussing whether Plaintiffs’ claims survive the ADA’s pre-emption\n\nprovision, we address the government’s arguments about the impact of Dan’s City Used\n\nCars, Inc. v. Pelkey, 569 U.S. 251 (2013), on the analytical framework established in\n\nWolens and Ginsberg. In Dan’s City, the Supreme Court was faced with the question of\n\nwhether the Federal Aviation Administration Authorization Act of 1994 (FAAAA)\n\n“pre[-]empts a vehicle owner’s state-law claims against a towing company regarding the\n\n 14\n\fcompany’s post-towing disposal of the vehicle.” 569 U.S. at 259. The FAAAA’s\n\npre-emption provision generally “tracks the ADA’s air-carrier pre[-]emption provision,”\n\nbut its reach is “massively limit[ed]” because it only applies to claims related to “the\n\ntransportation of property.” Id. at 261 (quotation marks omitted).\n\n The towing company in Dan’s City towed the plaintiff’s car. Id. at 258. When the\n\nplaintiff did not promptly claim his car, the towing company sold it, retaining the\n\nproceeds as payment for towing and storing the car. Id. State law permitted the towing\n\ncompany’s actions, subject to certain conditions. Id. at 257–58. The plaintiff sued the\n\ntowing company, alleging that the towing company failed to comply with the statutory\n\nconditions necessary to lawfully sell his car. Id. at 259. The plaintiff’s claims were\n\ndismissed as pre-empted by the FAAAA. Id. The Supreme Court held that the claims\n\nshould have been allowed to proceed. Id. at 261.\n\n The towing company argued that its actions were “related to [its] towing service,”\n\nand therefore pre–empted, because “selling [the plaintiff’s] car was the means by which\n\n[the towing company] obtained payment for the tow.” Id. at 265 (quotation marks\n\nomitted). The Court rejected this argument because the towing company was trying to\n\n“have it both ways.” Id. The towing company “c[ould not] rely on [the state’s]\n\nregulatory framework as authorization for the sale of [the plaintiff’s] car, yet argue that\n\n[the plaintiff’s] claims, invoking the same state-law regime, are pre[-]empted.” Id.\n\nAdopting the towing company’s argument “would . . . leave vehicle owners without any\n\nrecourse for damages [and] it would eliminate the sole legal authorization for a towing\n\ncompany’s disposal of stored vehicles that go unclaimed.” Id. There would be “no law\n\n 15\n\f[to] govern resolution of a non-contract-based dispute arising from a towing company’s\n\ndisposal of a vehicle previously towed or afford a remedy for wrongful disposal.” Id.\n\nThe Court did not think that “such [a] design c[ould] be attributed to a rational\n\nCongress.” Id.\n\n Relying on Dan’s City, the government argues that “if [D]efendants rely on state\n\nequitable principles as the basis for their compensation, they cannot at the same time\n\nprevent [P]laintiffs from relying on those same principles to argue that [D]efendants’\n\ncharges are unreasonable.” Gov’t Br. at 21–22. The government’s argument appeals to a\n\nsense of fairness and reason, but its sweeping scope goes unacknowledged. Just one year\n\nafter deciding Dan’s City, the Court held that the ADA pre-empts implied common law\n\nclaims that attempt to vindicate “community standards of decency, fairness, or\n\nreasonableness.” Ginsberg, 572 U.S. at 286 (quotation marks omitted). We need not\n\nattempt to rationalize the government’s interpretation of Dan’s City with the Court’s\n\nsubsequent holding in Ginsberg at this time because the premise of the government’s\n\nargument is flawed.\n\n Defendants argued in the district court that Plaintiffs have “a contractual\n\nobligation to pay for the air carrier services they received.” App. Vol. IV at 626 n.2\n\n(emphasis added). The district court understood Defendants to argue that Plaintiffs have\n\na contractual obligation to pay, though the district court also recognized that “Defendants,\n\nfor their part, never explain what kind of agreement they think exists.” App. Vol. V at\n\n857. The Scarlett Plaintiffs similarly understood “Defendants [to] have repeatedly\n\ninvoked . . . state court jurisdiction to determine their right to recover [from Plaintiffs]\n\n 16\n\funder contract theories.” App. Vol. IV at 594. The Cowen Plaintiffs believe Defendants\n\n“have initiated collection efforts . . . to recover their contract rate/charged amount.” Id. at\n\n608. Even the government understood Defendants “not [to] dispute . . . that [Plaintiffs]\n\nhave a contractual obligation to pay.” App. Vol. V. at 809 (quotation marks omitted).\n\nBut at oral argument, Defendants argued that Plaintiffs’ obligation to pay arises under\n\nquantum meruit or a contract implied-in-law, which are equitable theories. Oral\n\nArgument at 32:57–41:29.\n\n We will not base our analysis on an argument first made at oral argument.\n\nAdamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 (10th Cir. 2016).\n\nAdmittedly, it is confusing (and at least a little concerning) that Defendants have filed\n\nlawsuits in state court to collect payments allegedly owed without a consistent legal\n\ntheory of why Plaintiffs owe them money.3 But the merits of Defendants’ state court\n\nclaims against Plaintiffs are not before us in this appeal. If Defendants in fact rely on\n\nequitable principles in their state court lawsuits against Plaintiffs, Plaintiffs remain free to\n\nraise Dan’s City and argue that Defendants are trying to have it both ways.\n\n But for the purpose of this appeal, all parties proceeded in the district court based\n\non Defendants’ representation that they believe Plaintiffs “have a contractual obligation\n\nto pay for the air carrier services they received.” App. Vol. IV 626 n.2. We rely on that\n\nrepresentation and conclude that Dan’s City is inapplicable. When Defendants proceed\n\n\n 3\n During oral argument on their motions to dismiss, the district court asked\nDefendants, “Why do [Plaintiffs] owe you money?” App. Vol. IV at 699.\nDefendants responded, “[I]t could be an express contract. It could be a contract\nimplied in fact. It could be a contract implied in law.” Id. at 700–01.\n 17\n\fin state court on contractual claims and argue, in this court, that we apply the pre-emption\n\nprinciples from Wolens and Ginsberg, we are not faced with a situation in which “the\n\npre[-]emption urged by [Defendants] . . . would eliminate the sole legal authorization” for\n\nDefendants’ actions in state court. Dan’s City, 569 U.S. at 265. Just the opposite.\n\nWolens and Ginsberg hold that a standard breach of contract claim is not pre-empted by\n\nthe ADA. Ginsberg, 572 U.S. at 281, 286–88.\n\n Accordingly, we now analyze whether Plaintiffs’ claims are pre-empted under\n\nWolens and Ginsberg.\n\n\n\n\nA. Breach of Implied Contract\n\n All Plaintiffs allege that Defendants have breached implied contractual\n\nrelationships with them by charging more than the reasonable value of their air\n\nambulance services.4 While the Scarlett Plaintiffs allege that these implied contracts\n\narise under state common law, the Cowen Plaintiffs allege that the implied contracts arise\n\nunder federal common law. Because no federal common law exists to “resolv[e] . . . the\n\n\n 4\n In their briefing on appeal, the Scarlett Plaintiffs argue that they also alleged\nthe existence of express contracts between themselves and Defendants. Scarlett Aplt.\nReply Br. at 4. But, in their operative complaint, the Scarlett Plaintiffs only assert a\nclaim for “Breach of Implied Contract.” App. Vol. III at 389. In that claim, the\nScarlett Plaintiffs allege that they “did not enter into either a written or oral\nagreement or [agree on] specific terms” with Defendants. Id. at 390. The Scarlett\nPlaintiffs cannot now attempt to amend their claim to allege a breach of express\ncontract.\n\n (continued . . .)\n 18\n\frange of contract claims relating to airline rates,” Wolens, 513 U.S. at 232, the district\n\ncourt correctly dismissed the Cowen Plaintiffs’ breach of implied contract claim for\n\nfailure to state a claim. Therefore, we confine our discussion to the Scarlett Plaintiffs’\n\nclaim under state common law.\n\n As the district court recognized, there are three types of contracts: express,\n\nimplied-in-fact, and implied-in-law.5 Hercules, Inc. v. United States, 516 U.S. 417, 423–\n\n24 (1996). “An agreement implied in fact is ‘founded upon a meeting of minds, which,\n\nalthough not embodied in an express contract, is inferred, as a fact, from conduct of the\n\nparties showing, in the light of the surrounding circumstances, their tacit understanding.’”\n\nHercules, 516 U.S. at 424 (quoting Baltimore & Ohio R.R. v. United States, 261 U.S.\n\n592, 597 (1923)). “By contrast, an agreement implied in law is a ‘fiction of law’ where\n\n‘a promise is imputed to perform a legal duty, as to repay money obtained by fraud or\n\nduress.’” Id. (quoting Baltimore & Ohio R.R., 261 U.S. at 597).\n\n\n\n\n 5\n The Restatement of Contracts draws the same distinctions. “Contracts are\noften spoken of as express or implied. The distinction involves, however, no\ndifference in legal effect, but lies merely in the mode of manifesting assent.”\nRestatement (Second) of Contracts § 4 cmt. a (1981) (Am. Law Inst., updated 2019).\n“As opposed to the inferred from fact (‘implied in fact’) contract, the ‘implied in law’\nquasi-contract is no contract at all, but a form of the remedy of restitution.” Id. § 4,\nnote, cmt. b. “Quasi-contracts have often been called implied contracts or contracts\nimplied in law; but, unlike true contracts, quasi-contracts are not based on the\napparent intention of the parties to undertake the performances in question, nor are\nthey promises. They are obligations created by law for reasons of justice.” Id. § 4\ncmt. b.\n\n (continued . . .)\n 19\n\f The state law relevant to each plaintiff’s claim draws a similar distinction between\n\nexpress or implied-in-fact contracts (which are formed upon the mutual assent of the\n\nparties) and implied-in-law contracts (which courts enforce when there was no mutual\n\nassent).6 The Scarlett Plaintiffs argue that they formed implied contracts with\n\nDefendants, even though they never agreed on a price. But the Scarlett Plaintiffs do not\n\nspecify whether they have formed implied-in-law or implied-in-fact contracts. The\n\ndistinction is critical for our pre-emption analysis because breach of contract claims\n\npremised on implied-in-law contracts are necessarily pre-empted for lack of mutual\n\nassent. Enforcing an implied-in-law contract “cannot be viewed as simply an attempt to\n\nvindicate the parties’ implicit understanding of the contract,” Ginsberg, 572 U.S. at 288,\n\nbecause an implied-in-law contract is an “obligation[] created by law for reasons of\n\njustice,” Restatement (Second) of Contracts § 4 cmt. b.\n\n\n\n\n 6\n See Turfgrass Grp., Inc. v. Ga. Cold Storage Co., 816 S.E.2d 716, 720 (Ga.\nCt. App. 2018); Ward v. Ward, 797 S.E.2d 525, 529 (N.C. Ct. App. 2017); Rogers v.\nWright, 2016 WY 10, ¶ 45, 366 P.3d 1264, 1278 (Wyo. 2016); Allegro, Inc. v. Scully,\n791 S.E.2d 140, 145–46 (S.C. 2016); Fortula v. Univ. of Kentucky, 438 S.W.3d 303,\n308–09 (Ky. 2014); Stacey v. Peed, 142 So. 3d 529, 531 (Ala. 2013); City of\nScottsbluff v. Waste Connections of Neb., Inc., 809 N.W.2d 725, 737–38 (Neb. 2011);\nZoeller v. E. Chi. Second Century, Inc., 904 N.E.2d 213, 220–21 (Ind. 2009); Mann\nFrankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009);\nMacsuga v. Moreno, 2003 OK 24, ¶ 19, 66 P.3d 409, 413; Kaiser Invs., Inc. v. Linn\nAgriprises, Inc., 538 So. 2d 409, 413–14 (Miss. 1989); Jezmura v. Jezmura, 330\nN.E.2d 414, 420 (N.Y. 1975); Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13\n(Fla. 1973); Lach v. Fleth, 64 A.2d 821, 826 (Pa. 1949); Bailey v. Interstate\nAirmotive, 219 S.W.2d 333, 338 (Mo. 1949); Cascaden v. Magryta, 225 N.W. 511,\n512 (Mich. 1929).\n (continued . . .)\n 20\n\f Conversely, a breach of contract claim premised on an implied-in-fact contract\n\ncould survive the ADA’s pre-emption provision. Two questions are critical to the\n\ninquiry.7 The first is whether the relevant state law allows the parties to contract around\n\nthe implied price term. Ginsberg, 572 U.S. at 286–88. The second is whether the\n\nimplied price term is “use[d] . . . to effectuate [the] intentions of the parties or to protect\n\ntheir reasonable expectations, . . . [or] to ensure that a party does not violate community\n\nstandards of decency, fairness, or reasonableness.” Id. at 286 (quotation marks and\n\ncitations omitted). If the parties can contract around the implied price term and the\n\nimplied price term “effectuate[s] the intentions of [the] parties or . . . protect[s] their\n\nreasonable expectations,” then the claim is not pre-empted. Id. at 286–88; see also\n\nSchneberger, 749 F. App’x at 678 (explaining that the Wolens “exception applies to\n\ncommon-law contract doctrines but only insofar as the doctrines serve ‘to effectuate the\n\nintentions of parties or to protect their reasonable expectations’” (quoting Ginsberg, 572\n\nU.S. at 286)). A court could then supply an implied price term consistent with the\n\nparties’ agreement when the implied-in-fact contract was formed. But if the claim fails\n\n\n 7\n We do not address the equally important question of whether, under the\nsubstantive state law applicable to a plaintiff’s claim, two parties can form an\nimplied-in-fact contract without agreeing on a price. See Restatement (Second) of\nContracts § 33 cmt. a (1981) (Am. Law Inst., updated 2019) (“[T]he actions of the\nparties may show conclusively that they have intended to conclude a binding\nagreement, even though one or more terms are missing or are left to be agreed upon.\nIn such cases courts endeavor, if possible, to attach a sufficiently definite meaning to\nthe bargain.”); id. § 33 cmt. e (discussing the circumstances under which an\nindefinite price term will defeat contract formation). If the state law relevant to a\nplaintiff’s claim does not recognize an implied-in-fact contract without agreement on\na price, then the plaintiff’s allegation would fall short, not because it is pre–empted,\nbut for failure to state a claim.\n 21\n\feither requirement, it is pre-empted. Ginsberg, 572 U.S. at 287–88 (explaining that each\n\nrequirement is an “independent basis” for pre-emption).\n\n The district court found that “[t]he facts in this case do not give rise to an\n\nimplied-in-fact contract” because the Scarlett “Plaintiffs have not alleged any meeting of\n\nthe minds or conduct between the parties by which [it] . . . could infer that they had an\n\nagreement.” App. Vol. V at 858. Therefore, the district court “understood [the Scarlett\n\nPlaintiffs’ breach of implied contract claim] as a request that [it] . . . invoke state law that\n\nimplies an obligation to pay for a service . . . to achieve equity and avoid injustice”—\n\nessentially “a contract implied in law.” Id. Because the district court found that the\n\nScarlett Plaintiffs relied on implied-in-law contracts, the district court dismissed their\n\nbreach of implied contract claim as pre-empted by the ADA. Id. at 858–59. In effect, the\n\ndistrict court made two findings. First, the district court found that the Scarlett Plaintiffs\n\nfail to allege the existence of any implied-in-fact contracts. Second, the district court\n\nfound that, insofar as the Scarlett Plaintiffs’ claim relies on implied-in-law contracts, the\n\nclaim is pre-empted by the ADA.\n\n On appeal, the Scarlett Plaintiffs do not contest the second finding, that claims\n\nbased on implied-in-law contracts are pre-empted by the ADA. Rather, the Scarlett\n\nPlaintiffs focus on the district court’s first finding and argue that some of those\n\ntransported by Defendants “may have entered implied-in-fact contracts by expressly\n\nstating a desire to be transported because many of them were possessed of their faculties\n\n\n\n\n 22\n\fat the time of transport.”8 Scarlett Aplt. Br. at 16. But this allegation—that the Scarlett\n\nPlaintiffs “stat[ed] a desire to be transported” and therefore entered into an\n\nimplied-in-fact contract—does not appear in the Scarlett Plaintiffs’ complaint.\n\n To the contrary, the Scarlett Plaintiffs allege that “[p]rior to Defendants’\n\nundertaking to provide air ambulance transport services, no negotiation of contract terms\n\ntook place and Plaintiffs and Defendants did not enter into either a written or oral\n\nagreement or [agree on] specific terms.” App. Vol. III at 390. Moreover, in their\n\nopposition to Defendants’ motion to dismiss, the Scarlett Plaintiffs argued that “[it] is\n\nundisputed Defendants transport patients with no . . . prior mutual assent to [the] terms of\n\nthe transport . . . due to exigent circumstances.” App. Vol. IV at 589. The Scarlett\n\nPlaintiffs cannot now argue that the district court erred in agreeing with a proposition that\n\nthey themselves presented as undisputed. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d\n\n1225, 1229–30 (10th Cir. 2003) (explaining that invited error doctrine prohibits a party\n\nfrom making an argument in district court and later “advocating a contrary position on\n\nappeal”).\n\n\n\n\n 8\n In their Reply Brief, the Scarlett Plaintiffs argue that “[m]ultiple named\nplaintiffs alleged execution of a written ‘Authorization and Consent’ form contract\nprovided by Defendants prior to transport, in which they promised to ‘be personally\nand fully responsible for payment of [Defendants’] charges,’ though the form\ncontract gave no disclosure of what those charges might be.” Scarlett Aplt. Reply Br.\nat 4. Setting aside the fact that this argument contradicts the allegation in the Scarlett\nPlaintiffs’ complaint that they “did not enter into . . . written . . . agreement[s]” with\nDefendants, App. Vol. III at 390, we have previously explained that the Scarlett\nPlaintiffs do not assert a claim for breach of express contract. The Scarlett Plaintiffs\nonly allege a claim for breach of implied contract. Id. at 389.\n 23\n\f Even if we were to look past the inconsistent positions taken by the Scarlett\n\nPlaintiffs here and in the district court, their one sentence argument about the creation of\n\nimplied-in-fact contracts would not warrant reversal given the fact-intensive inquiry\n\nrequired to determine whether an implied-in-fact contract was formed. The Scarlett\n\nPlaintiffs’ argument is accompanied by a single citation to the record and no citation to\n\napplicable state contract law, which does not sufficiently support its argument that it\n\nadequately alleged the existence of implied-in-fact contracts. See id. at 1232 (explaining\n\nthat “superficial argument [wa]s insufficient to garner appellate review,” in part because\n\nthe party did “not offer[] any record citations or legal authority in support of its\n\nargument”). Therefore, we will not disturb the district court’s dismissal of the Scarlett\n\nPlaintiffs’ breach of implied contract claim.\n\nB. Declaratory Judgment Regarding Existence of Enforceable Contracts\n\n All Plaintiffs seek declarations that they have no contractual obligation to pay\n\nDefendants’ bills because they never agreed on a price for Defendants’ air ambulance\n\nservices. The district court dismissed the claims for relief under the Declaratory\n\nJudgment Act, 28 U.S.C. § 2201, as pre-empted by the ADA. The Scarlett Plaintiffs do\n\nnot discuss their declaratory judgment claim in their briefing on appeal and have\n\ntherefore abandoned the issue. Stender v. Archstone-Smith Operating Tr., 910 F.3d 1107,\n\n1117 (10th Cir. 2018). In contrast, the Cowen Plaintiffs raise the issue on appeal and\n\nargue that their claim for declaratory judgment is not pre-empted because there is a ripe\n\ncontroversy about the existence of a contractual relationship. Defendants argue that “the\n\ndistrict court was correct to dismiss” Plaintiffs’ declaratory judgment claims because they\n\n 24\n\frelied on “contract theories . . . to impose price terms on” Defendants. Aple. Br. at 27.\n\nDefendants maintain that the district court did not need to decide whether “the parties . . .\n\nenter[ed] into any enforceable contracts” to “dispos[e] of [the Cowen Plaintiffs’] claims.”\n\nId. at 43. But Defendants misstate and misinterpret the relief that the Cowen Plaintiffs\n\nseek, at least with respect to the declaration that no contracts were formed.9\n\n As previously discussed, the district court can enforce contractual “terms and\n\nconditions . . . offer[ed by Defendants] and . . . accept[ed]” by Plaintiffs without running\n\nafoul of the ADA’s pre-emption provision. Ginsberg, 572 U.S. at 281 (alteration\n\nomitted) (quoting Wolens, 513 U.S. at 228–29). To enforce a contract, a court must first\n\nconfirm that a contract exists. Defendants have offered no reason why a court that can\n\nenforce a contract would be prohibited from “declar[ing] the rights and other legal\n\nrelations” arising from a contractual relationship, or lack thereof. 28 U.S.C. § 2201.\n\nThough “[t]he Declaratory Judgment Act does not extend the jurisdiction of federal\n\ncourts[,] it [does] enlarge[] the range of remedies available.” Prier v. Steed, 456 F.3d\n\n1209, 1212 (10th Cir. 2006) (quotation marks and alterations omitted).\n\n\n\n\n 9\n Three paragraphs of the Cowen Plaintiffs’ declaratory judgment claim relate\nto contract formation. The Cowen Plaintiffs seek the following declarations: that\n“Defendants and Plaintiffs . . . did not enter into any express contracts for Plaintiffs\n. . . to pay the amounts charged by the Defendants for the transportation services it\nprovided;” that “Defendants have engaged in collection efforts against Plaintiffs . . .\nfor amounts that Plaintiffs . . . did not expressly agree to pay;” and that “Defendants\nhave engaged in collection efforts against Plaintiffs . . . for amounts concerning\nwhich there was no mutual assent manifest by the Plaintiffs . . . prior to the rendering\nof the services charged for.” App. Vol. II at 314.\n 25\n\f Therefore, the ADA does not prohibit a court from declaring that, because the\n\nparties never agreed on a price, no express or implied-in-fact contracts were formed. To\n\nenter such a declaration, a court would only need to examine whether there was the\n\nnecessary mutual assent to form a contract. See Data Mfg., Inc. v. United Parcel Serv.,\n\nInc., 557 F.3d 849, 854 (8th Cir. 2009) (“Under Wolens, the issue of whether [a plaintiff]\n\nagreed to [a] fee as part of its contract with [a defendant] reads . . . like a . . . claim solely\n\nbetween the parties that does not derive from the enactment or enforcement of state\n\nlaw.”); Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 289–90 (5th Cir. 2002)\n\n(holding that defendant could raise fraudulent inducement as defense in breach of\n\ncontract action without offending the ADA’s pre-emption provision because “fraudulent\n\nconduct precludes the requisite mutual assent”); United Airlines, Inc. v. Mesa Airlines,\n\nInc., 219 F.3d 605, 609 (7th Cir. 2000) (“When all a state does is . . . determine whether\n\nagreement was reached, or whether instead one party acted under duress, it transgresses\n\nno federal rule.”); cf. Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602, 608 (8th Cir. 2018)\n\n(holding that ADA pre-empted claim for declaration that no contract existed between an\n\nair ambulance company and a patient because it was “not a contract-based claim” “as\n\npleaded” given that it was “asserted on a class-wide basis, independent of the relationship\n\nbetween an air-ambulance operator and a particular patient”).\n\n Accordingly, the district court erred in interpreting the Cowen Defendants’\n\ndeclaratory judgment claim narrowly—to seek only a declaration that “federal common\n\nlaw is applicable,” App. Vol. V at 865—and then finding that the claim was pre-empted.\n\nOn remand, the district court can examine each of the Cowen Plaintiffs’ allegations under\n\n 26\n\fthe applicable state law to determine whether an express or implied-in-fact contract was\n\nformed.\n\nC. Claims for Unjust Enrichment\n\n Neither set of Plaintiffs adequately challenges the district court’s dismissal of their\n\nunjust enrichment claims. The Scarlett Plaintiffs do not mention unjust enrichment in\n\ntheir Opening or Reply Briefs and have therefore abandoned the issue. Stender, 910 F.3d\n\nat 1117. The Cowen Plaintiffs, perplexingly, argue that their unjust enrichment claim\n\nsurvives pre-emption because “unjust enrichment is an equitable doctrine that only\n\napplies if there is no contract.” Cowen Aplt. Br. at 39. The ADA’s pre-emption\n\nprovision prohibits courts from imposing an equitable remedy in the absence of a contract\n\nbecause the remedy would reflect the court’s policy judgments, not the parties’ mutual\n\nassent. Wolens, 513 U.S. at 232–33. Therefore, the district court did not err when\n\ndismissing the Cowen Plaintiffs’ unjust enrichment claim as pre-empted by the ADA.\n\n Before moving on from our pre-emption analysis, we reiterate that “[t]here is\n\ncertainly some persuasive force to the . . . argument that federal pre[-]emption of state\n\nregulations in this field is not serving the congressional purpose of furthering efficiency,\n\ninnovation, and low prices that was a motivating force behind the” ADA. EagleMed, 868\n\nF.3d at 903 (quotation marks and alteration omitted).\n\n Due to the [ADA’s] broad pre[-]emption provision, states have been\n unable to prevent air ambulance service providers from imposing\n exorbitant fees on patients who wrongly assume their insurance will\n cover the charges and are not in a position to discover otherwise or\n engaging in other unscrupulous pricing behaviors that would not be\n sustainable in a true free market but are easily perpetuated in the\n warped market of air-ambulance services.\n\n 27\n\fId. (quotation marks and ellipsis omitted). But as we have explained before, “[a]ny\n\ndeficiency in the plain language of the [ADA] or the scope of its coverage must be\n\ncorrected by Congress, not this court.” Id. at 904.\n\n We also note that, though the ADA limits patients’ abilities to challenge the prices\n\ncharged by air ambulance companies, patients are not without recourse. As just\n\ndiscussed, once an air ambulance company asserts that a patient has a contractual\n\nobligation to pay his bill, that patient can sue for declaratory relief to confirm that he is so\n\nobligated. If an air ambulance company has breached a contractual duty owed to one of\n\nits patients, that patient can sue for breach of contract. And individuals might be\n\nprotected against improper debt collection methods by the Fair Debt Collection Practices\n\nAct, 15 U.S.C. §§ 1692–1692p, or an analogous state statute.\n\n Finally, “Congress has given the Department of Transportation (DOT) the general\n\nauthority to prohibit and punish unfair and deceptive practices in air transportation and in\n\nthe sale of air transportation.” Ginsberg, 572 U.S. at 288–89 (referring to 49 U.S.C.\n\n§ 41712(a)). Just this past fall, Congress expanded the DOT’s authority to regulate air\n\nambulances. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186.\n\nUnder the new law, the DOT “shall review aviation consumer complaints received that\n\nallege a violation of law and, as appropriate, pursue enforcement or corrective actions\n\nthat would be in the public interest.” Id. at 3337. “In considering which cases to pursue\n\nfor enforcement or corrective action . . . the [DOT] shall consider” “unfair and deceptive\n\npractices by air carriers (including air ambulance operators),” “the terms and conditions\n\n\n 28\n\fagreed to between passengers and air carriers (including air ambulance operators),” and\n\nthe “protection of air ambulance consumers.” Id.\n\n IV\n\n The Scarlett Plaintiffs allege that “the ADA is unconstitutional as applied to air\n\nambulance carriers and their patients,” App. Vol. III at 394, because the ADA violates the\n\nprocedural and substantive components of the Due Process Clause of the Fifth\n\nAmendment, id. at 395–96. We “review[] a challenge to the constitutionality of a statute\n\nde novo.” Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008)\n\n(emphasis omitted).\n\n Plaintiffs argue that the ADA violates the procedural component of the Due\n\nProcess Clause of the Fifth Amendment by depriving them of a “state law cause of action\n\nto contest the price [of air ambulance services that] Defendants seek to impose.” Scarlett\n\nAplt. Br. at 32. “To assess whether an individual was denied procedural due process,\n\ncourts must engage in a two-step inquiry: (1) did the individual possess a protected\n\ninterest such that the due process protections were applicable; and, if so, then (2) was the\n\nindividual afforded an appropriate level of process.” Guttman v. Khalsa, 669 F.3d 1101,\n\n1113–14 (10th Cir. 2012) (quotation marks omitted). Plaintiffs’ procedural due process\n\nclaim fails at the first step because “a person has no property, no vested interest, in any\n\nrule of the common law.” Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S.\n\n59, 88 n.32 (1978) (alteration omitted) (quoting Second Emp’rs’ Liab. Cases, 223 U.S. 1,\n\n50 (1912)). “The Constitution does not forbid the creation of new rights, or the abolition\n\nof old ones recognized by the common law, to attain a permissible legislative object,\n\n 29\n\fdespite the fact that otherwise settled expectations may be upset thereby.” Id. (quotation\n\nmarks and citations omitted). And, as just discussed, Plaintiffs have various avenues for\n\nchallenging their obligation to pay Defendants’ bills, undermining Plaintiffs’ allegations\n\nthat the ADA has deprived them of a way to “contest the price” of Defendants’ services.\n\n The Scarlett Plaintiffs argue the ADA violates the substantive component of the\n\nFifth Amendment’s Due Process Clause because, while the ADA was meant to lower\n\nprices for air travel, prices for air ambulance services have “skyrocket[ed].” Scarlett\n\nAplt. Br. at 37. Plaintiffs have not alleged a substantive due process violation because\n\nthe “protection against economic legislation interfering with property interests . . . is\n\nseverely limited.” KT&G Corp. v. Attorney Gen., 535 F.3d 1114, 1142 (10th Cir. 2008).\n\n To comport with the limited scope of substantive due process\n protection, economic legislation need only be rationally related to a\n legitimate government interest. Under rational basis review,\n therefore, there is no need for mathematical precision in the fit\n between justification and means, and the law need not be in every\n respect logically consistent with its aims to be constitutional. It is\n enough that there is an evil at hand for correction, and that it might\n be thought that the particular legislative measure was a rational way\n to correct it. Moreover, economic legislation comes to the Court\n with a presumption of constitutionality, and the burden is on one\n complaining of a due process violation to establish that the\n legislature has acted in an arbitrary and irrational way. Thus, it is\n difficult to exaggerate the burden that a party must overcome to\n demonstrate that economic legislation fails rational basis review.\n\nId. (quotation marks omitted).\n\n The parties agree that, as intended by Congress when it deregulated the air travel\n\nindustry by passing the ADA, the price of most air travel has fallen. That the ADA did\n\nnot cause its desired effect in all corners of the air travel industry does not render the\n\n\n 30\n\fADA’s pre-emption provision irrational. Id. At most, the high price of air ambulance\n\nservices shows that the ADA is imperfect. Such a showing does not establish a\n\nsubstantive due process violation.\n\n V\n\n Finally, the Scarlett Plaintiffs argue that Defendants are judicially estopped from\n\nraising the ADA’s pre-emption provision as a defense to Plaintiffs’ contract-based claims\n\nbecause “Defendants have filed multiple state-court breach-of-contract suits in multiple\n\nstates to collect their charges, and they have also filed proof of claim forms in\n\nbankruptcies as well as filing claims against estates—all alleging a right to recover based\n\non contracts and NOT asserting pre[-]emption.” Scarlett Aplt. Br. at 27. The district\n\ncourt declined to apply judicial estoppel because “we have held that judicial estoppel\n\nonly applies when the position to be estopped is one of fact, not one of law.” BancInsure,\n\nInc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015). On appeal, the Scarlett Plaintiffs\n\nargue that we should broaden our view of judicial estoppel to include legal positions.\n\n We need not revisit our prior ruling regarding judicial estoppel because the\n\nScarlett Plaintiffs have not alleged facts sufficient to invoke judicial estoppel.\n\n The circumstances in which judicial estoppel applies are “not\n reducible to any general formulation of principle,” [New Hampshire\n v. Maine, 532 U.S. 742, 750 (2001)]; nevertheless, the Supreme\n Court has identified three relevant factors. First, courts ask whether\n a party’s later position is “clearly inconsistent” with its former\n position. Id. Second, courts ask whether the party “succeeded in\n persuading a court to accept that party’s earlier position, so that\n judicial acceptance of an inconsistent position in a later proceeding\n would create the perception that either the first or the second court\n was misled.” Id. (internal quotation marks omitted). And third,\n courts consider “whether the party seeking to assert an inconsistent\n\n 31\n\f position would derive an unfair advantage or impose an unfair\n detriment on the opposing party if not estopped.” Id. at 751.\n\nBancInsure, 796 F.3d at 1240. The Scarlett Plaintiffs have not shown that Defendants\n\nhave “succeeded in persuading a court to accept” their position that state courts can\n\nenforce patients’ alleged contractual obligation to pay their air ambulance bills.\n\nTherefore, even if judicial estoppel encompassed legal positions, the doctrine would not\n\napply in this case. Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 1209–10 (10th\n\nCir. 2017).\n\n VI\n\n We AFFIRM the district court’s dismissal of all Plaintiffs’ breach of implied\n\ncontract claims, the Scarlett Plaintiffs’ declaratory judgment claim, all Plaintiffs’ unjust\n\nenrichment claims, and the Scarlett Plaintiffs’ due process claims; we REVERSE the\n\ndistrict court’s dismissal of the Cowen Plaintiffs’ declaratory judgment claim, only with\n\nrespect to the existence of contracts between the Cowen Plaintiffs and Defendants; and\n\nwe REMAND for further proceedings.\n\n\n\n\n 32\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jeremy Lee SCARLETT, on Behalf of Himself and All Others Similarly Situated, Et Al., Plaintiffs-Appellants, v. AIR METHODS CORPORATION; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee. Randal Cowen; Keith Kranhold, Executor of the Estate of Kenneth Kranhold; Griff Hughes; Lana Hughes; Yolanda O'Neale, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. Air Methods Corporation; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-25\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 25, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\nJEREMY LEE SCARLETT, on behalf of\\nhimself and all others similarly situated, et\\nal.,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1247\\n\\nAIR METHODS CORPORATION;\\nROCKY MOUNTAIN HOLDINGS LLC,\\n\\n Defendants - Appellees.\\n\\n-----------------------------\\n\\nUNITED STATES OF AMERICA,\\n\\n Intervenor - Appellee.\\n\\n–––––––––––––––––––––––––––––––––––\\n\\nRANDAL COWEN; KEITH\\nKRANHOLD, Executor of the Estate of\\nKenneth Kranhold; GRIFF HUGHES;\\nLANA HUGHES; YOLANDA O’NEALE,\\non behalf of themselves and all others\\nsimilarly situated,\\n\\n Plaintiffs - Appellants,\\n\\nv. No. 18-1249\\n\\nAIR METHODS CORPORATION;\\nROCKY MOUNTAIN HOLDINGS LLC,\\n\\n Defendants - Appellees.\\n\\f ------------------------------\\n\\n UNITED STATES OF AMERICA,\\n\\n Intervenor - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (Lead D.C. No. 1:16-CV-02723-RBJ)\\n _________________________________\\n\\nEdward L. White, Edward L. White, P.C., Edmond, Oklahoma (Kerry D. Green, Edward\\nL. White, P.C., Edmond, Oklahoma; Thomas Melvin Rogers, III, and Abby Caroline\\nHarder, Lewis Roca Rothberger Christie, LLP, Denver, Colorado; Mario A. Pacella,\\nStrom Law Firm, LLC, Columbia, South Carolina; Troy M. Frederick, Frederick Law\\nGroup, PLLC, Indiana, Pennsylvania; S. Alex Yaffe, Foshee & Yaffe, Oklahoma City,\\nOklahoma; Andrew P. Campbell and Stephen D. Wadsworth, Campbell Guin, LLC,\\nBirmingham, Alabama; and Noble K. McIntyre, McIntyre Law Firm, Oklahoma City,\\nOklahoma, with him on the briefs), appearing for Appellants Jeremy Scarlett, Edward\\nAdams, Joel Griffith, Gary Supeau, Reid Hardy, Michael Robertson, Jenny Stephens,\\nHeather Bartley, Judd Bartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy\\nVanzant, Thomas Wade, Jonathan Burleson, Jennier McCloskey, Warren Larson, Johnny\\nAlexander, Kathleen Gore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis,\\nAngela Wallace, Joelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, William\\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller, and\\nRussell Fulford.\\n\\nRichard J. Burke (Jamie Weiss and Zachary A. Jacobs, with him on the briefs), Quantum\\nLegal, LLC, Highland Park, Illinois, appearing for Appellants Randal Cowen, Keith\\nKranhold, Griff Hughes, Lana Hughes, and Yolanda O’Neale.\\n\\nLewis S. Yelin, Attorney, Appellate Staff, Civil Division, United States Department of\\nJustice, Washington, DC (Joseph H. Hunt, Assistant Attorney General, Jason R. Dunn,\\nUnited States Attorney, and Michael S. Raab, Attorney, Appellate Staff, Civil Division,\\nUnited States Department of Justice, Washington, DC; Steven G. Bradbury, General\\nCounsel, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, and\\nCharles E. Enloe, Trial Attorney, Department of Transportation, Washington, DC, with\\nhim on the brief), appearing for Intervenor United States of America.\\n\\nChristina F. Gomez, Holland & Hart LLP, Denver, Colorado (Matthew J. Smith and\\nJessica J. Smith, Holland & Hart LLP, Denver, Colorado; and David A. King and\\n\\n 2\\n\\fMichael A. Cottone, Bass, Berry & Sims, PLC, Nashville, Tennessee, with her on the\\nbrief), appearing for Appellees Air Methods Corporation and Rocky Mountain Holdings\\nLLC.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n This is an appeal from the dismissal of two putative class action complaints as\\n\\npre-empted by the Airline Deregulation Act (ADA), 49 U.S.C. § 41713. Defendants-\\n\\nAppellees Air Methods Corporation and Rocky Mountain Holdings, LLC provide air\\n\\nambulance services, which means that they fly sick and injured individuals to hospitals\\n\\nfor medical treatment. These flights are expensive; patients are regularly charged tens of\\n\\nthousands of dollars per flight. Defendants provided air ambulance services to Plaintiffs-\\n\\nAppellants, or in some cases to their minor children. Plaintiffs dispute their obligation to\\n\\npay the full amounts charged by Defendants because Plaintiffs claim to have never\\n\\nagreed with Defendants on a price for their services.\\n\\n Plaintiffs filed suit, asserting jurisdiction under the Class Action Fairness Act,\\n\\n28 U.S.C. § 1332(d), to determine what, if any, amounts they owe Defendants. Plaintiffs\\n\\nalso seek to recover any excess payments already made to Defendants. Defendants\\n\\nmoved to dismiss, arguing that Plaintiffs’ claims are pre-empted by the ADA. The\\n\\ndistrict court agreed and dismissed Plaintiffs’ claims with prejudice. Exercising\\n\\njurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand\\n\\nfor further proceedings.\\n\\n\\n 3\\n\\f I\\n\\n The ADA was enacted in 1978 after Congress “determin[ed] that maximum\\n\\nreliance on competitive market forces would best further efficiency, innovation, and low\\n\\nprices as well as variety and quality of air transportation services.” Morales v. Trans\\n\\nWorld Airlines, Inc., 504 U.S. 374, 378 (1992) (quotation marks, alteration, and ellipsis\\n\\nomitted). The enactment of the ADA marked the end of an era when the federal\\n\\ngovernment and the states regulated airfares. “To ensure that the States would not undo\\n\\nfederal deregulation with regulation of their own, the ADA included a pre-emption\\n\\nprovision.” Id. Per the pre-emption provision, “a State . . . may not enact or enforce a\\n\\nlaw, regulation, or other provision having the force and effect of law related to a price,\\n\\nroute, or service of an air carrier that may provide air transportation under this subpart.”\\n\\n49 U.S.C. § 41713(b)(1). The scope of the pre-emption provision lies at the heart of this\\n\\nappeal.\\n\\n\\n\\n\\n 4\\n\\f There are two groups of plaintiffs—the Scarlett Plaintiffs1 and the Cowen\\n\\nPlaintiffs.2 Because each group of plaintiffs pursues distinct claims, we discuss their\\n\\nallegations separately. “We review a district court’s dismissal of a complaint under Rule\\n\\n12(b)(6) de novo.” Rosenfield v. HSBC Bank, 681 F.3d 1172, 1178 (10th Cir. 2012). In\\n\\ndoing so, we “accept as true all well-pleaded factual allegations . . . and view these\\n\\nallegations in the light most favorable to the plaintiff.” Id. (quotation marks omitted).\\n\\nA. The Scarlett Plaintiffs\\n\\n The Scarlett Plaintiffs allege that Defendants have sent them bills for air\\n\\nambulance services provided to them or their children. The average bill is for $47,000,\\n\\nbut no bill has been paid in full. The Scarlett Plaintiffs further allege that “Defendants’\\n\\ncharges for air transport [were] not disclosed . . . in any way in advance of transport.”\\n\\nApp. Vol. III at 385. Most of the Scarlett Plaintiffs are insured; the average insurance\\n\\npayment for Defendants’ services is $12,000. But that leaves a substantial outstanding\\n\\nbalance on each bill. Defendants seek payment of the outstanding balances by hiring\\n\\n\\n\\n\\n 1\\n Plaintiffs in Appeal No. 18-1247 are Edward Adams, Joel Griffith, Gary\\nSupeau, Reid Hardy, Michael Robertson, Jenny Stephens, Heather Bartley, Judd\\nBartley, Jodene Lopresto, Sarah Oelke, Bobbie Reed, Amy Vanzant, Thomas Wade,\\nJonathan Burleson, Jennifer McCloskey, Warren Larson, Johnny Alexander, Kathleen\\nGore, Ann Koehler, Mary Gurnsey, Susan Schaefer, Ethan Galis, Angela Wallace,\\nJoelle Rogers, Erick Murrer, Ivan Olfert, Scott Cresswell, Jeremy Scarlett, William\\nUlmer, Emily McKinley, Clark Bailey, David Thrasher, Karen Shaw, Lauren Miller,\\nand Russell Fulford (collectively, the “Scarlett Plaintiffs”).\\n 2\\n Plaintiffs in Appeal No. 18-1249 are Randal Cowen, Keith Kranhold, Griff\\nHughes, Lana Hughes, and Yolanda O’Neale (collectively, the “Cowen Plaintiffs”).\\n 5\\n\\fdebt collectors and filing breach of contract lawsuits in state court. This practice is called\\n\\nbalance billing.\\n\\n The Scarlett Plaintiffs’ Consolidated Class Action Complaint contains two causes\\n\\nof action. First, the Scarlett Plaintiffs allege that Defendants have breached implied\\n\\ncontracts for the air ambulance services by charging more than “the fair market value of\\n\\n[their] services.” Id. at 391. The Scarlett Plaintiffs seek “damages in the amount of the\\n\\novercharges levied by Defendants.” Id. at 392. Second, the Scarlett Plaintiffs seek\\n\\nexpansive declaratory and injunctive relief. They desire a declaration stating (1) “that the\\n\\nADA . . . does not apply to air ambulance carriers;” (2) that the ADA does not pre-empt\\n\\ntheir “breach of implied contract claims;” (3) that there are no enforceable contracts\\n\\nbetween the Scarlett Plaintiffs and Defendants because they never agreed on the price of\\n\\nthe air ambulance services; (4) that Defendants have been unjustly enriched by charging\\n\\nmore than the fair market value of their services; and (5) that the ADA’s pre-emption\\n\\nprovision violates the procedural and substantive components of the Due Process Clause\\n\\nof the Fifth Amendment. Id. at 392–97. The Scarlett Plaintiffs also seek to permanently\\n\\nenjoin Defendants’ billing practices.\\n\\n Defendants moved to dismiss, arguing that the Scarlett “Plaintiffs’ lawsuit is\\n\\npre[-]empted by the ADA because their claims rely on state laws . . . to challenge an air\\n\\ncarriers’ [sic] prices.” App. Vol. IV at 577. Defendants also argued that the due process\\n\\nclaim fails because the Scarlett Plaintiffs are afforded adequate process via the\\n\\nDepartment of Transportation’s complaint procedures, and Congress did not act\\n\\narbitrarily when enacting the ADA’s pre-emption provision.\\n\\n 6\\n\\f The United States intervened to defend the constitutionality of the ADA and offer\\n\\nits interpretation of how the ADA’s pre-emption provision applies to the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim. The government agreed with Defendants\\n\\nthat the Scarlett Plaintiffs had not alleged a violation of their procedural or substantive\\n\\ndue process rights. As to the pre-emption question, the government argued that the\\n\\ndistrict court first “need[ed] to determine whether, under the applicable state law [for\\n\\neach plaintiff’s claim], the parties entered into an implied contract,” App. Vol. V at 809,\\n\\nand then needed to assess whether the “terms . . . are enforceable consistent with the\\n\\nADA,” id. at 811.\\n\\n The district court granted Defendants’ motion to dismiss. First, the district court\\n\\nfound that Defendants may assert the ADA’s pre-emption provision as a defense because,\\n\\nunder the ADA, they are air carriers who may provide air transportation. Turning to the\\n\\nmerits of the complaint, the district court found that “the ADA pre[-]empts the Scarlett\\n\\nPlaintiffs’ claims for breach of [implied] contract and injunctive and declaratory relief.”\\n\\nId. at 860 (emphasis omitted). The district court was “convinced that the . . . case\\n\\ndepends on the application of state common law . . . to prevent unjust enrichment.” Id.\\n\\nFinally, the district court found that the Scarlett Plaintiffs failed to plead a violation of the\\n\\nprocedural or substantive components of the Due Process Clause of the Fifth\\n\\nAmendment.\\n\\nB. The Cowen Plaintiffs\\n\\n The Cowen Plaintiffs allege that Defendants have sent them bills for providing air\\n\\nambulance services to them, their children, and their decedents. The average bill was for\\n\\n 7\\n\\f$48,500. None of the Cowen Plaintiffs have fully paid their bills, either because their\\n\\nhealth insurance only covered a portion of the bill or because they do not have health\\n\\ninsurance. The average insurance payment to Defendants was $7,400. Defendants have\\n\\nhired, or in some cases threatened to hire, a collection agency to recoup the unpaid\\n\\nbalances.\\n\\n The Cowen Plaintiffs’ Second Amended Complaint contains three causes of\\n\\naction. First, the Cowen Plaintiffs seek a declaratory judgment encompassing thirteen\\n\\ncumulative declarations. As we read the Cowen Plaintiffs’ complaint, the requested\\n\\ndeclaratory judgment would state one of two things: the Cowen Plaintiffs did not enter\\n\\ninto contracts with Defendants because they did not agree on a price; or, in the\\n\\nalternative, any contractual relationship that exists between the Cowen Plaintiffs and\\n\\nDefendants is implied under federal common law. Second, assuming there are valid\\n\\ncontracts between the Cowen Plaintiffs and Defendants under federal common law, the\\n\\nCowen Plaintiffs allege that “Defendants breached their contract[s] . . . by invoicing and\\n\\nbalance billing . . . for charged amounts in excess of the reasonable value of the services\\n\\nprovided.” App. Vol. II at 316. Third, assuming there are no valid contracts between the\\n\\nCowen Plaintiffs and Defendants, the Cowen Plaintiffs allege that they “are entitled to\\n\\nrestitution of all sums paid [to Defendants] greater than the reasonable value of the\\n\\nservices provided” under a theory of “unjust[] enrich[ment].” Id. at 318.\\n\\n Defendants moved to dismiss. They argued that “[t]o the extent [the Cowen]\\n\\nPlaintiffs seek to rely on state law to challenge Defendants’ prices, such claims are\\n\\npre[-]empted by the ADA.” App. Vol. III at 564. Defendants then addressed the claims\\n\\n 8\\n\\farising under federal common law and argued that “Congress has [not] granted federal\\n\\ncourts authority to create federal common law” regarding contract claims against air\\n\\nambulances. Id. at 566. Finally, Defendants argued that the Cowen Plaintiffs “cannot\\n\\nstate a claim for equitable restitution” “because [they] . . . do[] not identify any particular\\n\\nfunds in Defendants’ possession that supposedly belong to Plaintiffs.” Id. at 570.\\n\\n The district court granted the motion to dismiss. First, the district court interpreted\\n\\nthe claim for declaratory relief narrowly, to seek only a declaration that “federal common\\n\\nlaw is applicable” to the Cowen Plaintiffs’ claims. App. Vol. V at 865. Based on this\\n\\nfinding, the district court reasoned that all of the Cowen Plaintiffs’ claims depend on the\\n\\nexistence of federal common law. Because the district court found that there is no federal\\n\\ncommon law governing claims against air ambulance companies, the district court\\n\\ndecided that the Cowen Plaintiffs’ claims failed.\\n\\n “Because [the district court found that all] plaintiffs’ claims are pre[-]empted by\\n\\nthe ADA as a matter of law, [the district court dismissed] both complaints . . . with\\n\\nprejudice.” App. Vol. V at 868. All plaintiffs timely appealed.\\n\\n II\\n\\n Before reaching the substance of the parties’ pre-emption arguments, we must\\n\\ndetermine whether Defendants can assert the ADA’s pre-emption provision as a defense.\\n\\nWe have previously applied the ADA’s pre-emption provision to prohibit state regulation\\n\\nof air ambulance rates. EagleMed LLC v. Cox, 868 F.3d 893, 904–05 (10th Cir. 2017)\\n\\n(holding that state regulation of air ambulance prices was “pre[-]empted by the [ADA] to\\n\\nthe extent [the state law] set maximum reimbursement rates for air-ambulance services,”\\n\\n 9\\n\\fbut noting that no party “argue[d] that air ambulances are not ‘air carriers’ under the\\n\\nstatute”); Schneberger v. Air Evac EMS, Inc., 749 F. App’x 670, 673 n.4 (10th Cir. 2018)\\n\\n(same). We have never been called upon to directly answer the question of whether air\\n\\nambulances are covered by the ADA.\\n\\n Whether Defendants can raise the ADA’s pre-emption provision as a defense is a\\n\\nquestion of statutory interpretation. “We review de novo a district court’s statutory\\n\\nconstruction.” Potts v. Ctr. for Excellence in Higher Educ., Inc., 908 F.3d 610, 613 (10th\\n\\nCir. 2018). “Our first step in interpreting a statute is to determine whether the language\\n\\nat issue has a plain and unambiguous meaning with regard to the particular dispute in the\\n\\ncase.” Id. (quotation marks omitted). “Our inquiry ends there if the statutory language is\\n\\nunambiguous and the statutory scheme is coherent and consistent.” Id. (quotation marks\\n\\nomitted). “We evaluate statutory language by examining the language itself, the specific\\n\\ncontext in which that language is used, and the broader context of the statute as a whole.”\\n\\nId. (quotation marks omitted).\\n\\n The ADA’s pre-emption provision says: “[A] State . . . may not enact or enforce a\\n\\nlaw, regulation, or other provision having the force and effect of law related to a price,\\n\\nroute, or service of an air carrier that may provide air transportation under this subpart.”\\n\\n49 U.S.C. § 41713(b)(1). “‘[A]ir carrier’ means a citizen of the United States\\n\\nundertaking by any means, directly or indirectly, to provide air transportation.” Id.\\n\\n§ 40102(a)(2). As is relevant for this appeal, “‘air transportation’ means . . . interstate air\\n\\ntransportation.” Id. § 40102(a)(5). “‘[I]nterstate air transportation’ means the\\n\\n\\n\\n 10\\n\\ftransportation of passengers . . . by aircraft as a common carrier for compensation”\\n\\nbetween two states. Id. § 40102(a)(25).\\n\\n The ADA’s pre-emption provision “expresses a ‘broad pre-emptive purpose.’”\\n\\nNorthwest, Inc. v. Ginsberg, 572 U.S. 273, 280 (2014) (quoting Morales, 504 U.S. at\\n\\n383). It applies to “provision[s] having the force and effect of law related to a price . . .\\n\\nof an air carrier that may provide air transportation,” 49 U.S.C. § 41713(b)(1) (emphasis\\n\\nadded), which includes “interstate air transportation,” id. § 40102(a)(5). “[M]ay” means\\n\\n“[t]o be permitted to.” May, Black’s Law Dictionary (10th ed. 2014). Defendants are\\n\\npermitted to provide interstate air transportation because they have been certified to do so\\n\\nby the Department of Transportation, pursuant to 49 U.S.C. § 41101 and 14 C.F.R.\\n\\n§ 298.1. Therefore, Defendants “may provide” interstate flights.\\n\\n Even though Defendants “may provide air transportation,” the Scarlett Plaintiffs\\n\\nargue that Defendants are not “air carriers” because they also provide intrastate flights.\\n\\nBut the definition of “air carrier” is expansive and encompasses companies that provide\\n\\nboth intrastate and interstate flights. A company is an air carrier when it is “undertaking\\n\\nby any means, directly or indirectly, to provide air transportation.” 49 U.S.C.\\n\\n§ 40102(a)(2) (emphasis added). To “undertake” means “[t]o take on an obligation or\\n\\ntask.” Undertake, Black’s Law Dictionary (10th ed. 2014). Defendants have obtained\\n\\nthe necessary certifications to provide interstate flights and, in fact, do provide interstate\\n\\nflights. Under the plain meaning of § 40102(a)(2), Defendants have undertaken to\\n\\nprovide air transportation.\\n\\n\\n\\n 11\\n\\f Finally, the Scarlett Plaintiffs argue that we should analyze whether Defendants\\n\\nare air carriers on a flight-by-flight basis. The Scarlett Plaintiffs point to nothing in the\\n\\ntext or structure of the ADA that would indicate such an approach is appropriate.\\n\\nAllowing states to regulate the prices of intrastate flights would have far-reaching effects,\\n\\nincluding in the commercial air travel market. Under the Scarlett Plaintiffs’\\n\\nunderstanding of the ADA, even commercial airlines that primarily provide international\\n\\nand interstate flights would be subject to regulation in each state where they provide\\n\\nintrastate flights. Such an outcome, in which states could exert substantial regulatory\\n\\npower over airlines, is inconsistent with Congress’s stated goal of deregulating air travel\\n\\nand leaving regulation to “competitive market forces.” Morales, 504 U.S. at 378.\\n\\nTherefore, the district court correctly found that Defendants may raise the ADA’s\\n\\npre-emption provision as a defense.\\n\\n III\\n\\n The central issue on appeal is whether Plaintiffs’ claims are pre-empted by the\\n\\nADA. “[P]re[-]emption [is] a legal issue subject to de novo review.” Cerveny v. Aventis,\\n\\nInc., 855 F.3d 1091, 1096 (10th Cir. 2017). Under the ADA, “a State . . . may not enact\\n\\nor enforce a law, regulation, or other provision having the force and effect of law related\\n\\nto a price, route, or service of an air carrier that may provide air transportation under this\\n\\nsubpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has “recognized that the key\\n\\nphrase [in § 41713(b)(1),] ‘related to[,]’ expresses a ‘broad pre-emptive purpose.’”\\n\\nGinsberg, 572 U.S. at 280 (quoting Morales, 504 U.S. at 383). Accordingly, the Court\\n\\nhas “held that a claim ‘relates to rates, routes, or services,’ within the meaning of the\\n\\n 12\\n\\fADA, if the claim ‘has a connection with, or reference to, airline rates, routes, or\\n\\nservices.’” Id. (alterations omitted) (quoting Morales, 504 U.S. at 384).\\n\\n Shortly after noting the breadth of the ADA’s pre-emption provision, the Supreme\\n\\nCourt recognized an exception in American Airlines, Inc. v. Wolens, 513 U.S. 219\\n\\n(1995)—“the ADA pre-emption provision” does not bar “breach-of-contract claims”\\n\\nagainst airlines. Ginsberg, 572 U.S. at 281. “‘Terms and conditions airlines offer and\\n\\npassengers accept,’ [the Court explained], ‘are privately ordered obligations and thus do\\n\\nnot amount to a State’s enactment or enforcement of any law, rule, regulation, standard,\\n\\nor other provision having the force and effect of law within the meaning of the ADA pre-\\n\\nemption provision.’” Id. (alterations omitted) (quoting Wolens, 513 U.S. at 228–29).\\n\\n The Court clarified the scope of the Wolens exception in Ginsberg. At issue in\\n\\nGinsberg was whether the ADA pre-empted a claim that an airline violated an implied\\n\\ncovenant of good faith and fair dealing. Id. at 285. The Court explained that “common-\\n\\nlaw rules fall comfortably within the language of the ADA pre-emption provision”\\n\\nbecause “common-law rule[s] clearly ha[ve] ‘the force and effect of law.’” Id. at 281–82\\n\\n(quoting 49 U.S.C. § 41713(b)(1)). The good faith and fair dealing claim at issue in\\n\\nGinsberg was pre-empted for two independent reasons—the applicable state law did not\\n\\nallow private parties to contract around the covenant, and the state law applied for policy\\n\\nreasons. Id. at 286–88. In reaching this holding, the Court left us with two rules. First,\\n\\n“[w]hen the law of a State does not authorize parties to free themselves from [a]\\n\\ncovenant, a breach of covenant claim is pre-empted under the reasoning of Wolens.” Id.\\n\\nat 287. Second, “[w]hen the application of [an] implied covenant depends on state\\n\\n 13\\n\\fpolicy, a breach of implied covenant claim cannot be viewed as simply an attempt to\\n\\nvindicate the parties’ implicit understanding of the contract.” Id. at 288.\\n\\n Therefore, to survive the ADA’s pre-emption provision, a claim that has a\\n\\nconnection to the price of an air carrier’s service must satisfy Wolens and Ginsberg. The\\n\\nparties do not dispute that Plaintiffs’ claims relate to the price of Defendants’ air\\n\\nambulance services. This appeal therefore turns on whether Plaintiffs’ claims satisfy\\n\\nWolens and Ginsberg. Though the claims raised by the Scarlett Plaintiffs and those\\n\\nraised by the Cowen Plaintiffs are not identical, for purposes of our analysis, there are\\n\\nthree types of claims at issue on appeal. First, all Plaintiffs allege that they formed\\n\\nimplied contracts with Defendants for the provision of air ambulance services. Plaintiffs\\n\\nfurther allege that Defendants have breached these contracts by charging more than the\\n\\nreasonable value of the air ambulance services. Second, in the alternative, all Plaintiffs\\n\\nseek a declaration that there are no enforceable contracts between Plaintiffs and\\n\\nDefendants because the parties never agreed on a price for the air ambulance services.\\n\\nThird, all Plaintiffs allege that Defendants have been unjustly enriched by collecting\\n\\nmore than the reasonable value of their air ambulance services.\\n\\n Before discussing whether Plaintiffs’ claims survive the ADA’s pre-emption\\n\\nprovision, we address the government’s arguments about the impact of Dan’s City Used\\n\\nCars, Inc. v. Pelkey, 569 U.S. 251 (2013), on the analytical framework established in\\n\\nWolens and Ginsberg. In Dan’s City, the Supreme Court was faced with the question of\\n\\nwhether the Federal Aviation Administration Authorization Act of 1994 (FAAAA)\\n\\n“pre[-]empts a vehicle owner’s state-law claims against a towing company regarding the\\n\\n 14\\n\\fcompany’s post-towing disposal of the vehicle.” 569 U.S. at 259. The FAAAA’s\\n\\npre-emption provision generally “tracks the ADA’s air-carrier pre[-]emption provision,”\\n\\nbut its reach is “massively limit[ed]” because it only applies to claims related to “the\\n\\ntransportation of property.” Id. at 261 (quotation marks omitted).\\n\\n The towing company in Dan’s City towed the plaintiff’s car. Id. at 258. When the\\n\\nplaintiff did not promptly claim his car, the towing company sold it, retaining the\\n\\nproceeds as payment for towing and storing the car. Id. State law permitted the towing\\n\\ncompany’s actions, subject to certain conditions. Id. at 257–58. The plaintiff sued the\\n\\ntowing company, alleging that the towing company failed to comply with the statutory\\n\\nconditions necessary to lawfully sell his car. Id. at 259. The plaintiff’s claims were\\n\\ndismissed as pre-empted by the FAAAA. Id. The Supreme Court held that the claims\\n\\nshould have been allowed to proceed. Id. at 261.\\n\\n The towing company argued that its actions were “related to [its] towing service,”\\n\\nand therefore pre–empted, because “selling [the plaintiff’s] car was the means by which\\n\\n[the towing company] obtained payment for the tow.” Id. at 265 (quotation marks\\n\\nomitted). The Court rejected this argument because the towing company was trying to\\n\\n“have it both ways.” Id. The towing company “c[ould not] rely on [the state’s]\\n\\nregulatory framework as authorization for the sale of [the plaintiff’s] car, yet argue that\\n\\n[the plaintiff’s] claims, invoking the same state-law regime, are pre[-]empted.” Id.\\n\\nAdopting the towing company’s argument “would . . . leave vehicle owners without any\\n\\nrecourse for damages [and] it would eliminate the sole legal authorization for a towing\\n\\ncompany’s disposal of stored vehicles that go unclaimed.” Id. There would be “no law\\n\\n 15\\n\\f[to] govern resolution of a non-contract-based dispute arising from a towing company’s\\n\\ndisposal of a vehicle previously towed or afford a remedy for wrongful disposal.” Id.\\n\\nThe Court did not think that “such [a] design c[ould] be attributed to a rational\\n\\nCongress.” Id.\\n\\n Relying on Dan’s City, the government argues that “if [D]efendants rely on state\\n\\nequitable principles as the basis for their compensation, they cannot at the same time\\n\\nprevent [P]laintiffs from relying on those same principles to argue that [D]efendants’\\n\\ncharges are unreasonable.” Gov’t Br. at 21–22. The government’s argument appeals to a\\n\\nsense of fairness and reason, but its sweeping scope goes unacknowledged. Just one year\\n\\nafter deciding Dan’s City, the Court held that the ADA pre-empts implied common law\\n\\nclaims that attempt to vindicate “community standards of decency, fairness, or\\n\\nreasonableness.” Ginsberg, 572 U.S. at 286 (quotation marks omitted). We need not\\n\\nattempt to rationalize the government’s interpretation of Dan’s City with the Court’s\\n\\nsubsequent holding in Ginsberg at this time because the premise of the government’s\\n\\nargument is flawed.\\n\\n Defendants argued in the district court that Plaintiffs have “a contractual\\n\\nobligation to pay for the air carrier services they received.” App. Vol. IV at 626 n.2\\n\\n(emphasis added). The district court understood Defendants to argue that Plaintiffs have\\n\\na contractual obligation to pay, though the district court also recognized that “Defendants,\\n\\nfor their part, never explain what kind of agreement they think exists.” App. Vol. V at\\n\\n857. The Scarlett Plaintiffs similarly understood “Defendants [to] have repeatedly\\n\\ninvoked . . . state court jurisdiction to determine their right to recover [from Plaintiffs]\\n\\n 16\\n\\funder contract theories.” App. Vol. IV at 594. The Cowen Plaintiffs believe Defendants\\n\\n“have initiated collection efforts . . . to recover their contract rate/charged amount.” Id. at\\n\\n608. Even the government understood Defendants “not [to] dispute . . . that [Plaintiffs]\\n\\nhave a contractual obligation to pay.” App. Vol. V. at 809 (quotation marks omitted).\\n\\nBut at oral argument, Defendants argued that Plaintiffs’ obligation to pay arises under\\n\\nquantum meruit or a contract implied-in-law, which are equitable theories. Oral\\n\\nArgument at 32:57–41:29.\\n\\n We will not base our analysis on an argument first made at oral argument.\\n\\nAdamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 (10th Cir. 2016).\\n\\nAdmittedly, it is confusing (and at least a little concerning) that Defendants have filed\\n\\nlawsuits in state court to collect payments allegedly owed without a consistent legal\\n\\ntheory of why Plaintiffs owe them money.3 But the merits of Defendants’ state court\\n\\nclaims against Plaintiffs are not before us in this appeal. If Defendants in fact rely on\\n\\nequitable principles in their state court lawsuits against Plaintiffs, Plaintiffs remain free to\\n\\nraise Dan’s City and argue that Defendants are trying to have it both ways.\\n\\n But for the purpose of this appeal, all parties proceeded in the district court based\\n\\non Defendants’ representation that they believe Plaintiffs “have a contractual obligation\\n\\nto pay for the air carrier services they received.” App. Vol. IV 626 n.2. We rely on that\\n\\nrepresentation and conclude that Dan’s City is inapplicable. When Defendants proceed\\n\\n\\n 3\\n During oral argument on their motions to dismiss, the district court asked\\nDefendants, “Why do [Plaintiffs] owe you money?” App. Vol. IV at 699.\\nDefendants responded, “[I]t could be an express contract. It could be a contract\\nimplied in fact. It could be a contract implied in law.” Id. at 700–01.\\n 17\\n\\fin state court on contractual claims and argue, in this court, that we apply the pre-emption\\n\\nprinciples from Wolens and Ginsberg, we are not faced with a situation in which “the\\n\\npre[-]emption urged by [Defendants] . . . would eliminate the sole legal authorization” for\\n\\nDefendants’ actions in state court. Dan’s City, 569 U.S. at 265. Just the opposite.\\n\\nWolens and Ginsberg hold that a standard breach of contract claim is not pre-empted by\\n\\nthe ADA. Ginsberg, 572 U.S. at 281, 286–88.\\n\\n Accordingly, we now analyze whether Plaintiffs’ claims are pre-empted under\\n\\nWolens and Ginsberg.\\n\\n\\n\\n\\nA. Breach of Implied Contract\\n\\n All Plaintiffs allege that Defendants have breached implied contractual\\n\\nrelationships with them by charging more than the reasonable value of their air\\n\\nambulance services.4 While the Scarlett Plaintiffs allege that these implied contracts\\n\\narise under state common law, the Cowen Plaintiffs allege that the implied contracts arise\\n\\nunder federal common law. Because no federal common law exists to “resolv[e] . . . the\\n\\n\\n 4\\n In their briefing on appeal, the Scarlett Plaintiffs argue that they also alleged\\nthe existence of express contracts between themselves and Defendants. Scarlett Aplt.\\nReply Br. at 4. But, in their operative complaint, the Scarlett Plaintiffs only assert a\\nclaim for “Breach of Implied Contract.” App. Vol. III at 389. In that claim, the\\nScarlett Plaintiffs allege that they “did not enter into either a written or oral\\nagreement or [agree on] specific terms” with Defendants. Id. at 390. The Scarlett\\nPlaintiffs cannot now attempt to amend their claim to allege a breach of express\\ncontract.\\n\\n (continued . . .)\\n 18\\n\\frange of contract claims relating to airline rates,” Wolens, 513 U.S. at 232, the district\\n\\ncourt correctly dismissed the Cowen Plaintiffs’ breach of implied contract claim for\\n\\nfailure to state a claim. Therefore, we confine our discussion to the Scarlett Plaintiffs’\\n\\nclaim under state common law.\\n\\n As the district court recognized, there are three types of contracts: express,\\n\\nimplied-in-fact, and implied-in-law.5 Hercules, Inc. v. United States, 516 U.S. 417, 423–\\n\\n24 (1996). “An agreement implied in fact is ‘founded upon a meeting of minds, which,\\n\\nalthough not embodied in an express contract, is inferred, as a fact, from conduct of the\\n\\nparties showing, in the light of the surrounding circumstances, their tacit understanding.’”\\n\\nHercules, 516 U.S. at 424 (quoting Baltimore & Ohio R.R. v. United States, 261 U.S.\\n\\n592, 597 (1923)). “By contrast, an agreement implied in law is a ‘fiction of law’ where\\n\\n‘a promise is imputed to perform a legal duty, as to repay money obtained by fraud or\\n\\nduress.’” Id. (quoting Baltimore & Ohio R.R., 261 U.S. at 597).\\n\\n\\n\\n\\n 5\\n The Restatement of Contracts draws the same distinctions. “Contracts are\\noften spoken of as express or implied. The distinction involves, however, no\\ndifference in legal effect, but lies merely in the mode of manifesting assent.”\\nRestatement (Second) of Contracts § 4 cmt. a (1981) (Am. Law Inst., updated 2019).\\n“As opposed to the inferred from fact (‘implied in fact’) contract, the ‘implied in law’\\nquasi-contract is no contract at all, but a form of the remedy of restitution.” Id. § 4,\\nnote, cmt. b. “Quasi-contracts have often been called implied contracts or contracts\\nimplied in law; but, unlike true contracts, quasi-contracts are not based on the\\napparent intention of the parties to undertake the performances in question, nor are\\nthey promises. They are obligations created by law for reasons of justice.” Id. § 4\\ncmt. b.\\n\\n (continued . . .)\\n 19\\n\\f The state law relevant to each plaintiff’s claim draws a similar distinction between\\n\\nexpress or implied-in-fact contracts (which are formed upon the mutual assent of the\\n\\nparties) and implied-in-law contracts (which courts enforce when there was no mutual\\n\\nassent).6 The Scarlett Plaintiffs argue that they formed implied contracts with\\n\\nDefendants, even though they never agreed on a price. But the Scarlett Plaintiffs do not\\n\\nspecify whether they have formed implied-in-law or implied-in-fact contracts. The\\n\\ndistinction is critical for our pre-emption analysis because breach of contract claims\\n\\npremised on implied-in-law contracts are necessarily pre-empted for lack of mutual\\n\\nassent. Enforcing an implied-in-law contract “cannot be viewed as simply an attempt to\\n\\nvindicate the parties’ implicit understanding of the contract,” Ginsberg, 572 U.S. at 288,\\n\\nbecause an implied-in-law contract is an “obligation[] created by law for reasons of\\n\\njustice,” Restatement (Second) of Contracts § 4 cmt. b.\\n\\n\\n\\n\\n 6\\n See Turfgrass Grp., Inc. v. Ga. Cold Storage Co., 816 S.E.2d 716, 720 (Ga.\\nCt. App. 2018); Ward v. Ward, 797 S.E.2d 525, 529 (N.C. Ct. App. 2017); Rogers v.\\nWright, 2016 WY 10, ¶ 45, 366 P.3d 1264, 1278 (Wyo. 2016); Allegro, Inc. v. Scully,\\n791 S.E.2d 140, 145–46 (S.C. 2016); Fortula v. Univ. of Kentucky, 438 S.W.3d 303,\\n308–09 (Ky. 2014); Stacey v. Peed, 142 So. 3d 529, 531 (Ala. 2013); City of\\nScottsbluff v. Waste Connections of Neb., Inc., 809 N.W.2d 725, 737–38 (Neb. 2011);\\nZoeller v. E. Chi. Second Century, Inc., 904 N.E.2d 213, 220–21 (Ind. 2009); Mann\\nFrankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 850 (Tex. 2009);\\nMacsuga v. Moreno, 2003 OK 24, ¶ 19, 66 P.3d 409, 413; Kaiser Invs., Inc. v. Linn\\nAgriprises, Inc., 538 So. 2d 409, 413–14 (Miss. 1989); Jezmura v. Jezmura, 330\\nN.E.2d 414, 420 (N.Y. 1975); Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13\\n(Fla. 1973); Lach v. Fleth, 64 A.2d 821, 826 (Pa. 1949); Bailey v. Interstate\\nAirmotive, 219 S.W.2d 333, 338 (Mo. 1949); Cascaden v. Magryta, 225 N.W. 511,\\n512 (Mich. 1929).\\n (continued . . .)\\n 20\\n\\f Conversely, a breach of contract claim premised on an implied-in-fact contract\\n\\ncould survive the ADA’s pre-emption provision. Two questions are critical to the\\n\\ninquiry.7 The first is whether the relevant state law allows the parties to contract around\\n\\nthe implied price term. Ginsberg, 572 U.S. at 286–88. The second is whether the\\n\\nimplied price term is “use[d] . . . to effectuate [the] intentions of the parties or to protect\\n\\ntheir reasonable expectations, . . . [or] to ensure that a party does not violate community\\n\\nstandards of decency, fairness, or reasonableness.” Id. at 286 (quotation marks and\\n\\ncitations omitted). If the parties can contract around the implied price term and the\\n\\nimplied price term “effectuate[s] the intentions of [the] parties or . . . protect[s] their\\n\\nreasonable expectations,” then the claim is not pre-empted. Id. at 286–88; see also\\n\\nSchneberger, 749 F. App’x at 678 (explaining that the Wolens “exception applies to\\n\\ncommon-law contract doctrines but only insofar as the doctrines serve ‘to effectuate the\\n\\nintentions of parties or to protect their reasonable expectations’” (quoting Ginsberg, 572\\n\\nU.S. at 286)). A court could then supply an implied price term consistent with the\\n\\nparties’ agreement when the implied-in-fact contract was formed. But if the claim fails\\n\\n\\n 7\\n We do not address the equally important question of whether, under the\\nsubstantive state law applicable to a plaintiff’s claim, two parties can form an\\nimplied-in-fact contract without agreeing on a price. See Restatement (Second) of\\nContracts § 33 cmt. a (1981) (Am. Law Inst., updated 2019) (“[T]he actions of the\\nparties may show conclusively that they have intended to conclude a binding\\nagreement, even though one or more terms are missing or are left to be agreed upon.\\nIn such cases courts endeavor, if possible, to attach a sufficiently definite meaning to\\nthe bargain.”); id. § 33 cmt. e (discussing the circumstances under which an\\nindefinite price term will defeat contract formation). If the state law relevant to a\\nplaintiff’s claim does not recognize an implied-in-fact contract without agreement on\\na price, then the plaintiff’s allegation would fall short, not because it is pre–empted,\\nbut for failure to state a claim.\\n 21\\n\\feither requirement, it is pre-empted. Ginsberg, 572 U.S. at 287–88 (explaining that each\\n\\nrequirement is an “independent basis” for pre-emption).\\n\\n The district court found that “[t]he facts in this case do not give rise to an\\n\\nimplied-in-fact contract” because the Scarlett “Plaintiffs have not alleged any meeting of\\n\\nthe minds or conduct between the parties by which [it] . . . could infer that they had an\\n\\nagreement.” App. Vol. V at 858. Therefore, the district court “understood [the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim] as a request that [it] . . . invoke state law that\\n\\nimplies an obligation to pay for a service . . . to achieve equity and avoid injustice”—\\n\\nessentially “a contract implied in law.” Id. Because the district court found that the\\n\\nScarlett Plaintiffs relied on implied-in-law contracts, the district court dismissed their\\n\\nbreach of implied contract claim as pre-empted by the ADA. Id. at 858–59. In effect, the\\n\\ndistrict court made two findings. First, the district court found that the Scarlett Plaintiffs\\n\\nfail to allege the existence of any implied-in-fact contracts. Second, the district court\\n\\nfound that, insofar as the Scarlett Plaintiffs’ claim relies on implied-in-law contracts, the\\n\\nclaim is pre-empted by the ADA.\\n\\n On appeal, the Scarlett Plaintiffs do not contest the second finding, that claims\\n\\nbased on implied-in-law contracts are pre-empted by the ADA. Rather, the Scarlett\\n\\nPlaintiffs focus on the district court’s first finding and argue that some of those\\n\\ntransported by Defendants “may have entered implied-in-fact contracts by expressly\\n\\nstating a desire to be transported because many of them were possessed of their faculties\\n\\n\\n\\n\\n 22\\n\\fat the time of transport.”8 Scarlett Aplt. Br. at 16. But this allegation—that the Scarlett\\n\\nPlaintiffs “stat[ed] a desire to be transported” and therefore entered into an\\n\\nimplied-in-fact contract—does not appear in the Scarlett Plaintiffs’ complaint.\\n\\n To the contrary, the Scarlett Plaintiffs allege that “[p]rior to Defendants’\\n\\nundertaking to provide air ambulance transport services, no negotiation of contract terms\\n\\ntook place and Plaintiffs and Defendants did not enter into either a written or oral\\n\\nagreement or [agree on] specific terms.” App. Vol. III at 390. Moreover, in their\\n\\nopposition to Defendants’ motion to dismiss, the Scarlett Plaintiffs argued that “[it] is\\n\\nundisputed Defendants transport patients with no . . . prior mutual assent to [the] terms of\\n\\nthe transport . . . due to exigent circumstances.” App. Vol. IV at 589. The Scarlett\\n\\nPlaintiffs cannot now argue that the district court erred in agreeing with a proposition that\\n\\nthey themselves presented as undisputed. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d\\n\\n1225, 1229–30 (10th Cir. 2003) (explaining that invited error doctrine prohibits a party\\n\\nfrom making an argument in district court and later “advocating a contrary position on\\n\\nappeal”).\\n\\n\\n\\n\\n 8\\n In their Reply Brief, the Scarlett Plaintiffs argue that “[m]ultiple named\\nplaintiffs alleged execution of a written ‘Authorization and Consent’ form contract\\nprovided by Defendants prior to transport, in which they promised to ‘be personally\\nand fully responsible for payment of [Defendants’] charges,’ though the form\\ncontract gave no disclosure of what those charges might be.” Scarlett Aplt. Reply Br.\\nat 4. Setting aside the fact that this argument contradicts the allegation in the Scarlett\\nPlaintiffs’ complaint that they “did not enter into . . . written . . . agreement[s]” with\\nDefendants, App. Vol. III at 390, we have previously explained that the Scarlett\\nPlaintiffs do not assert a claim for breach of express contract. The Scarlett Plaintiffs\\nonly allege a claim for breach of implied contract. Id. at 389.\\n 23\\n\\f Even if we were to look past the inconsistent positions taken by the Scarlett\\n\\nPlaintiffs here and in the district court, their one sentence argument about the creation of\\n\\nimplied-in-fact contracts would not warrant reversal given the fact-intensive inquiry\\n\\nrequired to determine whether an implied-in-fact contract was formed. The Scarlett\\n\\nPlaintiffs’ argument is accompanied by a single citation to the record and no citation to\\n\\napplicable state contract law, which does not sufficiently support its argument that it\\n\\nadequately alleged the existence of implied-in-fact contracts. See id. at 1232 (explaining\\n\\nthat “superficial argument [wa]s insufficient to garner appellate review,” in part because\\n\\nthe party did “not offer[] any record citations or legal authority in support of its\\n\\nargument”). Therefore, we will not disturb the district court’s dismissal of the Scarlett\\n\\nPlaintiffs’ breach of implied contract claim.\\n\\nB. Declaratory Judgment Regarding Existence of Enforceable Contracts\\n\\n All Plaintiffs seek declarations that they have no contractual obligation to pay\\n\\nDefendants’ bills because they never agreed on a price for Defendants’ air ambulance\\n\\nservices. The district court dismissed the claims for relief under the Declaratory\\n\\nJudgment Act, 28 U.S.C. § 2201, as pre-empted by the ADA. The Scarlett Plaintiffs do\\n\\nnot discuss their declaratory judgment claim in their briefing on appeal and have\\n\\ntherefore abandoned the issue. Stender v. Archstone-Smith Operating Tr., 910 F.3d 1107,\\n\\n1117 (10th Cir. 2018). In contrast, the Cowen Plaintiffs raise the issue on appeal and\\n\\nargue that their claim for declaratory judgment is not pre-empted because there is a ripe\\n\\ncontroversy about the existence of a contractual relationship. Defendants argue that “the\\n\\ndistrict court was correct to dismiss” Plaintiffs’ declaratory judgment claims because they\\n\\n 24\\n\\frelied on “contract theories . . . to impose price terms on” Defendants. Aple. Br. at 27.\\n\\nDefendants maintain that the district court did not need to decide whether “the parties . . .\\n\\nenter[ed] into any enforceable contracts” to “dispos[e] of [the Cowen Plaintiffs’] claims.”\\n\\nId. at 43. But Defendants misstate and misinterpret the relief that the Cowen Plaintiffs\\n\\nseek, at least with respect to the declaration that no contracts were formed.9\\n\\n As previously discussed, the district court can enforce contractual “terms and\\n\\nconditions . . . offer[ed by Defendants] and . . . accept[ed]” by Plaintiffs without running\\n\\nafoul of the ADA’s pre-emption provision. Ginsberg, 572 U.S. at 281 (alteration\\n\\nomitted) (quoting Wolens, 513 U.S. at 228–29). To enforce a contract, a court must first\\n\\nconfirm that a contract exists. Defendants have offered no reason why a court that can\\n\\nenforce a contract would be prohibited from “declar[ing] the rights and other legal\\n\\nrelations” arising from a contractual relationship, or lack thereof. 28 U.S.C. § 2201.\\n\\nThough “[t]he Declaratory Judgment Act does not extend the jurisdiction of federal\\n\\ncourts[,] it [does] enlarge[] the range of remedies available.” Prier v. Steed, 456 F.3d\\n\\n1209, 1212 (10th Cir. 2006) (quotation marks and alterations omitted).\\n\\n\\n\\n\\n 9\\n Three paragraphs of the Cowen Plaintiffs’ declaratory judgment claim relate\\nto contract formation. The Cowen Plaintiffs seek the following declarations: that\\n“Defendants and Plaintiffs . . . did not enter into any express contracts for Plaintiffs\\n. . . to pay the amounts charged by the Defendants for the transportation services it\\nprovided;” that “Defendants have engaged in collection efforts against Plaintiffs . . .\\nfor amounts that Plaintiffs . . . did not expressly agree to pay;” and that “Defendants\\nhave engaged in collection efforts against Plaintiffs . . . for amounts concerning\\nwhich there was no mutual assent manifest by the Plaintiffs . . . prior to the rendering\\nof the services charged for.” App. Vol. II at 314.\\n 25\\n\\f Therefore, the ADA does not prohibit a court from declaring that, because the\\n\\nparties never agreed on a price, no express or implied-in-fact contracts were formed. To\\n\\nenter such a declaration, a court would only need to examine whether there was the\\n\\nnecessary mutual assent to form a contract. See Data Mfg., Inc. v. United Parcel Serv.,\\n\\nInc., 557 F.3d 849, 854 (8th Cir. 2009) (“Under Wolens, the issue of whether [a plaintiff]\\n\\nagreed to [a] fee as part of its contract with [a defendant] reads . . . like a . . . claim solely\\n\\nbetween the parties that does not derive from the enactment or enforcement of state\\n\\nlaw.”); Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 289–90 (5th Cir. 2002)\\n\\n(holding that defendant could raise fraudulent inducement as defense in breach of\\n\\ncontract action without offending the ADA’s pre-emption provision because “fraudulent\\n\\nconduct precludes the requisite mutual assent”); United Airlines, Inc. v. Mesa Airlines,\\n\\nInc., 219 F.3d 605, 609 (7th Cir. 2000) (“When all a state does is . . . determine whether\\n\\nagreement was reached, or whether instead one party acted under duress, it transgresses\\n\\nno federal rule.”); cf. Ferrell v. Air EVAC EMS, Inc., 900 F.3d 602, 608 (8th Cir. 2018)\\n\\n(holding that ADA pre-empted claim for declaration that no contract existed between an\\n\\nair ambulance company and a patient because it was “not a contract-based claim” “as\\n\\npleaded” given that it was “asserted on a class-wide basis, independent of the relationship\\n\\nbetween an air-ambulance operator and a particular patient”).\\n\\n Accordingly, the district court erred in interpreting the Cowen Defendants’\\n\\ndeclaratory judgment claim narrowly—to seek only a declaration that “federal common\\n\\nlaw is applicable,” App. Vol. V at 865—and then finding that the claim was pre-empted.\\n\\nOn remand, the district court can examine each of the Cowen Plaintiffs’ allegations under\\n\\n 26\\n\\fthe applicable state law to determine whether an express or implied-in-fact contract was\\n\\nformed.\\n\\nC. Claims for Unjust Enrichment\\n\\n Neither set of Plaintiffs adequately challenges the district court’s dismissal of their\\n\\nunjust enrichment claims. The Scarlett Plaintiffs do not mention unjust enrichment in\\n\\ntheir Opening or Reply Briefs and have therefore abandoned the issue. Stender, 910 F.3d\\n\\nat 1117. The Cowen Plaintiffs, perplexingly, argue that their unjust enrichment claim\\n\\nsurvives pre-emption because “unjust enrichment is an equitable doctrine that only\\n\\napplies if there is no contract.” Cowen Aplt. Br. at 39. The ADA’s pre-emption\\n\\nprovision prohibits courts from imposing an equitable remedy in the absence of a contract\\n\\nbecause the remedy would reflect the court’s policy judgments, not the parties’ mutual\\n\\nassent. Wolens, 513 U.S. at 232–33. Therefore, the district court did not err when\\n\\ndismissing the Cowen Plaintiffs’ unjust enrichment claim as pre-empted by the ADA.\\n\\n Before moving on from our pre-emption analysis, we reiterate that “[t]here is\\n\\ncertainly some persuasive force to the . . . argument that federal pre[-]emption of state\\n\\nregulations in this field is not serving the congressional purpose of furthering efficiency,\\n\\ninnovation, and low prices that was a motivating force behind the” ADA. EagleMed, 868\\n\\nF.3d at 903 (quotation marks and alteration omitted).\\n\\n Due to the [ADA’s] broad pre[-]emption provision, states have been\\n unable to prevent air ambulance service providers from imposing\\n exorbitant fees on patients who wrongly assume their insurance will\\n cover the charges and are not in a position to discover otherwise or\\n engaging in other unscrupulous pricing behaviors that would not be\\n sustainable in a true free market but are easily perpetuated in the\\n warped market of air-ambulance services.\\n\\n 27\\n\\fId. (quotation marks and ellipsis omitted). But as we have explained before, “[a]ny\\n\\ndeficiency in the plain language of the [ADA] or the scope of its coverage must be\\n\\ncorrected by Congress, not this court.” Id. at 904.\\n\\n We also note that, though the ADA limits patients’ abilities to challenge the prices\\n\\ncharged by air ambulance companies, patients are not without recourse. As just\\n\\ndiscussed, once an air ambulance company asserts that a patient has a contractual\\n\\nobligation to pay his bill, that patient can sue for declaratory relief to confirm that he is so\\n\\nobligated. If an air ambulance company has breached a contractual duty owed to one of\\n\\nits patients, that patient can sue for breach of contract. And individuals might be\\n\\nprotected against improper debt collection methods by the Fair Debt Collection Practices\\n\\nAct, 15 U.S.C. §§ 1692–1692p, or an analogous state statute.\\n\\n Finally, “Congress has given the Department of Transportation (DOT) the general\\n\\nauthority to prohibit and punish unfair and deceptive practices in air transportation and in\\n\\nthe sale of air transportation.” Ginsberg, 572 U.S. at 288–89 (referring to 49 U.S.C.\\n\\n§ 41712(a)). Just this past fall, Congress expanded the DOT’s authority to regulate air\\n\\nambulances. FAA Reauthorization Act of 2018, Pub. L. No. 115-254, 132 Stat. 3186.\\n\\nUnder the new law, the DOT “shall review aviation consumer complaints received that\\n\\nallege a violation of law and, as appropriate, pursue enforcement or corrective actions\\n\\nthat would be in the public interest.” Id. at 3337. “In considering which cases to pursue\\n\\nfor enforcement or corrective action . . . the [DOT] shall consider” “unfair and deceptive\\n\\npractices by air carriers (including air ambulance operators),” “the terms and conditions\\n\\n\\n 28\\n\\fagreed to between passengers and air carriers (including air ambulance operators),” and\\n\\nthe “protection of air ambulance consumers.” Id.\\n\\n IV\\n\\n The Scarlett Plaintiffs allege that “the ADA is unconstitutional as applied to air\\n\\nambulance carriers and their patients,” App. Vol. III at 394, because the ADA violates the\\n\\nprocedural and substantive components of the Due Process Clause of the Fifth\\n\\nAmendment, id. at 395–96. We “review[] a challenge to the constitutionality of a statute\\n\\nde novo.” Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir. 2008)\\n\\n(emphasis omitted).\\n\\n Plaintiffs argue that the ADA violates the procedural component of the Due\\n\\nProcess Clause of the Fifth Amendment by depriving them of a “state law cause of action\\n\\nto contest the price [of air ambulance services that] Defendants seek to impose.” Scarlett\\n\\nAplt. Br. at 32. “To assess whether an individual was denied procedural due process,\\n\\ncourts must engage in a two-step inquiry: (1) did the individual possess a protected\\n\\ninterest such that the due process protections were applicable; and, if so, then (2) was the\\n\\nindividual afforded an appropriate level of process.” Guttman v. Khalsa, 669 F.3d 1101,\\n\\n1113–14 (10th Cir. 2012) (quotation marks omitted). Plaintiffs’ procedural due process\\n\\nclaim fails at the first step because “a person has no property, no vested interest, in any\\n\\nrule of the common law.” Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438 U.S.\\n\\n59, 88 n.32 (1978) (alteration omitted) (quoting Second Emp’rs’ Liab. Cases, 223 U.S. 1,\\n\\n50 (1912)). “The Constitution does not forbid the creation of new rights, or the abolition\\n\\nof old ones recognized by the common law, to attain a permissible legislative object,\\n\\n 29\\n\\fdespite the fact that otherwise settled expectations may be upset thereby.” Id. (quotation\\n\\nmarks and citations omitted). And, as just discussed, Plaintiffs have various avenues for\\n\\nchallenging their obligation to pay Defendants’ bills, undermining Plaintiffs’ allegations\\n\\nthat the ADA has deprived them of a way to “contest the price” of Defendants’ services.\\n\\n The Scarlett Plaintiffs argue the ADA violates the substantive component of the\\n\\nFifth Amendment’s Due Process Clause because, while the ADA was meant to lower\\n\\nprices for air travel, prices for air ambulance services have “skyrocket[ed].” Scarlett\\n\\nAplt. Br. at 37. Plaintiffs have not alleged a substantive due process violation because\\n\\nthe “protection against economic legislation interfering with property interests . . . is\\n\\nseverely limited.” KT&G Corp. v. Attorney Gen., 535 F.3d 1114, 1142 (10th Cir. 2008).\\n\\n To comport with the limited scope of substantive due process\\n protection, economic legislation need only be rationally related to a\\n legitimate government interest. Under rational basis review,\\n therefore, there is no need for mathematical precision in the fit\\n between justification and means, and the law need not be in every\\n respect logically consistent with its aims to be constitutional. It is\\n enough that there is an evil at hand for correction, and that it might\\n be thought that the particular legislative measure was a rational way\\n to correct it. Moreover, economic legislation comes to the Court\\n with a presumption of constitutionality, and the burden is on one\\n complaining of a due process violation to establish that the\\n legislature has acted in an arbitrary and irrational way. Thus, it is\\n difficult to exaggerate the burden that a party must overcome to\\n demonstrate that economic legislation fails rational basis review.\\n\\nId. (quotation marks omitted).\\n\\n The parties agree that, as intended by Congress when it deregulated the air travel\\n\\nindustry by passing the ADA, the price of most air travel has fallen. That the ADA did\\n\\nnot cause its desired effect in all corners of the air travel industry does not render the\\n\\n\\n 30\\n\\fADA’s pre-emption provision irrational. Id. At most, the high price of air ambulance\\n\\nservices shows that the ADA is imperfect. Such a showing does not establish a\\n\\nsubstantive due process violation.\\n\\n V\\n\\n Finally, the Scarlett Plaintiffs argue that Defendants are judicially estopped from\\n\\nraising the ADA’s pre-emption provision as a defense to Plaintiffs’ contract-based claims\\n\\nbecause “Defendants have filed multiple state-court breach-of-contract suits in multiple\\n\\nstates to collect their charges, and they have also filed proof of claim forms in\\n\\nbankruptcies as well as filing claims against estates—all alleging a right to recover based\\n\\non contracts and NOT asserting pre[-]emption.” Scarlett Aplt. Br. at 27. The district\\n\\ncourt declined to apply judicial estoppel because “we have held that judicial estoppel\\n\\nonly applies when the position to be estopped is one of fact, not one of law.” BancInsure,\\n\\nInc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015). On appeal, the Scarlett Plaintiffs\\n\\nargue that we should broaden our view of judicial estoppel to include legal positions.\\n\\n We need not revisit our prior ruling regarding judicial estoppel because the\\n\\nScarlett Plaintiffs have not alleged facts sufficient to invoke judicial estoppel.\\n\\n The circumstances in which judicial estoppel applies are “not\\n reducible to any general formulation of principle,” [New Hampshire\\n v. Maine, 532 U.S. 742, 750 (2001)]; nevertheless, the Supreme\\n Court has identified three relevant factors. First, courts ask whether\\n a party’s later position is “clearly inconsistent” with its former\\n position. Id. Second, courts ask whether the party “succeeded in\\n persuading a court to accept that party’s earlier position, so that\\n judicial acceptance of an inconsistent position in a later proceeding\\n would create the perception that either the first or the second court\\n was misled.” Id. (internal quotation marks omitted). And third,\\n courts consider “whether the party seeking to assert an inconsistent\\n\\n 31\\n\\f position would derive an unfair advantage or impose an unfair\\n detriment on the opposing party if not estopped.” Id. at 751.\\n\\nBancInsure, 796 F.3d at 1240. The Scarlett Plaintiffs have not shown that Defendants\\n\\nhave “succeeded in persuading a court to accept” their position that state courts can\\n\\nenforce patients’ alleged contractual obligation to pay their air ambulance bills.\\n\\nTherefore, even if judicial estoppel encompassed legal positions, the doctrine would not\\n\\napply in this case. Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 1209–10 (10th\\n\\nCir. 2017).\\n\\n VI\\n\\n We AFFIRM the district court’s dismissal of all Plaintiffs’ breach of implied\\n\\ncontract claims, the Scarlett Plaintiffs’ declaratory judgment claim, all Plaintiffs’ unjust\\n\\nenrichment claims, and the Scarlett Plaintiffs’ due process claims; we REVERSE the\\n\\ndistrict court’s dismissal of the Cowen Plaintiffs’ declaratory judgment claim, only with\\n\\nrespect to the existence of contracts between the Cowen Plaintiffs and Defendants; and\\n\\nwe REMAND for further proceedings.\\n\\n\\n\\n\\n 32\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1863,"cells":{"id":{"kind":"number","value":4614039,"string":"4,614,039"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Daniel Eugene COOKSON, Defendant-Appellee/Cross-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Cookson"},"decision_date":{"kind":"string","value":"2019-04-26"},"docket_number":{"kind":"string","value":"18-3070; 18-3071"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tymkovich, Bacharach, McHugh\", \"parties\": \"\", \"opinions\": [{\"author\": \"McHUGH\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 26, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellant/Cross-Appellee,\\n\\n v. Nos. 18-3070\\n and 18-3071\\n DANIEL EUGENE COOKSON,\\n\\n Defendant-Appellee/Cross-Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. No. 6:17-CR-10087-JTM-1)\\n _________________________________\\n\\nStephen R. McAllister, United States Attorney (Jason W. Hart, Assistant United States\\nAttorney, with him on the briefs), District of Kansas, Wichita, Kansas, for Plaintiff-\\nAppellant/Cross-Appellee.\\n\\nDaniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,\\nTimothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas\\nCity, Kansas, for Defendant-Appellee/Cross-Appellant.\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\f Daniel Eugene Cookson pleaded guilty to two counts of possessing child\\n\\npornography after the FBI identified him in the course of its large-scale sting operation\\n\\ninvolving the website “Playpen.” At his sentencing hearing, the district court determined\\n\\nMr. Cookson’s criminal history and total offense level correlated to a Guidelines range of\\n\\n97–121 months. The district court announced its intention to sentence Mr. Cookson to a\\n\\nterm of seventy-two months’ imprisonment. But after entertaining argument from both\\n\\nparties and inviting Mr. Cookson’s allocution, the district court imposed a sentence of\\n\\nfive years’ probation.\\n\\n The United States appealed, challenging Mr. Cookson’s sentence as substantively\\n\\nunreasonable. Mr. Cookson cross-appealed, arguing the district court erred in refusing to\\n\\nsuppress evidence obtained from his computer by the FBI pursuant to a warrant issued in\\n\\nthe Eastern District of Virginia\\n\\n We affirm the district court’s suppression ruling based on our decision involving\\n\\nthe same warrant in United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), but we\\n\\nvacate Mr. Cookson’s sentence as unreasonable and remand to the district court for\\n\\nresentencing.\\n\\n I. BACKGROUND\\n\\n A. Search and Seizure\\n\\n In 2015, the FBI tracked down and arrested the operator of Playpen, a website that\\n\\nfacilitated the distribution of child pornography. Instead of discontinuing Playpen’s\\n\\noperations, however, the FBI decided to use the site to locate individuals using it to\\n\\naccess child pornography. Workman, 863 F.3d at1315.\\n\\n 2\\n\\f Finding Playpen’s users presented a challenge because Playpen was accessible\\n\\nonly through “Tor” (short for “The Onion Router”), a network and software program\\n\\ndesigned to allow users to browse the internet anonymously. Id. at 1315. To access\\n\\nPlaypen, users “had to employ [Tor] software that routed . . . connections through [a\\n\\nseries of] third-party computers called ‘nodes.’” Id. By routing connections in this\\n\\nmanner, Tor enabled its users to access Playpen without disclosing their IP addresses\\n\\n(unique numbers assigned to a given user’s computer, see United States v. Henderson,\\n\\n595 F.3d 1198, 1200 n.1 (10th Cir. 2010)) or other identifying information.\\n\\n To bypass the steps Playpen took to keep its users anonymous, the FBI, after\\n\\nseizing control of the website, loaded Playpen’s contents—pornography and all—onto a\\n\\ngovernment server in the Eastern District of Virginia. Workman, 863 F.3d at 1315. The\\n\\nFBI then sought a warrant in the Eastern District of Virginia which would authorize it to\\n\\ndeploy a network investigative technique (“NIT”) on the government server hosting\\n\\nPlaypen. In support of their application for a search warrant, the FBI obtained an affidavit\\n\\nfrom Agent Douglas Macfarlane explaining the operation of the proposed NIT as follows:\\n\\n In the normal course of operation, websites send content to visitors. A user’s\\n computer downloads that content and uses it to display web pages on the user’s\\n computer. Under the NIT authorized by this warrant, the TARGET WEBSITE\\n [Playpen], which will be located in Newington, Virginia, in the Eastern District of\\n Virginia, would augment that content with additional computer instructions. When\\n a user’s computer successfully downloads those instructions from [Playpen] . . .\\n the instructions, which comprise the NIT, are designed to cause the user’s . . .\\n computer to transmit certain information [including IP addresses] to a computer\\n controlled by or known to the government. . . . The NIT will not deny the user . . .\\n access to any data or the functionality of the user’s computer.\\n\\n\\n\\n\\n 3\\n\\fApp. at 342–43. Essentially, when someone logged in to Playpen by entering a username\\n\\nand password, the NIT would cause that person’s computer to transmit identifying\\n\\ninformation (including the user’s IP address) to the FBI. A magistrate judge in the\\n\\nEastern District of Virginia signed the warrant, and the FBI operated Playpen with the\\n\\nNIT for approximately two weeks.1\\n\\n On February 22, 2015, someone with the username “shishkabobs” logged into\\n\\nPlaypen. Shishkabobs’s computer downloaded the NIT, causing it to transmit identifying\\n\\ninformation to the FBI. Using this identifying information, the government sought an\\n\\nadministrative subpoena for the Southern Kansas Telephone Company to identify the\\n\\nphysical address associated with the IP address obtained from shiskabobs’s computer.\\n\\nBased on information received from the Southern Kansas Telephone Company, the FBI\\n\\nconnected shiskabobs’s IP address to a home Mr. Cookson shared with his parents and\\n\\nbrother in Howard, Kansas. The FBI obtained and executed a search warrant for this\\n\\nhome, where they found child pornography on various devices owned by Mr. Cookson.\\n\\nMr. Cookson later confessed to using Playpen to view child pornography.\\n\\n The government charged Mr. Cookson with two counts of possessing child\\n\\npornography under 18 U.S.C. § 2252A(a)(5)(B). Mr. Cookson moved to suppress all\\n\\nevidence derived from the operation of the NIT on his computer, arguing the magistrate\\n\\n\\n\\n 1\\n The Playpen NIT resulted in criminal charges throughout the country, meaning\\nmany courts, including ours, have reviewed the same NIT warrant for Fourth Amendment\\nviolations. See, e.g., Workman, 863 F.3d at 1315; United States v. Levin, 874 F.3d 316\\n(1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017).\\n\\n 4\\n\\fjudge in the Eastern District of Virginia lacked authority to issue the NIT warrant and the\\n\\nwarrant therefore violated the Fourth Amendment. Specifically, Mr. Cookson argued that\\n\\nmagistrate judges generally may not issue warrants for the search of persons or property\\n\\noutside of their district. See 28 U.S.C. § 636(a) (provision of the Federal Magistrates Act\\n\\ngiving magistrate judges authority “within the district in which [they sit]”). Although he\\n\\nrecognized that the version of Fed. R. Crim. P. 41(b) in force at the time created a limited\\n\\nset of exceptions to this general rule, including for warrants concerning the installation of\\n\\na tracking device, Mr. Cookson contended the exceptions did not include the NIT. He\\n\\nfurther argued that, if the district court deemed the warrant invalid, the good-faith\\n\\nexception could not save the fruits of the FBI’s unconstitutional search from application\\n\\nof the exclusionary rule because (1) the FBI misled the magistrate judge in its warrant\\n\\napplication, (2) the magistrate abandoned her judicial role, and (3) the FBI knew the\\n\\nwarrant was facially deficient. See Workman, 863 F.3d at 1317–18 (setting forth\\n\\ncircumstances in which the good-faith exception does not apply).\\n\\n The district court denied the suppression motion. The court observed that the same\\n\\nNIT warrant in Mr. Cookson’s case had been considered by many other trial courts across\\n\\nthe country. Most of these courts found the magistrate judge who issued the NIT warrant\\n\\nlacked the authority to do so, yet they declined to suppress evidence obtained as a result\\n\\nof the NIT under the good-faith exception. See, e.g., United States v. Ammons, 207 F.\\n\\nSupp. 3d 732 (W.D. Ky. 2016); United States v. Henderson, No. 15–CR–00565–WHO–\\n\\n1, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Michaud, No. 3:15–CR–\\n\\n05351–RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). And while two courts\\n\\n 5\\n\\fdecided the good-faith exception did not apply and suppressed the evidence, these\\n\\ndecisions were later reversed by the courts’ respective circuits. See United States v. Levin,\\n\\n874 F.3d 316, 325 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1052 (8th Cir.\\n\\n2017). The Tenth Circuit addressed the NIT warrant in United States v. Workman,\\n\\nholding that, even assuming the warrant was invalid, the good-faith exception saved the\\n\\nevidence from suppression. 863 F.3d at 1319–21.\\n\\n Here, the district court agreed that the Eastern District of Virginia magistrate judge\\n\\nexceeded her authority in issuing the NIT warrant but determined Workman governed the\\n\\noutcome of Mr. Cookson’s case. Accordingly, the court applied the good-faith exception\\n\\nand denied Mr. Cookson’s suppression motion.\\n\\n B. Sentencing\\n\\n After the district court denied his motion to suppress, Mr. Cookson entered into a\\n\\nplea agreement as to both counts of the indictment. As relevant here, the plea agreement\\n\\nset forth Mr. Cookson’s understanding that his plea entailed a maximum sentence of\\n\\ntwenty years’ imprisonment, various fines and assessments, and a minimum of five years’\\n\\nsupervised release. Mr. Cookson and the government also agreed to a conditional plea\\n\\nallowing Mr. Cookson to appeal the district court’s suppression decision. The\\n\\ngovernment agreed that Mr. Cookson could remain on bond (under conditions of\\n\\nsupervision) pending resolution of his appeal.\\n\\n Prior to sentencing, Mr. Cookson’s probation officer prepared a Presentence\\n\\nInvestigation Report (“PSR”). The PSR calculated Mr. Cookson’s base offense level as\\n\\n18. This base offense level increased to 28 due to a number of adjustments pursuant to\\n\\n 6\\n\\fU.S.S.G. § 2G2.2, including a two-level increase under U.S.S.G. § 2G2.2(b)(2) because\\n\\nthe material involved a prepubescent minor; a four-level increase under U.S.S.G.\\n\\n§ 2G2.2(b)(4) because the material involved sadistic or masochistic conduct or other\\n\\ndepictions of violence; a two-level increase under U.S.S.G. § 2G2.2(b)(6) because the\\n\\noffense involved the use of a computer, and a five-level increase under U.S.S.G.\\n\\n§ 2G2.2(b)(7)(D) because Mr. Cookson possessed more than 600 images of child\\n\\npornography. The PSR also listed Mr. Cookson’s adult criminal convictions, which\\n\\nresulted in a criminal history score of six and placed him in a criminal history category of\\n\\nIII.\\n\\n Based on an offense level of 28 and a criminal history category of III, the PSR\\n\\ncalculated a Guidelines range for Mr. Cookson of 97–121 months’ imprisonment.\\n\\nMr. Cookson’s convictions entail a maximum term of imprisonment of twenty years, and\\n\\na minimum term of five years’ supervised release.\\n\\n The parties filed sentencing memoranda. The United States requested a sentence\\n\\nof ninety-seven months’ imprisonment followed by five years’ supervised release,\\n\\nemphasizing Mr. Cookson’s criminal history and the need to avoid unwarranted\\n\\nsentencing disparities between similarly situated defendants. The government stated that\\n\\nthe average sentence for offenders within the 97–121 range was seventy months. The\\n\\ngovernment also stated that the 18 U.S.C. § 3553(a) factors supported a within-\\n\\nGuidelines sentence based on Mr. Cookson’s (1) use of Tor anonymizing software; (2)\\n\\ncontinued involvement with child pornography after being caught by his family; (3)\\n\\ninvolvement in social networks associated with child exploitation; (4) lengthy\\n\\n 7\\n\\finvolvement with child pornography; (5) sexting with strangers; and (6) involvement\\n\\nwith illegal drugs. App. at 171.\\n\\n Mr. Cookson requested a sentence of five years’ probation, focusing on his\\n\\nrehabilitation as shown by holding a job for twenty-one months, being promoted, and\\n\\nrecovering from drug addiction. Mr. Cookson also highlighted a policy disagreement\\n\\nwith the § 2G2.2 sentencing enhancements, noting they apply in the majority of cases and\\n\\nhave been criticized by the U.S. Sentencing Commission and various courts. Mr.\\n\\nCookson explained that without those enhancements, his Guidelines range would be 24–\\n\\n30 months instead of 97–121.\\n\\n During the sentencing hearing, the court determined the Guidelines range of 97–\\n\\n121 months had been correctly calculated based on a total offense level of 28 and\\n\\ncriminal history category of III. Before hearing from the parties, the court stated the\\n\\nfollowing:\\n\\n Having considered these factors and the advisory guidelines, the nature and\\n circumstances of the offense, and Mr. Cookson’s history and characteristics, I am\\n of the view that the guidelines range, even the low end of the guideline range, is\\n greater than necessary to serve the purposes of sentencing and it is my intention to\\n sentence Mr. Cookson to a term of confinement of 72 months on each of Counts 1\\n and 2, those terms to run concurrently and not consecutively; to be followed by\\n five years of supervised release on each of the two counts, those counts to run,\\n again, concurrently and not consecutively.\\n\\n I believe that sentence is sufficient but not greater than necessary to reflect the\\n seriousness of the offense, to promote respect for the law, and to provide just\\n punishment for the offenses, all as set out at 18 U.S.C. Section 3553(a)(2)(A).\\n\\nApp. at 257–58. The court then invited the government to state its position on this\\n\\ntentatively-announced sentence. The government agreed with the sentence of seventy-two\\n\\n\\n 8\\n\\fmonths’ imprisonment but reminded the court that Mr. Cookson had used “sophisticated\\n\\nanonymizing technology” (i.e., Tor) and had engaged with an “internet community\\n\\ndevoted to child exploitation,” which distinguished him from the “mine run” of\\n\\ndefendants. App. at 260–62.\\n\\n The court then heard argument from Mr. Cookson. Defense counsel began by\\n\\ndisputing the government’s characterization of aggravating factors under § 3553(a),\\n\\narguing the use of Tor did not indicate a level of technical sophistication because the\\n\\nsoftware is widely available and used for legitimate purposes, and that the government\\n\\nwas incorrect in asserting Mr. Cookson had engaged in “production conduct.” Defense\\n\\ncounsel pointed to letters from Mr. Cookson’s family and his employer, as well as the\\n\\nfact Mr. Cookson had overcome a drug addiction, as evidence of “extraordinary\\n\\nrehabilitation.” App. at 274. Defense counsel also highlighted the overrepresentation of\\n\\nMr. Cookson’s criminal history—four out of six total points for that history coming from\\n\\na single misdemeanor marijuana and drug paraphernalia possession charge. Defense\\n\\ncounsel noted that Mr. Cookson held a good job, stayed clean, attended counseling, and\\n\\nhad made “great strides in his life,” to the point where he could continue to “live a drug-\\n\\nfree and . . . law abiding lifestyle.” App. at 276–77. Defense counsel argued\\n\\nimprisonment would “have [Mr. Cookson] go backwards rather than forwards,” and a\\n\\nsentence of probation would allow Mr. Cookson to continue “contributing to society” and\\n\\npersonally moving “in a positive direction.” App. at 277. Mr. Cookson then allocuted,\\n\\napologizing for his actions taken “in the midst of drug addiction [and] depression” and\\n\\nstating that he wished to keep his job and “continue working hard on [his] sobriety.” Mr.\\n\\n 9\\n\\fCookson asked for a sentence of probation to allow him to “stay on [his] current path of\\n\\nliving a healthy, normal life.”\\n\\n After hearing argument from defense counsel and Mr. Cookson’s allocution, but\\n\\nbefore announcing a final sentence, the court stated the following:\\n\\n Mr. Cookson, it’s pretty obvious that you have made some significant progress in\\n terms of your drug addiction. I have no idea, obviously, where you are in terms of\\n child pornography but I’m not aware of any further activity that came up during\\n the course of the presentence investigation with respect to that.\\n\\n You do have a good job and the fact that you’ve been at it for two years speaks\\n volumes. Your family is obviously very supportive and they have seen very\\n positive changes in you over a period of time. It does seem that your criminal\\n history is overrepresented given the fact that four of your six points came out of a\\n misdemeanor marijuana possession charge even with all of the subsequent stuff.\\n And, frankly, these are serious offenses . . . .\\n\\nApp. at 279–280. The court observed that Congress and the Sentencing Commission had\\n\\n“struggled with this area” (presumably, sentencing for child-pornography possession) and\\n\\nthey were “hard” and “heartbreaking” cases. And the court recognized that becoming a\\n\\nregistered sex offender represented a “very heavy burden.” With respect to Mr. Cookson\\n\\nspecifically, the court stated:\\n\\n I’ve seen a lot of people through here over the years convicted of these types of\\n offenses. Some are people who literally are social recluses, who are up in their\\n mother’s attic or something, that's where they spend their time, they have no social\\n life at all, any employment that they have they just go to work and they go home\\n and there’s no life even there, and you seem to be the exception to the norm. And I\\n intend to give you credit for the fact that you did go out, you did get a job, [and]\\n the fact that you’re doing well with it . . . .\\n\\nApp. at 282.\\n\\n The court then sentenced Mr. Cookson to five years’ probation, noting it “would\\n\\nhave been more inclined not to place [Mr. Cookson] on probation,” but it was concerned\\n\\n 10\\n\\fabout imprisoning Mr. Cookson while his appeal was pending because his convictions\\n\\ncould be overturned. App. at 283. The government objected to the sentence on procedural\\n\\nand substantive grounds, specifically noting its “procedural objection” to the court’s\\n\\napparent reliance on a concern about imprisoning Mr. Cookson pending resolution of his\\n\\nappeal, because the government had agreed Mr. Cookson could remain on bond for that\\n\\nperiod.\\n\\n The court later produced a written “statement of reasons” for its sentence,\\n\\nchecking boxes for the following reasons for a variance under 18 U.S.C. § 3553(a): “the\\n\\nhistory and characteristics of the defendant” (including the fact that his criminal history\\n\\nhad been “over-represented”); “to reflect the seriousness of the offense, to promote\\n\\nrespect for the law, and to provide just punishment for the offense;” “to afford adequate\\n\\ndeterrence to criminal conduct;” “to protect the public from further crimes of the\\n\\ndefendant;” “to provide the defendant with needed educational or vocational training;”\\n\\n“to provide the defendant with other correctional treatment in the most effective manner;”\\n\\nand based on the district court’s “policy disagreement with the guidelines,” specifically\\n\\n§ 2G2.2.\\n\\n II. DISCUSSION\\n\\n A. NIT Search\\n\\n At the outset, the parties do not dispute whether the NIT constituted a search\\n\\nwithin the meaning of the Fourth Amendment, whether the warrant was valid, or whether\\n\\nthe search was reasonable despite the invalid warrant. The only issue before us is whether\\n\\n\\n\\n 11\\n\\fthe good-faith exception to the exclusionary rule applies to the government’s search using\\n\\nthe NIT. We decided it did in Workman.\\n\\n There, we assumed the NIT search “violate[d] the Federal Magistrates Act\\n\\n[§ 636(a)] and the Federal Rules of Criminal Procedure.” Workman, 863 F.3d at 1321.\\n\\nBut we explained that under United States v. Leon, 468 U.S. 897 (1984), even\\n\\n“improperly obtained evidence remains admissible when the executing agents ‘act with\\n\\nan objectively reasonable good-faith belief that their conduct is lawful or when their\\n\\nconduct involves only simple, isolated negligence.’” Id. at 1317 (quoting Davis v. United\\n\\nStates, 564 U.S. 229, 238 (2011)) (internal quotation marks omitted). Because we “expect\\n\\nagents executing warrants to be reasonably well-trained, but we do not expect them to\\n\\nunderstand legal nuances the way that an attorney would,” we concluded in Workman\\n\\nthat FBI agents could have reasonably relied on the warrant issued by the magistrate in\\n\\nthe Eastern District of Virginia when executing the NIT search. Id. at 1320–21 (internal\\n\\nquotation marks omitted). Had the agents possessed “sophisticated legal training, they\\n\\nmight have recognized” the problems posed by Rule 41(b) and 28 U.S.C. § 636(a), but\\n\\nwe do not hold law enforcement to such a standard. Id. at 1320. We also observed that\\n\\neight federal judges had held the NIT warrant complied with federal law and federal\\n\\nrules, suggesting the agents could reasonably “have made the same mistake” when acting\\n\\nin reliance on the warrant. Id. at 1321 (noting “objective reasonableness sometimes turns\\n\\non the clarity of existing law”); see United State v. Gonzales, 399 F.3d 1225, 1228–29\\n\\n(10th Cir. 2005) (“[O]fficers are generally not required to second-guess the magistrate’s\\n\\ndecision in granting a warrant.”).\\n\\n 12\\n\\f Although Mr. Cookson recognizes Workman involved the same warrant at issue in\\n\\nthis case, he argues the record before us contains four new facts that alter the good-faith\\n\\ncalculus under Leon. We evaluate each of these four facts not expressly considered by\\n\\nWorkman in turn.\\n\\n First, Mr. Cookson points to an internal guidance document produced by the\\n\\nDepartment of Justice—Computer Crime & Intellectual Prop. Section, Criminal Div.,\\n\\nU.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic\\n\\nEvidence in Criminal Investigations (3d ed. 2009),\\n\\nhttp://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. This manual\\n\\nadvised law enforcement to ensure compliance with Fed. R. Crim. P. 41 by “obtain[ing]\\n\\nmultiple warrants if they have reason to believe that a network search will retrieve data\\n\\nstored in multiple locations.” Id. at 84. Mr. Cookson argues the manual advises law\\n\\nenforcement to “obtain additional warrants for each location where the data resides” to\\n\\nensure compliance with Rule 41(b), 2nd Br. on Cross-Appeal at 26, and therefore it\\n\\nsuggests that FBI agents (who “worked very closely with the Department of Justice”\\n\\nduring the NIT operation, App. at 568) knew the NIT warrant would violate Rule 41(b).\\n\\nA fuller reading of the manual, however, reveals the DOJ bifurcated its advice depending\\n\\non whether agents would be able to learn, prior to searching, whether the data searched\\n\\nwas located within or without the district. Computer Crime & Intellectual Prop. Section,\\n\\nsupra, at 84 (“Agents may in some cases be able to learn where the data is located before\\n\\nthe search, but in others they will be unable to know the storage site of the data until after\\n\\nthe search is completed.”). When “agents can learn prior to the search that some or all of\\n\\n 13\\n\\fthe data described by the warrant is stored in a different location than where the agents\\n\\nwill execute the search,” the manual advises agents to obtain multiple warrants. Id. at 84–\\n\\n85. “When agents do not and even cannot know that data searched from one district is\\n\\nactually located outside the district,” the manual expressly advises agents that “evidence\\n\\nseized remotely from another district ordinarily should not lead to suppression of the\\n\\nevidence obtained.” Id. at 85 (emphasis added). The manual goes on to explain that\\n\\ncourts will likely not suppress the evidence as either (1) obtained in compliance with\\n\\nRule 41; or (2) even if in violation of Rule 41, obtained in a good-faith manner. See id. at\\n\\n85 (citing United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997); United States v.\\n\\nDenman, 100 F.3d 399, 402 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130,\\n\\n135–36 (2d Cir. 1992)). Because the Tor software used to access Playpen concealed\\n\\nusers’ IP addresses, agents could not know that data searched pursuant to the NIT warrant\\n\\nwas located outside the Eastern District of Virginia. Accordingly, the manual, far from\\n\\nsuggesting agents acted in bad faith when obtaining or relying on the NIT warrant, gives\\n\\nsupport for the FBI’s conclusion that the warrant met constitutional muster.\\n\\n Second, Mr. Cookson points to In re Warrant, 958 F. Supp. 2d 753 (S.D. Tex.\\n\\n2013), in which a magistrate judge denied the FBI’s request for a warrant authorizing it to\\n\\n“surreptitiously install data extraction software” on a computer whose location was\\n\\nunknown. Id. at 755. Once installed, the software would search the computer for\\n\\ninformation, activate the computer’s built-in camera, and transmit extracted data back to\\n\\nthe FBI within the Southern District of Texas. Id. The magistrate judge held the warrant\\n\\napplication satisfied none of the Rule 41(b) criteria. Id. at 756.\\n\\n 14\\n\\f The facts of In re Warrant bear substantial similarity to those before us.\\n\\nNevertheless, In re Warrant is insufficient to show the FBI lacked good faith when\\n\\nrelying on the NIT warrant because magistrate judges differed on the question at the time.\\n\\nIn re Warrant itself mentions that “in 2007 a magistrate judge is known to have issued a\\n\\nwarrant authorizing a similar investigative technique to track the source of e-mailed\\n\\nbomb threats against a Washington state high school.” Id. at 756 n.2. Likewise, a separate\\n\\nNIT warrant appears to have been issued against a Tor-based child pornography website\\n\\nin 2012. See United States v. Laurita, No. 8:13CR107, 2016 WL 4179365, at *3 (D. Neb.\\n\\nAug. 5, 2016) (“Pursuant to court authorization, a NIT was installed on Website A during\\n\\nthe period of November 16, 2012, and December 2, 2012.”). This disagreement among\\n\\nmagistrate judges supports Workman’s conclusion that the FBI reasonably deferred to the\\n\\nissuing magistrate’s judgment on a question of unsettled law. See 863 F.3d at 1321\\n\\n(“[O]bjective reasonableness sometimes turns on the clarity of existing law.”).\\n\\n Third, Mr. Cookson points to a September 2013 letter from the acting Assistant\\n\\nAttorney General (“AAG”) to the Chair of the Advisory Committee on Criminal Rules.\\n\\nLetter from Mythili Raman, Acting Attorney Gen., to Judge Reena Raggi, Chair,\\n\\nAdvisory Committee on the Criminal Rules (Sept. 18, 2013). In this letter, the AAG\\n\\nproposes an amendment to Rule 41 that would allow a magistrate judge “in a district\\n\\nwhere activities related to a crime have occurred to issue a warrant—to be executed via\\n\\nremote access—for electronic storage media and electronically stored information located\\n\\nwithin or outside that district.” App. at 397. This letter cites In re Warrant, observing:\\n\\n\\n\\n 15\\n\\f [E]ven when investigators can satisfy the Fourth Amendment’s threshold for\\n obtaining a warrant for [a] remote search . . . a magistrate judge may decline to\\n issue the requested warrant. For example, in a fraud investigation, one magistrate\\n judge recently ruled that an application for a warrant for a remote search did not\\n satisfy the territorial jurisdiction requirements of Rule 41.\\n\\nId. at 398. Although this letter lends credence to Mr. Cookson’s argument that the FBI\\n\\nwas aware of In re Warrant and Rule 41(b)’s territorial restrictions, it does not suggest\\n\\nthe AAG believed the magistrate judge’s decision in In re Warrant was correct. Rather,\\n\\nthe AAG sought an amendment to Rule 41(b) because the rule “does not directly address\\n\\nthe special circumstances that arise when officers execute search warrants, via remote\\n\\naccess, over modern communications networks such as the Internet.” App. at 397. The\\n\\nAAG hoped to “clarify” the rule because “while the Fourth Amendment permits warrants\\n\\nto issue for remote access to electronic storage media or electronically stored\\n\\ninformation, Rule 41’s language does not anticipate those types of warrants in all cases.”\\n\\nId. at 399. Accordingly, the AAG letter does not show the AAG (or, by extension, the\\n\\nFBI) knew Rule 41(b) in its then-current form did not authorize the NIT warrant.\\n\\n Finally, Mr. Cookson notes that Rule 41 was amended in 2016 to allow a\\n\\nmagistrate judge to “issue a warrant to use remote access to search electronic storage\\n\\nmedia . . . within or outside [her] district if . . . the district where the media or information\\n\\nis located has been concealed through technological means.” Fed. R. Crim. P.\\n\\n41(b)(6)(A). The parties do not dispute that this amendment, had it been adopted two\\n\\nyears earlier, would have expressly authorized the NIT warrant. But we disagree with Mr.\\n\\nCookson’s contention that “there would have been no need to amend Rule 41” had the\\n\\nNIT search been authorized at the time. 2nd Br. on Cross-Appeal at 28. The amendment\\n\\n 16\\n\\ffails to show the FBI’s lack of good faith for the same reason the AAG letter does—the\\n\\namendment of Rule 41 is consistent with an aim to clarify, but not necessarily change,\\n\\nthe rule. Therefore, the proposed and actual amendment bear no clear indications that the\\n\\npre-amendment Rule 41 forbade the NIT warrant, let alone that the FBI knew as much.\\n\\n Taken together, Mr. Cookson’s four new facts, at most, support Workman’s\\n\\nconclusion that the territorial restrictions of Rule 41(b) were unclear at the time the NIT\\n\\nwarrant issued. See 863 F.3d at 1321. A review of decisions before and since confirms\\n\\ncourts could and did differ on, for example, whether the NIT amounted to a “tracking\\n\\ndevice” expressly authorized by Rule 41. Compare, e.g., United States v. Jones, 230\\n\\nF. Supp. 3d 819, 824–25 (S.D. Ohio 2017), with Ryan Anthony Adams, 2016 WL\\n\\n4212079, at *6 (“[T]he NIT does not track; it searches.”). Accordingly, these new facts\\n\\ndo not remove us from Workman’s ambit, and we decline Mr. Cookson’s invitation to\\n\\ndistinguish or overrule binding precedent.\\n\\n B. Sentencing\\n\\n On appeal, the government challenges Mr. Cookson’s five-year probationary\\n\\nsentence as substantively unreasonable and purports to waive any challenge as to the\\n\\nsentence’s procedural reasonableness. Yet much of the government’s argument focuses\\n\\non the district court’s explanation for Mr. Cookson’s sentence—specifically its brevity,\\n\\nreliance on a misunderstanding of the terms of Mr. Cookson’s plea agreement, failure to\\n\\nconsider various § 3553(a) factors, and unexplained deviation from an initially-\\n\\nannounced seventy-two-month period of imprisonment. We typically consider such\\n\\narguments as pertaining to a sentence’s procedural reasonableness. United States v.\\n\\n 17\\n\\fHuckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (“Procedural reasonableness addresses\\n\\nwhether the district court incorrectly calculated . . . the Guidelines sentence, treated the\\n\\nGuidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly\\n\\nerroneous facts, or failed to adequately explain the sentence.”) Indeed, the government\\n\\nitself framed some of these objections as “procedural” at Mr. Cookson’s sentencing\\n\\nhearing.\\n\\n Still, we have recently acknowledged a blurring of the line between procedural\\n\\nand substantive reasonableness when it comes to the district court’s explanation for a\\n\\ngiven sentence. See United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018).\\n\\nTherefore, after stating the standard for our review of the district court’s sentencing\\n\\ndecision, we review the distinction between procedural and substantive reasonableness\\n\\nand its impact on our decision before evaluating the substantive reasonableness of\\n\\nMr. Cookson’s sentence.\\n\\n1. Standard of Review\\n\\n We review a district court’s sentencing decision for substantive reasonableness\\n\\nunder an abuse-of-discretion standard, looking at the “totality of the circumstances.”\\n\\nUnited States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011). “A district court\\n\\nabuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,\\n\\nor manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.\\n\\n2009). Our abuse-of-discretion standard applies “without regard to whether the district\\n\\ncourt imposes a sentence within or outside the advisory guidelines range,” so we do not\\n\\napply a presumption of unreasonableness to sentences outside the guidelines range. Id.\\n\\n 18\\n\\fInstead, we “give due deference to the district court’s decision that the § 3553(a) factors,\\n\\non [the] whole, justify the extent of the variance.” Id. (quotation marks omitted). “That\\n\\nwe might reasonably have concluded a different sentence was appropriate is insufficient\\n\\nto justify reversal of the district court.” Id. (quotation marks and alterations omitted). We\\n\\nbear in mind that the “sentencing judge is in a superior position to find facts and judge\\n\\ntheir import under § 3553(a) in the individual case,” Gall v. United States, 552 U.S. 38,\\n\\n51 (2007), because “[t]he judge sees and hears the evidence, makes credibility\\n\\ndeterminations, has full knowledge of the facts and gains insights not conveyed by the\\n\\nrecord.” United States v. Barnes, 890 F.3d 910, 915–16 (10th Cir. 2018) (quoting Gall,\\n\\n552 U.S. at 51). Finally, “when we review a downward variance from the recommended\\n\\nguidelines range, as we do here, even more solicitude to the sentencing court is\\n\\nappropriate.” Id. at 916.\\n\\n2. Procedural Versus Substantive Unreasonableness\\n\\n In the wake of United States v. Booker, 543 U.S. 220 (2005), which converted the\\n\\nmandatory federal sentencing scheme into a discretionary one, we review sentences\\n\\nimposed by the district court for reasonableness. Friedman, 554 F.3d at 1307. Our\\n\\nreasonableness review has two aspects: procedural and substantive. Id. When reviewing a\\n\\nsentence for procedural reasonableness, we consider “whether the district court\\n\\ncommitted any error in calculating or explaining the sentence.” Id.; see also Gall, 552\\n\\nU.S. at 51 (stating appellate courts must first “ensure that the district court committed no\\n\\nsignificant procedural error, such as failing to calculate (or improperly calculating) the\\n\\nGuidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)\\n\\n 19\\n\\ffactors, selecting a sentence based on clearly erroneous facts, or failing to adequately\\n\\nexplain the chosen sentence . . . .”). When reviewing a sentence for substantive\\n\\nreasonableness, we focus on “whether the length of the sentence is reasonable given all\\n\\nthe circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”\\n\\nFriedman, 554 F.3d at 1307 (quotation marks omitted).\\n\\n This distinction turns murky, however, when we consider that the district court’s\\n\\nexplanation for a given sentence serves a “dual purpose.” See Barnes, 890 F.3d at 917.\\n\\nFirst, a district court’s explanation of how the § 3553(a) factors apply “is a procedural\\n\\nrequirement,” id., and the “absence of explanation could constitute procedural error” as\\n\\ncould the failure to address a defendant’s material, non-frivolous arguments under the\\n\\n§ 3553(a) factors. United States v. Lente, 647 F.3d 1021, 1031, 1035 (10th Cir. 2011).\\n\\nSecond, the content of the district court’s explanation “is relevant to whether the length\\n\\nof the sentence is substantively reasonable” because “[a] sentence is more likely to be\\n\\nwithin the bounds of reasonable choice when the court has provided a cogent and\\n\\nreasonable explanation for it.” Barnes, 980 F.3d at 917. Stated another way, we rely on\\n\\nthe district court’s procedurally-required explanation in order to conduct “meaningful\\n\\nappellate review” of a sentence’s substantive reasonableness. Gall, 552 U.S. at 50; see\\n\\nLente, 647 F.3d at 1039 (explaining that “[w]e cannot fulfill our appellate role, however\\n\\ndeferential, in assessing the substantive reasonableness of [a] sentence” without an\\n\\nadequate explanation from the district court). A limited, brief, or inconsistent explanation\\n\\nhinders our ability to do so, and therefore “put[s] at risk the substantive reasonableness of\\n\\nany decision [the district court] reached.” United States v. Lychock, 578 F.3d 214, 220\\n\\n 20\\n\\f(3d Cir. 2009) (quoting United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007)); see\\n\\nFriedman, 554 F.3d at 1312 (“[T]he very limited nature of the record and the paucity of\\n\\nreasoning on the part of the district court most certainly bear on our review of the\\n\\nsubstantive reasonableness of Friedman’s sentence.”); United States v. Gonzalez, 529\\n\\nF.3d 94, 98 (2d Cir. 2008) (“Determination of whether the sentence is unreasonable is\\n\\nhampered by the brevity of the reasons given for it.”). This is especially true when the\\n\\nsentence varies greatly from the sentencing Guidelines, because “a major [variance]\\n\\nshould be supported by a more significant justification than a minor one.” Gall, 552 U.S.\\n\\nat 50.\\n\\n But the heavier our reliance on the inadequacy of the district court’s explanation in\\n\\nholding Mr. Cookson’s sentence substantively unreasonable, the less our decision\\n\\nrestricts the “bounds of reasonable choice” available to the district court in crafting a\\n\\nsentence on remand. Barnes, 890 F.3d at 917. A sentence deemed substantively\\n\\nunreasonable primarily because of an explanation too brief or cursory to justify the extent\\n\\nof its variance from the Guidelines might be substantively reasonable given a more\\n\\ndetailed explanation. See United States v. Park, 758 F.3d 193, 202 (2d Cir. 2014) (“In\\n\\nholding that the District Court's probationary sentence was substantively unreasonable,\\n\\nwe rely heavily upon the District Court's own evaluation of the case, as revealed by its\\n\\nstatements at the sentencing hearing. . . . We thus do not foreclose the possibility that the\\n\\nimposition of a probationary sentence on remand, after appropriate consideration of the\\n\\n§ 3553(a) factors thus far left unaddressed, could be substantively reasonable as well.”).\\n\\n\\n\\n 21\\n\\f With that backdrop in place, we consider Mr. Cookson’s sentence in light of “all\\n\\nthe circumstances of the case,” Friedman, 554 F.3d at 1307, using the district court’s\\n\\nexplanation for the sentence “to assist us in determining whether the district court abused\\n\\nits discretion in weighing the § 3553(a) factors,” Barnes, 890 F.3d at 917.\\n\\n3. Substantive Reasonableness Review\\n\\n 18 U.S.C. § 3553(a) requires district courts to consider seven factors in\\n\\nsentencing: (1) the nature and circumstances of the offense and the history and\\n\\ncharacteristics of the defendant; (2) the need for a sentence to reflect the “basic aims of\\n\\nsentencing, namely (a) ‘just punishment’ (retribution), (b) deterrence, (c) incapacitation,\\n\\nand (d) rehabilitation,” United States v. Walker (“Walker I”), 844 F.3d 1253, 1253 (10th\\n\\nCir. 2017); (3) the kinds of sentences available; (4) the Sentencing Commission\\n\\nGuidelines; (5) Sentencing Commission policy statements; (6) the need to avoid\\n\\nunwarranted sentencing disparities; and (7) the need for restitution. See 18 U.S.C.\\n\\n§ 3553(a)(1)–(7).\\n\\n The district court explained Mr. Cookson’s sentence primarily in terms of\\n\\n§ 3553(a)(1), specifically referencing Mr. Cookson’s (1) recovery from drug addiction,\\n\\n(2) success in a new job, and (3) support from his family. The court acknowledged that\\n\\nMr. Cookson’s offenses were serious and that possession of child pornography causes\\n\\nsignificant harm to the children depicted. See United States v. DeRusse, 859 F.3d 1232,\\n\\n1239 (10th Cir. 2017) (“Viewing the entire sentencing transcript in context . . . we are\\n\\nconvinced that the district court was fully aware of the seriousness of the offense and\\n\\ntook very seriously the harm suffered by the [victims].”) But after hearing argument from\\n\\n 22\\n\\fdefense counsel about Mr. Cookson’s three-year recovery from addiction and from Mr.\\n\\nCookson himself attributing his conduct to “a bad place in [his] life at the time in the\\n\\nmidst of drug addiction [and] depression,” App. at 278, the district court remarked that\\n\\nMr. Cookson’s pre-sentencing rehabilitation made him the “exception to the norm,” App.\\n\\nat 282. The district court observed that Mr. Cookson had obviously made “significant\\n\\nprogress in terms of . . . drug addiction,” App. at 279, and that Mr. Cookson had “a good\\n\\njob and the fact that [Mr. Cookson has] been at it for two years speaks volumes,” id. at\\n\\n280. Finally, the court noted, “It does seem that [Mr. Cookson’s] criminal history is\\n\\noverrepresented given the fact that four of [his] six points came out of a misdemeanor\\n\\nmarijuana possession charge.”2 App. at 280. The combination of these circumstances\\n\\ncould reasonably support a downward variance, even a large one, under 18 U.S.C.\\n\\n§ 3553(a)(1). See Walker I, 844 F.3d at 1257.\\n\\n The district court’s written statement of reasons also expressed its policy\\n\\ndisagreement with U.S.S.G. § 2G2.2 as a reason for the downward variance. We have\\n\\ndescribed arguments criticizing the § 2G2.2 enhancements as “quite forceful” and have\\n\\n“specifically cautioned district courts to carefully apply the child pornography\\n\\ndistribution guideline and remain mindful that they possess broad discretion in fashioning\\n\\nsentences under § 2G2.2.” United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017)\\n\\n(internal quotation marks and alterations omitted); see also United States v. Grigsby, 749\\n\\n\\n 2\\n The court’s written statement of reasons makes clear that it weighed this fact\\nunder § 3553(a)(1), although an over-represented criminal history could also support a\\ndownward departure under U.S.S.G. § 4A1.3(b)(1).)\\n\\n 23\\n\\fF.3d 908, 911 (10th Cir. 2014) (referencing a “number of reported cases where district\\n\\ncourts have rejected application of § 2G2.2 for want of an empirical basis”); United\\n\\nStates v. Dorvee, 616 F.3d 174, 186–87 (2d Cir. 2010) (noting that the ubiquitous\\n\\napplication of the § 2G2.2 enhancements resulted in “virtually no distinction between the\\n\\nsentences for defendants [who merely possessed child pornography] . . . and the\\n\\nsentences for the most dangerous offenders who, for example, distribute child\\n\\npornography for pecuniary gain”). Accordingly, the district court did not abuse its\\n\\ndiscretion in determining that its policy disagreement with § 2G2.2 could support the\\n\\nimposition of a more lenient sentence. But the court did not elaborate on this policy\\n\\ndisagreement during the sentencing hearing except to say that “Congress has struggled\\n\\nwith this area” and “the Sentencing Commission has struggled with this area.” App. at\\n\\n280. Nor did the court address the extent to which the disagreement weighed in its final\\n\\ndecision. Instead, the court’s explanation focuses overwhelmingly on Mr. Cookson’s\\n\\npresentencing rehabilitation and its desire not to see Mr. Cookson’s progress “turned\\n\\nback.” Id. at 283.\\n\\n Although we recognize these concerns as valid, we have cautioned against\\n\\nexcessive reliance on a single factor in sentencing. In Walker I, we held substantively\\n\\nunreasonable a time-served sentence for a serial bank robber who pleaded guilty to two\\n\\nbank robberies. See 844 F.3d 1255.3 We reasoned the district court had focused “almost\\n\\n\\n 3\\n On remand, the district court resentenced Mr. Walker to ten years of probation,\\ntwo years of home confinement, and 500 hours of community service. United States v.\\nWalker (Walker II), 918 F.3d 1134, 1137 (10th Cir. 2019). The government appealed\\nagain, arguing that the district court violated Walker I’s mandate by declining to sentence\\n 24\\n\\fexclusively on Mr. Walker’s newfound sobriety” and had paid “inadequate attention” to a\\n\\nnumber of other statutory factors, including the “basic aims of punishment” and the need\\n\\nto avoid unwarranted sentencing disparities, in deciding to impose a time-served\\n\\nsentence. Id. 1258–59; see 18 U.S.C. § 3553(a)(1), (6). Although the district court in\\n\\nWalker I discussed, for example, the values of specific deterrence and rehabilitation, we\\n\\ncriticized its failure to mention incapacitation and its offhand “dismiss[al] [of] the\\n\\nrelevance of [general] deterrence.” See Walker I, 844 F.3d at 1257–58. Of course, the\\n\\ndistrict court need not afford equal weight to each § 3553(a) factor, United States v.\\n\\nSanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014), and we will defer on substantive-\\n\\nreasonableness review “not only to a district court’s factual findings but also to its\\n\\ndeterminations of the weight to be afforded to such findings.” United States v. Smart, 518\\n\\nF.3d 800, 808 (10th Cir. 2008). Unlike the district court in Walker I, however, the court\\n\\nhere made no mention of deterrence, rehabilitation, or incapacitation in explaining Mr.\\n\\nCookson’s sentence. Nor did it address the potential for “unwarranted sentencing\\n\\ndisparities” raised by the government. Although we can extrapolate reasoning from the\\n\\ndistrict court’s relatively brief explanation—for example, the district court might have\\n\\nviewed any disparity resulting from Mr. Cookson’s sentence as a “warranted” one, see\\n\\nLente, 759 F.3d at 1169 (explaining that “[o]ur sentencing scheme seeks to eliminate not\\n\\n\\nMr. Walker to a prison term. Id. at 1143. We disagreed because Walker I’s mandate “did\\nnot specifically limit the district court’s discretion by requiring it to impose a sentence of\\nimprisonment.” Id. at 1154. We declined to express any view on whether the new\\nsentence was substantively reasonable, “as the government waived its argument on that\\npoint by failing to adequately address the district court’s analysis.” Id.\\n\\n 25\\n\\fall sentencing disparities, but only unwarranted disparities”) (internal quotation marks\\n\\nomitted)—the explanation itself does little to assist us in understanding how it applied the\\n\\n§ 3553(a) factors other than § 3553(a)(1) to Mr. Cookson’s case, see Barnes, 890 F.3d at\\n\\n917. Without any explanation from the district court on the weight it afforded the other\\n\\n§ 3553(a) factors in granting Mr. Cookson such a large variance, we consider the\\n\\nsentence as substantively unreasonable. See Smart, 518 F.3d at 808; see also Gall, 552\\n\\nU.S. at 50 (“[A] major [variance] should be supported by a more significant justification\\n\\nthan a minor one.”).\\n\\n Comparing the district court’s explanation of Mr. Cookson’s sentence with other\\n\\nrecent cases upholding the substantive reasonableness of large downward variances\\n\\nsupports this conclusion. Barnes, for example, considered a large downward variance for\\n\\nformer jail employees convicted of conspiracy to violate, and deprivation of,\\n\\nconstitutional rights related to abuse they inflicted on the jail’s inmates. See 890 F.3d at\\n\\n914 (affirming a downward variance from a Guidelines range of 70–87 months’\\n\\nimprisonment to a twenty-four-month sentence followed by twenty-four months’\\n\\nsupervised release for the first defendant and a twelve-month sentence followed by thirty-\\n\\nsix months’ supervised release for the second). In upholding the sentences as\\n\\nsubstantively reasonable, we credited the district court with a “careful” discussion, in\\n\\nwhich the court “walked through” and “properly addressed each of the § 3553(a) factors\\n\\nbefore approving a downward variance from the Guidelines range.” Id. at 918. The\\n\\nBarnes district court expressly considered, for example, the defendants’ personal\\n\\ncharacteristics, their risk of recidivism, the “specific and general deterrence” advanced by\\n\\n 26\\n\\ftheir sentences, and the seriousness of their offenses. Id. at 918–19. Likewise, in\\n\\nDeRusse, we affirmed a downward departure and variance from a Guidelines range of\\n\\n108–135 months to a sentence of time served followed by five years’ supervised release\\n\\nin a kidnapping case. 859 F.3d at 1235–36. We distinguished the district court’s\\n\\nexplanation of DeRusse’s sentence from that in Walker I, describing it as having\\n\\n“thoughtfully considered all of the § 3553 factors, rather than focusing almost exclusively\\n\\non one particular factor, and concluded based on its assessment of all of these factors that\\n\\na sentence of time-served would be the most appropriate.” Id. at 1240.\\n\\n Here, the district court’s assessment, in addition to focusing almost exclusively on\\n\\n§ 3553(a)(1), relied on an apparent misunderstanding of Mr. Cookson’s conditional plea\\n\\nagreement. Fearing that Mr. Cookson’s challenge to the suppression ruling might be\\n\\nsuccessful, and that Mr. Cookson would then have spent time in prison and lost his job\\n\\nonly for the charges against him to be dismissed, the court stated it would have been less\\n\\ninclined to place Mr. Cookson on probation but for his conditional plea. But the\\n\\ngovernment had consented in the conditional plea agreement that Mr. Cookson could\\n\\nremain on bond pending resolution of his appeal. The district court’s concern was thus\\n\\nunfounded, and its suggestion that it would have been more inclined to sentence Mr.\\n\\nCookson to a term of imprisonment absent this concern gives us pause in deferring to its\\n\\n“decision that the § 3553(a) factors, on [the] whole, justify the extent of the variance.”\\n\\nFriedman, 554 F.3d at 1307.\\n\\n In light of this discrepancy, and because the district court placed nearly exclusive\\n\\nfocus on Mr. Cookson’s presentencing rehabilitation in explaining its decision, the\\n\\n 27\\n\\fsentence it imposed is substantively unreasonable. We reach this conclusion, in large\\n\\npart, based on the significant variance in Mr. Cookson’s sentence and the district court’s\\n\\nlimited and inconsistent explanation for that variance. See Barnes, 890 F.3d at 917 (“A\\n\\nsentence is more likely to be within the bounds of reasonable choice when the court has\\n\\nprovided a cogent and reasonable explanation for it.”). We therefore decline the\\n\\ngovernment’s request that we direct the district court to impose the seventy-two-month\\n\\nsentence it tentatively announced at the outset of Mr. Cookson’s sentencing hearing. See\\n\\nKoon v. United States, 518 U.S. 81, 97 (1996) (“[I]t is not the role of an appellate court to\\n\\nsubstitute its judgment for that of the sentencing court as to the appropriateness of a\\n\\nparticular sentence.”) (quoting Williams v. United States, 503 U.S. 193, 205 (1992)). Nor\\n\\ndo we agree the district court’s deviation from its tentatively-announced seventy-two-\\n\\nmonth sentence should weigh heavily in our assessment of whether it reached a\\n\\nsubstantively unreasonable decision.4 To the contrary, the record indicates the district\\n\\n\\n 4\\n The government cites a single case, United States v. Gerezano-Rosales, 692 F.3d\\n393 (5th Cir. 2012), in support of its argument that the district court’s tentatively-\\nannounced sentence should affect our reasonableness determination. But what the\\ngovernment characterizes as an “initial announcement” of a sentence in Gerezano-\\nRosales, 3rd Br. on Cross-Appeal at 9, was in fact the final sentence imposed by the\\ndistrict court after giving the defendant the opportunity to allocute. Gerezano-Rosales,\\n692 F.3d at 396. Immediately after sentencing the defendant to seventy-one months, the\\ndistrict court attempted to impose a 108-month sentence because the defendant had been\\n“disrespectful when he questioned the appropriateness of the originally imposed”\\nsentence. Id. at 400. The appellate court invalidated the higher sentence as substantively\\nunreasonable because “no matter how insolently Gerezano delivered his retorts to the\\ndistrict court, his statements could not have reasonably justified a variance of three years\\nabove the guidelines range, especially since the court had previously found that a\\nGuidelines sentence was otherwise appropriate.” Id. at 402. This case bears little\\nresemblance to Mr. Cookson’s, in which the district court announced its inclination to\\nimpose a seventy-two-month sentence as a starting point for discussion. See United States\\n 28\\n\\fcourt, after announcing a tentative sentence, listened carefully to counsel’s arguments and\\n\\nMr. Cookson’s allocution.5 Something about these arguments apparently persuaded the\\n\\ndistrict court to change its mind and impose a more lenient sentence than it had initially\\n\\nanticipated. See App. at 283 (explaining the district court “came in . . . not expecting to\\n\\n[impose a probationary sentence]”). But the district court undertook a relatively brief\\n\\nexplanation of the statutory factors supporting the sentence it finally imposed, which\\n\\nimpedes our review. We therefore do not foreclose the possibility that a more detailed\\n\\nexplanation from the district court of the weight it afforded § 3553(a) factors other than\\n\\n§ 3553(a)(1) could yield a similar, but substantively reasonable, sentence on remand. See\\n\\nPark, 758 F.3d at 202.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the district court’s denial of Mr. Cookson’s\\n\\nmotion to suppress the fruits of the NIT search of his computer. We also VACATE the\\n\\n\\n\\n\\nv. Valdez-Aguirre, 861 F.3d 1164, 1165 (10th Cir. 2017) (explaining “[f]ederal trial\\ncourts frequently approach sentencing with at least some idea of what they intend to\\nimpose,” and therefore “sometimes announce a sentence before giving the defendant an\\nopportunity to allocute”).\\n 5\\n Fed. R. Crim. P. 32(i)(4)(A)(ii) requires as much. Had the district court refused\\nto listen to Mr. Cookson’s allocution and stubbornly held to its tentative sentence, it may\\nhave violated Mr. Cookson’s right to allocute. United States v. Theis, 853 F.3d 1178,\\n1182 (10th Cir. 2017) (“A court violates this right to allocute when it definitively\\nannounces the defendant's sentence before giving him an opportunity to speak, and fails\\nto communicate to the defendant that it will genuinely reconsider the sentence in light of\\nhis remarks.”).\\n\\n 29\\n\\fdistrict court’s decision sentencing Mr. Cookson to five years’ probation and REMAND\\n\\nfor resentencing.\\n\\n\\n\\n\\n 30\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391292/\", \"author_raw\": \"McHUGH\"}]}"},"judge1":{"kind":"string","value":"TYMKOVICH"},"judge2":{"kind":"string","value":"BACHARACH"},"judge3":{"kind":"string","value":"MCHUGH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614039/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Daniel Eugene COOKSON, Defendant-Appellee/Cross-Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 26, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff-Appellant/Cross-Appellee,\n\n v. Nos. 18-3070\n and 18-3071\n DANIEL EUGENE COOKSON,\n\n Defendant-Appellee/Cross-Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Kansas\n (D.C. No. 6:17-CR-10087-JTM-1)\n _________________________________\n\nStephen R. McAllister, United States Attorney (Jason W. Hart, Assistant United States\nAttorney, with him on the briefs), District of Kansas, Wichita, Kansas, for Plaintiff-\nAppellant/Cross-Appellee.\n\nDaniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,\nTimothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas\nCity, Kansas, for Defendant-Appellee/Cross-Appellant.\n _________________________________\n\nBefore TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\f Daniel Eugene Cookson pleaded guilty to two counts of possessing child\n\npornography after the FBI identified him in the course of its large-scale sting operation\n\ninvolving the website “Playpen.” At his sentencing hearing, the district court determined\n\nMr. Cookson’s criminal history and total offense level correlated to a Guidelines range of\n\n97–121 months. The district court announced its intention to sentence Mr. Cookson to a\n\nterm of seventy-two months’ imprisonment. But after entertaining argument from both\n\nparties and inviting Mr. Cookson’s allocution, the district court imposed a sentence of\n\nfive years’ probation.\n\n The United States appealed, challenging Mr. Cookson’s sentence as substantively\n\nunreasonable. Mr. Cookson cross-appealed, arguing the district court erred in refusing to\n\nsuppress evidence obtained from his computer by the FBI pursuant to a warrant issued in\n\nthe Eastern District of Virginia\n\n We affirm the district court’s suppression ruling based on our decision involving\n\nthe same warrant in United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), but we\n\nvacate Mr. Cookson’s sentence as unreasonable and remand to the district court for\n\nresentencing.\n\n I. BACKGROUND\n\n A. Search and Seizure\n\n In 2015, the FBI tracked down and arrested the operator of Playpen, a website that\n\nfacilitated the distribution of child pornography. Instead of discontinuing Playpen’s\n\noperations, however, the FBI decided to use the site to locate individuals using it to\n\naccess child pornography. Workman, 863 F.3d at1315.\n\n 2\n\f Finding Playpen’s users presented a challenge because Playpen was accessible\n\nonly through “Tor” (short for “The Onion Router”), a network and software program\n\ndesigned to allow users to browse the internet anonymously. Id. at 1315. To access\n\nPlaypen, users “had to employ [Tor] software that routed . . . connections through [a\n\nseries of] third-party computers called ‘nodes.’” Id. By routing connections in this\n\nmanner, Tor enabled its users to access Playpen without disclosing their IP addresses\n\n(unique numbers assigned to a given user’s computer, see United States v. Henderson,\n\n595 F.3d 1198, 1200 n.1 (10th Cir. 2010)) or other identifying information.\n\n To bypass the steps Playpen took to keep its users anonymous, the FBI, after\n\nseizing control of the website, loaded Playpen’s contents—pornography and all—onto a\n\ngovernment server in the Eastern District of Virginia. Workman, 863 F.3d at 1315. The\n\nFBI then sought a warrant in the Eastern District of Virginia which would authorize it to\n\ndeploy a network investigative technique (“NIT”) on the government server hosting\n\nPlaypen. In support of their application for a search warrant, the FBI obtained an affidavit\n\nfrom Agent Douglas Macfarlane explaining the operation of the proposed NIT as follows:\n\n In the normal course of operation, websites send content to visitors. A user’s\n computer downloads that content and uses it to display web pages on the user’s\n computer. Under the NIT authorized by this warrant, the TARGET WEBSITE\n [Playpen], which will be located in Newington, Virginia, in the Eastern District of\n Virginia, would augment that content with additional computer instructions. When\n a user’s computer successfully downloads those instructions from [Playpen] . . .\n the instructions, which comprise the NIT, are designed to cause the user’s . . .\n computer to transmit certain information [including IP addresses] to a computer\n controlled by or known to the government. . . . The NIT will not deny the user . . .\n access to any data or the functionality of the user’s computer.\n\n\n\n\n 3\n\fApp. at 342–43. Essentially, when someone logged in to Playpen by entering a username\n\nand password, the NIT would cause that person’s computer to transmit identifying\n\ninformation (including the user’s IP address) to the FBI. A magistrate judge in the\n\nEastern District of Virginia signed the warrant, and the FBI operated Playpen with the\n\nNIT for approximately two weeks.1\n\n On February 22, 2015, someone with the username “shishkabobs” logged into\n\nPlaypen. Shishkabobs’s computer downloaded the NIT, causing it to transmit identifying\n\ninformation to the FBI. Using this identifying information, the government sought an\n\nadministrative subpoena for the Southern Kansas Telephone Company to identify the\n\nphysical address associated with the IP address obtained from shiskabobs’s computer.\n\nBased on information received from the Southern Kansas Telephone Company, the FBI\n\nconnected shiskabobs’s IP address to a home Mr. Cookson shared with his parents and\n\nbrother in Howard, Kansas. The FBI obtained and executed a search warrant for this\n\nhome, where they found child pornography on various devices owned by Mr. Cookson.\n\nMr. Cookson later confessed to using Playpen to view child pornography.\n\n The government charged Mr. Cookson with two counts of possessing child\n\npornography under 18 U.S.C. § 2252A(a)(5)(B). Mr. Cookson moved to suppress all\n\nevidence derived from the operation of the NIT on his computer, arguing the magistrate\n\n\n\n 1\n The Playpen NIT resulted in criminal charges throughout the country, meaning\nmany courts, including ours, have reviewed the same NIT warrant for Fourth Amendment\nviolations. See, e.g., Workman, 863 F.3d at 1315; United States v. Levin, 874 F.3d 316\n(1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017).\n\n 4\n\fjudge in the Eastern District of Virginia lacked authority to issue the NIT warrant and the\n\nwarrant therefore violated the Fourth Amendment. Specifically, Mr. Cookson argued that\n\nmagistrate judges generally may not issue warrants for the search of persons or property\n\noutside of their district. See 28 U.S.C. § 636(a) (provision of the Federal Magistrates Act\n\ngiving magistrate judges authority “within the district in which [they sit]”). Although he\n\nrecognized that the version of Fed. R. Crim. P. 41(b) in force at the time created a limited\n\nset of exceptions to this general rule, including for warrants concerning the installation of\n\na tracking device, Mr. Cookson contended the exceptions did not include the NIT. He\n\nfurther argued that, if the district court deemed the warrant invalid, the good-faith\n\nexception could not save the fruits of the FBI’s unconstitutional search from application\n\nof the exclusionary rule because (1) the FBI misled the magistrate judge in its warrant\n\napplication, (2) the magistrate abandoned her judicial role, and (3) the FBI knew the\n\nwarrant was facially deficient. See Workman, 863 F.3d at 1317–18 (setting forth\n\ncircumstances in which the good-faith exception does not apply).\n\n The district court denied the suppression motion. The court observed that the same\n\nNIT warrant in Mr. Cookson’s case had been considered by many other trial courts across\n\nthe country. Most of these courts found the magistrate judge who issued the NIT warrant\n\nlacked the authority to do so, yet they declined to suppress evidence obtained as a result\n\nof the NIT under the good-faith exception. See, e.g., United States v. Ammons, 207 F.\n\nSupp. 3d 732 (W.D. Ky. 2016); United States v. Henderson, No. 15–CR–00565–WHO–\n\n1, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Michaud, No. 3:15–CR–\n\n05351–RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). And while two courts\n\n 5\n\fdecided the good-faith exception did not apply and suppressed the evidence, these\n\ndecisions were later reversed by the courts’ respective circuits. See United States v. Levin,\n\n874 F.3d 316, 325 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1052 (8th Cir.\n\n2017). The Tenth Circuit addressed the NIT warrant in United States v. Workman,\n\nholding that, even assuming the warrant was invalid, the good-faith exception saved the\n\nevidence from suppression. 863 F.3d at 1319–21.\n\n Here, the district court agreed that the Eastern District of Virginia magistrate judge\n\nexceeded her authority in issuing the NIT warrant but determined Workman governed the\n\noutcome of Mr. Cookson’s case. Accordingly, the court applied the good-faith exception\n\nand denied Mr. Cookson’s suppression motion.\n\n B. Sentencing\n\n After the district court denied his motion to suppress, Mr. Cookson entered into a\n\nplea agreement as to both counts of the indictment. As relevant here, the plea agreement\n\nset forth Mr. Cookson’s understanding that his plea entailed a maximum sentence of\n\ntwenty years’ imprisonment, various fines and assessments, and a minimum of five years’\n\nsupervised release. Mr. Cookson and the government also agreed to a conditional plea\n\nallowing Mr. Cookson to appeal the district court’s suppression decision. The\n\ngovernment agreed that Mr. Cookson could remain on bond (under conditions of\n\nsupervision) pending resolution of his appeal.\n\n Prior to sentencing, Mr. Cookson’s probation officer prepared a Presentence\n\nInvestigation Report (“PSR”). The PSR calculated Mr. Cookson’s base offense level as\n\n18. This base offense level increased to 28 due to a number of adjustments pursuant to\n\n 6\n\fU.S.S.G. § 2G2.2, including a two-level increase under U.S.S.G. § 2G2.2(b)(2) because\n\nthe material involved a prepubescent minor; a four-level increase under U.S.S.G.\n\n§ 2G2.2(b)(4) because the material involved sadistic or masochistic conduct or other\n\ndepictions of violence; a two-level increase under U.S.S.G. § 2G2.2(b)(6) because the\n\noffense involved the use of a computer, and a five-level increase under U.S.S.G.\n\n§ 2G2.2(b)(7)(D) because Mr. Cookson possessed more than 600 images of child\n\npornography. The PSR also listed Mr. Cookson’s adult criminal convictions, which\n\nresulted in a criminal history score of six and placed him in a criminal history category of\n\nIII.\n\n Based on an offense level of 28 and a criminal history category of III, the PSR\n\ncalculated a Guidelines range for Mr. Cookson of 97–121 months’ imprisonment.\n\nMr. Cookson’s convictions entail a maximum term of imprisonment of twenty years, and\n\na minimum term of five years’ supervised release.\n\n The parties filed sentencing memoranda. The United States requested a sentence\n\nof ninety-seven months’ imprisonment followed by five years’ supervised release,\n\nemphasizing Mr. Cookson’s criminal history and the need to avoid unwarranted\n\nsentencing disparities between similarly situated defendants. The government stated that\n\nthe average sentence for offenders within the 97–121 range was seventy months. The\n\ngovernment also stated that the 18 U.S.C. § 3553(a) factors supported a within-\n\nGuidelines sentence based on Mr. Cookson’s (1) use of Tor anonymizing software; (2)\n\ncontinued involvement with child pornography after being caught by his family; (3)\n\ninvolvement in social networks associated with child exploitation; (4) lengthy\n\n 7\n\finvolvement with child pornography; (5) sexting with strangers; and (6) involvement\n\nwith illegal drugs. App. at 171.\n\n Mr. Cookson requested a sentence of five years’ probation, focusing on his\n\nrehabilitation as shown by holding a job for twenty-one months, being promoted, and\n\nrecovering from drug addiction. Mr. Cookson also highlighted a policy disagreement\n\nwith the § 2G2.2 sentencing enhancements, noting they apply in the majority of cases and\n\nhave been criticized by the U.S. Sentencing Commission and various courts. Mr.\n\nCookson explained that without those enhancements, his Guidelines range would be 24–\n\n30 months instead of 97–121.\n\n During the sentencing hearing, the court determined the Guidelines range of 97–\n\n121 months had been correctly calculated based on a total offense level of 28 and\n\ncriminal history category of III. Before hearing from the parties, the court stated the\n\nfollowing:\n\n Having considered these factors and the advisory guidelines, the nature and\n circumstances of the offense, and Mr. Cookson’s history and characteristics, I am\n of the view that the guidelines range, even the low end of the guideline range, is\n greater than necessary to serve the purposes of sentencing and it is my intention to\n sentence Mr. Cookson to a term of confinement of 72 months on each of Counts 1\n and 2, those terms to run concurrently and not consecutively; to be followed by\n five years of supervised release on each of the two counts, those counts to run,\n again, concurrently and not consecutively.\n\n I believe that sentence is sufficient but not greater than necessary to reflect the\n seriousness of the offense, to promote respect for the law, and to provide just\n punishment for the offenses, all as set out at 18 U.S.C. Section 3553(a)(2)(A).\n\nApp. at 257–58. The court then invited the government to state its position on this\n\ntentatively-announced sentence. The government agreed with the sentence of seventy-two\n\n\n 8\n\fmonths’ imprisonment but reminded the court that Mr. Cookson had used “sophisticated\n\nanonymizing technology” (i.e., Tor) and had engaged with an “internet community\n\ndevoted to child exploitation,” which distinguished him from the “mine run” of\n\ndefendants. App. at 260–62.\n\n The court then heard argument from Mr. Cookson. Defense counsel began by\n\ndisputing the government’s characterization of aggravating factors under § 3553(a),\n\narguing the use of Tor did not indicate a level of technical sophistication because the\n\nsoftware is widely available and used for legitimate purposes, and that the government\n\nwas incorrect in asserting Mr. Cookson had engaged in “production conduct.” Defense\n\ncounsel pointed to letters from Mr. Cookson’s family and his employer, as well as the\n\nfact Mr. Cookson had overcome a drug addiction, as evidence of “extraordinary\n\nrehabilitation.” App. at 274. Defense counsel also highlighted the overrepresentation of\n\nMr. Cookson’s criminal history—four out of six total points for that history coming from\n\na single misdemeanor marijuana and drug paraphernalia possession charge. Defense\n\ncounsel noted that Mr. Cookson held a good job, stayed clean, attended counseling, and\n\nhad made “great strides in his life,” to the point where he could continue to “live a drug-\n\nfree and . . . law abiding lifestyle.” App. at 276–77. Defense counsel argued\n\nimprisonment would “have [Mr. Cookson] go backwards rather than forwards,” and a\n\nsentence of probation would allow Mr. Cookson to continue “contributing to society” and\n\npersonally moving “in a positive direction.” App. at 277. Mr. Cookson then allocuted,\n\napologizing for his actions taken “in the midst of drug addiction [and] depression” and\n\nstating that he wished to keep his job and “continue working hard on [his] sobriety.” Mr.\n\n 9\n\fCookson asked for a sentence of probation to allow him to “stay on [his] current path of\n\nliving a healthy, normal life.”\n\n After hearing argument from defense counsel and Mr. Cookson’s allocution, but\n\nbefore announcing a final sentence, the court stated the following:\n\n Mr. Cookson, it’s pretty obvious that you have made some significant progress in\n terms of your drug addiction. I have no idea, obviously, where you are in terms of\n child pornography but I’m not aware of any further activity that came up during\n the course of the presentence investigation with respect to that.\n\n You do have a good job and the fact that you’ve been at it for two years speaks\n volumes. Your family is obviously very supportive and they have seen very\n positive changes in you over a period of time. It does seem that your criminal\n history is overrepresented given the fact that four of your six points came out of a\n misdemeanor marijuana possession charge even with all of the subsequent stuff.\n And, frankly, these are serious offenses . . . .\n\nApp. at 279–280. The court observed that Congress and the Sentencing Commission had\n\n“struggled with this area” (presumably, sentencing for child-pornography possession) and\n\nthey were “hard” and “heartbreaking” cases. And the court recognized that becoming a\n\nregistered sex offender represented a “very heavy burden.” With respect to Mr. Cookson\n\nspecifically, the court stated:\n\n I’ve seen a lot of people through here over the years convicted of these types of\n offenses. Some are people who literally are social recluses, who are up in their\n mother’s attic or something, that's where they spend their time, they have no social\n life at all, any employment that they have they just go to work and they go home\n and there’s no life even there, and you seem to be the exception to the norm. And I\n intend to give you credit for the fact that you did go out, you did get a job, [and]\n the fact that you’re doing well with it . . . .\n\nApp. at 282.\n\n The court then sentenced Mr. Cookson to five years’ probation, noting it “would\n\nhave been more inclined not to place [Mr. Cookson] on probation,” but it was concerned\n\n 10\n\fabout imprisoning Mr. Cookson while his appeal was pending because his convictions\n\ncould be overturned. App. at 283. The government objected to the sentence on procedural\n\nand substantive grounds, specifically noting its “procedural objection” to the court’s\n\napparent reliance on a concern about imprisoning Mr. Cookson pending resolution of his\n\nappeal, because the government had agreed Mr. Cookson could remain on bond for that\n\nperiod.\n\n The court later produced a written “statement of reasons” for its sentence,\n\nchecking boxes for the following reasons for a variance under 18 U.S.C. § 3553(a): “the\n\nhistory and characteristics of the defendant” (including the fact that his criminal history\n\nhad been “over-represented”); “to reflect the seriousness of the offense, to promote\n\nrespect for the law, and to provide just punishment for the offense;” “to afford adequate\n\ndeterrence to criminal conduct;” “to protect the public from further crimes of the\n\ndefendant;” “to provide the defendant with needed educational or vocational training;”\n\n“to provide the defendant with other correctional treatment in the most effective manner;”\n\nand based on the district court’s “policy disagreement with the guidelines,” specifically\n\n§ 2G2.2.\n\n II. DISCUSSION\n\n A. NIT Search\n\n At the outset, the parties do not dispute whether the NIT constituted a search\n\nwithin the meaning of the Fourth Amendment, whether the warrant was valid, or whether\n\nthe search was reasonable despite the invalid warrant. The only issue before us is whether\n\n\n\n 11\n\fthe good-faith exception to the exclusionary rule applies to the government’s search using\n\nthe NIT. We decided it did in Workman.\n\n There, we assumed the NIT search “violate[d] the Federal Magistrates Act\n\n[§ 636(a)] and the Federal Rules of Criminal Procedure.” Workman, 863 F.3d at 1321.\n\nBut we explained that under United States v. Leon, 468 U.S. 897 (1984), even\n\n“improperly obtained evidence remains admissible when the executing agents ‘act with\n\nan objectively reasonable good-faith belief that their conduct is lawful or when their\n\nconduct involves only simple, isolated negligence.’” Id. at 1317 (quoting Davis v. United\n\nStates, 564 U.S. 229, 238 (2011)) (internal quotation marks omitted). Because we “expect\n\nagents executing warrants to be reasonably well-trained, but we do not expect them to\n\nunderstand legal nuances the way that an attorney would,” we concluded in Workman\n\nthat FBI agents could have reasonably relied on the warrant issued by the magistrate in\n\nthe Eastern District of Virginia when executing the NIT search. Id. at 1320–21 (internal\n\nquotation marks omitted). Had the agents possessed “sophisticated legal training, they\n\nmight have recognized” the problems posed by Rule 41(b) and 28 U.S.C. § 636(a), but\n\nwe do not hold law enforcement to such a standard. Id. at 1320. We also observed that\n\neight federal judges had held the NIT warrant complied with federal law and federal\n\nrules, suggesting the agents could reasonably “have made the same mistake” when acting\n\nin reliance on the warrant. Id. at 1321 (noting “objective reasonableness sometimes turns\n\non the clarity of existing law”); see United State v. Gonzales, 399 F.3d 1225, 1228–29\n\n(10th Cir. 2005) (“[O]fficers are generally not required to second-guess the magistrate’s\n\ndecision in granting a warrant.”).\n\n 12\n\f Although Mr. Cookson recognizes Workman involved the same warrant at issue in\n\nthis case, he argues the record before us contains four new facts that alter the good-faith\n\ncalculus under Leon. We evaluate each of these four facts not expressly considered by\n\nWorkman in turn.\n\n First, Mr. Cookson points to an internal guidance document produced by the\n\nDepartment of Justice—Computer Crime & Intellectual Prop. Section, Criminal Div.,\n\nU.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic\n\nEvidence in Criminal Investigations (3d ed. 2009),\n\nhttp://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. This manual\n\nadvised law enforcement to ensure compliance with Fed. R. Crim. P. 41 by “obtain[ing]\n\nmultiple warrants if they have reason to believe that a network search will retrieve data\n\nstored in multiple locations.” Id. at 84. Mr. Cookson argues the manual advises law\n\nenforcement to “obtain additional warrants for each location where the data resides” to\n\nensure compliance with Rule 41(b), 2nd Br. on Cross-Appeal at 26, and therefore it\n\nsuggests that FBI agents (who “worked very closely with the Department of Justice”\n\nduring the NIT operation, App. at 568) knew the NIT warrant would violate Rule 41(b).\n\nA fuller reading of the manual, however, reveals the DOJ bifurcated its advice depending\n\non whether agents would be able to learn, prior to searching, whether the data searched\n\nwas located within or without the district. Computer Crime & Intellectual Prop. Section,\n\nsupra, at 84 (“Agents may in some cases be able to learn where the data is located before\n\nthe search, but in others they will be unable to know the storage site of the data until after\n\nthe search is completed.”). When “agents can learn prior to the search that some or all of\n\n 13\n\fthe data described by the warrant is stored in a different location than where the agents\n\nwill execute the search,” the manual advises agents to obtain multiple warrants. Id. at 84–\n\n85. “When agents do not and even cannot know that data searched from one district is\n\nactually located outside the district,” the manual expressly advises agents that “evidence\n\nseized remotely from another district ordinarily should not lead to suppression of the\n\nevidence obtained.” Id. at 85 (emphasis added). The manual goes on to explain that\n\ncourts will likely not suppress the evidence as either (1) obtained in compliance with\n\nRule 41; or (2) even if in violation of Rule 41, obtained in a good-faith manner. See id. at\n\n85 (citing United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997); United States v.\n\nDenman, 100 F.3d 399, 402 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130,\n\n135–36 (2d Cir. 1992)). Because the Tor software used to access Playpen concealed\n\nusers’ IP addresses, agents could not know that data searched pursuant to the NIT warrant\n\nwas located outside the Eastern District of Virginia. Accordingly, the manual, far from\n\nsuggesting agents acted in bad faith when obtaining or relying on the NIT warrant, gives\n\nsupport for the FBI’s conclusion that the warrant met constitutional muster.\n\n Second, Mr. Cookson points to In re Warrant, 958 F. Supp. 2d 753 (S.D. Tex.\n\n2013), in which a magistrate judge denied the FBI’s request for a warrant authorizing it to\n\n“surreptitiously install data extraction software” on a computer whose location was\n\nunknown. Id. at 755. Once installed, the software would search the computer for\n\ninformation, activate the computer’s built-in camera, and transmit extracted data back to\n\nthe FBI within the Southern District of Texas. Id. The magistrate judge held the warrant\n\napplication satisfied none of the Rule 41(b) criteria. Id. at 756.\n\n 14\n\f The facts of In re Warrant bear substantial similarity to those before us.\n\nNevertheless, In re Warrant is insufficient to show the FBI lacked good faith when\n\nrelying on the NIT warrant because magistrate judges differed on the question at the time.\n\nIn re Warrant itself mentions that “in 2007 a magistrate judge is known to have issued a\n\nwarrant authorizing a similar investigative technique to track the source of e-mailed\n\nbomb threats against a Washington state high school.” Id. at 756 n.2. Likewise, a separate\n\nNIT warrant appears to have been issued against a Tor-based child pornography website\n\nin 2012. See United States v. Laurita, No. 8:13CR107, 2016 WL 4179365, at *3 (D. Neb.\n\nAug. 5, 2016) (“Pursuant to court authorization, a NIT was installed on Website A during\n\nthe period of November 16, 2012, and December 2, 2012.”). This disagreement among\n\nmagistrate judges supports Workman’s conclusion that the FBI reasonably deferred to the\n\nissuing magistrate’s judgment on a question of unsettled law. See 863 F.3d at 1321\n\n(“[O]bjective reasonableness sometimes turns on the clarity of existing law.”).\n\n Third, Mr. Cookson points to a September 2013 letter from the acting Assistant\n\nAttorney General (“AAG”) to the Chair of the Advisory Committee on Criminal Rules.\n\nLetter from Mythili Raman, Acting Attorney Gen., to Judge Reena Raggi, Chair,\n\nAdvisory Committee on the Criminal Rules (Sept. 18, 2013). In this letter, the AAG\n\nproposes an amendment to Rule 41 that would allow a magistrate judge “in a district\n\nwhere activities related to a crime have occurred to issue a warrant—to be executed via\n\nremote access—for electronic storage media and electronically stored information located\n\nwithin or outside that district.” App. at 397. This letter cites In re Warrant, observing:\n\n\n\n 15\n\f [E]ven when investigators can satisfy the Fourth Amendment’s threshold for\n obtaining a warrant for [a] remote search . . . a magistrate judge may decline to\n issue the requested warrant. For example, in a fraud investigation, one magistrate\n judge recently ruled that an application for a warrant for a remote search did not\n satisfy the territorial jurisdiction requirements of Rule 41.\n\nId. at 398. Although this letter lends credence to Mr. Cookson’s argument that the FBI\n\nwas aware of In re Warrant and Rule 41(b)’s territorial restrictions, it does not suggest\n\nthe AAG believed the magistrate judge’s decision in In re Warrant was correct. Rather,\n\nthe AAG sought an amendment to Rule 41(b) because the rule “does not directly address\n\nthe special circumstances that arise when officers execute search warrants, via remote\n\naccess, over modern communications networks such as the Internet.” App. at 397. The\n\nAAG hoped to “clarify” the rule because “while the Fourth Amendment permits warrants\n\nto issue for remote access to electronic storage media or electronically stored\n\ninformation, Rule 41’s language does not anticipate those types of warrants in all cases.”\n\nId. at 399. Accordingly, the AAG letter does not show the AAG (or, by extension, the\n\nFBI) knew Rule 41(b) in its then-current form did not authorize the NIT warrant.\n\n Finally, Mr. Cookson notes that Rule 41 was amended in 2016 to allow a\n\nmagistrate judge to “issue a warrant to use remote access to search electronic storage\n\nmedia . . . within or outside [her] district if . . . the district where the media or information\n\nis located has been concealed through technological means.” Fed. R. Crim. P.\n\n41(b)(6)(A). The parties do not dispute that this amendment, had it been adopted two\n\nyears earlier, would have expressly authorized the NIT warrant. But we disagree with Mr.\n\nCookson’s contention that “there would have been no need to amend Rule 41” had the\n\nNIT search been authorized at the time. 2nd Br. on Cross-Appeal at 28. The amendment\n\n 16\n\ffails to show the FBI’s lack of good faith for the same reason the AAG letter does—the\n\namendment of Rule 41 is consistent with an aim to clarify, but not necessarily change,\n\nthe rule. Therefore, the proposed and actual amendment bear no clear indications that the\n\npre-amendment Rule 41 forbade the NIT warrant, let alone that the FBI knew as much.\n\n Taken together, Mr. Cookson’s four new facts, at most, support Workman’s\n\nconclusion that the territorial restrictions of Rule 41(b) were unclear at the time the NIT\n\nwarrant issued. See 863 F.3d at 1321. A review of decisions before and since confirms\n\ncourts could and did differ on, for example, whether the NIT amounted to a “tracking\n\ndevice” expressly authorized by Rule 41. Compare, e.g., United States v. Jones, 230\n\nF. Supp. 3d 819, 824–25 (S.D. Ohio 2017), with Ryan Anthony Adams, 2016 WL\n\n4212079, at *6 (“[T]he NIT does not track; it searches.”). Accordingly, these new facts\n\ndo not remove us from Workman’s ambit, and we decline Mr. Cookson’s invitation to\n\ndistinguish or overrule binding precedent.\n\n B. Sentencing\n\n On appeal, the government challenges Mr. Cookson’s five-year probationary\n\nsentence as substantively unreasonable and purports to waive any challenge as to the\n\nsentence’s procedural reasonableness. Yet much of the government’s argument focuses\n\non the district court’s explanation for Mr. Cookson’s sentence—specifically its brevity,\n\nreliance on a misunderstanding of the terms of Mr. Cookson’s plea agreement, failure to\n\nconsider various § 3553(a) factors, and unexplained deviation from an initially-\n\nannounced seventy-two-month period of imprisonment. We typically consider such\n\narguments as pertaining to a sentence’s procedural reasonableness. United States v.\n\n 17\n\fHuckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (“Procedural reasonableness addresses\n\nwhether the district court incorrectly calculated . . . the Guidelines sentence, treated the\n\nGuidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly\n\nerroneous facts, or failed to adequately explain the sentence.”) Indeed, the government\n\nitself framed some of these objections as “procedural” at Mr. Cookson’s sentencing\n\nhearing.\n\n Still, we have recently acknowledged a blurring of the line between procedural\n\nand substantive reasonableness when it comes to the district court’s explanation for a\n\ngiven sentence. See United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018).\n\nTherefore, after stating the standard for our review of the district court’s sentencing\n\ndecision, we review the distinction between procedural and substantive reasonableness\n\nand its impact on our decision before evaluating the substantive reasonableness of\n\nMr. Cookson’s sentence.\n\n1. Standard of Review\n\n We review a district court’s sentencing decision for substantive reasonableness\n\nunder an abuse-of-discretion standard, looking at the “totality of the circumstances.”\n\nUnited States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011). “A district court\n\nabuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,\n\nor manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.\n\n2009). Our abuse-of-discretion standard applies “without regard to whether the district\n\ncourt imposes a sentence within or outside the advisory guidelines range,” so we do not\n\napply a presumption of unreasonableness to sentences outside the guidelines range. Id.\n\n 18\n\fInstead, we “give due deference to the district court’s decision that the § 3553(a) factors,\n\non [the] whole, justify the extent of the variance.” Id. (quotation marks omitted). “That\n\nwe might reasonably have concluded a different sentence was appropriate is insufficient\n\nto justify reversal of the district court.” Id. (quotation marks and alterations omitted). We\n\nbear in mind that the “sentencing judge is in a superior position to find facts and judge\n\ntheir import under § 3553(a) in the individual case,” Gall v. United States, 552 U.S. 38,\n\n51 (2007), because “[t]he judge sees and hears the evidence, makes credibility\n\ndeterminations, has full knowledge of the facts and gains insights not conveyed by the\n\nrecord.” United States v. Barnes, 890 F.3d 910, 915–16 (10th Cir. 2018) (quoting Gall,\n\n552 U.S. at 51). Finally, “when we review a downward variance from the recommended\n\nguidelines range, as we do here, even more solicitude to the sentencing court is\n\nappropriate.” Id. at 916.\n\n2. Procedural Versus Substantive Unreasonableness\n\n In the wake of United States v. Booker, 543 U.S. 220 (2005), which converted the\n\nmandatory federal sentencing scheme into a discretionary one, we review sentences\n\nimposed by the district court for reasonableness. Friedman, 554 F.3d at 1307. Our\n\nreasonableness review has two aspects: procedural and substantive. Id. When reviewing a\n\nsentence for procedural reasonableness, we consider “whether the district court\n\ncommitted any error in calculating or explaining the sentence.” Id.; see also Gall, 552\n\nU.S. at 51 (stating appellate courts must first “ensure that the district court committed no\n\nsignificant procedural error, such as failing to calculate (or improperly calculating) the\n\nGuidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)\n\n 19\n\ffactors, selecting a sentence based on clearly erroneous facts, or failing to adequately\n\nexplain the chosen sentence . . . .”). When reviewing a sentence for substantive\n\nreasonableness, we focus on “whether the length of the sentence is reasonable given all\n\nthe circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”\n\nFriedman, 554 F.3d at 1307 (quotation marks omitted).\n\n This distinction turns murky, however, when we consider that the district court’s\n\nexplanation for a given sentence serves a “dual purpose.” See Barnes, 890 F.3d at 917.\n\nFirst, a district court’s explanation of how the § 3553(a) factors apply “is a procedural\n\nrequirement,” id., and the “absence of explanation could constitute procedural error” as\n\ncould the failure to address a defendant’s material, non-frivolous arguments under the\n\n§ 3553(a) factors. United States v. Lente, 647 F.3d 1021, 1031, 1035 (10th Cir. 2011).\n\nSecond, the content of the district court’s explanation “is relevant to whether the length\n\nof the sentence is substantively reasonable” because “[a] sentence is more likely to be\n\nwithin the bounds of reasonable choice when the court has provided a cogent and\n\nreasonable explanation for it.” Barnes, 980 F.3d at 917. Stated another way, we rely on\n\nthe district court’s procedurally-required explanation in order to conduct “meaningful\n\nappellate review” of a sentence’s substantive reasonableness. Gall, 552 U.S. at 50; see\n\nLente, 647 F.3d at 1039 (explaining that “[w]e cannot fulfill our appellate role, however\n\ndeferential, in assessing the substantive reasonableness of [a] sentence” without an\n\nadequate explanation from the district court). A limited, brief, or inconsistent explanation\n\nhinders our ability to do so, and therefore “put[s] at risk the substantive reasonableness of\n\nany decision [the district court] reached.” United States v. Lychock, 578 F.3d 214, 220\n\n 20\n\f(3d Cir. 2009) (quoting United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007)); see\n\nFriedman, 554 F.3d at 1312 (“[T]he very limited nature of the record and the paucity of\n\nreasoning on the part of the district court most certainly bear on our review of the\n\nsubstantive reasonableness of Friedman’s sentence.”); United States v. Gonzalez, 529\n\nF.3d 94, 98 (2d Cir. 2008) (“Determination of whether the sentence is unreasonable is\n\nhampered by the brevity of the reasons given for it.”). This is especially true when the\n\nsentence varies greatly from the sentencing Guidelines, because “a major [variance]\n\nshould be supported by a more significant justification than a minor one.” Gall, 552 U.S.\n\nat 50.\n\n But the heavier our reliance on the inadequacy of the district court’s explanation in\n\nholding Mr. Cookson’s sentence substantively unreasonable, the less our decision\n\nrestricts the “bounds of reasonable choice” available to the district court in crafting a\n\nsentence on remand. Barnes, 890 F.3d at 917. A sentence deemed substantively\n\nunreasonable primarily because of an explanation too brief or cursory to justify the extent\n\nof its variance from the Guidelines might be substantively reasonable given a more\n\ndetailed explanation. See United States v. Park, 758 F.3d 193, 202 (2d Cir. 2014) (“In\n\nholding that the District Court's probationary sentence was substantively unreasonable,\n\nwe rely heavily upon the District Court's own evaluation of the case, as revealed by its\n\nstatements at the sentencing hearing. . . . We thus do not foreclose the possibility that the\n\nimposition of a probationary sentence on remand, after appropriate consideration of the\n\n§ 3553(a) factors thus far left unaddressed, could be substantively reasonable as well.”).\n\n\n\n 21\n\f With that backdrop in place, we consider Mr. Cookson’s sentence in light of “all\n\nthe circumstances of the case,” Friedman, 554 F.3d at 1307, using the district court’s\n\nexplanation for the sentence “to assist us in determining whether the district court abused\n\nits discretion in weighing the § 3553(a) factors,” Barnes, 890 F.3d at 917.\n\n3. Substantive Reasonableness Review\n\n 18 U.S.C. § 3553(a) requires district courts to consider seven factors in\n\nsentencing: (1) the nature and circumstances of the offense and the history and\n\ncharacteristics of the defendant; (2) the need for a sentence to reflect the “basic aims of\n\nsentencing, namely (a) ‘just punishment’ (retribution), (b) deterrence, (c) incapacitation,\n\nand (d) rehabilitation,” United States v. Walker (“Walker I”), 844 F.3d 1253, 1253 (10th\n\nCir. 2017); (3) the kinds of sentences available; (4) the Sentencing Commission\n\nGuidelines; (5) Sentencing Commission policy statements; (6) the need to avoid\n\nunwarranted sentencing disparities; and (7) the need for restitution. See 18 U.S.C.\n\n§ 3553(a)(1)–(7).\n\n The district court explained Mr. Cookson’s sentence primarily in terms of\n\n§ 3553(a)(1), specifically referencing Mr. Cookson’s (1) recovery from drug addiction,\n\n(2) success in a new job, and (3) support from his family. The court acknowledged that\n\nMr. Cookson’s offenses were serious and that possession of child pornography causes\n\nsignificant harm to the children depicted. See United States v. DeRusse, 859 F.3d 1232,\n\n1239 (10th Cir. 2017) (“Viewing the entire sentencing transcript in context . . . we are\n\nconvinced that the district court was fully aware of the seriousness of the offense and\n\ntook very seriously the harm suffered by the [victims].”) But after hearing argument from\n\n 22\n\fdefense counsel about Mr. Cookson’s three-year recovery from addiction and from Mr.\n\nCookson himself attributing his conduct to “a bad place in [his] life at the time in the\n\nmidst of drug addiction [and] depression,” App. at 278, the district court remarked that\n\nMr. Cookson’s pre-sentencing rehabilitation made him the “exception to the norm,” App.\n\nat 282. The district court observed that Mr. Cookson had obviously made “significant\n\nprogress in terms of . . . drug addiction,” App. at 279, and that Mr. Cookson had “a good\n\njob and the fact that [Mr. Cookson has] been at it for two years speaks volumes,” id. at\n\n280. Finally, the court noted, “It does seem that [Mr. Cookson’s] criminal history is\n\noverrepresented given the fact that four of [his] six points came out of a misdemeanor\n\nmarijuana possession charge.”2 App. at 280. The combination of these circumstances\n\ncould reasonably support a downward variance, even a large one, under 18 U.S.C.\n\n§ 3553(a)(1). See Walker I, 844 F.3d at 1257.\n\n The district court’s written statement of reasons also expressed its policy\n\ndisagreement with U.S.S.G. § 2G2.2 as a reason for the downward variance. We have\n\ndescribed arguments criticizing the § 2G2.2 enhancements as “quite forceful” and have\n\n“specifically cautioned district courts to carefully apply the child pornography\n\ndistribution guideline and remain mindful that they possess broad discretion in fashioning\n\nsentences under § 2G2.2.” United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017)\n\n(internal quotation marks and alterations omitted); see also United States v. Grigsby, 749\n\n\n 2\n The court’s written statement of reasons makes clear that it weighed this fact\nunder § 3553(a)(1), although an over-represented criminal history could also support a\ndownward departure under U.S.S.G. § 4A1.3(b)(1).)\n\n 23\n\fF.3d 908, 911 (10th Cir. 2014) (referencing a “number of reported cases where district\n\ncourts have rejected application of § 2G2.2 for want of an empirical basis”); United\n\nStates v. Dorvee, 616 F.3d 174, 186–87 (2d Cir. 2010) (noting that the ubiquitous\n\napplication of the § 2G2.2 enhancements resulted in “virtually no distinction between the\n\nsentences for defendants [who merely possessed child pornography] . . . and the\n\nsentences for the most dangerous offenders who, for example, distribute child\n\npornography for pecuniary gain”). Accordingly, the district court did not abuse its\n\ndiscretion in determining that its policy disagreement with § 2G2.2 could support the\n\nimposition of a more lenient sentence. But the court did not elaborate on this policy\n\ndisagreement during the sentencing hearing except to say that “Congress has struggled\n\nwith this area” and “the Sentencing Commission has struggled with this area.” App. at\n\n280. Nor did the court address the extent to which the disagreement weighed in its final\n\ndecision. Instead, the court’s explanation focuses overwhelmingly on Mr. Cookson’s\n\npresentencing rehabilitation and its desire not to see Mr. Cookson’s progress “turned\n\nback.” Id. at 283.\n\n Although we recognize these concerns as valid, we have cautioned against\n\nexcessive reliance on a single factor in sentencing. In Walker I, we held substantively\n\nunreasonable a time-served sentence for a serial bank robber who pleaded guilty to two\n\nbank robberies. See 844 F.3d 1255.3 We reasoned the district court had focused “almost\n\n\n 3\n On remand, the district court resentenced Mr. Walker to ten years of probation,\ntwo years of home confinement, and 500 hours of community service. United States v.\nWalker (Walker II), 918 F.3d 1134, 1137 (10th Cir. 2019). The government appealed\nagain, arguing that the district court violated Walker I’s mandate by declining to sentence\n 24\n\fexclusively on Mr. Walker’s newfound sobriety” and had paid “inadequate attention” to a\n\nnumber of other statutory factors, including the “basic aims of punishment” and the need\n\nto avoid unwarranted sentencing disparities, in deciding to impose a time-served\n\nsentence. Id. 1258–59; see 18 U.S.C. § 3553(a)(1), (6). Although the district court in\n\nWalker I discussed, for example, the values of specific deterrence and rehabilitation, we\n\ncriticized its failure to mention incapacitation and its offhand “dismiss[al] [of] the\n\nrelevance of [general] deterrence.” See Walker I, 844 F.3d at 1257–58. Of course, the\n\ndistrict court need not afford equal weight to each § 3553(a) factor, United States v.\n\nSanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014), and we will defer on substantive-\n\nreasonableness review “not only to a district court’s factual findings but also to its\n\ndeterminations of the weight to be afforded to such findings.” United States v. Smart, 518\n\nF.3d 800, 808 (10th Cir. 2008). Unlike the district court in Walker I, however, the court\n\nhere made no mention of deterrence, rehabilitation, or incapacitation in explaining Mr.\n\nCookson’s sentence. Nor did it address the potential for “unwarranted sentencing\n\ndisparities” raised by the government. Although we can extrapolate reasoning from the\n\ndistrict court’s relatively brief explanation—for example, the district court might have\n\nviewed any disparity resulting from Mr. Cookson’s sentence as a “warranted” one, see\n\nLente, 759 F.3d at 1169 (explaining that “[o]ur sentencing scheme seeks to eliminate not\n\n\nMr. Walker to a prison term. Id. at 1143. We disagreed because Walker I’s mandate “did\nnot specifically limit the district court’s discretion by requiring it to impose a sentence of\nimprisonment.” Id. at 1154. We declined to express any view on whether the new\nsentence was substantively reasonable, “as the government waived its argument on that\npoint by failing to adequately address the district court’s analysis.” Id.\n\n 25\n\fall sentencing disparities, but only unwarranted disparities”) (internal quotation marks\n\nomitted)—the explanation itself does little to assist us in understanding how it applied the\n\n§ 3553(a) factors other than § 3553(a)(1) to Mr. Cookson’s case, see Barnes, 890 F.3d at\n\n917. Without any explanation from the district court on the weight it afforded the other\n\n§ 3553(a) factors in granting Mr. Cookson such a large variance, we consider the\n\nsentence as substantively unreasonable. See Smart, 518 F.3d at 808; see also Gall, 552\n\nU.S. at 50 (“[A] major [variance] should be supported by a more significant justification\n\nthan a minor one.”).\n\n Comparing the district court’s explanation of Mr. Cookson’s sentence with other\n\nrecent cases upholding the substantive reasonableness of large downward variances\n\nsupports this conclusion. Barnes, for example, considered a large downward variance for\n\nformer jail employees convicted of conspiracy to violate, and deprivation of,\n\nconstitutional rights related to abuse they inflicted on the jail’s inmates. See 890 F.3d at\n\n914 (affirming a downward variance from a Guidelines range of 70–87 months’\n\nimprisonment to a twenty-four-month sentence followed by twenty-four months’\n\nsupervised release for the first defendant and a twelve-month sentence followed by thirty-\n\nsix months’ supervised release for the second). In upholding the sentences as\n\nsubstantively reasonable, we credited the district court with a “careful” discussion, in\n\nwhich the court “walked through” and “properly addressed each of the § 3553(a) factors\n\nbefore approving a downward variance from the Guidelines range.” Id. at 918. The\n\nBarnes district court expressly considered, for example, the defendants’ personal\n\ncharacteristics, their risk of recidivism, the “specific and general deterrence” advanced by\n\n 26\n\ftheir sentences, and the seriousness of their offenses. Id. at 918–19. Likewise, in\n\nDeRusse, we affirmed a downward departure and variance from a Guidelines range of\n\n108–135 months to a sentence of time served followed by five years’ supervised release\n\nin a kidnapping case. 859 F.3d at 1235–36. We distinguished the district court’s\n\nexplanation of DeRusse’s sentence from that in Walker I, describing it as having\n\n“thoughtfully considered all of the § 3553 factors, rather than focusing almost exclusively\n\non one particular factor, and concluded based on its assessment of all of these factors that\n\na sentence of time-served would be the most appropriate.” Id. at 1240.\n\n Here, the district court’s assessment, in addition to focusing almost exclusively on\n\n§ 3553(a)(1), relied on an apparent misunderstanding of Mr. Cookson’s conditional plea\n\nagreement. Fearing that Mr. Cookson’s challenge to the suppression ruling might be\n\nsuccessful, and that Mr. Cookson would then have spent time in prison and lost his job\n\nonly for the charges against him to be dismissed, the court stated it would have been less\n\ninclined to place Mr. Cookson on probation but for his conditional plea. But the\n\ngovernment had consented in the conditional plea agreement that Mr. Cookson could\n\nremain on bond pending resolution of his appeal. The district court’s concern was thus\n\nunfounded, and its suggestion that it would have been more inclined to sentence Mr.\n\nCookson to a term of imprisonment absent this concern gives us pause in deferring to its\n\n“decision that the § 3553(a) factors, on [the] whole, justify the extent of the variance.”\n\nFriedman, 554 F.3d at 1307.\n\n In light of this discrepancy, and because the district court placed nearly exclusive\n\nfocus on Mr. Cookson’s presentencing rehabilitation in explaining its decision, the\n\n 27\n\fsentence it imposed is substantively unreasonable. We reach this conclusion, in large\n\npart, based on the significant variance in Mr. Cookson’s sentence and the district court’s\n\nlimited and inconsistent explanation for that variance. See Barnes, 890 F.3d at 917 (“A\n\nsentence is more likely to be within the bounds of reasonable choice when the court has\n\nprovided a cogent and reasonable explanation for it.”). We therefore decline the\n\ngovernment’s request that we direct the district court to impose the seventy-two-month\n\nsentence it tentatively announced at the outset of Mr. Cookson’s sentencing hearing. See\n\nKoon v. United States, 518 U.S. 81, 97 (1996) (“[I]t is not the role of an appellate court to\n\nsubstitute its judgment for that of the sentencing court as to the appropriateness of a\n\nparticular sentence.”) (quoting Williams v. United States, 503 U.S. 193, 205 (1992)). Nor\n\ndo we agree the district court’s deviation from its tentatively-announced seventy-two-\n\nmonth sentence should weigh heavily in our assessment of whether it reached a\n\nsubstantively unreasonable decision.4 To the contrary, the record indicates the district\n\n\n 4\n The government cites a single case, United States v. Gerezano-Rosales, 692 F.3d\n393 (5th Cir. 2012), in support of its argument that the district court’s tentatively-\nannounced sentence should affect our reasonableness determination. But what the\ngovernment characterizes as an “initial announcement” of a sentence in Gerezano-\nRosales, 3rd Br. on Cross-Appeal at 9, was in fact the final sentence imposed by the\ndistrict court after giving the defendant the opportunity to allocute. Gerezano-Rosales,\n692 F.3d at 396. Immediately after sentencing the defendant to seventy-one months, the\ndistrict court attempted to impose a 108-month sentence because the defendant had been\n“disrespectful when he questioned the appropriateness of the originally imposed”\nsentence. Id. at 400. The appellate court invalidated the higher sentence as substantively\nunreasonable because “no matter how insolently Gerezano delivered his retorts to the\ndistrict court, his statements could not have reasonably justified a variance of three years\nabove the guidelines range, especially since the court had previously found that a\nGuidelines sentence was otherwise appropriate.” Id. at 402. This case bears little\nresemblance to Mr. Cookson’s, in which the district court announced its inclination to\nimpose a seventy-two-month sentence as a starting point for discussion. See United States\n 28\n\fcourt, after announcing a tentative sentence, listened carefully to counsel’s arguments and\n\nMr. Cookson’s allocution.5 Something about these arguments apparently persuaded the\n\ndistrict court to change its mind and impose a more lenient sentence than it had initially\n\nanticipated. See App. at 283 (explaining the district court “came in . . . not expecting to\n\n[impose a probationary sentence]”). But the district court undertook a relatively brief\n\nexplanation of the statutory factors supporting the sentence it finally imposed, which\n\nimpedes our review. We therefore do not foreclose the possibility that a more detailed\n\nexplanation from the district court of the weight it afforded § 3553(a) factors other than\n\n§ 3553(a)(1) could yield a similar, but substantively reasonable, sentence on remand. See\n\nPark, 758 F.3d at 202.\n\n III. CONCLUSION\n\n For these reasons, we AFFIRM the district court’s denial of Mr. Cookson’s\n\nmotion to suppress the fruits of the NIT search of his computer. We also VACATE the\n\n\n\n\nv. Valdez-Aguirre, 861 F.3d 1164, 1165 (10th Cir. 2017) (explaining “[f]ederal trial\ncourts frequently approach sentencing with at least some idea of what they intend to\nimpose,” and therefore “sometimes announce a sentence before giving the defendant an\nopportunity to allocute”).\n 5\n Fed. R. Crim. P. 32(i)(4)(A)(ii) requires as much. Had the district court refused\nto listen to Mr. Cookson’s allocution and stubbornly held to its tentative sentence, it may\nhave violated Mr. Cookson’s right to allocute. United States v. Theis, 853 F.3d 1178,\n1182 (10th Cir. 2017) (“A court violates this right to allocute when it definitively\nannounces the defendant's sentence before giving him an opportunity to speak, and fails\nto communicate to the defendant that it will genuinely reconsider the sentence in light of\nhis remarks.”).\n\n 29\n\fdistrict court’s decision sentencing Mr. Cookson to five years’ probation and REMAND\n\nfor resentencing.\n\n\n\n\n 30\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Daniel Eugene COOKSON, Defendant-Appellee/Cross-Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 26, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellant/Cross-Appellee,\\n\\n v. Nos. 18-3070\\n and 18-3071\\n DANIEL EUGENE COOKSON,\\n\\n Defendant-Appellee/Cross-Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Kansas\\n (D.C. No. 6:17-CR-10087-JTM-1)\\n _________________________________\\n\\nStephen R. McAllister, United States Attorney (Jason W. Hart, Assistant United States\\nAttorney, with him on the briefs), District of Kansas, Wichita, Kansas, for Plaintiff-\\nAppellant/Cross-Appellee.\\n\\nDaniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender,\\nTimothy J. Henry, Assistant Federal Public Defender, with him on the briefs), Kansas\\nCity, Kansas, for Defendant-Appellee/Cross-Appellant.\\n _________________________________\\n\\nBefore TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\f Daniel Eugene Cookson pleaded guilty to two counts of possessing child\\n\\npornography after the FBI identified him in the course of its large-scale sting operation\\n\\ninvolving the website “Playpen.” At his sentencing hearing, the district court determined\\n\\nMr. Cookson’s criminal history and total offense level correlated to a Guidelines range of\\n\\n97–121 months. The district court announced its intention to sentence Mr. Cookson to a\\n\\nterm of seventy-two months’ imprisonment. But after entertaining argument from both\\n\\nparties and inviting Mr. Cookson’s allocution, the district court imposed a sentence of\\n\\nfive years’ probation.\\n\\n The United States appealed, challenging Mr. Cookson’s sentence as substantively\\n\\nunreasonable. Mr. Cookson cross-appealed, arguing the district court erred in refusing to\\n\\nsuppress evidence obtained from his computer by the FBI pursuant to a warrant issued in\\n\\nthe Eastern District of Virginia\\n\\n We affirm the district court’s suppression ruling based on our decision involving\\n\\nthe same warrant in United States v. Workman, 863 F.3d 1313 (10th Cir. 2017), but we\\n\\nvacate Mr. Cookson’s sentence as unreasonable and remand to the district court for\\n\\nresentencing.\\n\\n I. BACKGROUND\\n\\n A. Search and Seizure\\n\\n In 2015, the FBI tracked down and arrested the operator of Playpen, a website that\\n\\nfacilitated the distribution of child pornography. Instead of discontinuing Playpen’s\\n\\noperations, however, the FBI decided to use the site to locate individuals using it to\\n\\naccess child pornography. Workman, 863 F.3d at1315.\\n\\n 2\\n\\f Finding Playpen’s users presented a challenge because Playpen was accessible\\n\\nonly through “Tor” (short for “The Onion Router”), a network and software program\\n\\ndesigned to allow users to browse the internet anonymously. Id. at 1315. To access\\n\\nPlaypen, users “had to employ [Tor] software that routed . . . connections through [a\\n\\nseries of] third-party computers called ‘nodes.’” Id. By routing connections in this\\n\\nmanner, Tor enabled its users to access Playpen without disclosing their IP addresses\\n\\n(unique numbers assigned to a given user’s computer, see United States v. Henderson,\\n\\n595 F.3d 1198, 1200 n.1 (10th Cir. 2010)) or other identifying information.\\n\\n To bypass the steps Playpen took to keep its users anonymous, the FBI, after\\n\\nseizing control of the website, loaded Playpen’s contents—pornography and all—onto a\\n\\ngovernment server in the Eastern District of Virginia. Workman, 863 F.3d at 1315. The\\n\\nFBI then sought a warrant in the Eastern District of Virginia which would authorize it to\\n\\ndeploy a network investigative technique (“NIT”) on the government server hosting\\n\\nPlaypen. In support of their application for a search warrant, the FBI obtained an affidavit\\n\\nfrom Agent Douglas Macfarlane explaining the operation of the proposed NIT as follows:\\n\\n In the normal course of operation, websites send content to visitors. A user’s\\n computer downloads that content and uses it to display web pages on the user’s\\n computer. Under the NIT authorized by this warrant, the TARGET WEBSITE\\n [Playpen], which will be located in Newington, Virginia, in the Eastern District of\\n Virginia, would augment that content with additional computer instructions. When\\n a user’s computer successfully downloads those instructions from [Playpen] . . .\\n the instructions, which comprise the NIT, are designed to cause the user’s . . .\\n computer to transmit certain information [including IP addresses] to a computer\\n controlled by or known to the government. . . . The NIT will not deny the user . . .\\n access to any data or the functionality of the user’s computer.\\n\\n\\n\\n\\n 3\\n\\fApp. at 342–43. Essentially, when someone logged in to Playpen by entering a username\\n\\nand password, the NIT would cause that person’s computer to transmit identifying\\n\\ninformation (including the user’s IP address) to the FBI. A magistrate judge in the\\n\\nEastern District of Virginia signed the warrant, and the FBI operated Playpen with the\\n\\nNIT for approximately two weeks.1\\n\\n On February 22, 2015, someone with the username “shishkabobs” logged into\\n\\nPlaypen. Shishkabobs’s computer downloaded the NIT, causing it to transmit identifying\\n\\ninformation to the FBI. Using this identifying information, the government sought an\\n\\nadministrative subpoena for the Southern Kansas Telephone Company to identify the\\n\\nphysical address associated with the IP address obtained from shiskabobs’s computer.\\n\\nBased on information received from the Southern Kansas Telephone Company, the FBI\\n\\nconnected shiskabobs’s IP address to a home Mr. Cookson shared with his parents and\\n\\nbrother in Howard, Kansas. The FBI obtained and executed a search warrant for this\\n\\nhome, where they found child pornography on various devices owned by Mr. Cookson.\\n\\nMr. Cookson later confessed to using Playpen to view child pornography.\\n\\n The government charged Mr. Cookson with two counts of possessing child\\n\\npornography under 18 U.S.C. § 2252A(a)(5)(B). Mr. Cookson moved to suppress all\\n\\nevidence derived from the operation of the NIT on his computer, arguing the magistrate\\n\\n\\n\\n 1\\n The Playpen NIT resulted in criminal charges throughout the country, meaning\\nmany courts, including ours, have reviewed the same NIT warrant for Fourth Amendment\\nviolations. See, e.g., Workman, 863 F.3d at 1315; United States v. Levin, 874 F.3d 316\\n(1st Cir. 2017); United States v. Horton, 863 F.3d 1041 (8th Cir. 2017).\\n\\n 4\\n\\fjudge in the Eastern District of Virginia lacked authority to issue the NIT warrant and the\\n\\nwarrant therefore violated the Fourth Amendment. Specifically, Mr. Cookson argued that\\n\\nmagistrate judges generally may not issue warrants for the search of persons or property\\n\\noutside of their district. See 28 U.S.C. § 636(a) (provision of the Federal Magistrates Act\\n\\ngiving magistrate judges authority “within the district in which [they sit]”). Although he\\n\\nrecognized that the version of Fed. R. Crim. P. 41(b) in force at the time created a limited\\n\\nset of exceptions to this general rule, including for warrants concerning the installation of\\n\\na tracking device, Mr. Cookson contended the exceptions did not include the NIT. He\\n\\nfurther argued that, if the district court deemed the warrant invalid, the good-faith\\n\\nexception could not save the fruits of the FBI’s unconstitutional search from application\\n\\nof the exclusionary rule because (1) the FBI misled the magistrate judge in its warrant\\n\\napplication, (2) the magistrate abandoned her judicial role, and (3) the FBI knew the\\n\\nwarrant was facially deficient. See Workman, 863 F.3d at 1317–18 (setting forth\\n\\ncircumstances in which the good-faith exception does not apply).\\n\\n The district court denied the suppression motion. The court observed that the same\\n\\nNIT warrant in Mr. Cookson’s case had been considered by many other trial courts across\\n\\nthe country. Most of these courts found the magistrate judge who issued the NIT warrant\\n\\nlacked the authority to do so, yet they declined to suppress evidence obtained as a result\\n\\nof the NIT under the good-faith exception. See, e.g., United States v. Ammons, 207 F.\\n\\nSupp. 3d 732 (W.D. Ky. 2016); United States v. Henderson, No. 15–CR–00565–WHO–\\n\\n1, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Michaud, No. 3:15–CR–\\n\\n05351–RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). And while two courts\\n\\n 5\\n\\fdecided the good-faith exception did not apply and suppressed the evidence, these\\n\\ndecisions were later reversed by the courts’ respective circuits. See United States v. Levin,\\n\\n874 F.3d 316, 325 (1st Cir. 2017); United States v. Horton, 863 F.3d 1041, 1052 (8th Cir.\\n\\n2017). The Tenth Circuit addressed the NIT warrant in United States v. Workman,\\n\\nholding that, even assuming the warrant was invalid, the good-faith exception saved the\\n\\nevidence from suppression. 863 F.3d at 1319–21.\\n\\n Here, the district court agreed that the Eastern District of Virginia magistrate judge\\n\\nexceeded her authority in issuing the NIT warrant but determined Workman governed the\\n\\noutcome of Mr. Cookson’s case. Accordingly, the court applied the good-faith exception\\n\\nand denied Mr. Cookson’s suppression motion.\\n\\n B. Sentencing\\n\\n After the district court denied his motion to suppress, Mr. Cookson entered into a\\n\\nplea agreement as to both counts of the indictment. As relevant here, the plea agreement\\n\\nset forth Mr. Cookson’s understanding that his plea entailed a maximum sentence of\\n\\ntwenty years’ imprisonment, various fines and assessments, and a minimum of five years’\\n\\nsupervised release. Mr. Cookson and the government also agreed to a conditional plea\\n\\nallowing Mr. Cookson to appeal the district court’s suppression decision. The\\n\\ngovernment agreed that Mr. Cookson could remain on bond (under conditions of\\n\\nsupervision) pending resolution of his appeal.\\n\\n Prior to sentencing, Mr. Cookson’s probation officer prepared a Presentence\\n\\nInvestigation Report (“PSR”). The PSR calculated Mr. Cookson’s base offense level as\\n\\n18. This base offense level increased to 28 due to a number of adjustments pursuant to\\n\\n 6\\n\\fU.S.S.G. § 2G2.2, including a two-level increase under U.S.S.G. § 2G2.2(b)(2) because\\n\\nthe material involved a prepubescent minor; a four-level increase under U.S.S.G.\\n\\n§ 2G2.2(b)(4) because the material involved sadistic or masochistic conduct or other\\n\\ndepictions of violence; a two-level increase under U.S.S.G. § 2G2.2(b)(6) because the\\n\\noffense involved the use of a computer, and a five-level increase under U.S.S.G.\\n\\n§ 2G2.2(b)(7)(D) because Mr. Cookson possessed more than 600 images of child\\n\\npornography. The PSR also listed Mr. Cookson’s adult criminal convictions, which\\n\\nresulted in a criminal history score of six and placed him in a criminal history category of\\n\\nIII.\\n\\n Based on an offense level of 28 and a criminal history category of III, the PSR\\n\\ncalculated a Guidelines range for Mr. Cookson of 97–121 months’ imprisonment.\\n\\nMr. Cookson’s convictions entail a maximum term of imprisonment of twenty years, and\\n\\na minimum term of five years’ supervised release.\\n\\n The parties filed sentencing memoranda. The United States requested a sentence\\n\\nof ninety-seven months’ imprisonment followed by five years’ supervised release,\\n\\nemphasizing Mr. Cookson’s criminal history and the need to avoid unwarranted\\n\\nsentencing disparities between similarly situated defendants. The government stated that\\n\\nthe average sentence for offenders within the 97–121 range was seventy months. The\\n\\ngovernment also stated that the 18 U.S.C. § 3553(a) factors supported a within-\\n\\nGuidelines sentence based on Mr. Cookson’s (1) use of Tor anonymizing software; (2)\\n\\ncontinued involvement with child pornography after being caught by his family; (3)\\n\\ninvolvement in social networks associated with child exploitation; (4) lengthy\\n\\n 7\\n\\finvolvement with child pornography; (5) sexting with strangers; and (6) involvement\\n\\nwith illegal drugs. App. at 171.\\n\\n Mr. Cookson requested a sentence of five years’ probation, focusing on his\\n\\nrehabilitation as shown by holding a job for twenty-one months, being promoted, and\\n\\nrecovering from drug addiction. Mr. Cookson also highlighted a policy disagreement\\n\\nwith the § 2G2.2 sentencing enhancements, noting they apply in the majority of cases and\\n\\nhave been criticized by the U.S. Sentencing Commission and various courts. Mr.\\n\\nCookson explained that without those enhancements, his Guidelines range would be 24–\\n\\n30 months instead of 97–121.\\n\\n During the sentencing hearing, the court determined the Guidelines range of 97–\\n\\n121 months had been correctly calculated based on a total offense level of 28 and\\n\\ncriminal history category of III. Before hearing from the parties, the court stated the\\n\\nfollowing:\\n\\n Having considered these factors and the advisory guidelines, the nature and\\n circumstances of the offense, and Mr. Cookson’s history and characteristics, I am\\n of the view that the guidelines range, even the low end of the guideline range, is\\n greater than necessary to serve the purposes of sentencing and it is my intention to\\n sentence Mr. Cookson to a term of confinement of 72 months on each of Counts 1\\n and 2, those terms to run concurrently and not consecutively; to be followed by\\n five years of supervised release on each of the two counts, those counts to run,\\n again, concurrently and not consecutively.\\n\\n I believe that sentence is sufficient but not greater than necessary to reflect the\\n seriousness of the offense, to promote respect for the law, and to provide just\\n punishment for the offenses, all as set out at 18 U.S.C. Section 3553(a)(2)(A).\\n\\nApp. at 257–58. The court then invited the government to state its position on this\\n\\ntentatively-announced sentence. The government agreed with the sentence of seventy-two\\n\\n\\n 8\\n\\fmonths’ imprisonment but reminded the court that Mr. Cookson had used “sophisticated\\n\\nanonymizing technology” (i.e., Tor) and had engaged with an “internet community\\n\\ndevoted to child exploitation,” which distinguished him from the “mine run” of\\n\\ndefendants. App. at 260–62.\\n\\n The court then heard argument from Mr. Cookson. Defense counsel began by\\n\\ndisputing the government’s characterization of aggravating factors under § 3553(a),\\n\\narguing the use of Tor did not indicate a level of technical sophistication because the\\n\\nsoftware is widely available and used for legitimate purposes, and that the government\\n\\nwas incorrect in asserting Mr. Cookson had engaged in “production conduct.” Defense\\n\\ncounsel pointed to letters from Mr. Cookson’s family and his employer, as well as the\\n\\nfact Mr. Cookson had overcome a drug addiction, as evidence of “extraordinary\\n\\nrehabilitation.” App. at 274. Defense counsel also highlighted the overrepresentation of\\n\\nMr. Cookson’s criminal history—four out of six total points for that history coming from\\n\\na single misdemeanor marijuana and drug paraphernalia possession charge. Defense\\n\\ncounsel noted that Mr. Cookson held a good job, stayed clean, attended counseling, and\\n\\nhad made “great strides in his life,” to the point where he could continue to “live a drug-\\n\\nfree and . . . law abiding lifestyle.” App. at 276–77. Defense counsel argued\\n\\nimprisonment would “have [Mr. Cookson] go backwards rather than forwards,” and a\\n\\nsentence of probation would allow Mr. Cookson to continue “contributing to society” and\\n\\npersonally moving “in a positive direction.” App. at 277. Mr. Cookson then allocuted,\\n\\napologizing for his actions taken “in the midst of drug addiction [and] depression” and\\n\\nstating that he wished to keep his job and “continue working hard on [his] sobriety.” Mr.\\n\\n 9\\n\\fCookson asked for a sentence of probation to allow him to “stay on [his] current path of\\n\\nliving a healthy, normal life.”\\n\\n After hearing argument from defense counsel and Mr. Cookson’s allocution, but\\n\\nbefore announcing a final sentence, the court stated the following:\\n\\n Mr. Cookson, it’s pretty obvious that you have made some significant progress in\\n terms of your drug addiction. I have no idea, obviously, where you are in terms of\\n child pornography but I’m not aware of any further activity that came up during\\n the course of the presentence investigation with respect to that.\\n\\n You do have a good job and the fact that you’ve been at it for two years speaks\\n volumes. Your family is obviously very supportive and they have seen very\\n positive changes in you over a period of time. It does seem that your criminal\\n history is overrepresented given the fact that four of your six points came out of a\\n misdemeanor marijuana possession charge even with all of the subsequent stuff.\\n And, frankly, these are serious offenses . . . .\\n\\nApp. at 279–280. The court observed that Congress and the Sentencing Commission had\\n\\n“struggled with this area” (presumably, sentencing for child-pornography possession) and\\n\\nthey were “hard” and “heartbreaking” cases. And the court recognized that becoming a\\n\\nregistered sex offender represented a “very heavy burden.” With respect to Mr. Cookson\\n\\nspecifically, the court stated:\\n\\n I’ve seen a lot of people through here over the years convicted of these types of\\n offenses. Some are people who literally are social recluses, who are up in their\\n mother’s attic or something, that's where they spend their time, they have no social\\n life at all, any employment that they have they just go to work and they go home\\n and there’s no life even there, and you seem to be the exception to the norm. And I\\n intend to give you credit for the fact that you did go out, you did get a job, [and]\\n the fact that you’re doing well with it . . . .\\n\\nApp. at 282.\\n\\n The court then sentenced Mr. Cookson to five years’ probation, noting it “would\\n\\nhave been more inclined not to place [Mr. Cookson] on probation,” but it was concerned\\n\\n 10\\n\\fabout imprisoning Mr. Cookson while his appeal was pending because his convictions\\n\\ncould be overturned. App. at 283. The government objected to the sentence on procedural\\n\\nand substantive grounds, specifically noting its “procedural objection” to the court’s\\n\\napparent reliance on a concern about imprisoning Mr. Cookson pending resolution of his\\n\\nappeal, because the government had agreed Mr. Cookson could remain on bond for that\\n\\nperiod.\\n\\n The court later produced a written “statement of reasons” for its sentence,\\n\\nchecking boxes for the following reasons for a variance under 18 U.S.C. § 3553(a): “the\\n\\nhistory and characteristics of the defendant” (including the fact that his criminal history\\n\\nhad been “over-represented”); “to reflect the seriousness of the offense, to promote\\n\\nrespect for the law, and to provide just punishment for the offense;” “to afford adequate\\n\\ndeterrence to criminal conduct;” “to protect the public from further crimes of the\\n\\ndefendant;” “to provide the defendant with needed educational or vocational training;”\\n\\n“to provide the defendant with other correctional treatment in the most effective manner;”\\n\\nand based on the district court’s “policy disagreement with the guidelines,” specifically\\n\\n§ 2G2.2.\\n\\n II. DISCUSSION\\n\\n A. NIT Search\\n\\n At the outset, the parties do not dispute whether the NIT constituted a search\\n\\nwithin the meaning of the Fourth Amendment, whether the warrant was valid, or whether\\n\\nthe search was reasonable despite the invalid warrant. The only issue before us is whether\\n\\n\\n\\n 11\\n\\fthe good-faith exception to the exclusionary rule applies to the government’s search using\\n\\nthe NIT. We decided it did in Workman.\\n\\n There, we assumed the NIT search “violate[d] the Federal Magistrates Act\\n\\n[§ 636(a)] and the Federal Rules of Criminal Procedure.” Workman, 863 F.3d at 1321.\\n\\nBut we explained that under United States v. Leon, 468 U.S. 897 (1984), even\\n\\n“improperly obtained evidence remains admissible when the executing agents ‘act with\\n\\nan objectively reasonable good-faith belief that their conduct is lawful or when their\\n\\nconduct involves only simple, isolated negligence.’” Id. at 1317 (quoting Davis v. United\\n\\nStates, 564 U.S. 229, 238 (2011)) (internal quotation marks omitted). Because we “expect\\n\\nagents executing warrants to be reasonably well-trained, but we do not expect them to\\n\\nunderstand legal nuances the way that an attorney would,” we concluded in Workman\\n\\nthat FBI agents could have reasonably relied on the warrant issued by the magistrate in\\n\\nthe Eastern District of Virginia when executing the NIT search. Id. at 1320–21 (internal\\n\\nquotation marks omitted). Had the agents possessed “sophisticated legal training, they\\n\\nmight have recognized” the problems posed by Rule 41(b) and 28 U.S.C. § 636(a), but\\n\\nwe do not hold law enforcement to such a standard. Id. at 1320. We also observed that\\n\\neight federal judges had held the NIT warrant complied with federal law and federal\\n\\nrules, suggesting the agents could reasonably “have made the same mistake” when acting\\n\\nin reliance on the warrant. Id. at 1321 (noting “objective reasonableness sometimes turns\\n\\non the clarity of existing law”); see United State v. Gonzales, 399 F.3d 1225, 1228–29\\n\\n(10th Cir. 2005) (“[O]fficers are generally not required to second-guess the magistrate’s\\n\\ndecision in granting a warrant.”).\\n\\n 12\\n\\f Although Mr. Cookson recognizes Workman involved the same warrant at issue in\\n\\nthis case, he argues the record before us contains four new facts that alter the good-faith\\n\\ncalculus under Leon. We evaluate each of these four facts not expressly considered by\\n\\nWorkman in turn.\\n\\n First, Mr. Cookson points to an internal guidance document produced by the\\n\\nDepartment of Justice—Computer Crime & Intellectual Prop. Section, Criminal Div.,\\n\\nU.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic\\n\\nEvidence in Criminal Investigations (3d ed. 2009),\\n\\nhttp://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf. This manual\\n\\nadvised law enforcement to ensure compliance with Fed. R. Crim. P. 41 by “obtain[ing]\\n\\nmultiple warrants if they have reason to believe that a network search will retrieve data\\n\\nstored in multiple locations.” Id. at 84. Mr. Cookson argues the manual advises law\\n\\nenforcement to “obtain additional warrants for each location where the data resides” to\\n\\nensure compliance with Rule 41(b), 2nd Br. on Cross-Appeal at 26, and therefore it\\n\\nsuggests that FBI agents (who “worked very closely with the Department of Justice”\\n\\nduring the NIT operation, App. at 568) knew the NIT warrant would violate Rule 41(b).\\n\\nA fuller reading of the manual, however, reveals the DOJ bifurcated its advice depending\\n\\non whether agents would be able to learn, prior to searching, whether the data searched\\n\\nwas located within or without the district. Computer Crime & Intellectual Prop. Section,\\n\\nsupra, at 84 (“Agents may in some cases be able to learn where the data is located before\\n\\nthe search, but in others they will be unable to know the storage site of the data until after\\n\\nthe search is completed.”). When “agents can learn prior to the search that some or all of\\n\\n 13\\n\\fthe data described by the warrant is stored in a different location than where the agents\\n\\nwill execute the search,” the manual advises agents to obtain multiple warrants. Id. at 84–\\n\\n85. “When agents do not and even cannot know that data searched from one district is\\n\\nactually located outside the district,” the manual expressly advises agents that “evidence\\n\\nseized remotely from another district ordinarily should not lead to suppression of the\\n\\nevidence obtained.” Id. at 85 (emphasis added). The manual goes on to explain that\\n\\ncourts will likely not suppress the evidence as either (1) obtained in compliance with\\n\\nRule 41; or (2) even if in violation of Rule 41, obtained in a good-faith manner. See id. at\\n\\n85 (citing United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997); United States v.\\n\\nDenman, 100 F.3d 399, 402 (5th Cir. 1996); United States v. Rodriguez, 968 F.2d 130,\\n\\n135–36 (2d Cir. 1992)). Because the Tor software used to access Playpen concealed\\n\\nusers’ IP addresses, agents could not know that data searched pursuant to the NIT warrant\\n\\nwas located outside the Eastern District of Virginia. Accordingly, the manual, far from\\n\\nsuggesting agents acted in bad faith when obtaining or relying on the NIT warrant, gives\\n\\nsupport for the FBI’s conclusion that the warrant met constitutional muster.\\n\\n Second, Mr. Cookson points to In re Warrant, 958 F. Supp. 2d 753 (S.D. Tex.\\n\\n2013), in which a magistrate judge denied the FBI’s request for a warrant authorizing it to\\n\\n“surreptitiously install data extraction software” on a computer whose location was\\n\\nunknown. Id. at 755. Once installed, the software would search the computer for\\n\\ninformation, activate the computer’s built-in camera, and transmit extracted data back to\\n\\nthe FBI within the Southern District of Texas. Id. The magistrate judge held the warrant\\n\\napplication satisfied none of the Rule 41(b) criteria. Id. at 756.\\n\\n 14\\n\\f The facts of In re Warrant bear substantial similarity to those before us.\\n\\nNevertheless, In re Warrant is insufficient to show the FBI lacked good faith when\\n\\nrelying on the NIT warrant because magistrate judges differed on the question at the time.\\n\\nIn re Warrant itself mentions that “in 2007 a magistrate judge is known to have issued a\\n\\nwarrant authorizing a similar investigative technique to track the source of e-mailed\\n\\nbomb threats against a Washington state high school.” Id. at 756 n.2. Likewise, a separate\\n\\nNIT warrant appears to have been issued against a Tor-based child pornography website\\n\\nin 2012. See United States v. Laurita, No. 8:13CR107, 2016 WL 4179365, at *3 (D. Neb.\\n\\nAug. 5, 2016) (“Pursuant to court authorization, a NIT was installed on Website A during\\n\\nthe period of November 16, 2012, and December 2, 2012.”). This disagreement among\\n\\nmagistrate judges supports Workman’s conclusion that the FBI reasonably deferred to the\\n\\nissuing magistrate’s judgment on a question of unsettled law. See 863 F.3d at 1321\\n\\n(“[O]bjective reasonableness sometimes turns on the clarity of existing law.”).\\n\\n Third, Mr. Cookson points to a September 2013 letter from the acting Assistant\\n\\nAttorney General (“AAG”) to the Chair of the Advisory Committee on Criminal Rules.\\n\\nLetter from Mythili Raman, Acting Attorney Gen., to Judge Reena Raggi, Chair,\\n\\nAdvisory Committee on the Criminal Rules (Sept. 18, 2013). In this letter, the AAG\\n\\nproposes an amendment to Rule 41 that would allow a magistrate judge “in a district\\n\\nwhere activities related to a crime have occurred to issue a warrant—to be executed via\\n\\nremote access—for electronic storage media and electronically stored information located\\n\\nwithin or outside that district.” App. at 397. This letter cites In re Warrant, observing:\\n\\n\\n\\n 15\\n\\f [E]ven when investigators can satisfy the Fourth Amendment’s threshold for\\n obtaining a warrant for [a] remote search . . . a magistrate judge may decline to\\n issue the requested warrant. For example, in a fraud investigation, one magistrate\\n judge recently ruled that an application for a warrant for a remote search did not\\n satisfy the territorial jurisdiction requirements of Rule 41.\\n\\nId. at 398. Although this letter lends credence to Mr. Cookson’s argument that the FBI\\n\\nwas aware of In re Warrant and Rule 41(b)’s territorial restrictions, it does not suggest\\n\\nthe AAG believed the magistrate judge’s decision in In re Warrant was correct. Rather,\\n\\nthe AAG sought an amendment to Rule 41(b) because the rule “does not directly address\\n\\nthe special circumstances that arise when officers execute search warrants, via remote\\n\\naccess, over modern communications networks such as the Internet.” App. at 397. The\\n\\nAAG hoped to “clarify” the rule because “while the Fourth Amendment permits warrants\\n\\nto issue for remote access to electronic storage media or electronically stored\\n\\ninformation, Rule 41’s language does not anticipate those types of warrants in all cases.”\\n\\nId. at 399. Accordingly, the AAG letter does not show the AAG (or, by extension, the\\n\\nFBI) knew Rule 41(b) in its then-current form did not authorize the NIT warrant.\\n\\n Finally, Mr. Cookson notes that Rule 41 was amended in 2016 to allow a\\n\\nmagistrate judge to “issue a warrant to use remote access to search electronic storage\\n\\nmedia . . . within or outside [her] district if . . . the district where the media or information\\n\\nis located has been concealed through technological means.” Fed. R. Crim. P.\\n\\n41(b)(6)(A). The parties do not dispute that this amendment, had it been adopted two\\n\\nyears earlier, would have expressly authorized the NIT warrant. But we disagree with Mr.\\n\\nCookson’s contention that “there would have been no need to amend Rule 41” had the\\n\\nNIT search been authorized at the time. 2nd Br. on Cross-Appeal at 28. The amendment\\n\\n 16\\n\\ffails to show the FBI’s lack of good faith for the same reason the AAG letter does—the\\n\\namendment of Rule 41 is consistent with an aim to clarify, but not necessarily change,\\n\\nthe rule. Therefore, the proposed and actual amendment bear no clear indications that the\\n\\npre-amendment Rule 41 forbade the NIT warrant, let alone that the FBI knew as much.\\n\\n Taken together, Mr. Cookson’s four new facts, at most, support Workman’s\\n\\nconclusion that the territorial restrictions of Rule 41(b) were unclear at the time the NIT\\n\\nwarrant issued. See 863 F.3d at 1321. A review of decisions before and since confirms\\n\\ncourts could and did differ on, for example, whether the NIT amounted to a “tracking\\n\\ndevice” expressly authorized by Rule 41. Compare, e.g., United States v. Jones, 230\\n\\nF. Supp. 3d 819, 824–25 (S.D. Ohio 2017), with Ryan Anthony Adams, 2016 WL\\n\\n4212079, at *6 (“[T]he NIT does not track; it searches.”). Accordingly, these new facts\\n\\ndo not remove us from Workman’s ambit, and we decline Mr. Cookson’s invitation to\\n\\ndistinguish or overrule binding precedent.\\n\\n B. Sentencing\\n\\n On appeal, the government challenges Mr. Cookson’s five-year probationary\\n\\nsentence as substantively unreasonable and purports to waive any challenge as to the\\n\\nsentence’s procedural reasonableness. Yet much of the government’s argument focuses\\n\\non the district court’s explanation for Mr. Cookson’s sentence—specifically its brevity,\\n\\nreliance on a misunderstanding of the terms of Mr. Cookson’s plea agreement, failure to\\n\\nconsider various § 3553(a) factors, and unexplained deviation from an initially-\\n\\nannounced seventy-two-month period of imprisonment. We typically consider such\\n\\narguments as pertaining to a sentence’s procedural reasonableness. United States v.\\n\\n 17\\n\\fHuckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (“Procedural reasonableness addresses\\n\\nwhether the district court incorrectly calculated . . . the Guidelines sentence, treated the\\n\\nGuidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly\\n\\nerroneous facts, or failed to adequately explain the sentence.”) Indeed, the government\\n\\nitself framed some of these objections as “procedural” at Mr. Cookson’s sentencing\\n\\nhearing.\\n\\n Still, we have recently acknowledged a blurring of the line between procedural\\n\\nand substantive reasonableness when it comes to the district court’s explanation for a\\n\\ngiven sentence. See United States v. Barnes, 890 F.3d 910, 917 (10th Cir. 2018).\\n\\nTherefore, after stating the standard for our review of the district court’s sentencing\\n\\ndecision, we review the distinction between procedural and substantive reasonableness\\n\\nand its impact on our decision before evaluating the substantive reasonableness of\\n\\nMr. Cookson’s sentence.\\n\\n1. Standard of Review\\n\\n We review a district court’s sentencing decision for substantive reasonableness\\n\\nunder an abuse-of-discretion standard, looking at the “totality of the circumstances.”\\n\\nUnited States v. Balbin-Mesa, 643 F.3d 783, 787 (10th Cir. 2011). “A district court\\n\\nabuses its discretion when it renders a judgment that is arbitrary, capricious, whimsical,\\n\\nor manifestly unreasonable.” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.\\n\\n2009). Our abuse-of-discretion standard applies “without regard to whether the district\\n\\ncourt imposes a sentence within or outside the advisory guidelines range,” so we do not\\n\\napply a presumption of unreasonableness to sentences outside the guidelines range. Id.\\n\\n 18\\n\\fInstead, we “give due deference to the district court’s decision that the § 3553(a) factors,\\n\\non [the] whole, justify the extent of the variance.” Id. (quotation marks omitted). “That\\n\\nwe might reasonably have concluded a different sentence was appropriate is insufficient\\n\\nto justify reversal of the district court.” Id. (quotation marks and alterations omitted). We\\n\\nbear in mind that the “sentencing judge is in a superior position to find facts and judge\\n\\ntheir import under § 3553(a) in the individual case,” Gall v. United States, 552 U.S. 38,\\n\\n51 (2007), because “[t]he judge sees and hears the evidence, makes credibility\\n\\ndeterminations, has full knowledge of the facts and gains insights not conveyed by the\\n\\nrecord.” United States v. Barnes, 890 F.3d 910, 915–16 (10th Cir. 2018) (quoting Gall,\\n\\n552 U.S. at 51). Finally, “when we review a downward variance from the recommended\\n\\nguidelines range, as we do here, even more solicitude to the sentencing court is\\n\\nappropriate.” Id. at 916.\\n\\n2. Procedural Versus Substantive Unreasonableness\\n\\n In the wake of United States v. Booker, 543 U.S. 220 (2005), which converted the\\n\\nmandatory federal sentencing scheme into a discretionary one, we review sentences\\n\\nimposed by the district court for reasonableness. Friedman, 554 F.3d at 1307. Our\\n\\nreasonableness review has two aspects: procedural and substantive. Id. When reviewing a\\n\\nsentence for procedural reasonableness, we consider “whether the district court\\n\\ncommitted any error in calculating or explaining the sentence.” Id.; see also Gall, 552\\n\\nU.S. at 51 (stating appellate courts must first “ensure that the district court committed no\\n\\nsignificant procedural error, such as failing to calculate (or improperly calculating) the\\n\\nGuidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)\\n\\n 19\\n\\ffactors, selecting a sentence based on clearly erroneous facts, or failing to adequately\\n\\nexplain the chosen sentence . . . .”). When reviewing a sentence for substantive\\n\\nreasonableness, we focus on “whether the length of the sentence is reasonable given all\\n\\nthe circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”\\n\\nFriedman, 554 F.3d at 1307 (quotation marks omitted).\\n\\n This distinction turns murky, however, when we consider that the district court’s\\n\\nexplanation for a given sentence serves a “dual purpose.” See Barnes, 890 F.3d at 917.\\n\\nFirst, a district court’s explanation of how the § 3553(a) factors apply “is a procedural\\n\\nrequirement,” id., and the “absence of explanation could constitute procedural error” as\\n\\ncould the failure to address a defendant’s material, non-frivolous arguments under the\\n\\n§ 3553(a) factors. United States v. Lente, 647 F.3d 1021, 1031, 1035 (10th Cir. 2011).\\n\\nSecond, the content of the district court’s explanation “is relevant to whether the length\\n\\nof the sentence is substantively reasonable” because “[a] sentence is more likely to be\\n\\nwithin the bounds of reasonable choice when the court has provided a cogent and\\n\\nreasonable explanation for it.” Barnes, 980 F.3d at 917. Stated another way, we rely on\\n\\nthe district court’s procedurally-required explanation in order to conduct “meaningful\\n\\nappellate review” of a sentence’s substantive reasonableness. Gall, 552 U.S. at 50; see\\n\\nLente, 647 F.3d at 1039 (explaining that “[w]e cannot fulfill our appellate role, however\\n\\ndeferential, in assessing the substantive reasonableness of [a] sentence” without an\\n\\nadequate explanation from the district court). A limited, brief, or inconsistent explanation\\n\\nhinders our ability to do so, and therefore “put[s] at risk the substantive reasonableness of\\n\\nany decision [the district court] reached.” United States v. Lychock, 578 F.3d 214, 220\\n\\n 20\\n\\f(3d Cir. 2009) (quoting United States v. Goff, 501 F.3d 250, 256 (3d Cir. 2007)); see\\n\\nFriedman, 554 F.3d at 1312 (“[T]he very limited nature of the record and the paucity of\\n\\nreasoning on the part of the district court most certainly bear on our review of the\\n\\nsubstantive reasonableness of Friedman’s sentence.”); United States v. Gonzalez, 529\\n\\nF.3d 94, 98 (2d Cir. 2008) (“Determination of whether the sentence is unreasonable is\\n\\nhampered by the brevity of the reasons given for it.”). This is especially true when the\\n\\nsentence varies greatly from the sentencing Guidelines, because “a major [variance]\\n\\nshould be supported by a more significant justification than a minor one.” Gall, 552 U.S.\\n\\nat 50.\\n\\n But the heavier our reliance on the inadequacy of the district court’s explanation in\\n\\nholding Mr. Cookson’s sentence substantively unreasonable, the less our decision\\n\\nrestricts the “bounds of reasonable choice” available to the district court in crafting a\\n\\nsentence on remand. Barnes, 890 F.3d at 917. A sentence deemed substantively\\n\\nunreasonable primarily because of an explanation too brief or cursory to justify the extent\\n\\nof its variance from the Guidelines might be substantively reasonable given a more\\n\\ndetailed explanation. See United States v. Park, 758 F.3d 193, 202 (2d Cir. 2014) (“In\\n\\nholding that the District Court's probationary sentence was substantively unreasonable,\\n\\nwe rely heavily upon the District Court's own evaluation of the case, as revealed by its\\n\\nstatements at the sentencing hearing. . . . We thus do not foreclose the possibility that the\\n\\nimposition of a probationary sentence on remand, after appropriate consideration of the\\n\\n§ 3553(a) factors thus far left unaddressed, could be substantively reasonable as well.”).\\n\\n\\n\\n 21\\n\\f With that backdrop in place, we consider Mr. Cookson’s sentence in light of “all\\n\\nthe circumstances of the case,” Friedman, 554 F.3d at 1307, using the district court’s\\n\\nexplanation for the sentence “to assist us in determining whether the district court abused\\n\\nits discretion in weighing the § 3553(a) factors,” Barnes, 890 F.3d at 917.\\n\\n3. Substantive Reasonableness Review\\n\\n 18 U.S.C. § 3553(a) requires district courts to consider seven factors in\\n\\nsentencing: (1) the nature and circumstances of the offense and the history and\\n\\ncharacteristics of the defendant; (2) the need for a sentence to reflect the “basic aims of\\n\\nsentencing, namely (a) ‘just punishment’ (retribution), (b) deterrence, (c) incapacitation,\\n\\nand (d) rehabilitation,” United States v. Walker (“Walker I”), 844 F.3d 1253, 1253 (10th\\n\\nCir. 2017); (3) the kinds of sentences available; (4) the Sentencing Commission\\n\\nGuidelines; (5) Sentencing Commission policy statements; (6) the need to avoid\\n\\nunwarranted sentencing disparities; and (7) the need for restitution. See 18 U.S.C.\\n\\n§ 3553(a)(1)–(7).\\n\\n The district court explained Mr. Cookson’s sentence primarily in terms of\\n\\n§ 3553(a)(1), specifically referencing Mr. Cookson’s (1) recovery from drug addiction,\\n\\n(2) success in a new job, and (3) support from his family. The court acknowledged that\\n\\nMr. Cookson’s offenses were serious and that possession of child pornography causes\\n\\nsignificant harm to the children depicted. See United States v. DeRusse, 859 F.3d 1232,\\n\\n1239 (10th Cir. 2017) (“Viewing the entire sentencing transcript in context . . . we are\\n\\nconvinced that the district court was fully aware of the seriousness of the offense and\\n\\ntook very seriously the harm suffered by the [victims].”) But after hearing argument from\\n\\n 22\\n\\fdefense counsel about Mr. Cookson’s three-year recovery from addiction and from Mr.\\n\\nCookson himself attributing his conduct to “a bad place in [his] life at the time in the\\n\\nmidst of drug addiction [and] depression,” App. at 278, the district court remarked that\\n\\nMr. Cookson’s pre-sentencing rehabilitation made him the “exception to the norm,” App.\\n\\nat 282. The district court observed that Mr. Cookson had obviously made “significant\\n\\nprogress in terms of . . . drug addiction,” App. at 279, and that Mr. Cookson had “a good\\n\\njob and the fact that [Mr. Cookson has] been at it for two years speaks volumes,” id. at\\n\\n280. Finally, the court noted, “It does seem that [Mr. Cookson’s] criminal history is\\n\\noverrepresented given the fact that four of [his] six points came out of a misdemeanor\\n\\nmarijuana possession charge.”2 App. at 280. The combination of these circumstances\\n\\ncould reasonably support a downward variance, even a large one, under 18 U.S.C.\\n\\n§ 3553(a)(1). See Walker I, 844 F.3d at 1257.\\n\\n The district court’s written statement of reasons also expressed its policy\\n\\ndisagreement with U.S.S.G. § 2G2.2 as a reason for the downward variance. We have\\n\\ndescribed arguments criticizing the § 2G2.2 enhancements as “quite forceful” and have\\n\\n“specifically cautioned district courts to carefully apply the child pornography\\n\\ndistribution guideline and remain mindful that they possess broad discretion in fashioning\\n\\nsentences under § 2G2.2.” United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017)\\n\\n(internal quotation marks and alterations omitted); see also United States v. Grigsby, 749\\n\\n\\n 2\\n The court’s written statement of reasons makes clear that it weighed this fact\\nunder § 3553(a)(1), although an over-represented criminal history could also support a\\ndownward departure under U.S.S.G. § 4A1.3(b)(1).)\\n\\n 23\\n\\fF.3d 908, 911 (10th Cir. 2014) (referencing a “number of reported cases where district\\n\\ncourts have rejected application of § 2G2.2 for want of an empirical basis”); United\\n\\nStates v. Dorvee, 616 F.3d 174, 186–87 (2d Cir. 2010) (noting that the ubiquitous\\n\\napplication of the § 2G2.2 enhancements resulted in “virtually no distinction between the\\n\\nsentences for defendants [who merely possessed child pornography] . . . and the\\n\\nsentences for the most dangerous offenders who, for example, distribute child\\n\\npornography for pecuniary gain”). Accordingly, the district court did not abuse its\\n\\ndiscretion in determining that its policy disagreement with § 2G2.2 could support the\\n\\nimposition of a more lenient sentence. But the court did not elaborate on this policy\\n\\ndisagreement during the sentencing hearing except to say that “Congress has struggled\\n\\nwith this area” and “the Sentencing Commission has struggled with this area.” App. at\\n\\n280. Nor did the court address the extent to which the disagreement weighed in its final\\n\\ndecision. Instead, the court’s explanation focuses overwhelmingly on Mr. Cookson’s\\n\\npresentencing rehabilitation and its desire not to see Mr. Cookson’s progress “turned\\n\\nback.” Id. at 283.\\n\\n Although we recognize these concerns as valid, we have cautioned against\\n\\nexcessive reliance on a single factor in sentencing. In Walker I, we held substantively\\n\\nunreasonable a time-served sentence for a serial bank robber who pleaded guilty to two\\n\\nbank robberies. See 844 F.3d 1255.3 We reasoned the district court had focused “almost\\n\\n\\n 3\\n On remand, the district court resentenced Mr. Walker to ten years of probation,\\ntwo years of home confinement, and 500 hours of community service. United States v.\\nWalker (Walker II), 918 F.3d 1134, 1137 (10th Cir. 2019). The government appealed\\nagain, arguing that the district court violated Walker I’s mandate by declining to sentence\\n 24\\n\\fexclusively on Mr. Walker’s newfound sobriety” and had paid “inadequate attention” to a\\n\\nnumber of other statutory factors, including the “basic aims of punishment” and the need\\n\\nto avoid unwarranted sentencing disparities, in deciding to impose a time-served\\n\\nsentence. Id. 1258–59; see 18 U.S.C. § 3553(a)(1), (6). Although the district court in\\n\\nWalker I discussed, for example, the values of specific deterrence and rehabilitation, we\\n\\ncriticized its failure to mention incapacitation and its offhand “dismiss[al] [of] the\\n\\nrelevance of [general] deterrence.” See Walker I, 844 F.3d at 1257–58. Of course, the\\n\\ndistrict court need not afford equal weight to each § 3553(a) factor, United States v.\\n\\nSanchez-Leon, 764 F.3d 1248, 1267 (10th Cir. 2014), and we will defer on substantive-\\n\\nreasonableness review “not only to a district court’s factual findings but also to its\\n\\ndeterminations of the weight to be afforded to such findings.” United States v. Smart, 518\\n\\nF.3d 800, 808 (10th Cir. 2008). Unlike the district court in Walker I, however, the court\\n\\nhere made no mention of deterrence, rehabilitation, or incapacitation in explaining Mr.\\n\\nCookson’s sentence. Nor did it address the potential for “unwarranted sentencing\\n\\ndisparities” raised by the government. Although we can extrapolate reasoning from the\\n\\ndistrict court’s relatively brief explanation—for example, the district court might have\\n\\nviewed any disparity resulting from Mr. Cookson’s sentence as a “warranted” one, see\\n\\nLente, 759 F.3d at 1169 (explaining that “[o]ur sentencing scheme seeks to eliminate not\\n\\n\\nMr. Walker to a prison term. Id. at 1143. We disagreed because Walker I’s mandate “did\\nnot specifically limit the district court’s discretion by requiring it to impose a sentence of\\nimprisonment.” Id. at 1154. We declined to express any view on whether the new\\nsentence was substantively reasonable, “as the government waived its argument on that\\npoint by failing to adequately address the district court’s analysis.” Id.\\n\\n 25\\n\\fall sentencing disparities, but only unwarranted disparities”) (internal quotation marks\\n\\nomitted)—the explanation itself does little to assist us in understanding how it applied the\\n\\n§ 3553(a) factors other than § 3553(a)(1) to Mr. Cookson’s case, see Barnes, 890 F.3d at\\n\\n917. Without any explanation from the district court on the weight it afforded the other\\n\\n§ 3553(a) factors in granting Mr. Cookson such a large variance, we consider the\\n\\nsentence as substantively unreasonable. See Smart, 518 F.3d at 808; see also Gall, 552\\n\\nU.S. at 50 (“[A] major [variance] should be supported by a more significant justification\\n\\nthan a minor one.”).\\n\\n Comparing the district court’s explanation of Mr. Cookson’s sentence with other\\n\\nrecent cases upholding the substantive reasonableness of large downward variances\\n\\nsupports this conclusion. Barnes, for example, considered a large downward variance for\\n\\nformer jail employees convicted of conspiracy to violate, and deprivation of,\\n\\nconstitutional rights related to abuse they inflicted on the jail’s inmates. See 890 F.3d at\\n\\n914 (affirming a downward variance from a Guidelines range of 70–87 months’\\n\\nimprisonment to a twenty-four-month sentence followed by twenty-four months’\\n\\nsupervised release for the first defendant and a twelve-month sentence followed by thirty-\\n\\nsix months’ supervised release for the second). In upholding the sentences as\\n\\nsubstantively reasonable, we credited the district court with a “careful” discussion, in\\n\\nwhich the court “walked through” and “properly addressed each of the § 3553(a) factors\\n\\nbefore approving a downward variance from the Guidelines range.” Id. at 918. The\\n\\nBarnes district court expressly considered, for example, the defendants’ personal\\n\\ncharacteristics, their risk of recidivism, the “specific and general deterrence” advanced by\\n\\n 26\\n\\ftheir sentences, and the seriousness of their offenses. Id. at 918–19. Likewise, in\\n\\nDeRusse, we affirmed a downward departure and variance from a Guidelines range of\\n\\n108–135 months to a sentence of time served followed by five years’ supervised release\\n\\nin a kidnapping case. 859 F.3d at 1235–36. We distinguished the district court’s\\n\\nexplanation of DeRusse’s sentence from that in Walker I, describing it as having\\n\\n“thoughtfully considered all of the § 3553 factors, rather than focusing almost exclusively\\n\\non one particular factor, and concluded based on its assessment of all of these factors that\\n\\na sentence of time-served would be the most appropriate.” Id. at 1240.\\n\\n Here, the district court’s assessment, in addition to focusing almost exclusively on\\n\\n§ 3553(a)(1), relied on an apparent misunderstanding of Mr. Cookson’s conditional plea\\n\\nagreement. Fearing that Mr. Cookson’s challenge to the suppression ruling might be\\n\\nsuccessful, and that Mr. Cookson would then have spent time in prison and lost his job\\n\\nonly for the charges against him to be dismissed, the court stated it would have been less\\n\\ninclined to place Mr. Cookson on probation but for his conditional plea. But the\\n\\ngovernment had consented in the conditional plea agreement that Mr. Cookson could\\n\\nremain on bond pending resolution of his appeal. The district court’s concern was thus\\n\\nunfounded, and its suggestion that it would have been more inclined to sentence Mr.\\n\\nCookson to a term of imprisonment absent this concern gives us pause in deferring to its\\n\\n“decision that the § 3553(a) factors, on [the] whole, justify the extent of the variance.”\\n\\nFriedman, 554 F.3d at 1307.\\n\\n In light of this discrepancy, and because the district court placed nearly exclusive\\n\\nfocus on Mr. Cookson’s presentencing rehabilitation in explaining its decision, the\\n\\n 27\\n\\fsentence it imposed is substantively unreasonable. We reach this conclusion, in large\\n\\npart, based on the significant variance in Mr. Cookson’s sentence and the district court’s\\n\\nlimited and inconsistent explanation for that variance. See Barnes, 890 F.3d at 917 (“A\\n\\nsentence is more likely to be within the bounds of reasonable choice when the court has\\n\\nprovided a cogent and reasonable explanation for it.”). We therefore decline the\\n\\ngovernment’s request that we direct the district court to impose the seventy-two-month\\n\\nsentence it tentatively announced at the outset of Mr. Cookson’s sentencing hearing. See\\n\\nKoon v. United States, 518 U.S. 81, 97 (1996) (“[I]t is not the role of an appellate court to\\n\\nsubstitute its judgment for that of the sentencing court as to the appropriateness of a\\n\\nparticular sentence.”) (quoting Williams v. United States, 503 U.S. 193, 205 (1992)). Nor\\n\\ndo we agree the district court’s deviation from its tentatively-announced seventy-two-\\n\\nmonth sentence should weigh heavily in our assessment of whether it reached a\\n\\nsubstantively unreasonable decision.4 To the contrary, the record indicates the district\\n\\n\\n 4\\n The government cites a single case, United States v. Gerezano-Rosales, 692 F.3d\\n393 (5th Cir. 2012), in support of its argument that the district court’s tentatively-\\nannounced sentence should affect our reasonableness determination. But what the\\ngovernment characterizes as an “initial announcement” of a sentence in Gerezano-\\nRosales, 3rd Br. on Cross-Appeal at 9, was in fact the final sentence imposed by the\\ndistrict court after giving the defendant the opportunity to allocute. Gerezano-Rosales,\\n692 F.3d at 396. Immediately after sentencing the defendant to seventy-one months, the\\ndistrict court attempted to impose a 108-month sentence because the defendant had been\\n“disrespectful when he questioned the appropriateness of the originally imposed”\\nsentence. Id. at 400. The appellate court invalidated the higher sentence as substantively\\nunreasonable because “no matter how insolently Gerezano delivered his retorts to the\\ndistrict court, his statements could not have reasonably justified a variance of three years\\nabove the guidelines range, especially since the court had previously found that a\\nGuidelines sentence was otherwise appropriate.” Id. at 402. This case bears little\\nresemblance to Mr. Cookson’s, in which the district court announced its inclination to\\nimpose a seventy-two-month sentence as a starting point for discussion. See United States\\n 28\\n\\fcourt, after announcing a tentative sentence, listened carefully to counsel’s arguments and\\n\\nMr. Cookson’s allocution.5 Something about these arguments apparently persuaded the\\n\\ndistrict court to change its mind and impose a more lenient sentence than it had initially\\n\\nanticipated. See App. at 283 (explaining the district court “came in . . . not expecting to\\n\\n[impose a probationary sentence]”). But the district court undertook a relatively brief\\n\\nexplanation of the statutory factors supporting the sentence it finally imposed, which\\n\\nimpedes our review. We therefore do not foreclose the possibility that a more detailed\\n\\nexplanation from the district court of the weight it afforded § 3553(a) factors other than\\n\\n§ 3553(a)(1) could yield a similar, but substantively reasonable, sentence on remand. See\\n\\nPark, 758 F.3d at 202.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the district court’s denial of Mr. Cookson’s\\n\\nmotion to suppress the fruits of the NIT search of his computer. We also VACATE the\\n\\n\\n\\n\\nv. Valdez-Aguirre, 861 F.3d 1164, 1165 (10th Cir. 2017) (explaining “[f]ederal trial\\ncourts frequently approach sentencing with at least some idea of what they intend to\\nimpose,” and therefore “sometimes announce a sentence before giving the defendant an\\nopportunity to allocute”).\\n 5\\n Fed. R. Crim. P. 32(i)(4)(A)(ii) requires as much. Had the district court refused\\nto listen to Mr. Cookson’s allocution and stubbornly held to its tentative sentence, it may\\nhave violated Mr. Cookson’s right to allocute. United States v. Theis, 853 F.3d 1178,\\n1182 (10th Cir. 2017) (“A court violates this right to allocute when it definitively\\nannounces the defendant's sentence before giving him an opportunity to speak, and fails\\nto communicate to the defendant that it will genuinely reconsider the sentence in light of\\nhis remarks.”).\\n\\n 29\\n\\fdistrict court’s decision sentencing Mr. Cookson to five years’ probation and REMAND\\n\\nfor resentencing.\\n\\n\\n\\n\\n 30\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1864,"cells":{"id":{"kind":"number","value":8443989,"string":"8,443,989"},"name":{"kind":"string","value":"Minor JGE, 7 year old minor THROUGH next friend Peter TASSO, Esq. Gabriela Gallegos Jolene Estrada, in her personal and official capacities as co-personal representative of the estate of Jason Julian Estrada Joyce Estrada, in her personal capacity v. UNITED STATES of America, and Christopher Scott Godier Patricia G. Whelan, a/k/a Patricia Yazzie, a/k/a Trish Yazzie John R. Castleberry, Special Agent Drug Enforcement Administration, in his individual capacity Matthew B. Mayfield, Group Supervisor (GS) Drug Enforcement Administration, in his individual capacity Raymond Keith Brown, Assistant Special Agent in Charge (ASAC) Drug Enforcement Administration, in his individual capacity Joseph M. Arabit, Special Agent in Charge (SAC) Drug Enforcement Administration, in his individual capacity"},"name_abbreviation":{"kind":"string","value":"Jge Through Tasso v. United States"},"decision_date":{"kind":"string","value":"2019-04-26"},"docket_number":{"kind":"string","value":"No. 18-2092"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Eid\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415423/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"EID"},"judge2":{"kind":"string","value":"EID"},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8443989/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Minor JGE, 7 year old minor THROUGH next friend Peter TASSO, Esq. Gabriela Gallegos Jolene Estrada, in her personal and official capacities as co-personal representative of the estate of Jason Julian Estrada Joyce Estrada, in her personal capacity v. UNITED STATES of America, and Christopher Scott Godier Patricia G. Whelan, a/k/a Patricia Yazzie, a/k/a Trish Yazzie John R. Castleberry, Special Agent Drug Enforcement Administration, in his individual capacity Matthew B. Mayfield, Group Supervisor (GS) Drug Enforcement Administration, in his individual capacity Raymond Keith Brown, Assistant Special Agent in Charge (ASAC) Drug Enforcement Administration, in his individual capacity Joseph M. Arabit, Special Agent in Charge (SAC) Drug Enforcement Administration, in his individual capacity\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-26\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Minor JGE, 7 year old minor THROUGH next friend Peter TASSO, Esq. Gabriela Gallegos Jolene Estrada, in her personal and official capacities as co-personal representative of the estate of Jason Julian Estrada Joyce Estrada, in her personal capacity v. UNITED STATES of America, and Christopher Scott Godier Patricia G. Whelan, a/k/a Patricia Yazzie, a/k/a Trish Yazzie John R. Castleberry, Special Agent Drug Enforcement Administration, in his individual capacity Matthew B. Mayfield, Group Supervisor (GS) Drug Enforcement Administration, in his individual capacity Raymond Keith Brown, Assistant Special Agent in Charge (ASAC) Drug Enforcement Administration, in his individual capacity Joseph M. Arabit, Special Agent in Charge (SAC) Drug Enforcement Administration, in his individual capacity\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-26\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1865,"cells":{"id":{"kind":"number","value":4614425,"string":"4,614,425"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Shawn Christopher GORRELL, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Gorrell"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"18-5041"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Lucero, Moritz\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRISCOE, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-5041\\n\\n SHAWN CHRISTOPHER GORRELL,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:17-CR-00010-GKF-1)\\n _________________________________\\n\\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\\nPublic Defender, with him on the briefs), Office of the Federal Public Defender for the\\nNorthern District of Oklahoma, Tulsa, Oklahoma, appearing for Appellant.\\n\\nJeffrey Gallant, Assistant United States Attorney (R. Trent Shores, United States\\nAttorney, and Kevin C. Leitch, Assistant United States Attorney, on the brief), Office of\\nthe United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma,\\nappearing for Appellee.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Following a six-day jury trial, Shawn Gorrell was convicted of three counts of\\n\\nwire fraud, 18 U.S.C. § 1343, and three counts of tax evasion, 26 U.S.C. § 7201. In\\n\\fthis appeal he challenges only his three convictions for tax evasion and he seeks a\\n\\nnew trial only on those counts. He frames his issue in this way: “Whether plain error\\n\\noccurred when the jury instructions directed the jury to consider specified theories of\\n\\nan affirmative act (an element of tax evasion), which were legally invalid theories of\\n\\nguilt as a matter of law, the jury was instructed to be unanimous in finding an\\n\\naffirmative act, and the jury returned a general verdict of guilt.” Gorrell Opening Br.\\n\\nat 1. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\\n\\n I\\n\\n We briefly recount the relevant facts underlying Gorrell’s convictions before\\n\\nsummarizing the provided jury instructions.\\n\\n A\\n\\n Shawn Gorrell was an insurance salesman based in Tulsa, Oklahoma. His\\n\\nfather was an accountant in Tulsa whose clients included several dentists and Gorrell\\n\\nsold insurance to some of them. In 2009, Gorrell began to pitch investments to these\\n\\ndentists that were outside of his typical insurance products. Some dentists initially\\n\\ngave Gorrell modest sums to invest, but later the amounts ballooned to hundreds of\\n\\nthousands of dollars.\\n\\n Some of these funds were placed in a legitimate investment known as the Tax\\n\\nCredit Funding Group (“TCFG”). TCFG was started by John Walsh in 2011. The\\n\\npremise behind TCFG was simple: the federal government provided certain tax\\n\\ncredits to businesses affected by Hurricane Katrina, and TCFG provided tax refund\\n\\nanticipation loans to these eligible businesses. One of Walsh’s friends mentioned\\n\\n 2\\n\\fthat Gorrell was interested in investing in TCFG, so Walsh offered the investment\\n\\nopportunity to him. Gorrell subsequently invested $200,000 in TCFG on behalf of\\n\\nhis clients.\\n\\n In June 2011, Walsh began planning a second fund, Tax Credit Funding Group\\n\\nII (“TCFG II”). Gorrell invested another $200,000 in TCFG II. But TCFG II never\\n\\nreally got off the ground, and Walsh returned the second $200,000 investment to\\n\\nGorrell in July 2011. Walsh wound down TCFG in December 2011 and returned all\\n\\nprofits and principal to Gorrell by February 2012. But rather than return these\\n\\nmonies to his investors, Gorrell kept both the profit or principal from the TCFG\\n\\ninvestment as well as the funds he was given to invest in TCFG II. He was also\\n\\nmisusing investor funds in other ways. Carol Guies, a director of examination and\\n\\ninspections at the Oklahoma Department of Securities, testified at trial that from\\n\\nApril 2011 to October 2012 Gorrell engaged in risky day trading through a personal\\n\\nE*Trade account. Gorrell initially funded the E*Trade account with his own money\\n\\n(and investor funds from TCFG), but later deposited the investors’ money directly\\n\\ninto the account. The investors involved had not given him permission to use their\\n\\nfunds in this way.\\n\\n Tanner Sanders, a special agent with the Internal Revenue Service, also\\n\\ntestified at trial. Sanders testified that he examined various financial accounts\\n\\nbelonging to Gorrell, including his personal Bank of Oklahoma account, several\\n\\npersonal Chase Bank accounts, his personal E*Trade account, and a business account\\n\\nat the Bank of Oklahoma for TCFG funds. There was ample testimony given\\n\\n 3\\n\\fthroughout the trial that Gorrell commingled the investors’ money and his business\\n\\nfunds with his personal bank accounts and E*Trade accounts.1\\n\\n The government also provided evidence at trial that Gorrell stopped having his\\n\\nfather prepare his tax returns. For several years, Gorrell’s father (an accountant) had\\n\\nprepared Gorrell’s tax returns for free. However, Gorrell later hired a different tax\\n\\npreparer, the Tax Defense Network, in 2013 to help him file outstanding and\\n\\namended tax returns for the 2009, 2011, and 2012 tax years. Naydali Maldonado-\\n\\nHurst, a certified public accountant with the Tax Defense Network, and Mark Giles, a\\n\\ntax analyst with the Tax Defense Network, testified at trial that Gorrell exhibited a\\n\\npattern of not providing the service with the information it needed to prepare his tax\\n\\nreturns despite repeated email communications over several weeks; that Gorrell\\n\\neventually provided unsubstantiated statements regarding investment income; that\\n\\nseveral of Gorrell’s explanations regarding his financial activity and income did not\\n\\nalign with the records he provided; and that even when pressed Gorrell failed to\\n\\nprovide documentation regarding his trading activity.\\n\\n The government also presented evidence at trial regarding Gorrell’s unreported\\n\\nincome in the 2009, 2011, and 2012 tax years. In 2009, Gorrell received $50,000\\n\\nfrom one investor. Gorrell deposited these funds into his business’s bank account,\\n\\nand in April 2009 he began to transfer funds from this account to his personal bank\\n\\naccount. He then used these funds for personal expenses. The government produced\\n\\n\\n 1\\n Gorrell opened the E*Trade account in 2011, so any commingling in 2009\\ndid not include the E*Trade account.\\n 4\\n\\ftestimony at trial that, based on this activity, Gorrell failed to report $50,000 in\\n\\ntaxable income for the 2009 tax year.\\n\\n In 2011, Gorrell received $880,000 from investors. He returned approximately\\n\\n$235,000 to these investors during the year. However, he also used the investors’\\n\\nfunds for personal expenses such as day trading through an E*Trade account.2\\n\\nGovernment witnesses testified that, based on these financial records, Gorrell failed\\n\\nto report $377,708 in taxable income in the 2011 tax year.\\n\\n In 2012, Gorrell received more than $1,300,000 from investors. While he\\n\\nreturned approximately $227,000 to these investors, he also used the investors’ funds\\n\\nfor personal expenses, including day trading through his E*Trade account, personal\\n\\ncredit card payments, and loan payments.3 Government witnesses testified that,\\n\\nbased on his failure to report the more than $1,000,000 in appropriated funds\\n\\nbelonging to investors as taxable income, Gorrell failed to pay nearly $373,000 in\\n\\ntaxes for the 2012 tax year.\\n\\n B\\n\\n When instructing the jury, the district court incorporated the affirmative act\\n\\nallegations contained in the Superseding Indictment, the elements of tax evasion, and\\n\\nthe requirement that the jury be unanimous in its determination of the affirmative act\\n\\n\\n\\n 2\\n Gorrell deposited approximately $185,000 of investor money directly into his\\nE*Trade account, and also deposited investor money into his personal bank accounts.\\n 3\\n As in 2011, Gorrell deposited the investors’ money directly into his E*Trade\\naccount and personal bank account in 2012.\\n 5\\n\\fthat formed the basis of the conviction for each count. The jury returned a\\n\\nunanimous general guilty verdict on each count. Given its general verdict, the jury\\n\\ndid not identify which affirmative act formed the basis for each tax evasion\\n\\nconviction. Gorrell argued that if any of the four affirmative acts he identified are\\n\\nlegally insufficient, his convictions are invalid and he is entitled to a new trial. The\\n\\ngovernment responds that each affirmative act incorporated into the jury instructions\\n\\nis legally sufficient to sustain Gorrell’s convictions.\\n\\n Jury Instruction Number 18 lists the four elements of tax evasion under 26\\n\\nU.S.C. § 7201. Instruction Number 18 provides:\\n\\n To find the defendant guilty of tax evasion, you must be convinced\\n that the government has proved each of the following elements beyond a\\n reasonable doubt:\\n\\n FIRST: The Defendant owed substantial income tax in addition to\\n the tax liability which he reported on his income tax return for the year\\n charged in a particular Count;\\n\\n SECOND: The Defendant intended to evade and defeat payment of\\n that additional tax;\\n\\n THIRD: The Defendant committed an affirmative act in\\n furtherance of this intent, as charged in the Superseding Indictment; and\\n\\n FOURTH: The Defendant acted willfully, that is, with the\\n voluntary intent to violate a known legal duty.\\n\\nApp’x Vol. I at 117. Jury Instruction Number 19 defines an “affirmative act of\\n\\nevasion” and further explains that “[t]he government needs only to prove one act of\\n\\nevasion to satisfy this element of the offense, but you must unanimously agree on\\n\\nwhich act or acts were committed.” Id. at 118. Jury Instruction Number 17 lists six\\n\\n\\n 6\\n\\factions which the government asserts satisfy the affirmative act element of tax\\n\\nevasion. The same six affirmative acts are found in each count of tax evasion.4\\n\\nGorrell argues that four of these alleged affirmative acts are legally insufficient to\\n\\nsustain a conviction for tax evasion based on the evidence produced at trial. The four\\n\\naffirmative acts at issue are:\\n\\n a. GORRELL caused investor funds to be deposited into various\\n accounts at banks and E*TRADE that he maintained in his own name and in\\n the name of his financial services company, Gorrell Financial, Inc., thereby\\n commingling the investor funds with his personal funds and converting them\\n to his own use;\\n\\n b. GORRELL caused the payment of personal expenses from\\n investor funds that had been deposited into the various financial accounts that\\n he maintained at banks and at E*TRADE;\\n\\n c. GORRELL caused the withdrawal of large amounts of cash from\\n the various financial accounts that he maintained at banks and at E*TRADE;\\n\\n d. GORRELL stopped using tax preparation services provided to him\\n for free by his father, who was an accountant in Tulsa, Oklahoma, and instead\\n engaged new tax preparers, located in Florida, who were previously\\n unfamiliar with his business ventures, financial accounts, personal income,\\n and expenses . . . .\\n\\nApp’x Vol. I at 112–15.\\n\\n II\\n\\n “We review de novo whether jury instructions, as a whole, correctly state the\\n\\nlaw and provide the jury with an understanding of the issues. We will disturb a\\n\\njudgment only if we have ‘substantial doubt that the jury was fairly guided.’” United\\n\\nStates v. Little, 829 F.3d 1177, 1181 (10th Cir. 2016) (internal citation omitted)\\n\\n\\n 4\\n The only difference in each count is the taxable income year.\\n 7\\n\\f(quoting United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994)). However,\\n\\nGorrell did not object to the jury instructions at trial, therefore we review Gorrell’s\\n\\nchallenge to the jury instructions only for plain error. United States v. Pablo, 696\\n\\nF.3d 1280, 1287 (10th Cir. 2012). To obtain relief under this standard, Gorrell must\\n\\nshow that the district court made (1) an error, (2) that was plain or obvious, (3) that\\n\\naffected his substantial rights, and (4) also seriously affects the fairness, integrity, or\\n\\npublic reputation of judicial proceedings. Id. But before we address Gorrell’s\\n\\nchallenge to the jury instructions, we must decide whether the challenge has been\\n\\nwaived under Federal Rule of Criminal Procedure 12.\\n\\n A\\n\\n The government argues that while Gorrell styles his issue as a challenge to the\\n\\njury instructions, he is in fact alleging that the Superseding Indictment was legally\\n\\ndeficient. The government proceeds to argue that Gorrell was required to raise his\\n\\nargument through a pretrial motion under Federal Rule of Criminal Procedure\\n\\n12(b)(3).5 The government further asserts that, since Gorrell did not raise his\\n\\n\\n\\n 5\\n Under Federal Rule of Criminal Procedure 12(b)(3),\\n\\n the following defenses, objections, and requests must be raised by\\n pretrial motion if the basis for the motion is then reasonably\\n available and the motion can be determined without a trial on the\\n merits:\\n ....\\n\\n (B) a defect in the indictment or information, including:\\n (i) joining two or more offenses in the same count\\n (duplicity);\\n 8\\n\\fargument in a pretrial motion, this court may only entertain the argument if Gorrell\\n\\nshows good cause as required under Federal Rule of Criminal Procedure 12(c)(3).6\\n\\nUnited States v. Bowline, 917 F.3d 1227, 1230 (10th Cir. 2019) (“Rule [12] clearly\\n\\nprovides only one circumstance in which an untimely motion can be considered—\\n\\nwhen the movant ‘shows good cause.’” (quoting Fed. R. Crim. P. 12(c)(3))). The\\n\\ngovernment argues Gorrell has waived his issue because he has not shown good\\n\\ncause.\\n\\n As we view the issue Gorrell raises, Rule 12(b)(3) does not apply. Under Rule\\n\\n12(b)(3), Gorrell was required to challenge the Superseding Indictment by pretrial\\n\\nmotion for failure to state an offense only “if the basis for the motion [wa]s . . .\\n\\nreasonably available [before trial] and the motion c[ould] be determined without a\\n\\ntrial on the merits.” Fed. R. Crim. P. 12(b)(3). Therefore, had Gorrell argued on\\n\\nappeal that the alleged affirmative acts could never, under any evidence presented,\\n\\nconstitute an affirmative act of tax evasion, then he would have been required to\\n\\n\\n\\n\\n (ii) charging the same offense in more than one count\\n (multiplicity);\\n (iii) lack of specificity;\\n (iv) improper joinder; and\\n (v) failure to state an offense[.]\\n\\nFed. R. Crim. P. 12(b)(3) (emphasis added).\\n 6\\n “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the\\nmotion is untimely. But a court may consider the defense, objection, or request if the\\nparty shows good cause.” Fed. R. Crim. P. 12(c)(3).\\n 9\\n\\fchallenge the Superseding Indictment before trial and his failure to do so could only\\n\\nbe excused for good cause as required under Rule 12(c)(3).\\n\\n But we understand Gorrell as raising a different issue. On appeal, perhaps\\n\\ninartfully, Gorrell asserts that the jury was improperly instructed because the alleged\\n\\naffirmative acts contained in the jury instructions (as set forth in the Superseding\\n\\nIndictment) are legally insufficient in light of the evidence presented at trial. For\\n\\nexample, we do not believe that Gorrell is claiming that the commingling of funds\\n\\ncan never constitute an affirmative act for tax evasion purposes, but instead that his\\n\\ncommingling of funds in this case was not an affirmative act of tax evasion because\\n\\nthe government did not produce evidence at trial that Gorrell’s commingling\\n\\nconcealed his tax liability from the government. Such a defense is inappropriate for\\n\\npretrial resolution under Rule 12. Cf. United States v. Pope, 613 F.3d 1255, 1259\\n\\n(10th Cir. 2010) (“Rule 12 permits pretrial resolution of a motion to dismiss the\\n\\nindictment only when ‘trial of the facts surrounding the commission of the alleged\\n\\noffense would be of no assistance in determining the validity of the defense.’”\\n\\n(quoting United States v. Covington, 395 U.S. 57, 60 (1969))). Accordingly, Gorrell\\n\\ndid not waive his challenge to the jury instructions, and we proceed to review for\\n\\nplain error.\\n\\n B\\n\\n Criminal tax evasion is defined in 26 U.S.C. § 7201: “Any person who\\n\\nwillfully attempts in any manner to evade or defeat any tax imposed by [the Internal\\n\\nRevenue Code] or the payment thereof shall[]. . . be guilty of a felony . . . .” This\\n\\n 10\\n\\fcrime has three elements: “willfulness; the existence of a tax deficiency; and an\\n\\naffirmative act constituting an evasion or attempted evasion of the tax.” Sansone v.\\n\\nUnited States, 380 U.S. 343, 351 (1965) (internal citations omitted). In this appeal,\\n\\nthe focus is on the third element, and “[t]he government need only prove one\\n\\naffirmative act of tax evasion for each count charged.” United States. v. Boisseau,\\n\\n841 F.3d 1122, 1125 (10th Cir. 2016).\\n\\n While § 7201 does not define “evade,” “defeat,” or “attempts,” the Supreme\\n\\nCourt has provided guidance. In interpreting § 7201’s predecessor statute, the Court\\n\\nexplained that “[t]he difference between willful failure to pay a tax when due, which\\n\\nis made a misdemeanor, and willful attempt to defeat and evade one, which is made a\\n\\nfelony, is not easy to detect or define.” Spies v. United States, 317 U.S. 492, 497\\n\\n(1943). It further provided “[t]he difference between the two offenses, it seems to us,\\n\\nis found in the affirmative action implied from the term ‘attempt,’ as used in the\\n\\nfelony subsection.” Id. at 498 (emphasis added). And, in conclusion, stated:\\n\\n Congress did not define or limit the methods by which a willful\\n attempt to defeat and evade might be accomplished and perhaps did not\\n define lest its effort to do so result in some unexpected limitation. Nor\\n would we by definition constrict the scope of the Congressional provision\\n that it may be accomplished ‘in any manner’. By way of illustration, and\\n not by way of limitation, we would think affirmative willful attempt may\\n be inferred from conduct such as keeping a double set of books, making\\n false entries of alterations, or false invoices or documents, destruction of\\n books or records, concealment of assets or covering up sources of income,\\n handling of one’s affairs to avoid making the records usual in transactions\\n of the kind, and any conduct, the likely effect of which would be to\\n mislead or to conceal. If the tax-evasion motive plays any part in such\\n conduct the offense may be made out even though the conduct may also\\n serve other purposes such as concealment of other crime.\\n\\n\\n 11\\n\\fId. at 499.\\n\\n Gorrell argues that four of the affirmative acts described in the jury\\n\\ninstructions are, based on the evidence presented at trial, not affirmative acts of\\n\\nevasion within the meaning of § 7201. The four affirmative acts are: commingling of\\n\\nfunds, paying personal expenses with investor funds, withdrawing cash from various\\n\\nfunds, and changing accountants. Therefore, since the jury returned a general guilty\\n\\nverdict on each count without specifying which affirmative act served as the basis for\\n\\neach count, Gorrell argues the jury may have based his convictions on an insufficient\\n\\nlegal theory which thereby entitles him to a new trial. The government responds that\\n\\nthe alleged affirmative acts were legally sufficient. After review of the evidence\\n\\npresented at trial, we conclude that each of the alleged affirmative acts were legally\\n\\nsufficient and also supported by the evidence.\\n\\n 1\\n\\n Gorrell argues that “[c]ommingling the legal money with the illegal money did\\n\\nnot potentially conceal taxes owed, because both types of money were equally\\n\\ntaxable.” Gorrell Opening Br. at 23. He asserts that his commingling is not an\\n\\naffirmative act of tax evasion because there was a paper trail and, as a result, nothing\\n\\nwas concealed from the government. But this argument misses the mark.\\n\\n “Congress has proscribed attempts to evade taxes ‘in any manner,’ 26 U.S.C.\\n\\n§ 7201, [thus] the type of affirmative conduct that can constitute an affirmative act of\\n\\nevasion is broad.” Boisseau, 841 F.3d at 1125. Even “[l]awful conduct can\\n\\nconstitute an affirmative act under § 7201 when done with the intent to evade taxes,\\n\\n 12\\n\\feven if the conduct serves other [non-evasion] purposes as well.” Id.; see also United\\n\\nStates v. Vernon, 814 F.3d 1091, 1105 (10th Cir. 2016) (rejecting argument that jury\\n\\ninstructions improperly included affirmative acts of evasion that were “not crimes”).\\n\\nAs such, the affirmative act inquiry is “closely connected” to the willfulness element.\\n\\nBoisseau, 841 F.3d at 1127; accord App’x Vol. I at 117 (Jury Instruction Number 18)\\n\\n(“To find the defendant guilty of tax evasion, you must be convinced that . . . [t]he\\n\\nDefendant intended to evade and defeat payment of [an] additional tax [and that t]he\\n\\nDefendant committed an affirmative act in furtherance of this intent, as charged in\\n\\nthe Superseding Indictment . . . .”). And both of these inquiries are necessarily fact-\\n\\nintensive. See Vernon, 814 F.3d at 1099–103 (discussing the facts from which a\\n\\nreasonable jury could decide that the defendant used a variety of business practices to\\n\\nwillfully conceal income from the Internal Revenue Service); Boisseau, 841 F.3d at\\n\\n1125–27 (detailing facts under which a reasonable jury could determine that entity\\n\\nformation, changes in compensation structure, and misrepresentations to the Internal\\n\\nRevenue Service constitute affirmative acts of evasion under § 7201).\\n\\n Gorrell’s commingling argument ignores the intent inquiry. Because even\\n\\n“[l]awful conduct can constitute an affirmative act under § 7201 when done with the\\n\\nintent to evade taxes,” Boisseau, 841 F.3d at 1125, we do not ask whether the\\n\\ncommingling left a paper trail but instead whether there was sufficient evidence for a\\n\\njury to determine that Gorrell commingled funds with the intent to evade taxes. In\\n\\nthis case, the government presented ample evidence for a reasonable jury to\\n\\n\\n\\n 13\\n\\fdetermine that Gorrell commingled funds with the intent to evade taxes, therefore the\\n\\ndistrict court properly instructed the jury on this affirmative act of evasion.7\\n\\n 2\\n\\n Gorrell argues that his payment of personal expenses with investors’ funds is\\n\\nnot an affirmative act of evasion. This argument is foreclosed under this circuit’s\\n\\nprecedents. See, e.g., Boisseau, 841 F.3d at 1126 (requesting income for\\n\\ncompensation in the form of payment of personal expenses, rather than salary, is an\\n\\naffirmative act for tax evasion purposes); Vernon, 814 F.3d at 1096–97, 1101 (using\\n\\na shell corporation to fund personal expenses is an affirmative act of evasion); United\\n\\nStates v. Mounkes, 204 F.3d 1024, 1030 (10th Cir. 2000) (“Both the diversion of\\n\\ncorporate funds to personal use and the structuring of payments to avoid IRS\\n\\nreporting requirements are affirmative acts constituting evasion or attempted evasion\\n\\nof income taxes.” (internal quotation marks and alterations omitted)); United States v.\\n\\nSwallow, 511 F.2d 514, 521 (10th Cir. 1975) (“The final element of the [§] 7201\\n\\noffense is an affirmative act constituting an attempt to evade or defeat the tax. The\\n\\nconduct must amount to a willful and positive attempt to evade a tax in any manner\\n\\nor to defeat it by any means. It may involve concealment of assets or covering up\\n\\nsources of income, or handling one’s affairs to avoid making records usual in\\n\\n\\n 7\\n We join the Seventh and Ninth Circuits in holding that commingling funds\\ncan be an affirmative act for purposes of tax evasion. See, e.g., United States v.\\nCollins, 685 F.3d 651, 656–57 (7th Cir. 2012) (commingling of business and personal\\naccounts sufficient to sustain a conviction for tax evasion); United States v. Boone,\\n951 F.2d 1526, 1540–41 (9th Cir. 1991) (commingling investor money and personal\\nfunds sufficient to sustain a conviction for tax evasion).\\n 14\\n\\ftransactions of the kind involved, or any conduct whose likely effect would be to\\n\\nmislead or conceal.” (internal citation omitted)). Accordingly, because it is well\\n\\nsettled in this circuit that using business funds to pay personal expenses is a\\n\\ndeceptive act that conceals the source of income, the district court properly instructed\\n\\nthe jury on this alleged affirmative act of evasion.\\n\\n 3\\n\\n Gorrell also asserts that withdrawing cash from various accounts (including his\\n\\nE*Trade and business accounts) is not an affirmative act of evasion for the same\\n\\nreason that using investors’ funds to pay personal expenses is not an affirmative act\\n\\nof evasion. Because we reject the latter argument, we reject the former as well.\\n\\nFurther, there is no material distinction between using funds from non-personal\\n\\naccounts to pay personal expenses and withdrawing cash from non-personal accounts\\n\\nto pay personal expenses. Both acts conceal the source of income. Accordingly, the\\n\\ndistrict court properly instructed the jury on this alleged affirmative act of evasion.\\n\\n 4\\n\\n We also reject Gorrell’s final argument that changing accountants is not an\\n\\naffirmative act of evasion. Like his commingling argument, this argument ignores\\n\\nthe intent inquiry, and the weight of authority strongly suggests that changing\\n\\naccountants, when done with the intent to evade taxes, constitutes an affirmative act\\n\\nof evasion. This is especially true where, as here, the previous tax preparer was\\n\\nintimately familiar with the defendant’s personal finances, past business practices,\\n\\nand personal history.\\n\\n 15\\n\\f We have suggested that ignoring and disobeying an accountant’s advice that a\\n\\ncertain trust structure would be disregarded for income tax purposes can constitute an\\n\\naffirmative act for tax evasion purposes. See United States v. Meek, 998 F.2d 776\\n\\n(10th Cir. 1993) (affirming a conviction for tax evasion on plain-error review despite\\n\\na jury instruction challenge regarding the affirmative act element of tax evasion).\\n\\nSimilarly, we have upheld a tax evasion conviction where defendants supplied\\n\\nmisleading bookkeeping records to their accountant. United States v. Kaatz, 705\\n\\nF.2d 1237, 1246 (10th Cir. 1983) (“[Defendants] handled their affairs so as to avoid\\n\\nmaking the records usual to the businesses which they operated, and they did not\\n\\ndisclose to their accountant the receipts which they diverted. Substantial evidence\\n\\nestablishes the noted facts, and sustains a reasonable inference of willfulness. The\\n\\n[r]ecord supports the jury verdict finding each defendant guilty of each count in\\n\\nwhich he was named.” (internal citation omitted)).\\n\\n This case presents a natural application of the above principle and is consistent\\n\\nwith Supreme Court authority. According to Spies, the “handling of one’s affairs to\\n\\navoid making the records usual in transactions of the kind” can give rise to criminal\\n\\ntax evasion liability. 317 U.S. at 499. Thus, as recognized by other circuits,\\n\\ndefendants commit an affirmative act of evasion when they provide inaccurate\\n\\ninformation to tax preparers. See, e.g., United States v. Litwok, 678 F.3d 208, 215–\\n\\n16 (2d Cir. 2012) (holding that barring an accountant from verifying the accuracy of\\n\\ntrading account statements that the accountant claimed were inaccurate constituted an\\n\\naffirmative act for tax evasion purposes); United States v. Bishop, 264 F.3d 535, 552\\n\\n 16\\n\\f(5th Cir. 2001) (holding that providing incomplete and inaccurate information to tax\\n\\npreparer is an affirmative act for tax evasion purposes).\\n\\n In this case, a reasonable jury could determine that Gorrell intended to evade\\n\\ntaxes when he changed accountants, therefore the jury could permissibly decide that\\n\\nhis behavior constituted an affirmative act of evasion. At trial, the government\\n\\nelicited testimony showing that Gorrell used his father’s free tax preparation services\\n\\nfor years before he switched to a new tax preparer who was ignorant of his business\\n\\npractices and personal finances; that he exhibited a pattern of not providing\\n\\ninformation to the Tax Defense Network despite repeated email communication for\\n\\nmonths; that Gorrell provided unsubstantiated and unsupported declarations\\n\\nregarding his investment income to the Tax Defense Network; that he went silent for\\n\\nweeks or months at a time when working with the Tax Defense Network; that he\\n\\nfailed to provide explanations regarding activity that did not align with the records he\\n\\neventually provided to the Tax Defense Network; and that he failed to provide certain\\n\\ndocuments to the Tax Defense Network regarding his trading activity when pressed\\n\\nfor the documents. Accordingly, the district court did not err in its instructions to the\\n\\njury regarding this alleged affirmative act of evasion.\\n\\n III\\n\\n The district court did not err, much less plainly err, in its instructions to the\\n\\njury. Given the evidence elicited at trial, in light of those instructions, Gorrell’s\\n\\nconvictions for tax evasion are supported.\\n\\n We affirm.\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391678/\", \"author_raw\": \"BRISCOE, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"MORITZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614425/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Shawn Christopher GORRELL, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-5041\n\n SHAWN CHRISTOPHER GORRELL,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the Northern District of Oklahoma\n (D.C. No. 4:17-CR-00010-GKF-1)\n _________________________________\n\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\nPublic Defender, with him on the briefs), Office of the Federal Public Defender for the\nNorthern District of Oklahoma, Tulsa, Oklahoma, appearing for Appellant.\n\nJeffrey Gallant, Assistant United States Attorney (R. Trent Shores, United States\nAttorney, and Kevin C. Leitch, Assistant United States Attorney, on the brief), Office of\nthe United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma,\nappearing for Appellee.\n _________________________________\n\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\n _________________________________\n\nBRISCOE, Circuit Judge.\n _________________________________\n\n Following a six-day jury trial, Shawn Gorrell was convicted of three counts of\n\nwire fraud, 18 U.S.C. § 1343, and three counts of tax evasion, 26 U.S.C. § 7201. In\n\fthis appeal he challenges only his three convictions for tax evasion and he seeks a\n\nnew trial only on those counts. He frames his issue in this way: “Whether plain error\n\noccurred when the jury instructions directed the jury to consider specified theories of\n\nan affirmative act (an element of tax evasion), which were legally invalid theories of\n\nguilt as a matter of law, the jury was instructed to be unanimous in finding an\n\naffirmative act, and the jury returned a general verdict of guilt.” Gorrell Opening Br.\n\nat 1. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\n\n I\n\n We briefly recount the relevant facts underlying Gorrell’s convictions before\n\nsummarizing the provided jury instructions.\n\n A\n\n Shawn Gorrell was an insurance salesman based in Tulsa, Oklahoma. His\n\nfather was an accountant in Tulsa whose clients included several dentists and Gorrell\n\nsold insurance to some of them. In 2009, Gorrell began to pitch investments to these\n\ndentists that were outside of his typical insurance products. Some dentists initially\n\ngave Gorrell modest sums to invest, but later the amounts ballooned to hundreds of\n\nthousands of dollars.\n\n Some of these funds were placed in a legitimate investment known as the Tax\n\nCredit Funding Group (“TCFG”). TCFG was started by John Walsh in 2011. The\n\npremise behind TCFG was simple: the federal government provided certain tax\n\ncredits to businesses affected by Hurricane Katrina, and TCFG provided tax refund\n\nanticipation loans to these eligible businesses. One of Walsh’s friends mentioned\n\n 2\n\fthat Gorrell was interested in investing in TCFG, so Walsh offered the investment\n\nopportunity to him. Gorrell subsequently invested $200,000 in TCFG on behalf of\n\nhis clients.\n\n In June 2011, Walsh began planning a second fund, Tax Credit Funding Group\n\nII (“TCFG II”). Gorrell invested another $200,000 in TCFG II. But TCFG II never\n\nreally got off the ground, and Walsh returned the second $200,000 investment to\n\nGorrell in July 2011. Walsh wound down TCFG in December 2011 and returned all\n\nprofits and principal to Gorrell by February 2012. But rather than return these\n\nmonies to his investors, Gorrell kept both the profit or principal from the TCFG\n\ninvestment as well as the funds he was given to invest in TCFG II. He was also\n\nmisusing investor funds in other ways. Carol Guies, a director of examination and\n\ninspections at the Oklahoma Department of Securities, testified at trial that from\n\nApril 2011 to October 2012 Gorrell engaged in risky day trading through a personal\n\nE*Trade account. Gorrell initially funded the E*Trade account with his own money\n\n(and investor funds from TCFG), but later deposited the investors’ money directly\n\ninto the account. The investors involved had not given him permission to use their\n\nfunds in this way.\n\n Tanner Sanders, a special agent with the Internal Revenue Service, also\n\ntestified at trial. Sanders testified that he examined various financial accounts\n\nbelonging to Gorrell, including his personal Bank of Oklahoma account, several\n\npersonal Chase Bank accounts, his personal E*Trade account, and a business account\n\nat the Bank of Oklahoma for TCFG funds. There was ample testimony given\n\n 3\n\fthroughout the trial that Gorrell commingled the investors’ money and his business\n\nfunds with his personal bank accounts and E*Trade accounts.1\n\n The government also provided evidence at trial that Gorrell stopped having his\n\nfather prepare his tax returns. For several years, Gorrell’s father (an accountant) had\n\nprepared Gorrell’s tax returns for free. However, Gorrell later hired a different tax\n\npreparer, the Tax Defense Network, in 2013 to help him file outstanding and\n\namended tax returns for the 2009, 2011, and 2012 tax years. Naydali Maldonado-\n\nHurst, a certified public accountant with the Tax Defense Network, and Mark Giles, a\n\ntax analyst with the Tax Defense Network, testified at trial that Gorrell exhibited a\n\npattern of not providing the service with the information it needed to prepare his tax\n\nreturns despite repeated email communications over several weeks; that Gorrell\n\neventually provided unsubstantiated statements regarding investment income; that\n\nseveral of Gorrell’s explanations regarding his financial activity and income did not\n\nalign with the records he provided; and that even when pressed Gorrell failed to\n\nprovide documentation regarding his trading activity.\n\n The government also presented evidence at trial regarding Gorrell’s unreported\n\nincome in the 2009, 2011, and 2012 tax years. In 2009, Gorrell received $50,000\n\nfrom one investor. Gorrell deposited these funds into his business’s bank account,\n\nand in April 2009 he began to transfer funds from this account to his personal bank\n\naccount. He then used these funds for personal expenses. The government produced\n\n\n 1\n Gorrell opened the E*Trade account in 2011, so any commingling in 2009\ndid not include the E*Trade account.\n 4\n\ftestimony at trial that, based on this activity, Gorrell failed to report $50,000 in\n\ntaxable income for the 2009 tax year.\n\n In 2011, Gorrell received $880,000 from investors. He returned approximately\n\n$235,000 to these investors during the year. However, he also used the investors’\n\nfunds for personal expenses such as day trading through an E*Trade account.2\n\nGovernment witnesses testified that, based on these financial records, Gorrell failed\n\nto report $377,708 in taxable income in the 2011 tax year.\n\n In 2012, Gorrell received more than $1,300,000 from investors. While he\n\nreturned approximately $227,000 to these investors, he also used the investors’ funds\n\nfor personal expenses, including day trading through his E*Trade account, personal\n\ncredit card payments, and loan payments.3 Government witnesses testified that,\n\nbased on his failure to report the more than $1,000,000 in appropriated funds\n\nbelonging to investors as taxable income, Gorrell failed to pay nearly $373,000 in\n\ntaxes for the 2012 tax year.\n\n B\n\n When instructing the jury, the district court incorporated the affirmative act\n\nallegations contained in the Superseding Indictment, the elements of tax evasion, and\n\nthe requirement that the jury be unanimous in its determination of the affirmative act\n\n\n\n 2\n Gorrell deposited approximately $185,000 of investor money directly into his\nE*Trade account, and also deposited investor money into his personal bank accounts.\n 3\n As in 2011, Gorrell deposited the investors’ money directly into his E*Trade\naccount and personal bank account in 2012.\n 5\n\fthat formed the basis of the conviction for each count. The jury returned a\n\nunanimous general guilty verdict on each count. Given its general verdict, the jury\n\ndid not identify which affirmative act formed the basis for each tax evasion\n\nconviction. Gorrell argued that if any of the four affirmative acts he identified are\n\nlegally insufficient, his convictions are invalid and he is entitled to a new trial. The\n\ngovernment responds that each affirmative act incorporated into the jury instructions\n\nis legally sufficient to sustain Gorrell’s convictions.\n\n Jury Instruction Number 18 lists the four elements of tax evasion under 26\n\nU.S.C. § 7201. Instruction Number 18 provides:\n\n To find the defendant guilty of tax evasion, you must be convinced\n that the government has proved each of the following elements beyond a\n reasonable doubt:\n\n FIRST: The Defendant owed substantial income tax in addition to\n the tax liability which he reported on his income tax return for the year\n charged in a particular Count;\n\n SECOND: The Defendant intended to evade and defeat payment of\n that additional tax;\n\n THIRD: The Defendant committed an affirmative act in\n furtherance of this intent, as charged in the Superseding Indictment; and\n\n FOURTH: The Defendant acted willfully, that is, with the\n voluntary intent to violate a known legal duty.\n\nApp’x Vol. I at 117. Jury Instruction Number 19 defines an “affirmative act of\n\nevasion” and further explains that “[t]he government needs only to prove one act of\n\nevasion to satisfy this element of the offense, but you must unanimously agree on\n\nwhich act or acts were committed.” Id. at 118. Jury Instruction Number 17 lists six\n\n\n 6\n\factions which the government asserts satisfy the affirmative act element of tax\n\nevasion. The same six affirmative acts are found in each count of tax evasion.4\n\nGorrell argues that four of these alleged affirmative acts are legally insufficient to\n\nsustain a conviction for tax evasion based on the evidence produced at trial. The four\n\naffirmative acts at issue are:\n\n a. GORRELL caused investor funds to be deposited into various\n accounts at banks and E*TRADE that he maintained in his own name and in\n the name of his financial services company, Gorrell Financial, Inc., thereby\n commingling the investor funds with his personal funds and converting them\n to his own use;\n\n b. GORRELL caused the payment of personal expenses from\n investor funds that had been deposited into the various financial accounts that\n he maintained at banks and at E*TRADE;\n\n c. GORRELL caused the withdrawal of large amounts of cash from\n the various financial accounts that he maintained at banks and at E*TRADE;\n\n d. GORRELL stopped using tax preparation services provided to him\n for free by his father, who was an accountant in Tulsa, Oklahoma, and instead\n engaged new tax preparers, located in Florida, who were previously\n unfamiliar with his business ventures, financial accounts, personal income,\n and expenses . . . .\n\nApp’x Vol. I at 112–15.\n\n II\n\n “We review de novo whether jury instructions, as a whole, correctly state the\n\nlaw and provide the jury with an understanding of the issues. We will disturb a\n\njudgment only if we have ‘substantial doubt that the jury was fairly guided.’” United\n\nStates v. Little, 829 F.3d 1177, 1181 (10th Cir. 2016) (internal citation omitted)\n\n\n 4\n The only difference in each count is the taxable income year.\n 7\n\f(quoting United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994)). However,\n\nGorrell did not object to the jury instructions at trial, therefore we review Gorrell’s\n\nchallenge to the jury instructions only for plain error. United States v. Pablo, 696\n\nF.3d 1280, 1287 (10th Cir. 2012). To obtain relief under this standard, Gorrell must\n\nshow that the district court made (1) an error, (2) that was plain or obvious, (3) that\n\naffected his substantial rights, and (4) also seriously affects the fairness, integrity, or\n\npublic reputation of judicial proceedings. Id. But before we address Gorrell’s\n\nchallenge to the jury instructions, we must decide whether the challenge has been\n\nwaived under Federal Rule of Criminal Procedure 12.\n\n A\n\n The government argues that while Gorrell styles his issue as a challenge to the\n\njury instructions, he is in fact alleging that the Superseding Indictment was legally\n\ndeficient. The government proceeds to argue that Gorrell was required to raise his\n\nargument through a pretrial motion under Federal Rule of Criminal Procedure\n\n12(b)(3).5 The government further asserts that, since Gorrell did not raise his\n\n\n\n 5\n Under Federal Rule of Criminal Procedure 12(b)(3),\n\n the following defenses, objections, and requests must be raised by\n pretrial motion if the basis for the motion is then reasonably\n available and the motion can be determined without a trial on the\n merits:\n ....\n\n (B) a defect in the indictment or information, including:\n (i) joining two or more offenses in the same count\n (duplicity);\n 8\n\fargument in a pretrial motion, this court may only entertain the argument if Gorrell\n\nshows good cause as required under Federal Rule of Criminal Procedure 12(c)(3).6\n\nUnited States v. Bowline, 917 F.3d 1227, 1230 (10th Cir. 2019) (“Rule [12] clearly\n\nprovides only one circumstance in which an untimely motion can be considered—\n\nwhen the movant ‘shows good cause.’” (quoting Fed. R. Crim. P. 12(c)(3))). The\n\ngovernment argues Gorrell has waived his issue because he has not shown good\n\ncause.\n\n As we view the issue Gorrell raises, Rule 12(b)(3) does not apply. Under Rule\n\n12(b)(3), Gorrell was required to challenge the Superseding Indictment by pretrial\n\nmotion for failure to state an offense only “if the basis for the motion [wa]s . . .\n\nreasonably available [before trial] and the motion c[ould] be determined without a\n\ntrial on the merits.” Fed. R. Crim. P. 12(b)(3). Therefore, had Gorrell argued on\n\nappeal that the alleged affirmative acts could never, under any evidence presented,\n\nconstitute an affirmative act of tax evasion, then he would have been required to\n\n\n\n\n (ii) charging the same offense in more than one count\n (multiplicity);\n (iii) lack of specificity;\n (iv) improper joinder; and\n (v) failure to state an offense[.]\n\nFed. R. Crim. P. 12(b)(3) (emphasis added).\n 6\n “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the\nmotion is untimely. But a court may consider the defense, objection, or request if the\nparty shows good cause.” Fed. R. Crim. P. 12(c)(3).\n 9\n\fchallenge the Superseding Indictment before trial and his failure to do so could only\n\nbe excused for good cause as required under Rule 12(c)(3).\n\n But we understand Gorrell as raising a different issue. On appeal, perhaps\n\ninartfully, Gorrell asserts that the jury was improperly instructed because the alleged\n\naffirmative acts contained in the jury instructions (as set forth in the Superseding\n\nIndictment) are legally insufficient in light of the evidence presented at trial. For\n\nexample, we do not believe that Gorrell is claiming that the commingling of funds\n\ncan never constitute an affirmative act for tax evasion purposes, but instead that his\n\ncommingling of funds in this case was not an affirmative act of tax evasion because\n\nthe government did not produce evidence at trial that Gorrell’s commingling\n\nconcealed his tax liability from the government. Such a defense is inappropriate for\n\npretrial resolution under Rule 12. Cf. United States v. Pope, 613 F.3d 1255, 1259\n\n(10th Cir. 2010) (“Rule 12 permits pretrial resolution of a motion to dismiss the\n\nindictment only when ‘trial of the facts surrounding the commission of the alleged\n\noffense would be of no assistance in determining the validity of the defense.’”\n\n(quoting United States v. Covington, 395 U.S. 57, 60 (1969))). Accordingly, Gorrell\n\ndid not waive his challenge to the jury instructions, and we proceed to review for\n\nplain error.\n\n B\n\n Criminal tax evasion is defined in 26 U.S.C. § 7201: “Any person who\n\nwillfully attempts in any manner to evade or defeat any tax imposed by [the Internal\n\nRevenue Code] or the payment thereof shall[]. . . be guilty of a felony . . . .” This\n\n 10\n\fcrime has three elements: “willfulness; the existence of a tax deficiency; and an\n\naffirmative act constituting an evasion or attempted evasion of the tax.” Sansone v.\n\nUnited States, 380 U.S. 343, 351 (1965) (internal citations omitted). In this appeal,\n\nthe focus is on the third element, and “[t]he government need only prove one\n\naffirmative act of tax evasion for each count charged.” United States. v. Boisseau,\n\n841 F.3d 1122, 1125 (10th Cir. 2016).\n\n While § 7201 does not define “evade,” “defeat,” or “attempts,” the Supreme\n\nCourt has provided guidance. In interpreting § 7201’s predecessor statute, the Court\n\nexplained that “[t]he difference between willful failure to pay a tax when due, which\n\nis made a misdemeanor, and willful attempt to defeat and evade one, which is made a\n\nfelony, is not easy to detect or define.” Spies v. United States, 317 U.S. 492, 497\n\n(1943). It further provided “[t]he difference between the two offenses, it seems to us,\n\nis found in the affirmative action implied from the term ‘attempt,’ as used in the\n\nfelony subsection.” Id. at 498 (emphasis added). And, in conclusion, stated:\n\n Congress did not define or limit the methods by which a willful\n attempt to defeat and evade might be accomplished and perhaps did not\n define lest its effort to do so result in some unexpected limitation. Nor\n would we by definition constrict the scope of the Congressional provision\n that it may be accomplished ‘in any manner’. By way of illustration, and\n not by way of limitation, we would think affirmative willful attempt may\n be inferred from conduct such as keeping a double set of books, making\n false entries of alterations, or false invoices or documents, destruction of\n books or records, concealment of assets or covering up sources of income,\n handling of one’s affairs to avoid making the records usual in transactions\n of the kind, and any conduct, the likely effect of which would be to\n mislead or to conceal. If the tax-evasion motive plays any part in such\n conduct the offense may be made out even though the conduct may also\n serve other purposes such as concealment of other crime.\n\n\n 11\n\fId. at 499.\n\n Gorrell argues that four of the affirmative acts described in the jury\n\ninstructions are, based on the evidence presented at trial, not affirmative acts of\n\nevasion within the meaning of § 7201. The four affirmative acts are: commingling of\n\nfunds, paying personal expenses with investor funds, withdrawing cash from various\n\nfunds, and changing accountants. Therefore, since the jury returned a general guilty\n\nverdict on each count without specifying which affirmative act served as the basis for\n\neach count, Gorrell argues the jury may have based his convictions on an insufficient\n\nlegal theory which thereby entitles him to a new trial. The government responds that\n\nthe alleged affirmative acts were legally sufficient. After review of the evidence\n\npresented at trial, we conclude that each of the alleged affirmative acts were legally\n\nsufficient and also supported by the evidence.\n\n 1\n\n Gorrell argues that “[c]ommingling the legal money with the illegal money did\n\nnot potentially conceal taxes owed, because both types of money were equally\n\ntaxable.” Gorrell Opening Br. at 23. He asserts that his commingling is not an\n\naffirmative act of tax evasion because there was a paper trail and, as a result, nothing\n\nwas concealed from the government. But this argument misses the mark.\n\n “Congress has proscribed attempts to evade taxes ‘in any manner,’ 26 U.S.C.\n\n§ 7201, [thus] the type of affirmative conduct that can constitute an affirmative act of\n\nevasion is broad.” Boisseau, 841 F.3d at 1125. Even “[l]awful conduct can\n\nconstitute an affirmative act under § 7201 when done with the intent to evade taxes,\n\n 12\n\feven if the conduct serves other [non-evasion] purposes as well.” Id.; see also United\n\nStates v. Vernon, 814 F.3d 1091, 1105 (10th Cir. 2016) (rejecting argument that jury\n\ninstructions improperly included affirmative acts of evasion that were “not crimes”).\n\nAs such, the affirmative act inquiry is “closely connected” to the willfulness element.\n\nBoisseau, 841 F.3d at 1127; accord App’x Vol. I at 117 (Jury Instruction Number 18)\n\n(“To find the defendant guilty of tax evasion, you must be convinced that . . . [t]he\n\nDefendant intended to evade and defeat payment of [an] additional tax [and that t]he\n\nDefendant committed an affirmative act in furtherance of this intent, as charged in\n\nthe Superseding Indictment . . . .”). And both of these inquiries are necessarily fact-\n\nintensive. See Vernon, 814 F.3d at 1099–103 (discussing the facts from which a\n\nreasonable jury could decide that the defendant used a variety of business practices to\n\nwillfully conceal income from the Internal Revenue Service); Boisseau, 841 F.3d at\n\n1125–27 (detailing facts under which a reasonable jury could determine that entity\n\nformation, changes in compensation structure, and misrepresentations to the Internal\n\nRevenue Service constitute affirmative acts of evasion under § 7201).\n\n Gorrell’s commingling argument ignores the intent inquiry. Because even\n\n“[l]awful conduct can constitute an affirmative act under § 7201 when done with the\n\nintent to evade taxes,” Boisseau, 841 F.3d at 1125, we do not ask whether the\n\ncommingling left a paper trail but instead whether there was sufficient evidence for a\n\njury to determine that Gorrell commingled funds with the intent to evade taxes. In\n\nthis case, the government presented ample evidence for a reasonable jury to\n\n\n\n 13\n\fdetermine that Gorrell commingled funds with the intent to evade taxes, therefore the\n\ndistrict court properly instructed the jury on this affirmative act of evasion.7\n\n 2\n\n Gorrell argues that his payment of personal expenses with investors’ funds is\n\nnot an affirmative act of evasion. This argument is foreclosed under this circuit’s\n\nprecedents. See, e.g., Boisseau, 841 F.3d at 1126 (requesting income for\n\ncompensation in the form of payment of personal expenses, rather than salary, is an\n\naffirmative act for tax evasion purposes); Vernon, 814 F.3d at 1096–97, 1101 (using\n\na shell corporation to fund personal expenses is an affirmative act of evasion); United\n\nStates v. Mounkes, 204 F.3d 1024, 1030 (10th Cir. 2000) (“Both the diversion of\n\ncorporate funds to personal use and the structuring of payments to avoid IRS\n\nreporting requirements are affirmative acts constituting evasion or attempted evasion\n\nof income taxes.” (internal quotation marks and alterations omitted)); United States v.\n\nSwallow, 511 F.2d 514, 521 (10th Cir. 1975) (“The final element of the [§] 7201\n\noffense is an affirmative act constituting an attempt to evade or defeat the tax. The\n\nconduct must amount to a willful and positive attempt to evade a tax in any manner\n\nor to defeat it by any means. It may involve concealment of assets or covering up\n\nsources of income, or handling one’s affairs to avoid making records usual in\n\n\n 7\n We join the Seventh and Ninth Circuits in holding that commingling funds\ncan be an affirmative act for purposes of tax evasion. See, e.g., United States v.\nCollins, 685 F.3d 651, 656–57 (7th Cir. 2012) (commingling of business and personal\naccounts sufficient to sustain a conviction for tax evasion); United States v. Boone,\n951 F.2d 1526, 1540–41 (9th Cir. 1991) (commingling investor money and personal\nfunds sufficient to sustain a conviction for tax evasion).\n 14\n\ftransactions of the kind involved, or any conduct whose likely effect would be to\n\nmislead or conceal.” (internal citation omitted)). Accordingly, because it is well\n\nsettled in this circuit that using business funds to pay personal expenses is a\n\ndeceptive act that conceals the source of income, the district court properly instructed\n\nthe jury on this alleged affirmative act of evasion.\n\n 3\n\n Gorrell also asserts that withdrawing cash from various accounts (including his\n\nE*Trade and business accounts) is not an affirmative act of evasion for the same\n\nreason that using investors’ funds to pay personal expenses is not an affirmative act\n\nof evasion. Because we reject the latter argument, we reject the former as well.\n\nFurther, there is no material distinction between using funds from non-personal\n\naccounts to pay personal expenses and withdrawing cash from non-personal accounts\n\nto pay personal expenses. Both acts conceal the source of income. Accordingly, the\n\ndistrict court properly instructed the jury on this alleged affirmative act of evasion.\n\n 4\n\n We also reject Gorrell’s final argument that changing accountants is not an\n\naffirmative act of evasion. Like his commingling argument, this argument ignores\n\nthe intent inquiry, and the weight of authority strongly suggests that changing\n\naccountants, when done with the intent to evade taxes, constitutes an affirmative act\n\nof evasion. This is especially true where, as here, the previous tax preparer was\n\nintimately familiar with the defendant’s personal finances, past business practices,\n\nand personal history.\n\n 15\n\f We have suggested that ignoring and disobeying an accountant’s advice that a\n\ncertain trust structure would be disregarded for income tax purposes can constitute an\n\naffirmative act for tax evasion purposes. See United States v. Meek, 998 F.2d 776\n\n(10th Cir. 1993) (affirming a conviction for tax evasion on plain-error review despite\n\na jury instruction challenge regarding the affirmative act element of tax evasion).\n\nSimilarly, we have upheld a tax evasion conviction where defendants supplied\n\nmisleading bookkeeping records to their accountant. United States v. Kaatz, 705\n\nF.2d 1237, 1246 (10th Cir. 1983) (“[Defendants] handled their affairs so as to avoid\n\nmaking the records usual to the businesses which they operated, and they did not\n\ndisclose to their accountant the receipts which they diverted. Substantial evidence\n\nestablishes the noted facts, and sustains a reasonable inference of willfulness. The\n\n[r]ecord supports the jury verdict finding each defendant guilty of each count in\n\nwhich he was named.” (internal citation omitted)).\n\n This case presents a natural application of the above principle and is consistent\n\nwith Supreme Court authority. According to Spies, the “handling of one’s affairs to\n\navoid making the records usual in transactions of the kind” can give rise to criminal\n\ntax evasion liability. 317 U.S. at 499. Thus, as recognized by other circuits,\n\ndefendants commit an affirmative act of evasion when they provide inaccurate\n\ninformation to tax preparers. See, e.g., United States v. Litwok, 678 F.3d 208, 215–\n\n16 (2d Cir. 2012) (holding that barring an accountant from verifying the accuracy of\n\ntrading account statements that the accountant claimed were inaccurate constituted an\n\naffirmative act for tax evasion purposes); United States v. Bishop, 264 F.3d 535, 552\n\n 16\n\f(5th Cir. 2001) (holding that providing incomplete and inaccurate information to tax\n\npreparer is an affirmative act for tax evasion purposes).\n\n In this case, a reasonable jury could determine that Gorrell intended to evade\n\ntaxes when he changed accountants, therefore the jury could permissibly decide that\n\nhis behavior constituted an affirmative act of evasion. At trial, the government\n\nelicited testimony showing that Gorrell used his father’s free tax preparation services\n\nfor years before he switched to a new tax preparer who was ignorant of his business\n\npractices and personal finances; that he exhibited a pattern of not providing\n\ninformation to the Tax Defense Network despite repeated email communication for\n\nmonths; that Gorrell provided unsubstantiated and unsupported declarations\n\nregarding his investment income to the Tax Defense Network; that he went silent for\n\nweeks or months at a time when working with the Tax Defense Network; that he\n\nfailed to provide explanations regarding activity that did not align with the records he\n\neventually provided to the Tax Defense Network; and that he failed to provide certain\n\ndocuments to the Tax Defense Network regarding his trading activity when pressed\n\nfor the documents. Accordingly, the district court did not err in its instructions to the\n\njury regarding this alleged affirmative act of evasion.\n\n III\n\n The district court did not err, much less plainly err, in its instructions to the\n\njury. Given the evidence elicited at trial, in light of those instructions, Gorrell’s\n\nconvictions for tax evasion are supported.\n\n We affirm.\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Shawn Christopher GORRELL, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-5041\\n\\n SHAWN CHRISTOPHER GORRELL,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:17-CR-00010-GKF-1)\\n _________________________________\\n\\nBarry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal\\nPublic Defender, with him on the briefs), Office of the Federal Public Defender for the\\nNorthern District of Oklahoma, Tulsa, Oklahoma, appearing for Appellant.\\n\\nJeffrey Gallant, Assistant United States Attorney (R. Trent Shores, United States\\nAttorney, and Kevin C. Leitch, Assistant United States Attorney, on the brief), Office of\\nthe United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma,\\nappearing for Appellee.\\n _________________________________\\n\\nBefore BRISCOE, LUCERO, and MORITZ, Circuit Judges.\\n _________________________________\\n\\nBRISCOE, Circuit Judge.\\n _________________________________\\n\\n Following a six-day jury trial, Shawn Gorrell was convicted of three counts of\\n\\nwire fraud, 18 U.S.C. § 1343, and three counts of tax evasion, 26 U.S.C. § 7201. In\\n\\fthis appeal he challenges only his three convictions for tax evasion and he seeks a\\n\\nnew trial only on those counts. He frames his issue in this way: “Whether plain error\\n\\noccurred when the jury instructions directed the jury to consider specified theories of\\n\\nan affirmative act (an element of tax evasion), which were legally invalid theories of\\n\\nguilt as a matter of law, the jury was instructed to be unanimous in finding an\\n\\naffirmative act, and the jury returned a general verdict of guilt.” Gorrell Opening Br.\\n\\nat 1. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.\\n\\n I\\n\\n We briefly recount the relevant facts underlying Gorrell’s convictions before\\n\\nsummarizing the provided jury instructions.\\n\\n A\\n\\n Shawn Gorrell was an insurance salesman based in Tulsa, Oklahoma. His\\n\\nfather was an accountant in Tulsa whose clients included several dentists and Gorrell\\n\\nsold insurance to some of them. In 2009, Gorrell began to pitch investments to these\\n\\ndentists that were outside of his typical insurance products. Some dentists initially\\n\\ngave Gorrell modest sums to invest, but later the amounts ballooned to hundreds of\\n\\nthousands of dollars.\\n\\n Some of these funds were placed in a legitimate investment known as the Tax\\n\\nCredit Funding Group (“TCFG”). TCFG was started by John Walsh in 2011. The\\n\\npremise behind TCFG was simple: the federal government provided certain tax\\n\\ncredits to businesses affected by Hurricane Katrina, and TCFG provided tax refund\\n\\nanticipation loans to these eligible businesses. One of Walsh’s friends mentioned\\n\\n 2\\n\\fthat Gorrell was interested in investing in TCFG, so Walsh offered the investment\\n\\nopportunity to him. Gorrell subsequently invested $200,000 in TCFG on behalf of\\n\\nhis clients.\\n\\n In June 2011, Walsh began planning a second fund, Tax Credit Funding Group\\n\\nII (“TCFG II”). Gorrell invested another $200,000 in TCFG II. But TCFG II never\\n\\nreally got off the ground, and Walsh returned the second $200,000 investment to\\n\\nGorrell in July 2011. Walsh wound down TCFG in December 2011 and returned all\\n\\nprofits and principal to Gorrell by February 2012. But rather than return these\\n\\nmonies to his investors, Gorrell kept both the profit or principal from the TCFG\\n\\ninvestment as well as the funds he was given to invest in TCFG II. He was also\\n\\nmisusing investor funds in other ways. Carol Guies, a director of examination and\\n\\ninspections at the Oklahoma Department of Securities, testified at trial that from\\n\\nApril 2011 to October 2012 Gorrell engaged in risky day trading through a personal\\n\\nE*Trade account. Gorrell initially funded the E*Trade account with his own money\\n\\n(and investor funds from TCFG), but later deposited the investors’ money directly\\n\\ninto the account. The investors involved had not given him permission to use their\\n\\nfunds in this way.\\n\\n Tanner Sanders, a special agent with the Internal Revenue Service, also\\n\\ntestified at trial. Sanders testified that he examined various financial accounts\\n\\nbelonging to Gorrell, including his personal Bank of Oklahoma account, several\\n\\npersonal Chase Bank accounts, his personal E*Trade account, and a business account\\n\\nat the Bank of Oklahoma for TCFG funds. There was ample testimony given\\n\\n 3\\n\\fthroughout the trial that Gorrell commingled the investors’ money and his business\\n\\nfunds with his personal bank accounts and E*Trade accounts.1\\n\\n The government also provided evidence at trial that Gorrell stopped having his\\n\\nfather prepare his tax returns. For several years, Gorrell’s father (an accountant) had\\n\\nprepared Gorrell’s tax returns for free. However, Gorrell later hired a different tax\\n\\npreparer, the Tax Defense Network, in 2013 to help him file outstanding and\\n\\namended tax returns for the 2009, 2011, and 2012 tax years. Naydali Maldonado-\\n\\nHurst, a certified public accountant with the Tax Defense Network, and Mark Giles, a\\n\\ntax analyst with the Tax Defense Network, testified at trial that Gorrell exhibited a\\n\\npattern of not providing the service with the information it needed to prepare his tax\\n\\nreturns despite repeated email communications over several weeks; that Gorrell\\n\\neventually provided unsubstantiated statements regarding investment income; that\\n\\nseveral of Gorrell’s explanations regarding his financial activity and income did not\\n\\nalign with the records he provided; and that even when pressed Gorrell failed to\\n\\nprovide documentation regarding his trading activity.\\n\\n The government also presented evidence at trial regarding Gorrell’s unreported\\n\\nincome in the 2009, 2011, and 2012 tax years. In 2009, Gorrell received $50,000\\n\\nfrom one investor. Gorrell deposited these funds into his business’s bank account,\\n\\nand in April 2009 he began to transfer funds from this account to his personal bank\\n\\naccount. He then used these funds for personal expenses. The government produced\\n\\n\\n 1\\n Gorrell opened the E*Trade account in 2011, so any commingling in 2009\\ndid not include the E*Trade account.\\n 4\\n\\ftestimony at trial that, based on this activity, Gorrell failed to report $50,000 in\\n\\ntaxable income for the 2009 tax year.\\n\\n In 2011, Gorrell received $880,000 from investors. He returned approximately\\n\\n$235,000 to these investors during the year. However, he also used the investors’\\n\\nfunds for personal expenses such as day trading through an E*Trade account.2\\n\\nGovernment witnesses testified that, based on these financial records, Gorrell failed\\n\\nto report $377,708 in taxable income in the 2011 tax year.\\n\\n In 2012, Gorrell received more than $1,300,000 from investors. While he\\n\\nreturned approximately $227,000 to these investors, he also used the investors’ funds\\n\\nfor personal expenses, including day trading through his E*Trade account, personal\\n\\ncredit card payments, and loan payments.3 Government witnesses testified that,\\n\\nbased on his failure to report the more than $1,000,000 in appropriated funds\\n\\nbelonging to investors as taxable income, Gorrell failed to pay nearly $373,000 in\\n\\ntaxes for the 2012 tax year.\\n\\n B\\n\\n When instructing the jury, the district court incorporated the affirmative act\\n\\nallegations contained in the Superseding Indictment, the elements of tax evasion, and\\n\\nthe requirement that the jury be unanimous in its determination of the affirmative act\\n\\n\\n\\n 2\\n Gorrell deposited approximately $185,000 of investor money directly into his\\nE*Trade account, and also deposited investor money into his personal bank accounts.\\n 3\\n As in 2011, Gorrell deposited the investors’ money directly into his E*Trade\\naccount and personal bank account in 2012.\\n 5\\n\\fthat formed the basis of the conviction for each count. The jury returned a\\n\\nunanimous general guilty verdict on each count. Given its general verdict, the jury\\n\\ndid not identify which affirmative act formed the basis for each tax evasion\\n\\nconviction. Gorrell argued that if any of the four affirmative acts he identified are\\n\\nlegally insufficient, his convictions are invalid and he is entitled to a new trial. The\\n\\ngovernment responds that each affirmative act incorporated into the jury instructions\\n\\nis legally sufficient to sustain Gorrell’s convictions.\\n\\n Jury Instruction Number 18 lists the four elements of tax evasion under 26\\n\\nU.S.C. § 7201. Instruction Number 18 provides:\\n\\n To find the defendant guilty of tax evasion, you must be convinced\\n that the government has proved each of the following elements beyond a\\n reasonable doubt:\\n\\n FIRST: The Defendant owed substantial income tax in addition to\\n the tax liability which he reported on his income tax return for the year\\n charged in a particular Count;\\n\\n SECOND: The Defendant intended to evade and defeat payment of\\n that additional tax;\\n\\n THIRD: The Defendant committed an affirmative act in\\n furtherance of this intent, as charged in the Superseding Indictment; and\\n\\n FOURTH: The Defendant acted willfully, that is, with the\\n voluntary intent to violate a known legal duty.\\n\\nApp’x Vol. I at 117. Jury Instruction Number 19 defines an “affirmative act of\\n\\nevasion” and further explains that “[t]he government needs only to prove one act of\\n\\nevasion to satisfy this element of the offense, but you must unanimously agree on\\n\\nwhich act or acts were committed.” Id. at 118. Jury Instruction Number 17 lists six\\n\\n\\n 6\\n\\factions which the government asserts satisfy the affirmative act element of tax\\n\\nevasion. The same six affirmative acts are found in each count of tax evasion.4\\n\\nGorrell argues that four of these alleged affirmative acts are legally insufficient to\\n\\nsustain a conviction for tax evasion based on the evidence produced at trial. The four\\n\\naffirmative acts at issue are:\\n\\n a. GORRELL caused investor funds to be deposited into various\\n accounts at banks and E*TRADE that he maintained in his own name and in\\n the name of his financial services company, Gorrell Financial, Inc., thereby\\n commingling the investor funds with his personal funds and converting them\\n to his own use;\\n\\n b. GORRELL caused the payment of personal expenses from\\n investor funds that had been deposited into the various financial accounts that\\n he maintained at banks and at E*TRADE;\\n\\n c. GORRELL caused the withdrawal of large amounts of cash from\\n the various financial accounts that he maintained at banks and at E*TRADE;\\n\\n d. GORRELL stopped using tax preparation services provided to him\\n for free by his father, who was an accountant in Tulsa, Oklahoma, and instead\\n engaged new tax preparers, located in Florida, who were previously\\n unfamiliar with his business ventures, financial accounts, personal income,\\n and expenses . . . .\\n\\nApp’x Vol. I at 112–15.\\n\\n II\\n\\n “We review de novo whether jury instructions, as a whole, correctly state the\\n\\nlaw and provide the jury with an understanding of the issues. We will disturb a\\n\\njudgment only if we have ‘substantial doubt that the jury was fairly guided.’” United\\n\\nStates v. Little, 829 F.3d 1177, 1181 (10th Cir. 2016) (internal citation omitted)\\n\\n\\n 4\\n The only difference in each count is the taxable income year.\\n 7\\n\\f(quoting United States v. Smith, 13 F.3d 1421, 1424 (10th Cir. 1994)). However,\\n\\nGorrell did not object to the jury instructions at trial, therefore we review Gorrell’s\\n\\nchallenge to the jury instructions only for plain error. United States v. Pablo, 696\\n\\nF.3d 1280, 1287 (10th Cir. 2012). To obtain relief under this standard, Gorrell must\\n\\nshow that the district court made (1) an error, (2) that was plain or obvious, (3) that\\n\\naffected his substantial rights, and (4) also seriously affects the fairness, integrity, or\\n\\npublic reputation of judicial proceedings. Id. But before we address Gorrell’s\\n\\nchallenge to the jury instructions, we must decide whether the challenge has been\\n\\nwaived under Federal Rule of Criminal Procedure 12.\\n\\n A\\n\\n The government argues that while Gorrell styles his issue as a challenge to the\\n\\njury instructions, he is in fact alleging that the Superseding Indictment was legally\\n\\ndeficient. The government proceeds to argue that Gorrell was required to raise his\\n\\nargument through a pretrial motion under Federal Rule of Criminal Procedure\\n\\n12(b)(3).5 The government further asserts that, since Gorrell did not raise his\\n\\n\\n\\n 5\\n Under Federal Rule of Criminal Procedure 12(b)(3),\\n\\n the following defenses, objections, and requests must be raised by\\n pretrial motion if the basis for the motion is then reasonably\\n available and the motion can be determined without a trial on the\\n merits:\\n ....\\n\\n (B) a defect in the indictment or information, including:\\n (i) joining two or more offenses in the same count\\n (duplicity);\\n 8\\n\\fargument in a pretrial motion, this court may only entertain the argument if Gorrell\\n\\nshows good cause as required under Federal Rule of Criminal Procedure 12(c)(3).6\\n\\nUnited States v. Bowline, 917 F.3d 1227, 1230 (10th Cir. 2019) (“Rule [12] clearly\\n\\nprovides only one circumstance in which an untimely motion can be considered—\\n\\nwhen the movant ‘shows good cause.’” (quoting Fed. R. Crim. P. 12(c)(3))). The\\n\\ngovernment argues Gorrell has waived his issue because he has not shown good\\n\\ncause.\\n\\n As we view the issue Gorrell raises, Rule 12(b)(3) does not apply. Under Rule\\n\\n12(b)(3), Gorrell was required to challenge the Superseding Indictment by pretrial\\n\\nmotion for failure to state an offense only “if the basis for the motion [wa]s . . .\\n\\nreasonably available [before trial] and the motion c[ould] be determined without a\\n\\ntrial on the merits.” Fed. R. Crim. P. 12(b)(3). Therefore, had Gorrell argued on\\n\\nappeal that the alleged affirmative acts could never, under any evidence presented,\\n\\nconstitute an affirmative act of tax evasion, then he would have been required to\\n\\n\\n\\n\\n (ii) charging the same offense in more than one count\\n (multiplicity);\\n (iii) lack of specificity;\\n (iv) improper joinder; and\\n (v) failure to state an offense[.]\\n\\nFed. R. Crim. P. 12(b)(3) (emphasis added).\\n 6\\n “If a party does not meet the deadline for making a Rule 12(b)(3) motion, the\\nmotion is untimely. But a court may consider the defense, objection, or request if the\\nparty shows good cause.” Fed. R. Crim. P. 12(c)(3).\\n 9\\n\\fchallenge the Superseding Indictment before trial and his failure to do so could only\\n\\nbe excused for good cause as required under Rule 12(c)(3).\\n\\n But we understand Gorrell as raising a different issue. On appeal, perhaps\\n\\ninartfully, Gorrell asserts that the jury was improperly instructed because the alleged\\n\\naffirmative acts contained in the jury instructions (as set forth in the Superseding\\n\\nIndictment) are legally insufficient in light of the evidence presented at trial. For\\n\\nexample, we do not believe that Gorrell is claiming that the commingling of funds\\n\\ncan never constitute an affirmative act for tax evasion purposes, but instead that his\\n\\ncommingling of funds in this case was not an affirmative act of tax evasion because\\n\\nthe government did not produce evidence at trial that Gorrell’s commingling\\n\\nconcealed his tax liability from the government. Such a defense is inappropriate for\\n\\npretrial resolution under Rule 12. Cf. United States v. Pope, 613 F.3d 1255, 1259\\n\\n(10th Cir. 2010) (“Rule 12 permits pretrial resolution of a motion to dismiss the\\n\\nindictment only when ‘trial of the facts surrounding the commission of the alleged\\n\\noffense would be of no assistance in determining the validity of the defense.’”\\n\\n(quoting United States v. Covington, 395 U.S. 57, 60 (1969))). Accordingly, Gorrell\\n\\ndid not waive his challenge to the jury instructions, and we proceed to review for\\n\\nplain error.\\n\\n B\\n\\n Criminal tax evasion is defined in 26 U.S.C. § 7201: “Any person who\\n\\nwillfully attempts in any manner to evade or defeat any tax imposed by [the Internal\\n\\nRevenue Code] or the payment thereof shall[]. . . be guilty of a felony . . . .” This\\n\\n 10\\n\\fcrime has three elements: “willfulness; the existence of a tax deficiency; and an\\n\\naffirmative act constituting an evasion or attempted evasion of the tax.” Sansone v.\\n\\nUnited States, 380 U.S. 343, 351 (1965) (internal citations omitted). In this appeal,\\n\\nthe focus is on the third element, and “[t]he government need only prove one\\n\\naffirmative act of tax evasion for each count charged.” United States. v. Boisseau,\\n\\n841 F.3d 1122, 1125 (10th Cir. 2016).\\n\\n While § 7201 does not define “evade,” “defeat,” or “attempts,” the Supreme\\n\\nCourt has provided guidance. In interpreting § 7201’s predecessor statute, the Court\\n\\nexplained that “[t]he difference between willful failure to pay a tax when due, which\\n\\nis made a misdemeanor, and willful attempt to defeat and evade one, which is made a\\n\\nfelony, is not easy to detect or define.” Spies v. United States, 317 U.S. 492, 497\\n\\n(1943). It further provided “[t]he difference between the two offenses, it seems to us,\\n\\nis found in the affirmative action implied from the term ‘attempt,’ as used in the\\n\\nfelony subsection.” Id. at 498 (emphasis added). And, in conclusion, stated:\\n\\n Congress did not define or limit the methods by which a willful\\n attempt to defeat and evade might be accomplished and perhaps did not\\n define lest its effort to do so result in some unexpected limitation. Nor\\n would we by definition constrict the scope of the Congressional provision\\n that it may be accomplished ‘in any manner’. By way of illustration, and\\n not by way of limitation, we would think affirmative willful attempt may\\n be inferred from conduct such as keeping a double set of books, making\\n false entries of alterations, or false invoices or documents, destruction of\\n books or records, concealment of assets or covering up sources of income,\\n handling of one’s affairs to avoid making the records usual in transactions\\n of the kind, and any conduct, the likely effect of which would be to\\n mislead or to conceal. If the tax-evasion motive plays any part in such\\n conduct the offense may be made out even though the conduct may also\\n serve other purposes such as concealment of other crime.\\n\\n\\n 11\\n\\fId. at 499.\\n\\n Gorrell argues that four of the affirmative acts described in the jury\\n\\ninstructions are, based on the evidence presented at trial, not affirmative acts of\\n\\nevasion within the meaning of § 7201. The four affirmative acts are: commingling of\\n\\nfunds, paying personal expenses with investor funds, withdrawing cash from various\\n\\nfunds, and changing accountants. Therefore, since the jury returned a general guilty\\n\\nverdict on each count without specifying which affirmative act served as the basis for\\n\\neach count, Gorrell argues the jury may have based his convictions on an insufficient\\n\\nlegal theory which thereby entitles him to a new trial. The government responds that\\n\\nthe alleged affirmative acts were legally sufficient. After review of the evidence\\n\\npresented at trial, we conclude that each of the alleged affirmative acts were legally\\n\\nsufficient and also supported by the evidence.\\n\\n 1\\n\\n Gorrell argues that “[c]ommingling the legal money with the illegal money did\\n\\nnot potentially conceal taxes owed, because both types of money were equally\\n\\ntaxable.” Gorrell Opening Br. at 23. He asserts that his commingling is not an\\n\\naffirmative act of tax evasion because there was a paper trail and, as a result, nothing\\n\\nwas concealed from the government. But this argument misses the mark.\\n\\n “Congress has proscribed attempts to evade taxes ‘in any manner,’ 26 U.S.C.\\n\\n§ 7201, [thus] the type of affirmative conduct that can constitute an affirmative act of\\n\\nevasion is broad.” Boisseau, 841 F.3d at 1125. Even “[l]awful conduct can\\n\\nconstitute an affirmative act under § 7201 when done with the intent to evade taxes,\\n\\n 12\\n\\feven if the conduct serves other [non-evasion] purposes as well.” Id.; see also United\\n\\nStates v. Vernon, 814 F.3d 1091, 1105 (10th Cir. 2016) (rejecting argument that jury\\n\\ninstructions improperly included affirmative acts of evasion that were “not crimes”).\\n\\nAs such, the affirmative act inquiry is “closely connected” to the willfulness element.\\n\\nBoisseau, 841 F.3d at 1127; accord App’x Vol. I at 117 (Jury Instruction Number 18)\\n\\n(“To find the defendant guilty of tax evasion, you must be convinced that . . . [t]he\\n\\nDefendant intended to evade and defeat payment of [an] additional tax [and that t]he\\n\\nDefendant committed an affirmative act in furtherance of this intent, as charged in\\n\\nthe Superseding Indictment . . . .”). And both of these inquiries are necessarily fact-\\n\\nintensive. See Vernon, 814 F.3d at 1099–103 (discussing the facts from which a\\n\\nreasonable jury could decide that the defendant used a variety of business practices to\\n\\nwillfully conceal income from the Internal Revenue Service); Boisseau, 841 F.3d at\\n\\n1125–27 (detailing facts under which a reasonable jury could determine that entity\\n\\nformation, changes in compensation structure, and misrepresentations to the Internal\\n\\nRevenue Service constitute affirmative acts of evasion under § 7201).\\n\\n Gorrell’s commingling argument ignores the intent inquiry. Because even\\n\\n“[l]awful conduct can constitute an affirmative act under § 7201 when done with the\\n\\nintent to evade taxes,” Boisseau, 841 F.3d at 1125, we do not ask whether the\\n\\ncommingling left a paper trail but instead whether there was sufficient evidence for a\\n\\njury to determine that Gorrell commingled funds with the intent to evade taxes. In\\n\\nthis case, the government presented ample evidence for a reasonable jury to\\n\\n\\n\\n 13\\n\\fdetermine that Gorrell commingled funds with the intent to evade taxes, therefore the\\n\\ndistrict court properly instructed the jury on this affirmative act of evasion.7\\n\\n 2\\n\\n Gorrell argues that his payment of personal expenses with investors’ funds is\\n\\nnot an affirmative act of evasion. This argument is foreclosed under this circuit’s\\n\\nprecedents. See, e.g., Boisseau, 841 F.3d at 1126 (requesting income for\\n\\ncompensation in the form of payment of personal expenses, rather than salary, is an\\n\\naffirmative act for tax evasion purposes); Vernon, 814 F.3d at 1096–97, 1101 (using\\n\\na shell corporation to fund personal expenses is an affirmative act of evasion); United\\n\\nStates v. Mounkes, 204 F.3d 1024, 1030 (10th Cir. 2000) (“Both the diversion of\\n\\ncorporate funds to personal use and the structuring of payments to avoid IRS\\n\\nreporting requirements are affirmative acts constituting evasion or attempted evasion\\n\\nof income taxes.” (internal quotation marks and alterations omitted)); United States v.\\n\\nSwallow, 511 F.2d 514, 521 (10th Cir. 1975) (“The final element of the [§] 7201\\n\\noffense is an affirmative act constituting an attempt to evade or defeat the tax. The\\n\\nconduct must amount to a willful and positive attempt to evade a tax in any manner\\n\\nor to defeat it by any means. It may involve concealment of assets or covering up\\n\\nsources of income, or handling one’s affairs to avoid making records usual in\\n\\n\\n 7\\n We join the Seventh and Ninth Circuits in holding that commingling funds\\ncan be an affirmative act for purposes of tax evasion. See, e.g., United States v.\\nCollins, 685 F.3d 651, 656–57 (7th Cir. 2012) (commingling of business and personal\\naccounts sufficient to sustain a conviction for tax evasion); United States v. Boone,\\n951 F.2d 1526, 1540–41 (9th Cir. 1991) (commingling investor money and personal\\nfunds sufficient to sustain a conviction for tax evasion).\\n 14\\n\\ftransactions of the kind involved, or any conduct whose likely effect would be to\\n\\nmislead or conceal.” (internal citation omitted)). Accordingly, because it is well\\n\\nsettled in this circuit that using business funds to pay personal expenses is a\\n\\ndeceptive act that conceals the source of income, the district court properly instructed\\n\\nthe jury on this alleged affirmative act of evasion.\\n\\n 3\\n\\n Gorrell also asserts that withdrawing cash from various accounts (including his\\n\\nE*Trade and business accounts) is not an affirmative act of evasion for the same\\n\\nreason that using investors’ funds to pay personal expenses is not an affirmative act\\n\\nof evasion. Because we reject the latter argument, we reject the former as well.\\n\\nFurther, there is no material distinction between using funds from non-personal\\n\\naccounts to pay personal expenses and withdrawing cash from non-personal accounts\\n\\nto pay personal expenses. Both acts conceal the source of income. Accordingly, the\\n\\ndistrict court properly instructed the jury on this alleged affirmative act of evasion.\\n\\n 4\\n\\n We also reject Gorrell’s final argument that changing accountants is not an\\n\\naffirmative act of evasion. Like his commingling argument, this argument ignores\\n\\nthe intent inquiry, and the weight of authority strongly suggests that changing\\n\\naccountants, when done with the intent to evade taxes, constitutes an affirmative act\\n\\nof evasion. This is especially true where, as here, the previous tax preparer was\\n\\nintimately familiar with the defendant’s personal finances, past business practices,\\n\\nand personal history.\\n\\n 15\\n\\f We have suggested that ignoring and disobeying an accountant’s advice that a\\n\\ncertain trust structure would be disregarded for income tax purposes can constitute an\\n\\naffirmative act for tax evasion purposes. See United States v. Meek, 998 F.2d 776\\n\\n(10th Cir. 1993) (affirming a conviction for tax evasion on plain-error review despite\\n\\na jury instruction challenge regarding the affirmative act element of tax evasion).\\n\\nSimilarly, we have upheld a tax evasion conviction where defendants supplied\\n\\nmisleading bookkeeping records to their accountant. United States v. Kaatz, 705\\n\\nF.2d 1237, 1246 (10th Cir. 1983) (“[Defendants] handled their affairs so as to avoid\\n\\nmaking the records usual to the businesses which they operated, and they did not\\n\\ndisclose to their accountant the receipts which they diverted. Substantial evidence\\n\\nestablishes the noted facts, and sustains a reasonable inference of willfulness. The\\n\\n[r]ecord supports the jury verdict finding each defendant guilty of each count in\\n\\nwhich he was named.” (internal citation omitted)).\\n\\n This case presents a natural application of the above principle and is consistent\\n\\nwith Supreme Court authority. According to Spies, the “handling of one’s affairs to\\n\\navoid making the records usual in transactions of the kind” can give rise to criminal\\n\\ntax evasion liability. 317 U.S. at 499. Thus, as recognized by other circuits,\\n\\ndefendants commit an affirmative act of evasion when they provide inaccurate\\n\\ninformation to tax preparers. See, e.g., United States v. Litwok, 678 F.3d 208, 215–\\n\\n16 (2d Cir. 2012) (holding that barring an accountant from verifying the accuracy of\\n\\ntrading account statements that the accountant claimed were inaccurate constituted an\\n\\naffirmative act for tax evasion purposes); United States v. Bishop, 264 F.3d 535, 552\\n\\n 16\\n\\f(5th Cir. 2001) (holding that providing incomplete and inaccurate information to tax\\n\\npreparer is an affirmative act for tax evasion purposes).\\n\\n In this case, a reasonable jury could determine that Gorrell intended to evade\\n\\ntaxes when he changed accountants, therefore the jury could permissibly decide that\\n\\nhis behavior constituted an affirmative act of evasion. At trial, the government\\n\\nelicited testimony showing that Gorrell used his father’s free tax preparation services\\n\\nfor years before he switched to a new tax preparer who was ignorant of his business\\n\\npractices and personal finances; that he exhibited a pattern of not providing\\n\\ninformation to the Tax Defense Network despite repeated email communication for\\n\\nmonths; that Gorrell provided unsubstantiated and unsupported declarations\\n\\nregarding his investment income to the Tax Defense Network; that he went silent for\\n\\nweeks or months at a time when working with the Tax Defense Network; that he\\n\\nfailed to provide explanations regarding activity that did not align with the records he\\n\\neventually provided to the Tax Defense Network; and that he failed to provide certain\\n\\ndocuments to the Tax Defense Network regarding his trading activity when pressed\\n\\nfor the documents. Accordingly, the district court did not err in its instructions to the\\n\\njury regarding this alleged affirmative act of evasion.\\n\\n III\\n\\n The district court did not err, much less plainly err, in its instructions to the\\n\\njury. Given the evidence elicited at trial, in light of those instructions, Gorrell’s\\n\\nconvictions for tax evasion are supported.\\n\\n We affirm.\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1866,"cells":{"id":{"kind":"number","value":4614426,"string":"4,614,426"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Leonard ARAGON, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Aragon"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"18-1121"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Holmes, McKay, Kelly\", \"parties\": \"\", \"opinions\": [{\"author\": \"McKAY\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888421/\", \"author_raw\": \"McKAY\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888422/\", \"author_raw\": \"\"}, {\"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1121\\n\\n LEONARD ARAGON,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CR-00324-RM-1)\\n _________________________________\\n\\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.\\n\\nMichael C. Johnson, Assistant United States Attorney (Robert C. Troyer, United States\\nAttorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HOLMES, McKAY, and KELLY, Circuit Judges.\\n _________________________________\\n\\nMcKAY, Circuit Judge.\\n _________________________________\\n\\n Leonard Aragon was sentenced to 48 months’ imprisonment after pleading\\n\\nguilty to one count of possession with intent to distribute controlled substances in\\n\\nviolation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He now appeals that sentence. On\\n\\nappeal, Mr. Aragon argues the district court erred in finding that two packages found\\n\\fin his car contained 28.5 grams of methamphetamine and 11 grams of heroin,\\n\\nrespectively. He also contends “the judge abused his discretion by sua sponte\\n\\npresenting his own evidence in support of a higher sentence.” (Appellant’s Br. at 1.)\\n\\nFinally, Mr. Aragon requests that his case be assigned to a different judge for\\n\\nresentencing on remand.1\\n\\n I.\\n\\n In March and April 2017, the Federal Bureau of Investigation made two\\n\\ncontrolled buys of heroin from Mr. Aragon. On the first occasion, the FBI purchased\\n\\ntwo packages of heroin that weighed approximately 25 grams apiece when field-\\n\\ntested. The heroin purchased on the second occasion weighed 24.8 grams when\\n\\nfield-tested. Laboratory testing confirmed that the three packages in fact contained\\n\\nheroin with net weights of 23.67, 24.07, and 24.16 grams, respectively. In September\\n\\n2017, Mr. Aragon was indicted on two counts of distributing heroin. Three months\\n\\nlater, he agreed to plead guilty to one count of possession with intent to distribute.\\n\\n The district court held a change of plea hearing in December 2017. The judge\\n\\nbegan the hearing by asking the parties why, pursuant to the plea agreement, they had\\n\\nboth agreed to ask for a sentence at the high end of the advisory guideline range.\\n\\nDefense counsel responded that the parties had “limited the relevant conduct in terms\\n\\n\\n\\n 1\\n Although Mr. Aragon’s opening brief on appeal also challenged his sentence\\nunder Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Aragon\\nexpressly withdrew that argument in his reply brief. Therefore, we do not address it.\\nSee United States v. Camick, 796 F.3d 1206, 1213 n.4 (10th Cir. 2015) (declining to\\naddress claims withdrawn before oral argument).\\n 2\\n\\fof [their] stipulation of facts” and “the base-offense level would have been higher”\\n\\nhad they included “everything that could be included from the discovery.”\\n\\n(Appellant’s App. Vol. III at 10.) When the judge asked why relevant conduct was\\n\\nexcluded, defense counsel stated that the prosecutor understood Mr. Aragon to be\\n\\n“closer to the bottom” of his drug-distribution organization and thus the parties\\n\\nconsidered it “fair” to disregard “some uncharged conduct that could have been either\\n\\ncharged or used as relevant conduct.” (Id. at 10–11.) Upon further prompting by the\\n\\njudge, defense counsel identified the uncharged conduct as “a number of items of\\n\\ncontraband [found] in [Mr. Aragon’s] car” when he was arrested. (Id. at 11.)\\n\\n Later in the hearing, the judge raised the issue of whether Mr. Aragon could\\n\\nsubsequently be charged with the other conduct. The parties both acknowledged that\\n\\nthe plea agreement did not contain any terms relating to the uncharged conduct but\\n\\nalso stated that they understood the government had no intention of so charging him.\\n\\nBecause of this, the judge reset the change of plea hearing, instructing the parties to\\n\\n“write a Plea Agreement that doesn’t hide things from me; that tells me what is going\\n\\non[,] what is agreed to and what is not agreed to.” (Id. at 19.) The judge also stated,\\n\\n“[T]he odds on a presentence investigation just went up dramatically.” (Id.)\\n\\n The parties returned that afternoon, and the judge started the hearing over from\\n\\nthe beginning. The revised plea agreement provided that the government would “not\\n\\npursue additional charges or a sentencing increase based on items found in a vehicle\\n\\nat the time of the defendant’s arrest.” (Appellant’s App. Vol. I at 18.) In reviewing\\n\\nthe portion of the plea agreement regarding the parties both again asking for a\\n\\n 3\\n\\fsentence at the high end of the guidelines range—37 months based on a total offense\\n\\nlevel of 17—the judge noted “the mystery question of what this other stuff found in\\n\\nthe car was, and whether or not it’s relevant conduct.” (Appellant’s App. Vol. III at\\n\\n34–35.) At the hearing’s conclusion, the judge requested, “[c]ontrary to [his]\\n\\nordinary practice,” “that the probation department conduct an independent factual\\n\\ninvestigation of the offense conduct in this matter.” (Id. at 48.)\\n\\n In March 2018, the district court issued a minute order stating that the court\\n\\nwas “concerned about the facts and relevant conduct in this case” and directing the\\n\\ngovernment to “have the case agent present at sentencing” and to furnish the court\\n\\nwith “copies of all documents and reports relating to Mr. Aragon’s arrest and the\\n\\ndiscovery of drugs in his car (in the possession of law enforcement and/or the U.S.\\n\\nAttorney’s Office).” (Appellant’s App. Vol. I at 25.) When the government sent the\\n\\ncourt a binder containing these documents but excluding portions of a police report\\n\\nrelating to jail phone calls, the court issued a minute order directing the government\\n\\nto provide the missing pages of the police report. In response to this second order,\\n\\nthe government also gave the court a report regarding the contents of Mr. Aragon’s\\n\\ncell phone.\\n\\n These additional documents reveal that law enforcement obtained and\\n\\nexecuted a search warrant for Mr. Aragon’s car in September 2017. The search was\\n\\nconducted by Task Force Officer Jeremy Mathews. Officer Mathews’ inventory of\\n\\nthe property found in the car includes a cell phone, pills, bullets, almost $3,000 in\\n\\ncash, a digital scale, and a number of packages containing suspected heroin,\\n\\n 4\\n\\fmethamphetamine, and cocaine. The record contains numerous photographs of\\n\\nMr. Aragon’s car and its contents.\\n\\n The presentence investigation report indicates that “[t]he case agent, Andrew\\n\\nCohen, reported the drugs recovered from the defendant’s vehicle yielded the\\n\\nfollowing packaged weights[:] heroin (11.5 grams), cocaine (6.7 grams),\\n\\nmethamphetamine (29 grams), and 3 pills of oxycodone.” (Appellant’s App. Vol. II\\n\\nat 13.) Agent Cohen also reported that none of these drugs had been sent to the\\n\\nlaboratory for testing. The PSR calculated the marijuana equivalency of the drugs\\n\\nfrom the controlled buys and from Mr. Aragon’s car, totaling 145.44 kilograms of\\n\\nmarijuana and resulting in a base offense level of 24. The PSR also found that\\n\\nMr. Aragon was entitled to a 3-level reduction for acceptance of responsibility,\\n\\nyielding a total offense level of 21. With Mr. Aragon’s criminal history category of\\n\\nIII, the PSR identified the guideline sentencing range as 46 to 57 months and\\n\\nrecommended a sentence of 46 months’ imprisonment.\\n\\n Mr. Aragon filed objections to the PSR, primarily contesting its consideration\\n\\nof the substances found in his car. Specifically, Mr. Aragon stated that he “disputes\\n\\nthat he possessed any controlled substances at [the time of his arrest], let alone these\\n\\nspecific controlled substances and quantities.” (Id. at 7.) He also pointed out that the\\n\\nsubstances found in his car were not laboratory-tested.\\n\\n The government’s sentencing position asked the district court to sentence\\n\\nMr. Aragon to 37 months’ imprisonment, “the high end of the advisory guideline\\n\\nrange as calculated by the parties in the Plea Agreement.” (Id. at 34.) The\\n\\n 5\\n\\fgovernment observed that the substances found in Mr. Aragon’s car, unlike the\\n\\nheroin from the controlled buys, “w[ere] not field tested and w[ere] not sent to the\\n\\nlaboratory for formal testing.” (Id.) Moreover, the government explained that the\\n\\nsubstances found in the car were not laboratory tested because Mr. Aragon had\\n\\nquickly indicated his intent to resolve the case, which prompted the government to\\n\\ncease its investigation.\\n\\n The district court began the March 2018 sentencing hearing by reviewing the\\n\\nhistory of the case as to how the court learned about the additional drugs and how\\n\\nMr. Aragon’s case fit in with others from the same investigation. Upon prompting by\\n\\nthe court, defense counsel clarified that Mr. Aragon’s objection to the PSR was “a\\n\\nlegal objection based upon the . . . sufficiency of the evidence.” (Appellant’s App.\\n\\nVol. III at 69.)\\n\\n The district court overruled the objection, citing the PSR’s conclusion that\\n\\nthere was heroin and methamphetamine in the car; the case agent’s statement to the\\n\\nprobation department that there were additional drugs in the car; the photographs of\\n\\nthe suspected drugs, cash, and digital scale; Mr. Aragon’s criminal history involving\\n\\nheroin; and the records of Mr. Aragon’s jail phone calls in which he stated, “I had\\n\\nsome perks, a little bit of soft ready, B, and like a zip of clear and hard.” (Id. at 74.)\\n\\nThe judge then went on to address the quantities of the drugs, acknowledging that the\\n\\n\\n\\n\\n 6\\n\\fweights given were gross weights and deducting half a gram for the packaging of the\\n\\nheroin and the methamphetamine.2\\n\\n Accordingly, the district court concluded that Mr. Aragon was responsible for\\n\\n24.8 and 49.8 grams of heroin from the two controlled buys, plus 11 grams of heroin\\n\\nand 28.5 grams of methamphetamine found in the car. The judge calculated this as\\n\\nhaving a marijuana equivalency of 142.6 grams, making Mr. Aragon’s offense level\\n\\n24. The judge also stated, “[E]ven if these drugs were in a hefty bag, you would still\\n\\nbe in the same guideline range, because we’re basically 40 kilograms of marijuana\\n\\nabove the floor.” (Id. at 76.) Defense counsel objected to “the process” the court\\n\\nused here, including relying on the photographs to determine the identity of the\\n\\nsubstances and how much they and their packaging weighed. (Id. at 77.)\\n\\n Ultimately, the district court sentenced Mr. Aragon to 48 months’\\n\\nimprisonment after finding that his total offense level was 21. Mr. Aragon appealed.\\n\\n II.\\n\\n “[I]n considering the district court’s application of the Guidelines, we review\\n\\nfactual findings for clear error and legal determinations de novo.” United States v.\\n\\nKristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “A sentence cannot . . . be considered\\n\\nreasonable if the manner in which it was determined was unreasonable, i.e., if it was\\n\\n\\n\\n 2\\n The district court disregarded the pills and cocaine as being “more\\nconsistent . . . with personal-use quantities than with distribution quantities.”\\n(Appellant’s App. Vol. III at 76.) The court also appears to have disregarded a much\\nsmaller package of suspected methamphetamine listed in Officer Mathews’\\ninventory.\\n 7\\n\\fbased on an improper determination of the applicable Guidelines range.” Id. at 1055.\\n\\n“The government has the burden of proof and production during the sentencing\\n\\nhearing to establish the amounts and types of controlled substances related to the\\n\\noffense . . . by a preponderance of the evidence.” United States v. Deninno, 29 F.3d\\n\\n572, 580 (10th Cir. 1994).\\n\\n We begin by addressing Mr. Aragon’s contention that the district court\\n\\nimproperly presented evidence at sentencing. Mr. Aragon acknowledges that a\\n\\nsentencing judge may call witnesses and elicit testimony “as part of [his] obligation\\n\\nto gather information relevant to the sentencing determination,” United States v.\\n\\nScott, 529 F.3d 1290, 1298 (10th Cir. 2008). As we have previously recognized,\\n\\n“[t]he [sentencing] judge remains ultimately responsible for determining the facts and\\n\\nmust establish the relevant facts even if all the parties argue to the contrary.” United\\n\\nStates v. Garcia, 78 F.3d 1457, 1462 n.6 (10th Cir. 1996). The district court’s\\n\\nexercise of its power to elicit and establish the relevant facts at sentencing is\\n\\nnevertheless subject to abuse-of-discretion review. Scott, 529 F.3d at 1299.\\n\\n Mr. Aragon makes three arguments in support of his assertion that the district\\n\\ncourt abused its discretion here. First, he claims that “the judge’s actions in this case\\n\\nrested upon an arbitrary or clearly erroneous understanding of the conduct of counsel\\n\\nfor the parties,” specifically the judge’s belief that the parties had intentionally\\n\\nconcealed the additional drugs in order to predetermine the guideline range.\\n\\n(Appellant’s Br. at 50.) Even were we to agree that the judge clearly erred in his\\n\\nunderstanding of the parties’ actions, Mr. Aragon has identified no authority\\n\\n 8\\n\\findicating that a judge abuses his discretion to gather additional evidence when the\\n\\njudge believes such evidence is necessary for the wrong reason. The sentencing\\n\\njudge “must establish the relevant facts,” Garcia, 78 F.3d at 1462 n.6, and we see no\\n\\nreason to second-guess the district court’s determination that additional evidence was\\n\\nneeded to do so in this case.\\n\\n Second, Mr. Aragon argues that “taking action sua sponte is only appropriate\\n\\nwhen the right result is ‘certain’ rather than ‘debatable.’” (Appellant’s Br. at 50\\n\\n(quoting United States v. Holly, 488 F.3d 1298, 1308 (10th Cir. 2007)).) The\\n\\n“certain” versus “debatable” language from Holly was used in the dissimilar context\\n\\nof the appellate court’s analysis of whether to engage in harmless error review sua\\n\\nsponte on appeal. See 488 F.3d at 1308. The only other case Mr. Aragon has cited as\\n\\nconsidering this distinction is Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.\\n\\n2006), which addressed the district court’s ability to dismiss a complaint sua sponte\\n\\nbased on an affirmative defense such as the statute of limitations. He has identified\\n\\nno authority for extending any certain-versus-debatable principle to a judge’s ability\\n\\nto elicit his own evidence at sentencing. Nor would such a rule make sense.\\n\\nMr. Aragon conflates the issue of eliciting evidence with that of accepting its\\n\\nsufficiency. A judge who sua sponte gathers and elicits additional evidence may\\n\\nvery well not know what that evidence will show until it has been produced.\\n\\n Third, Mr. Aragon contends that “the particular actions of the judge in this\\n\\nparticular case posed an unacceptable risk that Mr. Aragon would perceive him as an\\n\\nadvocate, rather than as an impartial arbiter.” (Appellant’s Br. at 51.) We agree with\\n\\n 9\\n\\fMr. Aragon that a judge who elicits his own evidence “‘must take care not to create\\n\\nthe appearance that he or she is less than totally impartial,’” Scott, 529 F.3d at 1299\\n\\n(quoting United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996)). In analyzing\\n\\nthis issue, however, we again believe it is necessary to distinguish the issue of how\\n\\nthe judge elicits the evidence from that of whether the judge correctly concluded the\\n\\nevidence presented was sufficient. A judge’s acceptance of evidence as sufficient\\n\\nproof may constitute error, but it does not of necessity demonstrate partiality.\\n\\n On the issue of partiality, Mr. Aragon states that “the judge made comments at\\n\\nsentencing that an objective observer might view as suggesting a special solicitude\\n\\ntoward law enforcement,” (Appellant’s Br. at 51), pointing to the judge’s quotation\\n\\nof a statement made by “an individual, whom [he’d] known for years, whom [he]\\n\\nrespect[ed] tremendously, and whom [he] trust[ed] implicitly,” about “hell . . .\\n\\ncoming to breakfast” for people who “bring poison and violence into the\\n\\ncommunity,” (Appellant’s App. Vol. III at 58–59). Mr. Aragon also claims that “the\\n\\njudge evinced not just objective disagreement with, but personal hostility to, defense\\n\\ncounsel’s position,” citing several statements by the judge expressing his\\n\\ndisagreement and frustration. (Appellant’s Br. at 52.) Finally, Mr. Aragon asserts\\n\\nthat “the sentencing transcript reveals that the judge’s sua sponte conduct was so\\n\\nextensive that the majority of the hearing consisted of the judge berating counsel,\\n\\npresenting and explaining evidence that he had presented, and making his own\\n\\narguments against the disposition to which the parties agreed.” (Id. at 53.)\\n\\n\\n\\n 10\\n\\f These contentions are largely tangential to the judge’s authority and decision\\n\\nto elicit his own evidence at sentencing. The government points out that the quoted\\n\\n“individual” whom the judge said he “trust[ed] implicitly” was not identified as\\n\\nanyone connected with the case. Moreover, it is clear from the context that the judge\\n\\nquoted this individual only to make a rhetorical point, not for any evidentiary\\n\\npurpose. Furthermore, the judge did not abuse his discretion to elicit his own\\n\\nevidence by expressing his frustration with what he perceived to be the parties’\\n\\nattempt at “artificially causing the guidelines to come out to a particular place where\\n\\nthey th[ought] the sentence should be and withholding . . . information that suggests a\\n\\ndifferent guideline outcome,” (Appellant’s App. Vol. III at 55). Nor did the judge\\n\\nabuse his discretion by explaining why he was giving a sentence within the guideline\\n\\nrange he concluded the evidence supported as opposed to the 37 months the parties\\n\\nrequested.\\n\\n We additionally note that the judge made multiple statements to Mr. Aragon\\n\\nreassuring him that the manner in which the additional evidence was uncovered\\n\\nwould not impact his sentence. Specifically, when the judge reset the change of plea\\n\\nhearing because the initial agreement had not indicated whether the government\\n\\ncould later charge Mr. Aragon for the contraband found in his car, the judge told\\n\\nMr. Aragon, “I have no animosity towards you and nothing going on here is being\\n\\nviewed as something negative as to you. I just think that there’s more going on than\\n\\nI’m being told, and I insist on being told what’s going on.” (Id. at 19.) Also, before\\n\\nissuing the sentence, the judge stated, “[T]he discussion that we’ve had previously,\\n\\n 11\\n\\fabout how the matter ultimately c[a]me to be presented to me, has no impact,\\n\\nwhatsoever, on anything that I’m going to do by way of a sentence.” (Id. at 96.) In\\n\\nthe end, the sentencing judge is “responsible for determining the facts and must\\n\\nestablish the relevant facts even if all the parties argue to the contrary.” Garcia, 78\\n\\nF.3d at 1462 n.6. We cannot conclude in this case that the judge abused his\\n\\ndiscretion to elicit his own evidence at sentencing.\\n\\n We turn now to whether the district court’s conclusions as to the identity and\\n\\nweight of the substances found in Mr. Aragon’s car were supported by sufficient\\n\\nevidence, beginning with the court’s quantity findings. We review the court’s\\n\\n“determination of the quantity of drugs for which the defendant is held accountable\\n\\nunder the Guidelines for clear error.” United States v. Todd, 515 F.3d 1128, 1135\\n\\n(10th Cir. 2008). “Drug quantities employed by the district court to calculate the\\n\\napplicable Guidelines range may be said to be clearly erroneous only when ‘the\\n\\ndistrict court’s finding was without factual support in the record or we are left with\\n\\nthe definite and firm conviction that a mistake has been made.’” Id. (quoting United\\n\\nStates v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)). Although estimates are not\\n\\nforbidden, “the ‘need to estimate drug quantities at times is not a license to calculate\\n\\ndrug quantities by guesswork.’” Dalton, 409 F.3d at 1251 (quoting United States v.\\n\\nRichards, 27 F.3d 465, 469 (10th Cir. 1994)). Moreover, “‘when choosing between a\\n\\nnumber of plausible estimates of drug quantity, none of which is more likely than not\\n\\nthe correct quantity, a court must err on the side of caution.’” Richards, 27 F.3d at\\n\\n\\n\\n 12\\n\\f469 (quoting United States v. Ortiz, 993 F.2d 204, 208 (10th Cir. 1993)) (alteration\\n\\nomitted).\\n\\n Here, the district court had two pieces of evidence speaking to the weight of\\n\\nthe substances found in Mr. Aragon’s car: (1) Officer Mathews’ inventory of the\\n\\ncar’s contents listing the packaged weights of the suspected drugs, and (2) the\\n\\nphotographs of the suspected drugs in their packaging, which the judge initialed to\\n\\nassist us in our review. The record contains additional photographs of these drugs,\\n\\ntwo of which appear to show that one was originally found in additional packaging\\n\\nnot present in the photograph the judge initialed.3 Nothing in the record indicates\\n\\nwhether any packaging was removed prior to the substance being weighed.\\n\\n Mr. Aragon first questions the reliability of the packaged weights reported by\\n\\nOfficer Mathews in his inventory of the car’s contents, questioning whether a scale\\n\\nwas used at all and, if one was used, whether it was properly calibrated and whether\\n\\nit measured the weight in grams or some other unit necessitating conversion. Here,\\n\\nMr. Aragon cites to United States v. Higgins, 282 F.3d 1261, 1279–81 (10th Cir.\\n\\n2002), in which we found unreliable a chemist’s conclusion about how much\\n\\nmethamphetamine could have been produced when “[a]n unidentified officer on the\\n\\nscene had estimated that one coffee filter contained about 100 grams and the other\\n\\n\\n 3\\n The substance in this package was white, as were other substances found in\\nMr. Aragon’s car. We note that, although the white substance in the photograph the\\njudge initialed appears to be in crystalline form, nothing in the photograph clearly\\nidentifies it as the large package of methamphetamine as opposed to the smaller\\npackage of methamphetamine the judge disregarded or one of the packages of\\ncocaine.\\n 13\\n\\fabout 150 grams” of pseudoephedrine. We, however, find Higgins distinguishable.\\n\\nAs the government points out, the precise weights listed in Officer Mathews’\\n\\ninventory indicate that he in fact weighed the substances using a scale. Additionally,\\n\\nalthough Mr. Aragon’s concerns about calibration and units could perhaps create\\n\\nreasonable doubt at trial, the sentencing judge was only required to find the weights\\n\\nby a preponderance of the evidence. See Deninno, 29 F.3d at 580. Their packaged\\n\\nweights were so proven.\\n\\n Mr. Aragon next argues the district court’s conclusion that the packaging\\n\\nweighed half a gram was clearly erroneous. He points out that there was no\\n\\ntestimony as to the weight of plastic baggies, citing to State v. Wallace, 910 P.2d\\n\\n695, 730 (Haw. 1996), in which an officer testified that in his experience ziplock\\n\\nbaggies weighed between 3 and 5 grams. Mr. Aragon also notes that the record does\\n\\nnot show whether the substances were weighed in their full packaging or in the\\n\\nlighter packaging shown in the photographs the judge initialed. Finally, Mr. Aragon\\n\\ncontends that the photographs show “plastic wrapping . . . so thick that it is\\n\\nimpossible to tell how much of what was weighed represents the suspected drugs and\\n\\nhow much represents the packaging material.” (Appellant’s Br. at 36.)\\n\\n In Dalton, we observed that “the ‘need to estimate drug quantities at times is\\n\\nnot a license to calculate drug quantities by guesswork.’” 409 F.3d at 1251 (quoting\\n\\nRichards, 27 F.3d at 469). Guesswork seems an apt description of the district court’s\\n\\nhalf-a-gram figure here. Furthermore, we agree with Mr. Aragon that the\\n\\nphotographs in this case provide a poor basis for determining how much of the gross\\n\\n 14\\n\\fweights is attributable to the substances themselves and how much is attributable to\\n\\nthe packaging. As in Higgins, “there was no scientific basis for estimating quantity\\n\\nfrom appearance.” 282 F.3d at 1281.\\n\\n On appeal, the government makes a harmless-error argument that Mr. Aragon\\n\\nwould still have had a base offense level of 24 even if the packaging of the heroin\\n\\nand methamphetamine found in his car weighed 11 grams each. Mr. Aragon\\n\\nresponds by citing to several cases in which the difference between gross and net\\n\\nweight was dramatic. See, e.g., United States v. Padilla, No. 92-2023, 1993 WL\\n\\n12667, at *2 (10th Cir. Jan. 20, 1993) (“28.2 gross grams of heroin were involved in\\n\\nthe unindicted transaction and . . . analysis of the heroin reflected a net weight of 3.8\\n\\ngrams.”); United States v. Davis, Nos. H-01-867 & H-05-1147, 2006 WL 2670977, at\\n\\n*4 (S.D. Tex. Sept. 15, 2006) (“The approximate gross weight was 27.3 grams. Lab\\n\\ntests were conclusive for the presence of cocaine base with a net weight of 2.0\\n\\ngrams.”); United States v. One 1985 BMW 318i, VIN WBAAC8401F0685314, 696 F.\\n\\nSupp. 336, 338 n.8 (N.D. Ill. 1988) (“[T]here was a great disparity between the gross\\n\\n(23.45 grams) and net (.037 gram) weight of the drugs . . . .”). He also argues that\\n\\nthe white substance cannot be seen clearly through the packaging in the photographs\\n\\nand “[t]here is no way to tell whether . . . the drugs were additionally wrapped in\\n\\naluminum foil, beneath the plastic—which is a common way that drugs are\\n\\npackaged.” (Appellant’s Reply Br. at 16 n.7 (citing to United States v. Rzeslawski,\\n\\nNo. 91-50866, 1992 WL 379411, at *4 (9th Cir. Dec. 17, 1992)).)\\n\\n\\n\\n 15\\n\\f We agree that the government has not shown harmless error. Although the\\n\\nsuspected heroin appears to be wrapped in light packaging, the same cannot be said\\n\\nfor the suspected methamphetamine. Even adding all 11.5 grams of heroin to the\\n\\namounts from the controlled buys would require more than 7 grams of\\n\\nmethamphetamine to make Mr. Aragon’s offense level 24 as the district court found.\\n\\nSee 21 U.S.C. § 841(b)(1)(A)(i), (vii), (viii); U.S.S.G. § 2D1.1(c)(8). In light of the\\n\\ngreat disparities between gross and net weights in other cases, however, we cannot\\n\\nconclude that the photographs here provided even “a minimum indicia of reliability,”\\n\\nDeninno, 29 F.3d at 578, that the net weights would necessarily put Mr. Aragon\\n\\nabove the threshold for base offense level 24.\\n\\n We note that nothing in our opinion should be construed as creating a rule of\\n\\nlaw that drugs must be weighed by a laboratory in order to be used at sentencing. For\\n\\nexample, testimony about the weight of commonly used packages, when combined\\n\\nwith testimony as to the types and quantities of packaging materials used in a specific\\n\\ninstance, would arguably constitute a sufficiently reliable means for estimating a\\n\\nsubstance’s net weight from its packaged weight. Of course, the best evidence of net\\n\\nweight is net weight itself, but we are not here suggesting that packaged weight can\\n\\nnever be used to estimate net weight. We only hold that the evidence in this case was\\n\\ninsufficient to support the district court’s sentencing decision.\\n\\n Mr. Aragon requests that we remand for resentencing based on the existing\\n\\nrecord, citing United States v. Thomas, 749 F.3d 1302, 1315–16 (10th Cir. 2014).\\n\\n“[A] remand for resentencing generally allows the district court to conduct de novo\\n\\n 16\\n\\freview,” but we have discretion to order resentencing on the existing record. United\\n\\nStates v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2005). We decline to exercise that\\n\\ndiscretion here. Under the particular circumstances of this case, we see no need to\\n\\nforeclose evidentiary development on remand. Moreover, because remand is\\n\\nwarranted on the drug quantity issue, we need not address Mr. Aragon’s argument\\n\\nthat there was also insufficient evidence to establish that the substances found in his\\n\\ncar were in fact methamphetamine and heroin. Given that the record may be more\\n\\nfully developed on remand, we decline to address whether the substances could be\\n\\nidentified merely by their appearance in conjunction with Mr. Aragon’s criminal\\n\\nhistory and jail phone calls. See E.E.O.C. v. Beverage Distribs. Co., LLC, 780 F.3d\\n\\n1018, 1022 (10th Cir. 2015) (declining to address sufficiency of mitigation evidence\\n\\nwhen remanding because of erroneous jury instruction, observing, “The sufficiency\\n\\nof the evidence entails a fact-intensive inquiry, and the mitigation evidence may be\\n\\ndifferent on remand.”).\\n\\n Lastly, Mr. Aragon requests that we direct reassignment to a different judge on\\n\\nremand. “Respectful of the extraordinary nature of such a request, we will remand\\n\\nwith instructions for assignment of a different judge only when there is proof of\\n\\npersonal bias or under extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433,\\n\\n1448 (10th Cir. 1996). “[I]n the absence of personal bias,” the necessity for\\n\\nreassignment depends upon consideration of three factors:\\n\\n ‘(1) whether the original judge would reasonably be\\n expected upon remand to have substantial difficulty in\\n putting out of his or her mind previously-expressed views\\n\\n 17\\n\\f or findings determined to be erroneous or based on evidence\\n that must be rejected, (2) whether reassignment is advisable\\n to preserve the appearance of justice, and (3) whether\\n reassignment would entail waste and duplication out of\\n proportion to any gain in preserving the appearance of\\n fairness.’\\n\\nId. at 1450 (quoting United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780\\n\\n(9th Cir. 1986)).\\n\\n Mr. Aragon does not contend that the sentencing judge had any personal bias\\n\\nagainst him, but he does assert that “the circumstances suggest a reasonable\\n\\nlikelihood that the judge would have difficulty on remand putting out of his mind his\\n\\nfirm views that counsel had deceived him and that Mr. Aragon should be sentenced\\n\\nbased on the suspected drugs found in his car.” (Appellant’s Br. at 54.) We are not\\n\\nso convinced. The judge gave defense counsel the opportunity to make a record of\\n\\nMr. Aragon’s objection to the court’s calculation of the base offense level and even\\n\\ninitialed the photographs on which he relied so that they would “be available for the\\n\\nCircuit for [its] review.” (Appellant’s App. Vol. III at 81.) As noted earlier, the\\n\\njudge also made a point of emphasizing that he would not let the way in which he\\n\\nlearned about the additional drugs affect his sentencing decision. Nothing in the\\n\\nrecord suggests that the judge would be unable or unwilling to set aside the additional\\n\\ndrugs in accordance with our conclusion that their net weights were not proven by a\\n\\npreponderance of the evidence. We therefore decline to reassign the case on remand.\\n\\n\\n\\n\\n 18\\n\\f III.\\n\\n For the foregoing reasons, we VACATE Mr. Aragon’s sentence and\\n\\nREMAND his case to the district court for resentencing consistent with this opinion.\\n\\n\\n\\n\\n 19\\n\\fNo. 18-1121, United States v. Aragon.\", \"author\": \"McKAY, Circuit Judge.\"}, {\"type\": \"concurrence\", \"author\": \"HOLMES\", \"text\": \"HOLMES, J., concurring.\\n\\n I join in full the principal opinion but write separately to underscore the legal and\\n\\nethical impropriety of the form of plea bargaining that the district court perceived\\n\\n(correctly or not) to be at work in this case.\\n\\n As I understand the principal opinion, it resolves the case in part by assuming that\\n\\nthe district court clearly erred in finding that the parties—in order to arrive at what they\\n\\nviewed as a fair sentence—intentionally concealed from the court, as part of their plea\\n\\nbargain, a quantity of drugs that reasonably could be deemed to qualify as relevant\\n\\nconduct. See Slip Op. at 8–9 (“Even were we to agree that the judge clearly erred in his\\n\\nunderstanding of the parties’ actions . . . .”). After granting Mr. Aragon that assumption,\\n\\nthe principal opinion concludes that his allegations that the district court abused its\\n\\ndiscretion in gathering evidence are nevertheless without merit. Id.\\n\\n I am content with that assumption and will not opine here on whether the parties in\\n\\nfact struck a plea bargain that involved intentionally concealing evidence. But I write to\\n\\nemphatically underscore that any such agreement would be improper; such an agreement\\n\\nwould undercut the district court’s ability to perform its role in the sentencing framework\\n\\ncontemplated by the United States Sentencing Commission Guidelines (hereinafter\\n\\n“Guidelines” or “U.S.S.G.”) and would also violate counsel’s ethical duty of candor to\\n\\nthe tribunal.\\n\\n More specifically, it is the district court’s role to properly calculate a Guidelines\\n\\frange, with the ultimate goal of crafting a fair sentence. See, e.g., Gall v. United States,\\n\\n552 U.S. 38, 49 (2007) (“[A] district court should begin all sentencing proceedings by\\n\\ncorrectly calculating the applicable Guidelines range.”); United States v. DeWitt, 366 F.3d\\n\\n667, 671 (8th Cir. 2004) (“[T]he sentencing guidelines require the district court\\n\\nindependently to evaluate the evidence when imposing a sentence.”). It is thus not for the\\n\\nparties to determine what Guidelines range should govern a case and what sentence is\\n\\nfair.\\n\\n To be sure, with respect to the category of plea agreement at issue here, parties\\n\\nmay enter into stipulations reflecting their understanding of certain factual matters or the\\n\\napplicability (or lack thereof) of certain Guidelines criteria. See FED. R. CRIM. P.\\n\\n11(c)(1)(B). Significantly, however, those stipulations are not binding on the sentencing\\n\\ncourt. U.S.S.G. § 6B1.4(d), p.s. (2016)1 (“The court is not bound by [a] stipulation, but\\n\\nmay with the aid of the presentence report, determine the facts relevant to sentencing.”).2\\n\\n 1\\n The Probation Office used the 2016 edition of the Guidelines in\\ncalculating Mr. Aragon’s sentence. Neither party questions this choice on appeal;\\ntherefore, I also rely on the 2016 edition where the Guidelines are relevant to my\\nanalysis herein.\\n 2\\n Indeed, even when—unlike here—parties enter into the sort of plea\\nagreement that ordinarily binds the court to a specific sentence or sentencing\\nrange, the court is bound only after it accepts the agreement. And, upon\\npresentation, the court has broad discretion to reject such a plea agreement if\\n(among other things) the court considers the agreement to be unfair. See F ED . R.\\nC RIM . P. 11(c)(1)(C), (c)(5); see also F ED . R. C RIM . P. 11(e) advisory committee’s\\nnote to 1999 amendment (noting as to (in material respects) substantively\\nidentical text of a precursor of Rule 11(c) that “the court retains absolute\\n (continued...)\\n\\n 2\\n\\f More broadly, parties may freely offer their views on a just and fair sentence and\\n\\nadvocate for that view. See, e.g., Gall, 552 U.S. at 49–50 (instructing that district courts\\n\\nshould “giv[e] both parties an opportunity to argue for whatever sentence they deem\\n\\nappropriate”). In particular, as relevant here, the government, the defense, or both, may\\n\\nargue in a given case that certain evidence that might reasonably appear to qualify as\\n\\nrelevant conduct does not so qualify upon closer analysis. See, e.g., United States v.\\n\\nFranco-Lopez, 312 F.3d 984, 993 (9th Cir. 2002) (noting that the government “provid[ed]\\n\\ninformation to the Probation Department regarding” a defendant’s arguably relevant\\n\\nconduct “while recommending successfully to the district court that it not rely on that\\n\\ninformation in sentencing”); see also U.S.S.G. § 6B1.4, p.s., cmt. (“[T]he parties should\\n\\nfully disclose the actual facts and then explain to the court the reasons why the disposition\\n\\nof the case should differ from that which such facts ordinarily would require under the\\n\\nguidelines.”).\\n\\n But none of this alters the bottom line: it is the district court’s job (in the first\\n\\ninstance)—not the parties’—to determine the proper Guidelines range for a particular\\n\\n\\n 2\\n (...continued)\\ndiscretion whether to accept a plea agreement”); United States v. White, 765 F.3d\\n1240, 1248 (10th Cir. 2014) (“Rule 11(c)(1)(C) permits the defendant and the\\nprosecutor to agree that a specific sentence is appropriate, but that agreement\\ndoes not discharge the district court’s independent obligation to exercise its\\ndiscretion.” (quoting Freeman v. United States, 564 U.S. 522, 529 (plurality\\nopinion))); United States v. Kling, 516 F.3d 702, 704 (8th Cir. 2008) (“Courts are\\nnot obligated to accept [Rule 11(c)(1)(C)] plea agreements and have discretion to\\nreject those which are deemed involuntary or unfair.”).\\n\\n 3\\n\\fdefendant and to relatedly determine what sentence is fair. See U.S.S.G. § 6B\\n\\nintroductory cmt. (“These policy statements [concerning plea agreements] make clear that\\n\\nsentencing is a judicial function and that the appropriate sentence in a guilty plea case is\\n\\nto be determined by the judge.”); see also 18 U.S.C. § 3661 (“No limitation shall be\\n\\nplaced on the information concerning the background, character, and conduct of a person\\n\\nconvicted of an offense which a court of the United States may receive and consider for\\n\\nthe purpose of imposing an appropriate sentence.”); Wasman v. United States, 468 U.S.\\n\\n559, 563 (1984) (“The sentencing court . . . must be permitted to consider any and all\\n\\ninformation that reasonably might bear on the proper sentence for the particular defendant\\n\\n. . . .”).\\n\\n And relevant conduct is a critical, foundational component of the computation of a\\n\\nproper Guidelines range—and, consequently, of a fair sentence. See, e.g.,\\n\\nMolina-Martinez v. United States, 578 U.S. ----, 136 S. Ct. 1338, 1345 (2016) (“The\\n\\nCourt has made clear that the Guidelines are to be the sentencing court’s ‘starting point\\n\\nand . . . initial benchmark.’” (omission in original) (quoting Gall, 552 U.S. at 49)); Witte\\n\\nv. United States, 515 U.S. 389, 393 (1995) (“Under the Sentencing Guidelines, the\\n\\nsentencing range for a particular offense is determined on the basis of all ‘relevant\\n\\nconduct’ in which the defendant was engaged and not just with regard to the conduct\\n\\nunderlying the offense of conviction.” (quoting U.S.S.G. § 1B1.3)); see also United States\\n\\nv. Gill, 348 F.3d 147, 149 (6th Cir. 2003) (“A key ingredient of the sentencing formula in\\n\\n\\n 4\\n\\fdrug cases is the quantity of a controlled substance for which a convicted defendant will\\n\\nbe held accountable. A defendant is responsible for all drug quantities that are included\\n\\nwithin the scope of his ‘relevant conduct,’ as that term is defined by the United States\\n\\nSentencing Guidelines Manual.”). Thus, it ineluctably follows that a sentencing court\\n\\ncannot perform its job of computing a proper Guidelines range and determining a fair\\n\\nsentence without an accurate picture of relevant conduct. See United States v. Siegelman,\\n\\n786 F.3d 1322, 1332 (11th Cir. 2015) (Ebel, J., sitting by designation) (“[A] district\\n\\ncourt’s sentencing range is not accurate unless its relevant-conduct findings are also\\n\\naccurate.”).\\n\\n Parties therefore improperly undercut the sentencing court’s role under the\\n\\nGuidelines when, in order to artificially produce a desired Guidelines range and reach a\\n\\nsentence they perceive to be fair, they agree to intentionally withhold from the court’s\\n\\nconsideration evidence that reasonably could be deemed to qualify as relevant conduct.\\n\\nSee United States v. Johnson, 973 F.2d 857, 860 (10th Cir. 1992) (“[A]n agreement to\\n\\nkeep the judge ignorant of pertinent information cannot be enforceable, because a\\n\\nsentencing court ‘must be permitted to consider any and all information that might\\n\\nreasonably bear on the proper sentence for the particular defendant, given the crime\\n\\ncommitted.’” (quoting United States v. Jimenez, 928 F.2d 356, 363 (10th Cir. 1991)));\\n\\nU.S.S.G. § 6B1.4, p.s., cmt. (“[I]t is not appropriate for the parties to stipulate to\\n\\nmisleading or non-existent facts, even when both parties are willing to assume the\\n\\n\\n 5\\n\\fexistence of such ‘facts’ for purposes of the litigation.”); see also United States v.\\n\\nCasillas, 853 F.3d 215, 218 (5th Cir.) (“[T]he Government does not have a right . . . to\\n\\nwithhold relevant factual information from the court.” (quoting United States v. Block,\\n\\n660 F.2d 1086, 1092 (5th Cir. 1981))), cert. denied, 138 S. Ct. 205 (2017); United States\\n\\nv. Ahn, 231 F.3d 26, 38 (D.C. Cir. 2000) (“At [the] sentencing hearing, the Government\\n\\nhad a duty to provide relevant information about whether [the defendant] obstructed\\n\\njustice, even though it had agreed not to take a stand on whether he should receive a\\n\\nsentence enhancement.”); cf. U.S. Dep’t of Justice, JUSTICE MANUAL § 9-27.710 (2019)\\n\\n(“During the sentencing phase of a federal criminal case, the attorney for the government\\n\\nshould assist the sentencing court by . . . [a]ttempting to ensure that the relevant facts and\\n\\nsentencing factors, as applied to the facts, are brought to the court’s attention fully and\\n\\naccurately . . . .” (emphasis added)).\\n\\n And, in crafting such an artificial Guidelines outcome, the parties also would be\\n\\nviolating their ethical obligation of candor to the sentencing tribunal, which relies on the\\n\\naccuracy of relevant conduct in fashioning a proper Guidelines sentence. See Jimenez,\\n\\n928 F.2d at 363 (“It is clear that the fact that a plea agreement has been entered into\\n\\nbetween the government and a defendant cannot alone prohibit the government from\\n\\nbringing relevant information to the attention of the trial judge at the time of sentencing.\\n\\nIn fact, the prosecutor has an ethical duty to disclose such information . . . .” (emphasis\\n\\nadded) (citation omitted)); see also United States v. Almonte-Nunez, 771 F.3d 84, 86 (1st\\n\\n\\n 6\\n\\fCir. 2014) (“[A]ttorneys, as officers of the court, remain bound by their . . . duty to\\n\\nprovide full and accurate information about the offense and the offender to the sentencing\\n\\ncourt.”); cf. MODEL RULES OF PROF’L CONDUCT r. 3.3(a)(1) (AM. BAR ASS’N 2015) (“A\\n\\nlawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to\\n\\ncorrect a false statement of material fact or law previously made to the tribunal by the\\n\\nlawyer . . . .”); id. cmt. 3 (“There are circumstances where failure to make a disclosure is\\n\\nthe equivalent of an affirmative misrepresentation.” (emphasis added)).\\n\\n In conclusion, I reiterate that I do not opine on the propriety of counsel’s actions in\\n\\nthis case. Rather, I am content to accept the principal opinion’s assumption that the\\n\\ndistrict court was clearly erroneous in finding that the parties, in reaching their plea\\n\\nbargain, intentionally concealed from the court a quantity of drugs that reasonably could\\n\\nbe viewed as relevant conduct in order to arrive at what the parties perceived to be a fair\\n\\nsentence. I write simply to state without equivocation—but hypothetically—that if\\n\\ncounsel were to participate in such a plea bargain, they would be engaging in legally and\\n\\nethically improper conduct. On this basis, I respectfully concur.\\n\\n\\n\\n\\n 7\"}]}"},"judge1":{"kind":"string","value":"HOLMES"},"judge2":{"kind":"string","value":"MCKAY"},"judge3":{"kind":"string","value":"KELLY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614426/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Leonard ARAGON, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-1121\n\n LEONARD ARAGON,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:17-CR-00324-RM-1)\n _________________________________\n\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.\n\nMichael C. Johnson, Assistant United States Attorney (Robert C. Troyer, United States\nAttorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.\n _________________________________\n\nBefore HOLMES, McKAY, and KELLY, Circuit Judges.\n _________________________________\n\nMcKAY, Circuit Judge.\n _________________________________\n\n Leonard Aragon was sentenced to 48 months’ imprisonment after pleading\n\nguilty to one count of possession with intent to distribute controlled substances in\n\nviolation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He now appeals that sentence. On\n\nappeal, Mr. Aragon argues the district court erred in finding that two packages found\n\fin his car contained 28.5 grams of methamphetamine and 11 grams of heroin,\n\nrespectively. He also contends “the judge abused his discretion by sua sponte\n\npresenting his own evidence in support of a higher sentence.” (Appellant’s Br. at 1.)\n\nFinally, Mr. Aragon requests that his case be assigned to a different judge for\n\nresentencing on remand.1\n\n I.\n\n In March and April 2017, the Federal Bureau of Investigation made two\n\ncontrolled buys of heroin from Mr. Aragon. On the first occasion, the FBI purchased\n\ntwo packages of heroin that weighed approximately 25 grams apiece when field-\n\ntested. The heroin purchased on the second occasion weighed 24.8 grams when\n\nfield-tested. Laboratory testing confirmed that the three packages in fact contained\n\nheroin with net weights of 23.67, 24.07, and 24.16 grams, respectively. In September\n\n2017, Mr. Aragon was indicted on two counts of distributing heroin. Three months\n\nlater, he agreed to plead guilty to one count of possession with intent to distribute.\n\n The district court held a change of plea hearing in December 2017. The judge\n\nbegan the hearing by asking the parties why, pursuant to the plea agreement, they had\n\nboth agreed to ask for a sentence at the high end of the advisory guideline range.\n\nDefense counsel responded that the parties had “limited the relevant conduct in terms\n\n\n\n 1\n Although Mr. Aragon’s opening brief on appeal also challenged his sentence\nunder Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Aragon\nexpressly withdrew that argument in his reply brief. Therefore, we do not address it.\nSee United States v. Camick, 796 F.3d 1206, 1213 n.4 (10th Cir. 2015) (declining to\naddress claims withdrawn before oral argument).\n 2\n\fof [their] stipulation of facts” and “the base-offense level would have been higher”\n\nhad they included “everything that could be included from the discovery.”\n\n(Appellant’s App. Vol. III at 10.) When the judge asked why relevant conduct was\n\nexcluded, defense counsel stated that the prosecutor understood Mr. Aragon to be\n\n“closer to the bottom” of his drug-distribution organization and thus the parties\n\nconsidered it “fair” to disregard “some uncharged conduct that could have been either\n\ncharged or used as relevant conduct.” (Id. at 10–11.) Upon further prompting by the\n\njudge, defense counsel identified the uncharged conduct as “a number of items of\n\ncontraband [found] in [Mr. Aragon’s] car” when he was arrested. (Id. at 11.)\n\n Later in the hearing, the judge raised the issue of whether Mr. Aragon could\n\nsubsequently be charged with the other conduct. The parties both acknowledged that\n\nthe plea agreement did not contain any terms relating to the uncharged conduct but\n\nalso stated that they understood the government had no intention of so charging him.\n\nBecause of this, the judge reset the change of plea hearing, instructing the parties to\n\n“write a Plea Agreement that doesn’t hide things from me; that tells me what is going\n\non[,] what is agreed to and what is not agreed to.” (Id. at 19.) The judge also stated,\n\n“[T]he odds on a presentence investigation just went up dramatically.” (Id.)\n\n The parties returned that afternoon, and the judge started the hearing over from\n\nthe beginning. The revised plea agreement provided that the government would “not\n\npursue additional charges or a sentencing increase based on items found in a vehicle\n\nat the time of the defendant’s arrest.” (Appellant’s App. Vol. I at 18.) In reviewing\n\nthe portion of the plea agreement regarding the parties both again asking for a\n\n 3\n\fsentence at the high end of the guidelines range—37 months based on a total offense\n\nlevel of 17—the judge noted “the mystery question of what this other stuff found in\n\nthe car was, and whether or not it’s relevant conduct.” (Appellant’s App. Vol. III at\n\n34–35.) At the hearing’s conclusion, the judge requested, “[c]ontrary to [his]\n\nordinary practice,” “that the probation department conduct an independent factual\n\ninvestigation of the offense conduct in this matter.” (Id. at 48.)\n\n In March 2018, the district court issued a minute order stating that the court\n\nwas “concerned about the facts and relevant conduct in this case” and directing the\n\ngovernment to “have the case agent present at sentencing” and to furnish the court\n\nwith “copies of all documents and reports relating to Mr. Aragon’s arrest and the\n\ndiscovery of drugs in his car (in the possession of law enforcement and/or the U.S.\n\nAttorney’s Office).” (Appellant’s App. Vol. I at 25.) When the government sent the\n\ncourt a binder containing these documents but excluding portions of a police report\n\nrelating to jail phone calls, the court issued a minute order directing the government\n\nto provide the missing pages of the police report. In response to this second order,\n\nthe government also gave the court a report regarding the contents of Mr. Aragon’s\n\ncell phone.\n\n These additional documents reveal that law enforcement obtained and\n\nexecuted a search warrant for Mr. Aragon’s car in September 2017. The search was\n\nconducted by Task Force Officer Jeremy Mathews. Officer Mathews’ inventory of\n\nthe property found in the car includes a cell phone, pills, bullets, almost $3,000 in\n\ncash, a digital scale, and a number of packages containing suspected heroin,\n\n 4\n\fmethamphetamine, and cocaine. The record contains numerous photographs of\n\nMr. Aragon’s car and its contents.\n\n The presentence investigation report indicates that “[t]he case agent, Andrew\n\nCohen, reported the drugs recovered from the defendant’s vehicle yielded the\n\nfollowing packaged weights[:] heroin (11.5 grams), cocaine (6.7 grams),\n\nmethamphetamine (29 grams), and 3 pills of oxycodone.” (Appellant’s App. Vol. II\n\nat 13.) Agent Cohen also reported that none of these drugs had been sent to the\n\nlaboratory for testing. The PSR calculated the marijuana equivalency of the drugs\n\nfrom the controlled buys and from Mr. Aragon’s car, totaling 145.44 kilograms of\n\nmarijuana and resulting in a base offense level of 24. The PSR also found that\n\nMr. Aragon was entitled to a 3-level reduction for acceptance of responsibility,\n\nyielding a total offense level of 21. With Mr. Aragon’s criminal history category of\n\nIII, the PSR identified the guideline sentencing range as 46 to 57 months and\n\nrecommended a sentence of 46 months’ imprisonment.\n\n Mr. Aragon filed objections to the PSR, primarily contesting its consideration\n\nof the substances found in his car. Specifically, Mr. Aragon stated that he “disputes\n\nthat he possessed any controlled substances at [the time of his arrest], let alone these\n\nspecific controlled substances and quantities.” (Id. at 7.) He also pointed out that the\n\nsubstances found in his car were not laboratory-tested.\n\n The government’s sentencing position asked the district court to sentence\n\nMr. Aragon to 37 months’ imprisonment, “the high end of the advisory guideline\n\nrange as calculated by the parties in the Plea Agreement.” (Id. at 34.) The\n\n 5\n\fgovernment observed that the substances found in Mr. Aragon’s car, unlike the\n\nheroin from the controlled buys, “w[ere] not field tested and w[ere] not sent to the\n\nlaboratory for formal testing.” (Id.) Moreover, the government explained that the\n\nsubstances found in the car were not laboratory tested because Mr. Aragon had\n\nquickly indicated his intent to resolve the case, which prompted the government to\n\ncease its investigation.\n\n The district court began the March 2018 sentencing hearing by reviewing the\n\nhistory of the case as to how the court learned about the additional drugs and how\n\nMr. Aragon’s case fit in with others from the same investigation. Upon prompting by\n\nthe court, defense counsel clarified that Mr. Aragon’s objection to the PSR was “a\n\nlegal objection based upon the . . . sufficiency of the evidence.” (Appellant’s App.\n\nVol. III at 69.)\n\n The district court overruled the objection, citing the PSR’s conclusion that\n\nthere was heroin and methamphetamine in the car; the case agent’s statement to the\n\nprobation department that there were additional drugs in the car; the photographs of\n\nthe suspected drugs, cash, and digital scale; Mr. Aragon’s criminal history involving\n\nheroin; and the records of Mr. Aragon’s jail phone calls in which he stated, “I had\n\nsome perks, a little bit of soft ready, B, and like a zip of clear and hard.” (Id. at 74.)\n\nThe judge then went on to address the quantities of the drugs, acknowledging that the\n\n\n\n\n 6\n\fweights given were gross weights and deducting half a gram for the packaging of the\n\nheroin and the methamphetamine.2\n\n Accordingly, the district court concluded that Mr. Aragon was responsible for\n\n24.8 and 49.8 grams of heroin from the two controlled buys, plus 11 grams of heroin\n\nand 28.5 grams of methamphetamine found in the car. The judge calculated this as\n\nhaving a marijuana equivalency of 142.6 grams, making Mr. Aragon’s offense level\n\n24. The judge also stated, “[E]ven if these drugs were in a hefty bag, you would still\n\nbe in the same guideline range, because we’re basically 40 kilograms of marijuana\n\nabove the floor.” (Id. at 76.) Defense counsel objected to “the process” the court\n\nused here, including relying on the photographs to determine the identity of the\n\nsubstances and how much they and their packaging weighed. (Id. at 77.)\n\n Ultimately, the district court sentenced Mr. Aragon to 48 months’\n\nimprisonment after finding that his total offense level was 21. Mr. Aragon appealed.\n\n II.\n\n “[I]n considering the district court’s application of the Guidelines, we review\n\nfactual findings for clear error and legal determinations de novo.” United States v.\n\nKristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “A sentence cannot . . . be considered\n\nreasonable if the manner in which it was determined was unreasonable, i.e., if it was\n\n\n\n 2\n The district court disregarded the pills and cocaine as being “more\nconsistent . . . with personal-use quantities than with distribution quantities.”\n(Appellant’s App. Vol. III at 76.) The court also appears to have disregarded a much\nsmaller package of suspected methamphetamine listed in Officer Mathews’\ninventory.\n 7\n\fbased on an improper determination of the applicable Guidelines range.” Id. at 1055.\n\n“The government has the burden of proof and production during the sentencing\n\nhearing to establish the amounts and types of controlled substances related to the\n\noffense . . . by a preponderance of the evidence.” United States v. Deninno, 29 F.3d\n\n572, 580 (10th Cir. 1994).\n\n We begin by addressing Mr. Aragon’s contention that the district court\n\nimproperly presented evidence at sentencing. Mr. Aragon acknowledges that a\n\nsentencing judge may call witnesses and elicit testimony “as part of [his] obligation\n\nto gather information relevant to the sentencing determination,” United States v.\n\nScott, 529 F.3d 1290, 1298 (10th Cir. 2008). As we have previously recognized,\n\n“[t]he [sentencing] judge remains ultimately responsible for determining the facts and\n\nmust establish the relevant facts even if all the parties argue to the contrary.” United\n\nStates v. Garcia, 78 F.3d 1457, 1462 n.6 (10th Cir. 1996). The district court’s\n\nexercise of its power to elicit and establish the relevant facts at sentencing is\n\nnevertheless subject to abuse-of-discretion review. Scott, 529 F.3d at 1299.\n\n Mr. Aragon makes three arguments in support of his assertion that the district\n\ncourt abused its discretion here. First, he claims that “the judge’s actions in this case\n\nrested upon an arbitrary or clearly erroneous understanding of the conduct of counsel\n\nfor the parties,” specifically the judge’s belief that the parties had intentionally\n\nconcealed the additional drugs in order to predetermine the guideline range.\n\n(Appellant’s Br. at 50.) Even were we to agree that the judge clearly erred in his\n\nunderstanding of the parties’ actions, Mr. Aragon has identified no authority\n\n 8\n\findicating that a judge abuses his discretion to gather additional evidence when the\n\njudge believes such evidence is necessary for the wrong reason. The sentencing\n\njudge “must establish the relevant facts,” Garcia, 78 F.3d at 1462 n.6, and we see no\n\nreason to second-guess the district court’s determination that additional evidence was\n\nneeded to do so in this case.\n\n Second, Mr. Aragon argues that “taking action sua sponte is only appropriate\n\nwhen the right result is ‘certain’ rather than ‘debatable.’” (Appellant’s Br. at 50\n\n(quoting United States v. Holly, 488 F.3d 1298, 1308 (10th Cir. 2007)).) The\n\n“certain” versus “debatable” language from Holly was used in the dissimilar context\n\nof the appellate court’s analysis of whether to engage in harmless error review sua\n\nsponte on appeal. See 488 F.3d at 1308. The only other case Mr. Aragon has cited as\n\nconsidering this distinction is Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.\n\n2006), which addressed the district court’s ability to dismiss a complaint sua sponte\n\nbased on an affirmative defense such as the statute of limitations. He has identified\n\nno authority for extending any certain-versus-debatable principle to a judge’s ability\n\nto elicit his own evidence at sentencing. Nor would such a rule make sense.\n\nMr. Aragon conflates the issue of eliciting evidence with that of accepting its\n\nsufficiency. A judge who sua sponte gathers and elicits additional evidence may\n\nvery well not know what that evidence will show until it has been produced.\n\n Third, Mr. Aragon contends that “the particular actions of the judge in this\n\nparticular case posed an unacceptable risk that Mr. Aragon would perceive him as an\n\nadvocate, rather than as an impartial arbiter.” (Appellant’s Br. at 51.) We agree with\n\n 9\n\fMr. Aragon that a judge who elicits his own evidence “‘must take care not to create\n\nthe appearance that he or she is less than totally impartial,’” Scott, 529 F.3d at 1299\n\n(quoting United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996)). In analyzing\n\nthis issue, however, we again believe it is necessary to distinguish the issue of how\n\nthe judge elicits the evidence from that of whether the judge correctly concluded the\n\nevidence presented was sufficient. A judge’s acceptance of evidence as sufficient\n\nproof may constitute error, but it does not of necessity demonstrate partiality.\n\n On the issue of partiality, Mr. Aragon states that “the judge made comments at\n\nsentencing that an objective observer might view as suggesting a special solicitude\n\ntoward law enforcement,” (Appellant’s Br. at 51), pointing to the judge’s quotation\n\nof a statement made by “an individual, whom [he’d] known for years, whom [he]\n\nrespect[ed] tremendously, and whom [he] trust[ed] implicitly,” about “hell . . .\n\ncoming to breakfast” for people who “bring poison and violence into the\n\ncommunity,” (Appellant’s App. Vol. III at 58–59). Mr. Aragon also claims that “the\n\njudge evinced not just objective disagreement with, but personal hostility to, defense\n\ncounsel’s position,” citing several statements by the judge expressing his\n\ndisagreement and frustration. (Appellant’s Br. at 52.) Finally, Mr. Aragon asserts\n\nthat “the sentencing transcript reveals that the judge’s sua sponte conduct was so\n\nextensive that the majority of the hearing consisted of the judge berating counsel,\n\npresenting and explaining evidence that he had presented, and making his own\n\narguments against the disposition to which the parties agreed.” (Id. at 53.)\n\n\n\n 10\n\f These contentions are largely tangential to the judge’s authority and decision\n\nto elicit his own evidence at sentencing. The government points out that the quoted\n\n“individual” whom the judge said he “trust[ed] implicitly” was not identified as\n\nanyone connected with the case. Moreover, it is clear from the context that the judge\n\nquoted this individual only to make a rhetorical point, not for any evidentiary\n\npurpose. Furthermore, the judge did not abuse his discretion to elicit his own\n\nevidence by expressing his frustration with what he perceived to be the parties’\n\nattempt at “artificially causing the guidelines to come out to a particular place where\n\nthey th[ought] the sentence should be and withholding . . . information that suggests a\n\ndifferent guideline outcome,” (Appellant’s App. Vol. III at 55). Nor did the judge\n\nabuse his discretion by explaining why he was giving a sentence within the guideline\n\nrange he concluded the evidence supported as opposed to the 37 months the parties\n\nrequested.\n\n We additionally note that the judge made multiple statements to Mr. Aragon\n\nreassuring him that the manner in which the additional evidence was uncovered\n\nwould not impact his sentence. Specifically, when the judge reset the change of plea\n\nhearing because the initial agreement had not indicated whether the government\n\ncould later charge Mr. Aragon for the contraband found in his car, the judge told\n\nMr. Aragon, “I have no animosity towards you and nothing going on here is being\n\nviewed as something negative as to you. I just think that there’s more going on than\n\nI’m being told, and I insist on being told what’s going on.” (Id. at 19.) Also, before\n\nissuing the sentence, the judge stated, “[T]he discussion that we’ve had previously,\n\n 11\n\fabout how the matter ultimately c[a]me to be presented to me, has no impact,\n\nwhatsoever, on anything that I’m going to do by way of a sentence.” (Id. at 96.) In\n\nthe end, the sentencing judge is “responsible for determining the facts and must\n\nestablish the relevant facts even if all the parties argue to the contrary.” Garcia, 78\n\nF.3d at 1462 n.6. We cannot conclude in this case that the judge abused his\n\ndiscretion to elicit his own evidence at sentencing.\n\n We turn now to whether the district court’s conclusions as to the identity and\n\nweight of the substances found in Mr. Aragon’s car were supported by sufficient\n\nevidence, beginning with the court’s quantity findings. We review the court’s\n\n“determination of the quantity of drugs for which the defendant is held accountable\n\nunder the Guidelines for clear error.” United States v. Todd, 515 F.3d 1128, 1135\n\n(10th Cir. 2008). “Drug quantities employed by the district court to calculate the\n\napplicable Guidelines range may be said to be clearly erroneous only when ‘the\n\ndistrict court’s finding was without factual support in the record or we are left with\n\nthe definite and firm conviction that a mistake has been made.’” Id. (quoting United\n\nStates v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)). Although estimates are not\n\nforbidden, “the ‘need to estimate drug quantities at times is not a license to calculate\n\ndrug quantities by guesswork.’” Dalton, 409 F.3d at 1251 (quoting United States v.\n\nRichards, 27 F.3d 465, 469 (10th Cir. 1994)). Moreover, “‘when choosing between a\n\nnumber of plausible estimates of drug quantity, none of which is more likely than not\n\nthe correct quantity, a court must err on the side of caution.’” Richards, 27 F.3d at\n\n\n\n 12\n\f469 (quoting United States v. Ortiz, 993 F.2d 204, 208 (10th Cir. 1993)) (alteration\n\nomitted).\n\n Here, the district court had two pieces of evidence speaking to the weight of\n\nthe substances found in Mr. Aragon’s car: (1) Officer Mathews’ inventory of the\n\ncar’s contents listing the packaged weights of the suspected drugs, and (2) the\n\nphotographs of the suspected drugs in their packaging, which the judge initialed to\n\nassist us in our review. The record contains additional photographs of these drugs,\n\ntwo of which appear to show that one was originally found in additional packaging\n\nnot present in the photograph the judge initialed.3 Nothing in the record indicates\n\nwhether any packaging was removed prior to the substance being weighed.\n\n Mr. Aragon first questions the reliability of the packaged weights reported by\n\nOfficer Mathews in his inventory of the car’s contents, questioning whether a scale\n\nwas used at all and, if one was used, whether it was properly calibrated and whether\n\nit measured the weight in grams or some other unit necessitating conversion. Here,\n\nMr. Aragon cites to United States v. Higgins, 282 F.3d 1261, 1279–81 (10th Cir.\n\n2002), in which we found unreliable a chemist’s conclusion about how much\n\nmethamphetamine could have been produced when “[a]n unidentified officer on the\n\nscene had estimated that one coffee filter contained about 100 grams and the other\n\n\n 3\n The substance in this package was white, as were other substances found in\nMr. Aragon’s car. We note that, although the white substance in the photograph the\njudge initialed appears to be in crystalline form, nothing in the photograph clearly\nidentifies it as the large package of methamphetamine as opposed to the smaller\npackage of methamphetamine the judge disregarded or one of the packages of\ncocaine.\n 13\n\fabout 150 grams” of pseudoephedrine. We, however, find Higgins distinguishable.\n\nAs the government points out, the precise weights listed in Officer Mathews’\n\ninventory indicate that he in fact weighed the substances using a scale. Additionally,\n\nalthough Mr. Aragon’s concerns about calibration and units could perhaps create\n\nreasonable doubt at trial, the sentencing judge was only required to find the weights\n\nby a preponderance of the evidence. See Deninno, 29 F.3d at 580. Their packaged\n\nweights were so proven.\n\n Mr. Aragon next argues the district court’s conclusion that the packaging\n\nweighed half a gram was clearly erroneous. He points out that there was no\n\ntestimony as to the weight of plastic baggies, citing to State v. Wallace, 910 P.2d\n\n695, 730 (Haw. 1996), in which an officer testified that in his experience ziplock\n\nbaggies weighed between 3 and 5 grams. Mr. Aragon also notes that the record does\n\nnot show whether the substances were weighed in their full packaging or in the\n\nlighter packaging shown in the photographs the judge initialed. Finally, Mr. Aragon\n\ncontends that the photographs show “plastic wrapping . . . so thick that it is\n\nimpossible to tell how much of what was weighed represents the suspected drugs and\n\nhow much represents the packaging material.” (Appellant’s Br. at 36.)\n\n In Dalton, we observed that “the ‘need to estimate drug quantities at times is\n\nnot a license to calculate drug quantities by guesswork.’” 409 F.3d at 1251 (quoting\n\nRichards, 27 F.3d at 469). Guesswork seems an apt description of the district court’s\n\nhalf-a-gram figure here. Furthermore, we agree with Mr. Aragon that the\n\nphotographs in this case provide a poor basis for determining how much of the gross\n\n 14\n\fweights is attributable to the substances themselves and how much is attributable to\n\nthe packaging. As in Higgins, “there was no scientific basis for estimating quantity\n\nfrom appearance.” 282 F.3d at 1281.\n\n On appeal, the government makes a harmless-error argument that Mr. Aragon\n\nwould still have had a base offense level of 24 even if the packaging of the heroin\n\nand methamphetamine found in his car weighed 11 grams each. Mr. Aragon\n\nresponds by citing to several cases in which the difference between gross and net\n\nweight was dramatic. See, e.g., United States v. Padilla, No. 92-2023, 1993 WL\n\n12667, at *2 (10th Cir. Jan. 20, 1993) (“28.2 gross grams of heroin were involved in\n\nthe unindicted transaction and . . . analysis of the heroin reflected a net weight of 3.8\n\ngrams.”); United States v. Davis, Nos. H-01-867 & H-05-1147, 2006 WL 2670977, at\n\n*4 (S.D. Tex. Sept. 15, 2006) (“The approximate gross weight was 27.3 grams. Lab\n\ntests were conclusive for the presence of cocaine base with a net weight of 2.0\n\ngrams.”); United States v. One 1985 BMW 318i, VIN WBAAC8401F0685314, 696 F.\n\nSupp. 336, 338 n.8 (N.D. Ill. 1988) (“[T]here was a great disparity between the gross\n\n(23.45 grams) and net (.037 gram) weight of the drugs . . . .”). He also argues that\n\nthe white substance cannot be seen clearly through the packaging in the photographs\n\nand “[t]here is no way to tell whether . . . the drugs were additionally wrapped in\n\naluminum foil, beneath the plastic—which is a common way that drugs are\n\npackaged.” (Appellant’s Reply Br. at 16 n.7 (citing to United States v. Rzeslawski,\n\nNo. 91-50866, 1992 WL 379411, at *4 (9th Cir. Dec. 17, 1992)).)\n\n\n\n 15\n\f We agree that the government has not shown harmless error. Although the\n\nsuspected heroin appears to be wrapped in light packaging, the same cannot be said\n\nfor the suspected methamphetamine. Even adding all 11.5 grams of heroin to the\n\namounts from the controlled buys would require more than 7 grams of\n\nmethamphetamine to make Mr. Aragon’s offense level 24 as the district court found.\n\nSee 21 U.S.C. § 841(b)(1)(A)(i), (vii), (viii); U.S.S.G. § 2D1.1(c)(8). In light of the\n\ngreat disparities between gross and net weights in other cases, however, we cannot\n\nconclude that the photographs here provided even “a minimum indicia of reliability,”\n\nDeninno, 29 F.3d at 578, that the net weights would necessarily put Mr. Aragon\n\nabove the threshold for base offense level 24.\n\n We note that nothing in our opinion should be construed as creating a rule of\n\nlaw that drugs must be weighed by a laboratory in order to be used at sentencing. For\n\nexample, testimony about the weight of commonly used packages, when combined\n\nwith testimony as to the types and quantities of packaging materials used in a specific\n\ninstance, would arguably constitute a sufficiently reliable means for estimating a\n\nsubstance’s net weight from its packaged weight. Of course, the best evidence of net\n\nweight is net weight itself, but we are not here suggesting that packaged weight can\n\nnever be used to estimate net weight. We only hold that the evidence in this case was\n\ninsufficient to support the district court’s sentencing decision.\n\n Mr. Aragon requests that we remand for resentencing based on the existing\n\nrecord, citing United States v. Thomas, 749 F.3d 1302, 1315–16 (10th Cir. 2014).\n\n“[A] remand for resentencing generally allows the district court to conduct de novo\n\n 16\n\freview,” but we have discretion to order resentencing on the existing record. United\n\nStates v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2005). We decline to exercise that\n\ndiscretion here. Under the particular circumstances of this case, we see no need to\n\nforeclose evidentiary development on remand. Moreover, because remand is\n\nwarranted on the drug quantity issue, we need not address Mr. Aragon’s argument\n\nthat there was also insufficient evidence to establish that the substances found in his\n\ncar were in fact methamphetamine and heroin. Given that the record may be more\n\nfully developed on remand, we decline to address whether the substances could be\n\nidentified merely by their appearance in conjunction with Mr. Aragon’s criminal\n\nhistory and jail phone calls. See E.E.O.C. v. Beverage Distribs. Co., LLC, 780 F.3d\n\n1018, 1022 (10th Cir. 2015) (declining to address sufficiency of mitigation evidence\n\nwhen remanding because of erroneous jury instruction, observing, “The sufficiency\n\nof the evidence entails a fact-intensive inquiry, and the mitigation evidence may be\n\ndifferent on remand.”).\n\n Lastly, Mr. Aragon requests that we direct reassignment to a different judge on\n\nremand. “Respectful of the extraordinary nature of such a request, we will remand\n\nwith instructions for assignment of a different judge only when there is proof of\n\npersonal bias or under extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433,\n\n1448 (10th Cir. 1996). “[I]n the absence of personal bias,” the necessity for\n\nreassignment depends upon consideration of three factors:\n\n ‘(1) whether the original judge would reasonably be\n expected upon remand to have substantial difficulty in\n putting out of his or her mind previously-expressed views\n\n 17\n\f or findings determined to be erroneous or based on evidence\n that must be rejected, (2) whether reassignment is advisable\n to preserve the appearance of justice, and (3) whether\n reassignment would entail waste and duplication out of\n proportion to any gain in preserving the appearance of\n fairness.’\n\nId. at 1450 (quoting United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780\n\n(9th Cir. 1986)).\n\n Mr. Aragon does not contend that the sentencing judge had any personal bias\n\nagainst him, but he does assert that “the circumstances suggest a reasonable\n\nlikelihood that the judge would have difficulty on remand putting out of his mind his\n\nfirm views that counsel had deceived him and that Mr. Aragon should be sentenced\n\nbased on the suspected drugs found in his car.” (Appellant’s Br. at 54.) We are not\n\nso convinced. The judge gave defense counsel the opportunity to make a record of\n\nMr. Aragon’s objection to the court’s calculation of the base offense level and even\n\ninitialed the photographs on which he relied so that they would “be available for the\n\nCircuit for [its] review.” (Appellant’s App. Vol. III at 81.) As noted earlier, the\n\njudge also made a point of emphasizing that he would not let the way in which he\n\nlearned about the additional drugs affect his sentencing decision. Nothing in the\n\nrecord suggests that the judge would be unable or unwilling to set aside the additional\n\ndrugs in accordance with our conclusion that their net weights were not proven by a\n\npreponderance of the evidence. We therefore decline to reassign the case on remand.\n\n\n\n\n 18\n\f III.\n\n For the foregoing reasons, we VACATE Mr. Aragon’s sentence and\n\nREMAND his case to the district court for resentencing consistent with this opinion.\n\n\n\n\n 19\n\fNo. 18-1121, United States v. Aragon.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Leonard ARAGON, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1121\\n\\n LEONARD ARAGON,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CR-00324-RM-1)\\n _________________________________\\n\\nJosh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.\\n\\nMichael C. Johnson, Assistant United States Attorney (Robert C. Troyer, United States\\nAttorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HOLMES, McKAY, and KELLY, Circuit Judges.\\n _________________________________\\n\\nMcKAY, Circuit Judge.\\n _________________________________\\n\\n Leonard Aragon was sentenced to 48 months’ imprisonment after pleading\\n\\nguilty to one count of possession with intent to distribute controlled substances in\\n\\nviolation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He now appeals that sentence. On\\n\\nappeal, Mr. Aragon argues the district court erred in finding that two packages found\\n\\fin his car contained 28.5 grams of methamphetamine and 11 grams of heroin,\\n\\nrespectively. He also contends “the judge abused his discretion by sua sponte\\n\\npresenting his own evidence in support of a higher sentence.” (Appellant’s Br. at 1.)\\n\\nFinally, Mr. Aragon requests that his case be assigned to a different judge for\\n\\nresentencing on remand.1\\n\\n I.\\n\\n In March and April 2017, the Federal Bureau of Investigation made two\\n\\ncontrolled buys of heroin from Mr. Aragon. On the first occasion, the FBI purchased\\n\\ntwo packages of heroin that weighed approximately 25 grams apiece when field-\\n\\ntested. The heroin purchased on the second occasion weighed 24.8 grams when\\n\\nfield-tested. Laboratory testing confirmed that the three packages in fact contained\\n\\nheroin with net weights of 23.67, 24.07, and 24.16 grams, respectively. In September\\n\\n2017, Mr. Aragon was indicted on two counts of distributing heroin. Three months\\n\\nlater, he agreed to plead guilty to one count of possession with intent to distribute.\\n\\n The district court held a change of plea hearing in December 2017. The judge\\n\\nbegan the hearing by asking the parties why, pursuant to the plea agreement, they had\\n\\nboth agreed to ask for a sentence at the high end of the advisory guideline range.\\n\\nDefense counsel responded that the parties had “limited the relevant conduct in terms\\n\\n\\n\\n 1\\n Although Mr. Aragon’s opening brief on appeal also challenged his sentence\\nunder Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Aragon\\nexpressly withdrew that argument in his reply brief. Therefore, we do not address it.\\nSee United States v. Camick, 796 F.3d 1206, 1213 n.4 (10th Cir. 2015) (declining to\\naddress claims withdrawn before oral argument).\\n 2\\n\\fof [their] stipulation of facts” and “the base-offense level would have been higher”\\n\\nhad they included “everything that could be included from the discovery.”\\n\\n(Appellant’s App. Vol. III at 10.) When the judge asked why relevant conduct was\\n\\nexcluded, defense counsel stated that the prosecutor understood Mr. Aragon to be\\n\\n“closer to the bottom” of his drug-distribution organization and thus the parties\\n\\nconsidered it “fair” to disregard “some uncharged conduct that could have been either\\n\\ncharged or used as relevant conduct.” (Id. at 10–11.) Upon further prompting by the\\n\\njudge, defense counsel identified the uncharged conduct as “a number of items of\\n\\ncontraband [found] in [Mr. Aragon’s] car” when he was arrested. (Id. at 11.)\\n\\n Later in the hearing, the judge raised the issue of whether Mr. Aragon could\\n\\nsubsequently be charged with the other conduct. The parties both acknowledged that\\n\\nthe plea agreement did not contain any terms relating to the uncharged conduct but\\n\\nalso stated that they understood the government had no intention of so charging him.\\n\\nBecause of this, the judge reset the change of plea hearing, instructing the parties to\\n\\n“write a Plea Agreement that doesn’t hide things from me; that tells me what is going\\n\\non[,] what is agreed to and what is not agreed to.” (Id. at 19.) The judge also stated,\\n\\n“[T]he odds on a presentence investigation just went up dramatically.” (Id.)\\n\\n The parties returned that afternoon, and the judge started the hearing over from\\n\\nthe beginning. The revised plea agreement provided that the government would “not\\n\\npursue additional charges or a sentencing increase based on items found in a vehicle\\n\\nat the time of the defendant’s arrest.” (Appellant’s App. Vol. I at 18.) In reviewing\\n\\nthe portion of the plea agreement regarding the parties both again asking for a\\n\\n 3\\n\\fsentence at the high end of the guidelines range—37 months based on a total offense\\n\\nlevel of 17—the judge noted “the mystery question of what this other stuff found in\\n\\nthe car was, and whether or not it’s relevant conduct.” (Appellant’s App. Vol. III at\\n\\n34–35.) At the hearing’s conclusion, the judge requested, “[c]ontrary to [his]\\n\\nordinary practice,” “that the probation department conduct an independent factual\\n\\ninvestigation of the offense conduct in this matter.” (Id. at 48.)\\n\\n In March 2018, the district court issued a minute order stating that the court\\n\\nwas “concerned about the facts and relevant conduct in this case” and directing the\\n\\ngovernment to “have the case agent present at sentencing” and to furnish the court\\n\\nwith “copies of all documents and reports relating to Mr. Aragon’s arrest and the\\n\\ndiscovery of drugs in his car (in the possession of law enforcement and/or the U.S.\\n\\nAttorney’s Office).” (Appellant’s App. Vol. I at 25.) When the government sent the\\n\\ncourt a binder containing these documents but excluding portions of a police report\\n\\nrelating to jail phone calls, the court issued a minute order directing the government\\n\\nto provide the missing pages of the police report. In response to this second order,\\n\\nthe government also gave the court a report regarding the contents of Mr. Aragon’s\\n\\ncell phone.\\n\\n These additional documents reveal that law enforcement obtained and\\n\\nexecuted a search warrant for Mr. Aragon’s car in September 2017. The search was\\n\\nconducted by Task Force Officer Jeremy Mathews. Officer Mathews’ inventory of\\n\\nthe property found in the car includes a cell phone, pills, bullets, almost $3,000 in\\n\\ncash, a digital scale, and a number of packages containing suspected heroin,\\n\\n 4\\n\\fmethamphetamine, and cocaine. The record contains numerous photographs of\\n\\nMr. Aragon’s car and its contents.\\n\\n The presentence investigation report indicates that “[t]he case agent, Andrew\\n\\nCohen, reported the drugs recovered from the defendant’s vehicle yielded the\\n\\nfollowing packaged weights[:] heroin (11.5 grams), cocaine (6.7 grams),\\n\\nmethamphetamine (29 grams), and 3 pills of oxycodone.” (Appellant’s App. Vol. II\\n\\nat 13.) Agent Cohen also reported that none of these drugs had been sent to the\\n\\nlaboratory for testing. The PSR calculated the marijuana equivalency of the drugs\\n\\nfrom the controlled buys and from Mr. Aragon’s car, totaling 145.44 kilograms of\\n\\nmarijuana and resulting in a base offense level of 24. The PSR also found that\\n\\nMr. Aragon was entitled to a 3-level reduction for acceptance of responsibility,\\n\\nyielding a total offense level of 21. With Mr. Aragon’s criminal history category of\\n\\nIII, the PSR identified the guideline sentencing range as 46 to 57 months and\\n\\nrecommended a sentence of 46 months’ imprisonment.\\n\\n Mr. Aragon filed objections to the PSR, primarily contesting its consideration\\n\\nof the substances found in his car. Specifically, Mr. Aragon stated that he “disputes\\n\\nthat he possessed any controlled substances at [the time of his arrest], let alone these\\n\\nspecific controlled substances and quantities.” (Id. at 7.) He also pointed out that the\\n\\nsubstances found in his car were not laboratory-tested.\\n\\n The government’s sentencing position asked the district court to sentence\\n\\nMr. Aragon to 37 months’ imprisonment, “the high end of the advisory guideline\\n\\nrange as calculated by the parties in the Plea Agreement.” (Id. at 34.) The\\n\\n 5\\n\\fgovernment observed that the substances found in Mr. Aragon’s car, unlike the\\n\\nheroin from the controlled buys, “w[ere] not field tested and w[ere] not sent to the\\n\\nlaboratory for formal testing.” (Id.) Moreover, the government explained that the\\n\\nsubstances found in the car were not laboratory tested because Mr. Aragon had\\n\\nquickly indicated his intent to resolve the case, which prompted the government to\\n\\ncease its investigation.\\n\\n The district court began the March 2018 sentencing hearing by reviewing the\\n\\nhistory of the case as to how the court learned about the additional drugs and how\\n\\nMr. Aragon’s case fit in with others from the same investigation. Upon prompting by\\n\\nthe court, defense counsel clarified that Mr. Aragon’s objection to the PSR was “a\\n\\nlegal objection based upon the . . . sufficiency of the evidence.” (Appellant’s App.\\n\\nVol. III at 69.)\\n\\n The district court overruled the objection, citing the PSR’s conclusion that\\n\\nthere was heroin and methamphetamine in the car; the case agent’s statement to the\\n\\nprobation department that there were additional drugs in the car; the photographs of\\n\\nthe suspected drugs, cash, and digital scale; Mr. Aragon’s criminal history involving\\n\\nheroin; and the records of Mr. Aragon’s jail phone calls in which he stated, “I had\\n\\nsome perks, a little bit of soft ready, B, and like a zip of clear and hard.” (Id. at 74.)\\n\\nThe judge then went on to address the quantities of the drugs, acknowledging that the\\n\\n\\n\\n\\n 6\\n\\fweights given were gross weights and deducting half a gram for the packaging of the\\n\\nheroin and the methamphetamine.2\\n\\n Accordingly, the district court concluded that Mr. Aragon was responsible for\\n\\n24.8 and 49.8 grams of heroin from the two controlled buys, plus 11 grams of heroin\\n\\nand 28.5 grams of methamphetamine found in the car. The judge calculated this as\\n\\nhaving a marijuana equivalency of 142.6 grams, making Mr. Aragon’s offense level\\n\\n24. The judge also stated, “[E]ven if these drugs were in a hefty bag, you would still\\n\\nbe in the same guideline range, because we’re basically 40 kilograms of marijuana\\n\\nabove the floor.” (Id. at 76.) Defense counsel objected to “the process” the court\\n\\nused here, including relying on the photographs to determine the identity of the\\n\\nsubstances and how much they and their packaging weighed. (Id. at 77.)\\n\\n Ultimately, the district court sentenced Mr. Aragon to 48 months’\\n\\nimprisonment after finding that his total offense level was 21. Mr. Aragon appealed.\\n\\n II.\\n\\n “[I]n considering the district court’s application of the Guidelines, we review\\n\\nfactual findings for clear error and legal determinations de novo.” United States v.\\n\\nKristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “A sentence cannot . . . be considered\\n\\nreasonable if the manner in which it was determined was unreasonable, i.e., if it was\\n\\n\\n\\n 2\\n The district court disregarded the pills and cocaine as being “more\\nconsistent . . . with personal-use quantities than with distribution quantities.”\\n(Appellant’s App. Vol. III at 76.) The court also appears to have disregarded a much\\nsmaller package of suspected methamphetamine listed in Officer Mathews’\\ninventory.\\n 7\\n\\fbased on an improper determination of the applicable Guidelines range.” Id. at 1055.\\n\\n“The government has the burden of proof and production during the sentencing\\n\\nhearing to establish the amounts and types of controlled substances related to the\\n\\noffense . . . by a preponderance of the evidence.” United States v. Deninno, 29 F.3d\\n\\n572, 580 (10th Cir. 1994).\\n\\n We begin by addressing Mr. Aragon’s contention that the district court\\n\\nimproperly presented evidence at sentencing. Mr. Aragon acknowledges that a\\n\\nsentencing judge may call witnesses and elicit testimony “as part of [his] obligation\\n\\nto gather information relevant to the sentencing determination,” United States v.\\n\\nScott, 529 F.3d 1290, 1298 (10th Cir. 2008). As we have previously recognized,\\n\\n“[t]he [sentencing] judge remains ultimately responsible for determining the facts and\\n\\nmust establish the relevant facts even if all the parties argue to the contrary.” United\\n\\nStates v. Garcia, 78 F.3d 1457, 1462 n.6 (10th Cir. 1996). The district court’s\\n\\nexercise of its power to elicit and establish the relevant facts at sentencing is\\n\\nnevertheless subject to abuse-of-discretion review. Scott, 529 F.3d at 1299.\\n\\n Mr. Aragon makes three arguments in support of his assertion that the district\\n\\ncourt abused its discretion here. First, he claims that “the judge’s actions in this case\\n\\nrested upon an arbitrary or clearly erroneous understanding of the conduct of counsel\\n\\nfor the parties,” specifically the judge’s belief that the parties had intentionally\\n\\nconcealed the additional drugs in order to predetermine the guideline range.\\n\\n(Appellant’s Br. at 50.) Even were we to agree that the judge clearly erred in his\\n\\nunderstanding of the parties’ actions, Mr. Aragon has identified no authority\\n\\n 8\\n\\findicating that a judge abuses his discretion to gather additional evidence when the\\n\\njudge believes such evidence is necessary for the wrong reason. The sentencing\\n\\njudge “must establish the relevant facts,” Garcia, 78 F.3d at 1462 n.6, and we see no\\n\\nreason to second-guess the district court’s determination that additional evidence was\\n\\nneeded to do so in this case.\\n\\n Second, Mr. Aragon argues that “taking action sua sponte is only appropriate\\n\\nwhen the right result is ‘certain’ rather than ‘debatable.’” (Appellant’s Br. at 50\\n\\n(quoting United States v. Holly, 488 F.3d 1298, 1308 (10th Cir. 2007)).) The\\n\\n“certain” versus “debatable” language from Holly was used in the dissimilar context\\n\\nof the appellate court’s analysis of whether to engage in harmless error review sua\\n\\nsponte on appeal. See 488 F.3d at 1308. The only other case Mr. Aragon has cited as\\n\\nconsidering this distinction is Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.\\n\\n2006), which addressed the district court’s ability to dismiss a complaint sua sponte\\n\\nbased on an affirmative defense such as the statute of limitations. He has identified\\n\\nno authority for extending any certain-versus-debatable principle to a judge’s ability\\n\\nto elicit his own evidence at sentencing. Nor would such a rule make sense.\\n\\nMr. Aragon conflates the issue of eliciting evidence with that of accepting its\\n\\nsufficiency. A judge who sua sponte gathers and elicits additional evidence may\\n\\nvery well not know what that evidence will show until it has been produced.\\n\\n Third, Mr. Aragon contends that “the particular actions of the judge in this\\n\\nparticular case posed an unacceptable risk that Mr. Aragon would perceive him as an\\n\\nadvocate, rather than as an impartial arbiter.” (Appellant’s Br. at 51.) We agree with\\n\\n 9\\n\\fMr. Aragon that a judge who elicits his own evidence “‘must take care not to create\\n\\nthe appearance that he or she is less than totally impartial,’” Scott, 529 F.3d at 1299\\n\\n(quoting United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996)). In analyzing\\n\\nthis issue, however, we again believe it is necessary to distinguish the issue of how\\n\\nthe judge elicits the evidence from that of whether the judge correctly concluded the\\n\\nevidence presented was sufficient. A judge’s acceptance of evidence as sufficient\\n\\nproof may constitute error, but it does not of necessity demonstrate partiality.\\n\\n On the issue of partiality, Mr. Aragon states that “the judge made comments at\\n\\nsentencing that an objective observer might view as suggesting a special solicitude\\n\\ntoward law enforcement,” (Appellant’s Br. at 51), pointing to the judge’s quotation\\n\\nof a statement made by “an individual, whom [he’d] known for years, whom [he]\\n\\nrespect[ed] tremendously, and whom [he] trust[ed] implicitly,” about “hell . . .\\n\\ncoming to breakfast” for people who “bring poison and violence into the\\n\\ncommunity,” (Appellant’s App. Vol. III at 58–59). Mr. Aragon also claims that “the\\n\\njudge evinced not just objective disagreement with, but personal hostility to, defense\\n\\ncounsel’s position,” citing several statements by the judge expressing his\\n\\ndisagreement and frustration. (Appellant’s Br. at 52.) Finally, Mr. Aragon asserts\\n\\nthat “the sentencing transcript reveals that the judge’s sua sponte conduct was so\\n\\nextensive that the majority of the hearing consisted of the judge berating counsel,\\n\\npresenting and explaining evidence that he had presented, and making his own\\n\\narguments against the disposition to which the parties agreed.” (Id. at 53.)\\n\\n\\n\\n 10\\n\\f These contentions are largely tangential to the judge’s authority and decision\\n\\nto elicit his own evidence at sentencing. The government points out that the quoted\\n\\n“individual” whom the judge said he “trust[ed] implicitly” was not identified as\\n\\nanyone connected with the case. Moreover, it is clear from the context that the judge\\n\\nquoted this individual only to make a rhetorical point, not for any evidentiary\\n\\npurpose. Furthermore, the judge did not abuse his discretion to elicit his own\\n\\nevidence by expressing his frustration with what he perceived to be the parties’\\n\\nattempt at “artificially causing the guidelines to come out to a particular place where\\n\\nthey th[ought] the sentence should be and withholding . . . information that suggests a\\n\\ndifferent guideline outcome,” (Appellant’s App. Vol. III at 55). Nor did the judge\\n\\nabuse his discretion by explaining why he was giving a sentence within the guideline\\n\\nrange he concluded the evidence supported as opposed to the 37 months the parties\\n\\nrequested.\\n\\n We additionally note that the judge made multiple statements to Mr. Aragon\\n\\nreassuring him that the manner in which the additional evidence was uncovered\\n\\nwould not impact his sentence. Specifically, when the judge reset the change of plea\\n\\nhearing because the initial agreement had not indicated whether the government\\n\\ncould later charge Mr. Aragon for the contraband found in his car, the judge told\\n\\nMr. Aragon, “I have no animosity towards you and nothing going on here is being\\n\\nviewed as something negative as to you. I just think that there’s more going on than\\n\\nI’m being told, and I insist on being told what’s going on.” (Id. at 19.) Also, before\\n\\nissuing the sentence, the judge stated, “[T]he discussion that we’ve had previously,\\n\\n 11\\n\\fabout how the matter ultimately c[a]me to be presented to me, has no impact,\\n\\nwhatsoever, on anything that I’m going to do by way of a sentence.” (Id. at 96.) In\\n\\nthe end, the sentencing judge is “responsible for determining the facts and must\\n\\nestablish the relevant facts even if all the parties argue to the contrary.” Garcia, 78\\n\\nF.3d at 1462 n.6. We cannot conclude in this case that the judge abused his\\n\\ndiscretion to elicit his own evidence at sentencing.\\n\\n We turn now to whether the district court’s conclusions as to the identity and\\n\\nweight of the substances found in Mr. Aragon’s car were supported by sufficient\\n\\nevidence, beginning with the court’s quantity findings. We review the court’s\\n\\n“determination of the quantity of drugs for which the defendant is held accountable\\n\\nunder the Guidelines for clear error.” United States v. Todd, 515 F.3d 1128, 1135\\n\\n(10th Cir. 2008). “Drug quantities employed by the district court to calculate the\\n\\napplicable Guidelines range may be said to be clearly erroneous only when ‘the\\n\\ndistrict court’s finding was without factual support in the record or we are left with\\n\\nthe definite and firm conviction that a mistake has been made.’” Id. (quoting United\\n\\nStates v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)). Although estimates are not\\n\\nforbidden, “the ‘need to estimate drug quantities at times is not a license to calculate\\n\\ndrug quantities by guesswork.’” Dalton, 409 F.3d at 1251 (quoting United States v.\\n\\nRichards, 27 F.3d 465, 469 (10th Cir. 1994)). Moreover, “‘when choosing between a\\n\\nnumber of plausible estimates of drug quantity, none of which is more likely than not\\n\\nthe correct quantity, a court must err on the side of caution.’” Richards, 27 F.3d at\\n\\n\\n\\n 12\\n\\f469 (quoting United States v. Ortiz, 993 F.2d 204, 208 (10th Cir. 1993)) (alteration\\n\\nomitted).\\n\\n Here, the district court had two pieces of evidence speaking to the weight of\\n\\nthe substances found in Mr. Aragon’s car: (1) Officer Mathews’ inventory of the\\n\\ncar’s contents listing the packaged weights of the suspected drugs, and (2) the\\n\\nphotographs of the suspected drugs in their packaging, which the judge initialed to\\n\\nassist us in our review. The record contains additional photographs of these drugs,\\n\\ntwo of which appear to show that one was originally found in additional packaging\\n\\nnot present in the photograph the judge initialed.3 Nothing in the record indicates\\n\\nwhether any packaging was removed prior to the substance being weighed.\\n\\n Mr. Aragon first questions the reliability of the packaged weights reported by\\n\\nOfficer Mathews in his inventory of the car’s contents, questioning whether a scale\\n\\nwas used at all and, if one was used, whether it was properly calibrated and whether\\n\\nit measured the weight in grams or some other unit necessitating conversion. Here,\\n\\nMr. Aragon cites to United States v. Higgins, 282 F.3d 1261, 1279–81 (10th Cir.\\n\\n2002), in which we found unreliable a chemist’s conclusion about how much\\n\\nmethamphetamine could have been produced when “[a]n unidentified officer on the\\n\\nscene had estimated that one coffee filter contained about 100 grams and the other\\n\\n\\n 3\\n The substance in this package was white, as were other substances found in\\nMr. Aragon’s car. We note that, although the white substance in the photograph the\\njudge initialed appears to be in crystalline form, nothing in the photograph clearly\\nidentifies it as the large package of methamphetamine as opposed to the smaller\\npackage of methamphetamine the judge disregarded or one of the packages of\\ncocaine.\\n 13\\n\\fabout 150 grams” of pseudoephedrine. We, however, find Higgins distinguishable.\\n\\nAs the government points out, the precise weights listed in Officer Mathews’\\n\\ninventory indicate that he in fact weighed the substances using a scale. Additionally,\\n\\nalthough Mr. Aragon’s concerns about calibration and units could perhaps create\\n\\nreasonable doubt at trial, the sentencing judge was only required to find the weights\\n\\nby a preponderance of the evidence. See Deninno, 29 F.3d at 580. Their packaged\\n\\nweights were so proven.\\n\\n Mr. Aragon next argues the district court’s conclusion that the packaging\\n\\nweighed half a gram was clearly erroneous. He points out that there was no\\n\\ntestimony as to the weight of plastic baggies, citing to State v. Wallace, 910 P.2d\\n\\n695, 730 (Haw. 1996), in which an officer testified that in his experience ziplock\\n\\nbaggies weighed between 3 and 5 grams. Mr. Aragon also notes that the record does\\n\\nnot show whether the substances were weighed in their full packaging or in the\\n\\nlighter packaging shown in the photographs the judge initialed. Finally, Mr. Aragon\\n\\ncontends that the photographs show “plastic wrapping . . . so thick that it is\\n\\nimpossible to tell how much of what was weighed represents the suspected drugs and\\n\\nhow much represents the packaging material.” (Appellant’s Br. at 36.)\\n\\n In Dalton, we observed that “the ‘need to estimate drug quantities at times is\\n\\nnot a license to calculate drug quantities by guesswork.’” 409 F.3d at 1251 (quoting\\n\\nRichards, 27 F.3d at 469). Guesswork seems an apt description of the district court’s\\n\\nhalf-a-gram figure here. Furthermore, we agree with Mr. Aragon that the\\n\\nphotographs in this case provide a poor basis for determining how much of the gross\\n\\n 14\\n\\fweights is attributable to the substances themselves and how much is attributable to\\n\\nthe packaging. As in Higgins, “there was no scientific basis for estimating quantity\\n\\nfrom appearance.” 282 F.3d at 1281.\\n\\n On appeal, the government makes a harmless-error argument that Mr. Aragon\\n\\nwould still have had a base offense level of 24 even if the packaging of the heroin\\n\\nand methamphetamine found in his car weighed 11 grams each. Mr. Aragon\\n\\nresponds by citing to several cases in which the difference between gross and net\\n\\nweight was dramatic. See, e.g., United States v. Padilla, No. 92-2023, 1993 WL\\n\\n12667, at *2 (10th Cir. Jan. 20, 1993) (“28.2 gross grams of heroin were involved in\\n\\nthe unindicted transaction and . . . analysis of the heroin reflected a net weight of 3.8\\n\\ngrams.”); United States v. Davis, Nos. H-01-867 & H-05-1147, 2006 WL 2670977, at\\n\\n*4 (S.D. Tex. Sept. 15, 2006) (“The approximate gross weight was 27.3 grams. Lab\\n\\ntests were conclusive for the presence of cocaine base with a net weight of 2.0\\n\\ngrams.”); United States v. One 1985 BMW 318i, VIN WBAAC8401F0685314, 696 F.\\n\\nSupp. 336, 338 n.8 (N.D. Ill. 1988) (“[T]here was a great disparity between the gross\\n\\n(23.45 grams) and net (.037 gram) weight of the drugs . . . .”). He also argues that\\n\\nthe white substance cannot be seen clearly through the packaging in the photographs\\n\\nand “[t]here is no way to tell whether . . . the drugs were additionally wrapped in\\n\\naluminum foil, beneath the plastic—which is a common way that drugs are\\n\\npackaged.” (Appellant’s Reply Br. at 16 n.7 (citing to United States v. Rzeslawski,\\n\\nNo. 91-50866, 1992 WL 379411, at *4 (9th Cir. Dec. 17, 1992)).)\\n\\n\\n\\n 15\\n\\f We agree that the government has not shown harmless error. Although the\\n\\nsuspected heroin appears to be wrapped in light packaging, the same cannot be said\\n\\nfor the suspected methamphetamine. Even adding all 11.5 grams of heroin to the\\n\\namounts from the controlled buys would require more than 7 grams of\\n\\nmethamphetamine to make Mr. Aragon’s offense level 24 as the district court found.\\n\\nSee 21 U.S.C. § 841(b)(1)(A)(i), (vii), (viii); U.S.S.G. § 2D1.1(c)(8). In light of the\\n\\ngreat disparities between gross and net weights in other cases, however, we cannot\\n\\nconclude that the photographs here provided even “a minimum indicia of reliability,”\\n\\nDeninno, 29 F.3d at 578, that the net weights would necessarily put Mr. Aragon\\n\\nabove the threshold for base offense level 24.\\n\\n We note that nothing in our opinion should be construed as creating a rule of\\n\\nlaw that drugs must be weighed by a laboratory in order to be used at sentencing. For\\n\\nexample, testimony about the weight of commonly used packages, when combined\\n\\nwith testimony as to the types and quantities of packaging materials used in a specific\\n\\ninstance, would arguably constitute a sufficiently reliable means for estimating a\\n\\nsubstance’s net weight from its packaged weight. Of course, the best evidence of net\\n\\nweight is net weight itself, but we are not here suggesting that packaged weight can\\n\\nnever be used to estimate net weight. We only hold that the evidence in this case was\\n\\ninsufficient to support the district court’s sentencing decision.\\n\\n Mr. Aragon requests that we remand for resentencing based on the existing\\n\\nrecord, citing United States v. Thomas, 749 F.3d 1302, 1315–16 (10th Cir. 2014).\\n\\n“[A] remand for resentencing generally allows the district court to conduct de novo\\n\\n 16\\n\\freview,” but we have discretion to order resentencing on the existing record. United\\n\\nStates v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2005). We decline to exercise that\\n\\ndiscretion here. Under the particular circumstances of this case, we see no need to\\n\\nforeclose evidentiary development on remand. Moreover, because remand is\\n\\nwarranted on the drug quantity issue, we need not address Mr. Aragon’s argument\\n\\nthat there was also insufficient evidence to establish that the substances found in his\\n\\ncar were in fact methamphetamine and heroin. Given that the record may be more\\n\\nfully developed on remand, we decline to address whether the substances could be\\n\\nidentified merely by their appearance in conjunction with Mr. Aragon’s criminal\\n\\nhistory and jail phone calls. See E.E.O.C. v. Beverage Distribs. Co., LLC, 780 F.3d\\n\\n1018, 1022 (10th Cir. 2015) (declining to address sufficiency of mitigation evidence\\n\\nwhen remanding because of erroneous jury instruction, observing, “The sufficiency\\n\\nof the evidence entails a fact-intensive inquiry, and the mitigation evidence may be\\n\\ndifferent on remand.”).\\n\\n Lastly, Mr. Aragon requests that we direct reassignment to a different judge on\\n\\nremand. “Respectful of the extraordinary nature of such a request, we will remand\\n\\nwith instructions for assignment of a different judge only when there is proof of\\n\\npersonal bias or under extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433,\\n\\n1448 (10th Cir. 1996). “[I]n the absence of personal bias,” the necessity for\\n\\nreassignment depends upon consideration of three factors:\\n\\n ‘(1) whether the original judge would reasonably be\\n expected upon remand to have substantial difficulty in\\n putting out of his or her mind previously-expressed views\\n\\n 17\\n\\f or findings determined to be erroneous or based on evidence\\n that must be rejected, (2) whether reassignment is advisable\\n to preserve the appearance of justice, and (3) whether\\n reassignment would entail waste and duplication out of\\n proportion to any gain in preserving the appearance of\\n fairness.’\\n\\nId. at 1450 (quoting United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780\\n\\n(9th Cir. 1986)).\\n\\n Mr. Aragon does not contend that the sentencing judge had any personal bias\\n\\nagainst him, but he does assert that “the circumstances suggest a reasonable\\n\\nlikelihood that the judge would have difficulty on remand putting out of his mind his\\n\\nfirm views that counsel had deceived him and that Mr. Aragon should be sentenced\\n\\nbased on the suspected drugs found in his car.” (Appellant’s Br. at 54.) We are not\\n\\nso convinced. The judge gave defense counsel the opportunity to make a record of\\n\\nMr. Aragon’s objection to the court’s calculation of the base offense level and even\\n\\ninitialed the photographs on which he relied so that they would “be available for the\\n\\nCircuit for [its] review.” (Appellant’s App. Vol. III at 81.) As noted earlier, the\\n\\njudge also made a point of emphasizing that he would not let the way in which he\\n\\nlearned about the additional drugs affect his sentencing decision. Nothing in the\\n\\nrecord suggests that the judge would be unable or unwilling to set aside the additional\\n\\ndrugs in accordance with our conclusion that their net weights were not proven by a\\n\\npreponderance of the evidence. We therefore decline to reassign the case on remand.\\n\\n\\n\\n\\n 18\\n\\f III.\\n\\n For the foregoing reasons, we VACATE Mr. Aragon’s sentence and\\n\\nREMAND his case to the district court for resentencing consistent with this opinion.\\n\\n\\n\\n\\n 19\\n\\fNo. 18-1121, United States v. Aragon.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1867,"cells":{"id":{"kind":"number","value":4614427,"string":"4,614,427"},"name":{"kind":"string","value":"Antonio Deandre SMITH, Petitioner - Appellant, v. Joe M. ALLBAUGH, Director, Respondent - Appellee."},"name_abbreviation":{"kind":"string","value":"Smith v. Allbaugh"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"17-5095"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"McHugh, Moritz, Eid\", \"parties\": \"\", \"opinions\": [{\"author\": \"MORITZ, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n ANTONIO DEANDRE SMITH,\\n\\n Petitioner - Appellant,\\n\\n v. No. 17-5095\\n\\n JOE M. ALLBAUGH, Director,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:15-CV-00445-GKF-FHM)\\n _________________________________\\n\\nJohn T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.\\n\\nAshley L. Willis, Assistant Attorney General (Mike Hunter, Attorney General of\\nOklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.\\n _________________________________\\n\\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\\n _________________________________\\n\\nMORITZ, Circuit Judge.\\n _________________________________\\n\\n Antonio Smith appeals the district court’s order denying his 28 U.S.C. § 2254\\n\\npetition. For the reasons discussed below, we reverse the district court’s order and\\n\\nremand for further proceedings.\\n\\f Background1\\n\\n Smith pleaded guilty in Oklahoma state court to drug trafficking,\\n possessing a firearm as a felon, and a variety of related charges. Smith’s\\n habeas claims center around a plea offer that one of Smith’s attorneys\\n allegedly didn’t communicate to him. Essentially, Smith says that he\\n rejected a plea offer from the state that his first attorney presented to\\n him, under which Smith would serve 25 years in prison. Smith’s first\\n attorney subsequently withdrew[,] and the sentencing court appointed a\\n new attorney to represent him. Smith says that his second attorney told\\n him shortly after she was appointed that the state had withdrawn an\\n offer for a 20-year sentence. But Smith told his second attorney that his\\n first attorney never communicated a 20-year offer to him.\\n On the day his case was set to go to trial, Smith pleaded guilty\\n without the benefit of a plea agreement. During the plea hearing, the\\n state told the court that Smith had rejected its offer for a 20-year\\n sentence. When the sentencing court asked Smith’s second attorney if\\n the state’s recollection of its prior offer coincided with her own, Smith’s\\n second attorney responded, “Yes, it does.” R. 20. But when the court\\n more specifically asked Smith’s second attorney if she discussed the 20-\\n year offer with Smith, she equivocated and responded, “We discussed\\n recommendations; we discussed counter-offers; I conveyed counter-\\n offers. Those were rejected.” Id.\\n It’s not clear from this vague response whether Smith’s second\\n attorney meant to convey to the court that Smith was presented with and\\n rejected the 20-year offer. But it is clear that she didn’t tell the court\\n about Smith’s assertion that his first attorney never communicated such\\n an offer to him. Nor did she mention that she didn’t represent Smith\\n when plea bargaining began, despite her representation to the court that\\n she discussed prior offers with Smith. And adding to this confusion,\\n Smith’s first attorney told the Oklahoma Bar Association that—contrary\\n to what the state told the sentencing court—the lowest sentence the state\\n ever offered Smith was 25 years. So it’s not clear from the record what\\n offer the state actually made and what offer Smith actually rejected.\\n The sentencing court ultimately sentenced Smith to 30 years in\\n prison. Smith neither sought to withdraw his plea nor appealed within\\n the 10 days in which Oklahoma allowed him to do so. See Okla. R.\\n Crim. App. 2.1(B), 4.2(A). But more than seven months later, Smith\\n\\n\\n 1\\n We take these facts from our earlier order granting Smith a certificate of\\nappealability (COA). See § 2253(c)(1)(A); Order, Smith v. Allgbaugh, No. 17-5095,\\n(10th Cir. Feb. 6, 2018).\\n 2\\n\\ffiled an application for post-conviction relief in state district court,\\nrequesting an appeal out of time.\\n In that application, Smith alleged that both his attorneys were\\nconstitutionally ineffective—his first attorney for failing to accurately\\ncommunicate a favorable plea offer, and his second attorney for failing\\nto alert the sentencing court to that issue. Smith further alleged that his\\nsecond attorney never advised him that he had meritorious grounds to\\nappeal his conviction. The state district court denied Smith’s motion\\nbecause Smith didn’t take any steps in the 10 days following his plea to\\nwithdraw the plea or appeal. See Okla. R. Crim. App. 2.1(B), 4.2(A). It\\nfurther found that Smith hadn’t shown he failed to appeal or to move to\\nwithdraw his plea through no fault of his own. See Okla. R. Crim. App.\\n2.1(E)(1) (“A petitioner’s right to appeal [out-of-time] is dependent\\nupon the ability to prove he/she was denied an appeal through no fault\\nof his/her own.”).\\n Smith appealed to the Oklahoma Court of Criminal Appeals\\n(OCCA), which likewise concluded that Smith hadn’t established that\\nhis failure to appeal was through no fault of his own. See id.\\nSpecifically, the OCCA explained that Smith “knew about the [20-year]\\nplea offer, and heard his counsel state that it had been rejected, before\\nhe entered his plea of guilty” but nevertheless “voluntarily entered his\\nplea of guilty, and did not elect to initiate appeal proceedings.” R. 130.\\nIn other words, the OCCA apparently concluded that it was Smith’s\\nfault he didn’t appeal because he knew the factual basis for his appeal\\nduring the 10 days following his sentence. It therefore denied his\\napplication for an appeal out-of-time. And without an appeal out-of-\\ntime, the OCCA couldn’t reach his claims that his attorneys were\\nineffective. See Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.\\n2013) (explaining that “issues that were not raised previously on direct\\nappeal, but which could have been raised, are waived for [post-\\nconviction] review” (citing Okla. Stat. Ann. tit. 22, § 1086)).\\n Smith then filed the instant petition in federal district court.\\nSmith’s original petition only asserted two grounds for relief:\\nineffective assistance [of counsel (IAC)] by his first attorney for failing\\nto accurately communicate the state’s 20-year plea offer, and [IAC] by\\nhis second attorney for failing to alert the court to the first attorney’s\\nerror. More than 17 months later, Smith filed a motion to supplement\\nhis petition, alleging that his second attorney had also been\\nconstitutionally ineffective in failing to advise him to appeal and move\\nto withdraw his plea.\\n The district court treated Smith’s motion [to supplement] as a\\nmotion to amend; determined that Smith’s new [IAC] claim didn’t relate\\nback to the initial filing date; and concluded that the claim was therefore\\n\\n 3\\n\\f untimely under [§ 2244(d)(1)]. See Fed. R. Civ. P. 15(c). It further ruled\\n that Smith’s two timely [IAC] claims were procedurally defaulted\\n because the OCCA denied them on independent and adequate state\\n procedural grounds—i.e., that Smith neither (1) timely appealed or\\n sought to withdraw his plea; nor (2) demonstrated that he failed to do so\\n through no fault of his own. See Banks v. Workman, 692 F.3d 1133,\\n 1144 (10th Cir. 2012) (explaining that constitutional claims rejected by\\n state court on independent and adequate state procedural grounds are\\n normally barred from habeas review in federal court). The district court\\n also concluded that Smith hadn’t shown cause and prejudice to excuse\\n this procedural default. See Magar v. Parker, 490 F.3d 816, 819 (10th\\n Cir. 2007) (explaining that § 2254 petitioner can overcome procedural\\n default by showing “cause for the default and actual prejudice” (quoting\\n Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006))). In doing so,\\n the district court deferred to the OCCA’s factual conclusions that Smith\\n knew about the 20-year plea deal during the time he had to appeal and\\n move to withdraw his plea but nevertheless failed to do so. Thus, the\\n district court denied Smith’s petition.\\n\\n Order at 1-5, Smith, No. 17-5095.\\n\\n\\n After the district court denied Smith’s motion, we declined to grant Smith’s\\n\\nrequest for a COA to appeal the portion of the district court’s order treating as\\n\\nuntimely the IAC claim he raised in his motion to supplement. See § 2253(c)(1)(A).\\n\\nBut we did grant Smith a COA to appeal the portions of the district court’s order\\n\\ndenying relief on his two timely IAC claims.\\n\\n Analysis\\n\\n Smith’s habeas petition advances three overlapping and layered IAC claims.\\n\\nFor ease of reference, we refer to these claims numerically, in the order in which the\\n\\nactions giving rise to them allegedly occurred. Smith asserts that (1) his first attorney\\n\\nfailed to communicate a favorable 20-year plea offer to him (the First IAC Claim);\\n\\n(2) his second attorney failed to alert the sentencing court to the first attorney’s\\n\\n 4\\n\\ffailure to communicate the 20-year plea offer (the Second IAC Claim); and (3) his\\n\\nsecond attorney failed to advise him to pursue an appeal or to withdraw his plea\\n\\nbased on the first attorney’s alleged ineffectiveness (the Third IAC Claim).\\n\\n The district court ruled that the Third IAC Claim was untimely—a ruling that\\n\\nisn’t before us. But its rulings related to the First and Second IAC Claims are before\\n\\nus: the district court declined to reach the merits of these claims because it concluded\\n\\nthat (1) the claims were procedurally defaulted and (2) Smith failed to show cause to\\n\\nexcuse the default. We need not and do not address the first part of the district court’s\\n\\nruling to resolve this appeal. Instead, we begin by assuming that the First and Second\\n\\nIAC Claims are procedurally defaulted and proceed to consider whether Smith has\\n\\nshown cause and prejudice sufficient to overcome that default.\\n\\n In answering that question, we begin by detailing the cause-and-prejudice\\n\\nstandard and applying it to this case, a process that includes addressing and\\n\\nincorporating substantive IAC principles. We ultimately conclude that because Smith\\n\\ndemonstrates cause and prejudice to excuse any procedural default, the district court\\n\\nerred in failing to address the merits of the First and Second IAC Claims. But\\n\\nbecause we determine that a critical factual conflict prevents us from resolving the\\n\\nmerits of these claims in the first instance, we remand to the district court for an\\n\\nevidentiary hearing.\\n\\nI. Cause and Prejudice to Excuse Procedural Default\\n\\n The procedural-default rule generally prevents a federal court from reviewing\\n\\na habeas claim when the state court declined to consider the merits of that claim\\n\\n 5\\n\\fbased “on independent and adequate state procedural grounds.” Maples v. Thomas,\\n\\n565 U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)).\\n\\nHere, for instance, we’ve assumed that Smith procedurally defaulted the First and\\n\\nSecond IAC Claims by failing to bring those claims in a timely direct appeal.2 See\\n\\nBanks, 692 F.3d at 1144 (explaining that procedural default occurs when “state court\\n\\ndismisses federal [habeas] claim on the basis of noncompliance with adequate and\\n\\nindependent state procedural rules”). But a court may excuse a procedural default “if\\n\\na petitioner can ‘demonstrate cause for the default and actual prejudice as a result of\\n\\nthe alleged violation of federal law.’” Magar, 490 F.3d at 819 (quoting Bland, 459\\n\\nF.3d at 1012). Smith argues that he can show both cause and prejudice here.\\n\\n A. Cause\\n\\n Smith first argues that the Third IAC Claim establishes the cause required to\\n\\novercome any procedural default of the First and Second IAC Claims. “Cause for a\\n\\nprocedural default exists where ‘something external to the petitioner, something that\\n\\ncannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the\\n\\n[s]tate’s procedural rule.’” Maples, 565 U.S. at 280 (first two alterations in original)\\n\\n\\n 2\\n The OCCA expressly refused to grant Smith an out-of-time direct appeal,\\nthereby declining to reach the merits of the First and Second IAC Claims in such an\\nappeal. See Okla. R. Crim. App. 2.1(E)(1) (governing when defendant may pursue\\nout-of-time appeal). The OCCA also, albeit implicitly, refused to consider the merits\\nof these two IAC claims in Smith’s postconviction proceeding. See Logan, 293 P.3d\\nat 973 (providing that in postconviction proceeding, “issues that were not raised\\npreviously on direct appeal, but which could have been raised, are waived”). At the\\nheart of both conclusions is that the OCCA declined to consider the merits of Smith’s\\nIAC claims because Smith failed to raise them in a timely direct appeal. See Okla. R.\\nCrim. App. 2.1(B), 4.2(A).\\n 6\\n\\f(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). And an attorney’s\\n\\nconstitutionally deficient performance constitutes cause when it’s an external factor\\n\\nbehind a petitioner’s failure to comply with state procedural rules. See Davila v.\\n\\nDavis, 137 S. Ct. 2058, 2065 (2017). An attorney’s performance is constitutionally\\n\\ndeficient if a defendant can show both that the attorney performed deficiently (i.e.,\\n\\n“that counsel’s representation fell below an objective standard of reasonableness”)\\n\\nand that the deficient performance caused prejudice (i.e., “there is a reasonable\\n\\nprobability that, but for counsel’s unprofessional errors, the result of the proceeding\\n\\nwould have been different”). Strickland v. Washington, 466 U.S. 668, 687–88, 694\\n\\n(1984). Thus, to demonstrate that the Third IAC Claim constitutes cause to overcome\\n\\nthe procedural default, Smith must demonstrate that (1) his second attorney\\n\\nperformed deficiently in failing to consult with him about an appeal and (2) but for\\n\\nthis deficient performance, there exists a reasonable probability that Smith would\\n\\nhave appealed. See Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (explaining\\n\\nhow Strickland test for IAC operates in context of failure-to-consult claims).\\n\\n But before analyzing whether Smith can show deficient performance and\\n\\nresulting prejudice, we first address and reject the state’s threshold arguments that\\n\\nthe Third IAC Claim can’t constitute cause because it’s unexhausted and untimely.\\n\\n The state accurately points out that when a petitioner relies on an IAC claim to\\n\\nestablish cause to overcome a procedural default, the petitioner must first exhaust\\n\\nthat IAC claim in state court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000)\\n\\n(holding that IAC claim must be presented to state court as independent claim before\\n\\n 7\\n\\fit can be used to establish cause for procedural default). And according to the state,\\n\\nSmith failed to exhaust the Third IAC Claim.\\n\\n We disagree. A claim is exhausted so long as it “was ‘presented’ to the state\\n\\ncourts.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). And when giving\\n\\nSmith’s pro se state-court pleadings the liberal construction they warrant, see Fogle\\n\\nv. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006), it’s clear that Smith presented the\\n\\nThird IAC Claim to the relevant state court. Indeed, the first ground in Smith’s\\n\\napplication to the OCCA for postconviction relief stated that “[a]s a result of not\\n\\nbeing timely [and] properly informed o[f] [his other IAC claims], [Smith] also wasn’t\\n\\nable to make an informed decision as to whether or not [he] should appeal the case.”\\n\\nR. 122. We need not read Smith’s pro se pleadings all that liberally to conclude that\\n\\nhe presented the Third IAC Claim, alleging failure to consult about an appeal, to the\\n\\nOCCA. See Edwards, 529 U.S. at 452. Thus, we reject the state’s argument that\\n\\nSmith failed to exhaust the Third IAC Claim.\\n\\n The state also suggests that the Third IAC Claim doesn’t establish cause\\n\\nbecause it was untimely. As we stated in our COA order, we agree that this claim was\\n\\nuntimely. See Order at 15–16, Smith, No. 17-5095. But we fail to see how that\\n\\nuntimeliness impacts the cause-and-prejudice analysis. And the state offers us no\\n\\nassistance on this point. Although it describes the Third IAC Claim as “untimely”\\n\\nand “time-barred,” it cites no on-point authority to support its implicit suggestion that\\n\\nan untimely IAC claim—though admittedly barred as a standalone basis for relief—\\n\\n\\n\\n 8\\n\\fcan’t serve as cause to overcome a procedural bar on other timely claims. Aplee. Br.\\n\\n30. Nor have we found any. As such, we find this argument unpersuasive.\\n\\n Having rejected the state’s threshold objections, we now turn to whether the\\n\\nThird IAC Claim provides cause to excuse Smith’s procedural default. In this claim,\\n\\nSmith alleges that his second attorney’s failure to consult with him about filing an\\n\\nappeal or withdrawing his plea amounts to constitutionally deficient performance. To\\n\\nmake that showing, he must demonstrate both deficient performance and resulting\\n\\nprejudice. See Flores-Ortega, 528 U.S. at 476–77. We consider each prong in turn.\\n\\n An attorney has “a constitutionally imposed duty to consult with” a convicted\\n\\ndefendant “about an appeal when there is reason to think . . . that a rational defendant\\n\\nwould want to appeal.” Id. at 480. One reason a rational defendant might want to\\n\\nappeal is if “there are nonfrivolous grounds for” doing so. Id.\\n\\n Critically, in determining whether a rational defendant would want to appeal,\\n\\n“courts must take into account all the information counsel knew or should have\\n\\nknown.” Id. Here, Smith contends that his second attorney had a duty to consult with\\n\\nhim about an appeal because the second attorney knew or should have known about a\\n\\nnonfrivolous ground for appeal—namely, that Smith’s first attorney was ineffective\\n\\nin failing to communicate a 20-year plea offer to him. See Missouri v. Frye, 566 U.S.\\n\\n134, 145–46 (2012) (noting that counsel performs deficiently if he or she fails to\\n\\ncommunicate plea offer to client and that prejudice results if, among other things,\\n\\ndefendant would have accepted offer and offer was more favorable result for\\n\\ndefendant). Notably, the state doesn’t dispute that an attorney’s alleged failure to\\n\\n 9\\n\\fcommunicate a plea offer is a nonfrivolous issue. But the state nevertheless argues\\n\\nthat the second attorney had no duty to consult with Smith about an appeal. That’s\\n\\nbecause, according to the state, the second attorney didn’t know and or have reason\\n\\nto know about this nonfrivolous issue. See Flores-Ortega, 528 U.S. at 480 (noting\\n\\nthat when determining whether rational defendant would want to appeal based on\\n\\nnonfrivolous claim on appeal, court must consider “all the information counsel knew\\n\\nor should have known”).\\n\\n But the record is not as clear as the state would have it. It does include a letter\\n\\nfrom the second attorney in which she tells Smith that she was “not privy” to any\\n\\nplea offers the state made through Smith’s first attorney. R. 87. But the record also\\n\\nincludes the sentencing transcript, in which (1) the prosecutor told the court that the\\n\\nstate offered Smith a 20-year plea deal and (2) the second attorney told the court that\\n\\na 20-year offer “at least coincide[d] with [her] memory of the recommendations.” Id.\\n\\nat 20. So from the transcript alone, it’s clear that Smith’s second attorney knew or\\n\\nshould have known about the possible existence of a 20-year plea offer. Further,\\n\\nSmith alleges in his habeas petition that he told his second attorney that his first\\n\\nattorney failed to inform him of this 20-year offer. Assuming that to be true, the\\n\\nsecond attorney knew or at least should have known about a nonfrivolous ground for\\n\\nappeal. See Flores-Ortega, 528 U.S. at 480; Williams v. Kaiser, 323 U.S. 471, 473–\\n\\n74 (1945) (noting that when lower court denies habeas petition “without giving\\n\\npetitioner an opportunity to prove his allegations,” appellate court “must assume that\\n\\nthe allegations of the petition are true”). Thus, we reject the state’s argument that the\\n\\n 10\\n\\fsecond attorney didn’t have a duty to consult with Smith about an appeal because she\\n\\ndidn’t know or have reason to know that a rational defendant would want to appeal.\\n\\n The state also notes that Smith himself learned about the 20-year plea offer\\n\\nduring the sentencing hearing, when the prosecutor described that offer. According to\\n\\nthe state, this means Smith can’t show his procedural default (that is, his failure to\\n\\npursue the First and Second IAC Claims on direct appeal) was caused by an external\\n\\nfactor. In support, the state cites Klein v. Neal, 45 F.3d 1395 (10th Cir. 1999), for the\\n\\nunremarkable position that a lack of formal legal training is insufficient to establish\\n\\ncause. But Smith doesn’t argue that his ignorance alone establishes cause. Instead, he\\n\\nargues that to the extent he was ignorant of the legal basis for an appeal, his\\n\\nignorance was the direct result of his second attorney’s constitutionally deficient\\n\\nfailure to consult with him about that basis. And that’s a distinction with a difference.\\n\\nCf. Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (distinguishing between\\n\\n(1) “basic ignorance of the rules or the law” and (2) “lack of [legal] knowledge”\\n\\nstemming from lack of “access to an attorney” for purposes of cause-and-prejudice\\n\\ntest). As such, the state’s point about the facts Smith was aware of simply isn’t\\n\\nrelevant to the cause inquiry.\\n\\n To summarize, a rational defendant would have wanted to appeal because there\\n\\nwas a nonfrivolous issue to raise in that appeal. See Flores-Ortega, 528 U.S. at 480.\\n\\nAnd because Smith’s second attorney knew or should have known about this\\n\\nnonfrivolous issue, she had a duty to consult with Smith about an appeal. See id. Her\\n\\nfailure to do so constitutes deficient performance. See id.; Heard v. Addison, 728\\n\\n 11\\n\\fF.3d 1170, 1187 (10th Cir. 2013) (finding deficient performance where counsel failed\\n\\nto consult defendant about appeal despite “obvious, nonfrivolous grounds for\\n\\nappeal”).\\n\\n Of course, to make out a meritorious IAC claim that establishes cause to\\n\\nexcuse any procedural default, Smith must show more than deficient performance; he\\n\\nmust show constitutionally deficient performance. See Davila, 137 S. Ct. at 2065 (“It\\n\\nhas long been the rule that attorney error is an objective external factor providing\\n\\ncause for excusing a procedural default only if that error amounted to a deprivation of\\n\\nthe constitutional right to counsel.”). As such, we move to the second prong of the\\n\\nIAC analysis and consider whether the deficient failure of Smith’s second attorney to\\n\\nconsult with him about an appeal caused him prejudice. See United States v. Horey,\\n\\n333 F.3d 1185, 1187 (2003) (noting that to succeed on IAC claim, petitioner must\\n\\nsatisfy both Strickland’s deficient-performance prong and its prejudice prong).\\n\\n Prejudice in the failure-to-consult context requires a defendant to show “there\\n\\nis a reasonable probability that, but for counsel’s deficient failure to consult . . .\\n\\nabout an appeal, [the defendant] would have timely appealed.” Flores-Ortega, 528\\n\\nU.S. at 484. To make this showing, a defendant may point to “evidence that there\\n\\nwere nonfrivolous grounds for appeal.” Id. at 485; see also id. at 485–86\\n\\n(acknowledging that nonfrivolousness is factor in both deficient-performance and\\n\\nprejudice prongs of failure-to-consult claim).\\n\\n Here, for the reasons already discussed above, the first attorney’s alleged\\n\\nfailure to communicate a plea offer to Smith is a nonfrivolous issue that the second\\n\\n 12\\n\\fattorney knew or at least should have known about. See Frye, 566 U.S. at 145. As\\n\\nsuch (and in the absence of any meaningful counterargument from the state on the\\n\\nprejudice prong), we find that there’s a reasonable probability that but for the second\\n\\nattorney’s failure to consult about an appeal, Smith would have appealed. See Heard,\\n\\n728 F.3d at 1187 (finding defendant was prejudiced by counsel’s failure to consult\\n\\nabout appeal on “obvious, nonfrivolous” issues). Thus, we conclude that Smith’s\\n\\nsecond attorney rendered constitutionally ineffective assistance when she failed to\\n\\nconsult with Smith about an appeal. See Davila, 137 S. Ct. at 2065.\\n\\n Accordingly, Smith’s Third IAC Claim constitutes cause to excuse any\\n\\nprocedural default of the First and Second IAC Claims, both of which could have\\n\\nbeen brought in the appeal that Smith was deprived of by his second attorney’s\\n\\nineffectiveness.\\n\\n B. Prejudice\\n\\n Having established cause, Smith next argues that he can show prejudice.\\n\\nCritically, in this context, prejudice doesn’t refer to the prejudice arising from\\n\\nSmith’s second attorney’s failure to consult with him about an appeal. Instead, it\\n\\nmeans prejudice arising “from the errors” that form the basis of Smith’s substantive\\n\\nclaims (here, the First and Second IAC Claims). United States v. Frady, 456 U.S.\\n\\n152, 167–68 (1982). And because Smith’s substantive claims are also IAC claims,\\n\\nthe test for determining whether the errors that form the basis of those claims caused\\n\\nhim prejudice mirrors the prejudice prong of the Strickland test. See id. at 169\\n\\n(noting that prejudice for purposes of cause-and-prejudice analysis depends on type\\n\\n 13\\n\\fof claim at issue; finding allegedly erroneous jury instructions caused no prejudice);\\n\\nBanks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (treating prejudice prong of\\n\\nStrickland test as equivalent to prejudice prong of cause-and-prejudice analysis); cf.\\n\\nStrickler v. Greene, 527 U.S. 263, 282 (1999) (considering prejudice prong of\\n\\nunderlying constitutional violation as coextensive with prejudice prong of cause-and-\\n\\nprejudice standard). That is, Smith must show (for both the First and Second IAC\\n\\nClaims) “a reasonable probability that, but for counsel’s unprofessional errors, the\\n\\nresult of the proceeding would have been different.” Strickland, 466 U.S. at 694. We\\n\\nconsider each claim in turn.\\n\\n In the First IAC Claim, Smith alleges that his first attorney deficiently failed to\\n\\nconvey a 20-year plea offer to him. See Frye, 566 U.S. at 145 (noting that counsel\\n\\nperforms deficiently if he or she fails to fulfill “duty to communicate formal [plea]\\n\\noffers from the prosecution”).3 In this context, prejudice results from such deficient\\n\\nperformance if there’s a reasonable probability that, but for counsel’s failure to\\n\\nconvey the offer, (1) the defendant would have accepted it; (2) the state would not\\n\\nhave withdrawn or cancelled the offer; (3) the court would have accepted the plea;\\n\\nand (4) the plea would have led to a more favorable result for the defendant. See id.\\n\\nat 147.\\n\\n\\n\\n 3\\n At this stage of the proceedings and in the context of the prejudice prong of\\nthe cause-and-prejudice analysis, we assume Smith’s factual allegations are true. See\\nWilliams, 323 U.S. at 473–74 (noting that when lower court denies habeas petition\\n“without giving petitioner an opportunity to prove his allegations,” appellate court\\n“must assume that the allegations of the petition are true”).\\n 14\\n\\f Here, Smith satisfies these four requirements. As an initial matter, although he\\n\\nrejected the 25-year offer that his first attorney conveyed to him, he explained in his\\n\\nbrief in support of his § 2254 petition that he would have accepted a 20-year offer\\n\\nbecause “[a] 20[-]year sentence would have allowed [him] to make [p]arole in time to\\n\\nattend his son’s graduation.” R. 42. Further, there’s nothing in the record to indicate\\n\\nthe state would have withdrawn or canceled the offer. Likewise, we see nothing in\\n\\nthe record to suggest that the sentencing court wouldn’t have accepted such a plea.\\n\\nFinally, a 20-year sentence is obviously more favorable than the 30-year sentence\\n\\nSmith received. Thus, Smith has established a reasonable probability that had his first\\n\\nattorney conveyed the 20-year plea offer to him, the result of the proceeding would\\n\\nhave been different. See Frye, 566 U.S. at 147. We therefore conclude that for the\\n\\nFirst IAC Claim, Smith has established both cause and prejudice to excuse any\\n\\nprocedural default.\\n\\n The same is true for Smith’s Second IAC Claim. In that claim, Smith alleges\\n\\nthat his second attorney deficiently failed to alert the sentencing court to the first\\n\\nattorney’s failure to convey the 20-year plea to Smith. Assuming the truth of this\\n\\ndeficient-performance assertion, the Second IAC Claim likewise resulted in prejudice\\n\\nto Smith. See Williams, 323 U.S. at 473–74. That’s because if the second attorney\\n\\nhad alerted the sentencing court to the alleged error, there’s a reasonable probability\\n\\nthat the sentencing court would have remedied the error of Smith’s first attorney by\\n\\nsentencing Smith to 20 years. Cf. Jiminez v. State, 144 P.3d 903, 907 (Okla. Crim.\\n\\nApp. 2006) (remedying attorney’s failure to timely communicate plea offer by\\n\\n 15\\n\\fmodifying defendant’s sentence to match lapsed offer). Thus, we conclude that Smith\\n\\nhas shown cause and prejudice to excuse any procedural default of the Second IAC\\n\\nClaim.\\n\\nII. Evidentiary Hearing\\n\\n Because Smith has established cause and prejudice sufficient to overcome any\\n\\nprocedural default, a “federal habeas court will consider the merits of” the First and\\n\\nSecond IAC Claims. Edwards, 529 U.S. at 451. But we will not be that court.\\n\\nInstead, we agree with Smith that a critical factual conflict exists in the record that\\n\\nrequires us to remand for an evidentiary hearing. Cf. Milton v. Miller, 744 F.3d 660,\\n\\n673 (10th Cir. 2014) (remanding for evidentiary hearing because “disputed issues of\\n\\nfact exist[ed] that preclude[d] us from completing our own de novo review” of\\n\\npetitioner’s IAC claim). The state agrees that if we find a conflict in the record,\\n\\nremand is the proper remedy. But it argues that there isn’t a conflict and that the\\n\\nrecord clearly establishes Smith isn’t entitled to relief on either the First or Second\\n\\nIAC Claims. For the reasons explained below, we reject the state’s contention that\\n\\nthe record is clear, and we remand for an evidentiary hearing.\\n\\n The state argues the record clearly demonstrates that the prosecution never\\n\\noffered Smith a 20-year plea deal—and as such, any IAC claim premised on Smith’s\\n\\nfirst attorney not conveying a 20-year offer to Smith necessarily fails. We disagree\\n\\nwith the state’s interpretation of the record. Most obviously, the record shows that the\\n\\nprosecutor told the trial court that the state offered Smith a 20-year plea deal. The\\n\\nstate concedes that the record “irrefutabl[y]” shows the prosecutor referenced a 20-\\n\\n 16\\n\\fyear plea deal. Aplee. Br. 38. But it insists the prosecutor qualified that statement\\n\\nwith a “clarif[ying]” phrase—i.e., “if I remember correctly”—and thus introduced\\n\\nsome ambiguity into the matter. Id. (quoting R. 90). But the state takes the\\n\\nprosecutor’s qualification out of context. In informing the trial court about the earlier\\n\\nplea deal, the prosecutor said it “was 20 years, and, if I remember correctly, a\\n\\ndismissal against [Smith’s] co-defendant.” R. 90 (emphasis added). Given the\\n\\nphrasing of this statement, the clearest interpretation is that the prosecutor meant to\\n\\nquestion his memory of the offer’s second component—the dismissal against Smith’s\\n\\ncodefendant—and not the length of the sentence the state offered to recommend.\\n\\n Further, the state’s assertion that the record clearly shows the state never\\n\\noffered Smith a 20-year deal ignores what Smith’s second attorney said to the\\n\\nsentencing court: she agreed that the prosecutor’s description of the 20-year offer “at\\n\\nleast coincide[d] with [her] memory.” Id. Likewise, the state’s position ignores\\n\\nSmith’s allegation that his second attorney told him that the state’s 20-year offer had\\n\\nlapsed. Yes, the state points to a letter from Smith’s first attorney in which he says\\n\\nthe state only offered Smith a 25-year sentence, which Smith rejected. But at best,\\n\\nthis letter creates a conflict in the record about whether the state offered Smith a 20-\\n\\nyear sentence or a 25-year sentence; it doesn’t conclusively establish that no 20-year\\n\\noffer existed.\\n\\n Indeed, we find that the record reasonably suggests at least three possibilities:\\n\\n(1) the state offered Smith a 25-year sentence, which Smith rejected, and then the\\n\\nstate offered Smith a 20-year sentence, which Smith’s first attorney failed to\\n\\n 17\\n\\fcommunicate to him; (2) the state offered Smith a 20-year sentence, but Smith’s first\\n\\nattorney mistakenly told Smith the state offered him a 25-year sentence; or (3) the\\n\\nstate only offered Smith a 25-year sentence, which Smith’s first attorney properly\\n\\ncommunicated to Smith. Only an evidentiary hearing can resolve what actually\\n\\noccurred. Because the merits of both the First and Second IAC Claims hinge on that\\n\\nresolution, we remand for an evidentiary hearing.\\n\\n Conclusion\\n\\n We find that the Third IAC Claim has merit and establishes cause to overcome any\\n\\nprocedural default of the First and Second IAC Claims. The district court erred in\\n\\nconcluding otherwise. Further, at this stage of the proceedings, Smith has established\\n\\nprejudice resulting from the constitutional violations he alleges in the First and Second\\n\\nIAC Claims. See Davila, 137 S. Ct. at 2065. We therefore conclude that Smith has shown\\n\\nboth cause and prejudice to overcome any procedural default of those two claims. But\\n\\nbecause unresolved factual issues preclude us from resolving the merits of these claims,\\n\\nwe reverse and remand to the district court with directions to conduct an evidentiary\\n\\nhearing and to subsequently review the First and Second IAC Claims on the merits.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391680/\", \"author_raw\": \"MORITZ, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"MCHUGH"},"judge2":{"kind":"string","value":"MORITZ"},"judge3":{"kind":"string","value":"EID"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614427/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Antonio Deandre SMITH, Petitioner - Appellant, v. Joe M. ALLBAUGH, Director, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n ANTONIO DEANDRE SMITH,\n\n Petitioner - Appellant,\n\n v. No. 17-5095\n\n JOE M. ALLBAUGH, Director,\n\n Respondent - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Northern District of Oklahoma\n (D.C. No. 4:15-CV-00445-GKF-FHM)\n _________________________________\n\nJohn T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\nDefender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.\n\nAshley L. Willis, Assistant Attorney General (Mike Hunter, Attorney General of\nOklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.\n _________________________________\n\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\n _________________________________\n\nMORITZ, Circuit Judge.\n _________________________________\n\n Antonio Smith appeals the district court’s order denying his 28 U.S.C. § 2254\n\npetition. For the reasons discussed below, we reverse the district court’s order and\n\nremand for further proceedings.\n\f Background1\n\n Smith pleaded guilty in Oklahoma state court to drug trafficking,\n possessing a firearm as a felon, and a variety of related charges. Smith’s\n habeas claims center around a plea offer that one of Smith’s attorneys\n allegedly didn’t communicate to him. Essentially, Smith says that he\n rejected a plea offer from the state that his first attorney presented to\n him, under which Smith would serve 25 years in prison. Smith’s first\n attorney subsequently withdrew[,] and the sentencing court appointed a\n new attorney to represent him. Smith says that his second attorney told\n him shortly after she was appointed that the state had withdrawn an\n offer for a 20-year sentence. But Smith told his second attorney that his\n first attorney never communicated a 20-year offer to him.\n On the day his case was set to go to trial, Smith pleaded guilty\n without the benefit of a plea agreement. During the plea hearing, the\n state told the court that Smith had rejected its offer for a 20-year\n sentence. When the sentencing court asked Smith’s second attorney if\n the state’s recollection of its prior offer coincided with her own, Smith’s\n second attorney responded, “Yes, it does.” R. 20. But when the court\n more specifically asked Smith’s second attorney if she discussed the 20-\n year offer with Smith, she equivocated and responded, “We discussed\n recommendations; we discussed counter-offers; I conveyed counter-\n offers. Those were rejected.” Id.\n It’s not clear from this vague response whether Smith’s second\n attorney meant to convey to the court that Smith was presented with and\n rejected the 20-year offer. But it is clear that she didn’t tell the court\n about Smith’s assertion that his first attorney never communicated such\n an offer to him. Nor did she mention that she didn’t represent Smith\n when plea bargaining began, despite her representation to the court that\n she discussed prior offers with Smith. And adding to this confusion,\n Smith’s first attorney told the Oklahoma Bar Association that—contrary\n to what the state told the sentencing court—the lowest sentence the state\n ever offered Smith was 25 years. So it’s not clear from the record what\n offer the state actually made and what offer Smith actually rejected.\n The sentencing court ultimately sentenced Smith to 30 years in\n prison. Smith neither sought to withdraw his plea nor appealed within\n the 10 days in which Oklahoma allowed him to do so. See Okla. R.\n Crim. App. 2.1(B), 4.2(A). But more than seven months later, Smith\n\n\n 1\n We take these facts from our earlier order granting Smith a certificate of\nappealability (COA). See § 2253(c)(1)(A); Order, Smith v. Allgbaugh, No. 17-5095,\n(10th Cir. Feb. 6, 2018).\n 2\n\ffiled an application for post-conviction relief in state district court,\nrequesting an appeal out of time.\n In that application, Smith alleged that both his attorneys were\nconstitutionally ineffective—his first attorney for failing to accurately\ncommunicate a favorable plea offer, and his second attorney for failing\nto alert the sentencing court to that issue. Smith further alleged that his\nsecond attorney never advised him that he had meritorious grounds to\nappeal his conviction. The state district court denied Smith’s motion\nbecause Smith didn’t take any steps in the 10 days following his plea to\nwithdraw the plea or appeal. See Okla. R. Crim. App. 2.1(B), 4.2(A). It\nfurther found that Smith hadn’t shown he failed to appeal or to move to\nwithdraw his plea through no fault of his own. See Okla. R. Crim. App.\n2.1(E)(1) (“A petitioner’s right to appeal [out-of-time] is dependent\nupon the ability to prove he/she was denied an appeal through no fault\nof his/her own.”).\n Smith appealed to the Oklahoma Court of Criminal Appeals\n(OCCA), which likewise concluded that Smith hadn’t established that\nhis failure to appeal was through no fault of his own. See id.\nSpecifically, the OCCA explained that Smith “knew about the [20-year]\nplea offer, and heard his counsel state that it had been rejected, before\nhe entered his plea of guilty” but nevertheless “voluntarily entered his\nplea of guilty, and did not elect to initiate appeal proceedings.” R. 130.\nIn other words, the OCCA apparently concluded that it was Smith’s\nfault he didn’t appeal because he knew the factual basis for his appeal\nduring the 10 days following his sentence. It therefore denied his\napplication for an appeal out-of-time. And without an appeal out-of-\ntime, the OCCA couldn’t reach his claims that his attorneys were\nineffective. See Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.\n2013) (explaining that “issues that were not raised previously on direct\nappeal, but which could have been raised, are waived for [post-\nconviction] review” (citing Okla. Stat. Ann. tit. 22, § 1086)).\n Smith then filed the instant petition in federal district court.\nSmith’s original petition only asserted two grounds for relief:\nineffective assistance [of counsel (IAC)] by his first attorney for failing\nto accurately communicate the state’s 20-year plea offer, and [IAC] by\nhis second attorney for failing to alert the court to the first attorney’s\nerror. More than 17 months later, Smith filed a motion to supplement\nhis petition, alleging that his second attorney had also been\nconstitutionally ineffective in failing to advise him to appeal and move\nto withdraw his plea.\n The district court treated Smith’s motion [to supplement] as a\nmotion to amend; determined that Smith’s new [IAC] claim didn’t relate\nback to the initial filing date; and concluded that the claim was therefore\n\n 3\n\f untimely under [§ 2244(d)(1)]. See Fed. R. Civ. P. 15(c). It further ruled\n that Smith’s two timely [IAC] claims were procedurally defaulted\n because the OCCA denied them on independent and adequate state\n procedural grounds—i.e., that Smith neither (1) timely appealed or\n sought to withdraw his plea; nor (2) demonstrated that he failed to do so\n through no fault of his own. See Banks v. Workman, 692 F.3d 1133,\n 1144 (10th Cir. 2012) (explaining that constitutional claims rejected by\n state court on independent and adequate state procedural grounds are\n normally barred from habeas review in federal court). The district court\n also concluded that Smith hadn’t shown cause and prejudice to excuse\n this procedural default. See Magar v. Parker, 490 F.3d 816, 819 (10th\n Cir. 2007) (explaining that § 2254 petitioner can overcome procedural\n default by showing “cause for the default and actual prejudice” (quoting\n Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006))). In doing so,\n the district court deferred to the OCCA’s factual conclusions that Smith\n knew about the 20-year plea deal during the time he had to appeal and\n move to withdraw his plea but nevertheless failed to do so. Thus, the\n district court denied Smith’s petition.\n\n Order at 1-5, Smith, No. 17-5095.\n\n\n After the district court denied Smith’s motion, we declined to grant Smith’s\n\nrequest for a COA to appeal the portion of the district court’s order treating as\n\nuntimely the IAC claim he raised in his motion to supplement. See § 2253(c)(1)(A).\n\nBut we did grant Smith a COA to appeal the portions of the district court’s order\n\ndenying relief on his two timely IAC claims.\n\n Analysis\n\n Smith’s habeas petition advances three overlapping and layered IAC claims.\n\nFor ease of reference, we refer to these claims numerically, in the order in which the\n\nactions giving rise to them allegedly occurred. Smith asserts that (1) his first attorney\n\nfailed to communicate a favorable 20-year plea offer to him (the First IAC Claim);\n\n(2) his second attorney failed to alert the sentencing court to the first attorney’s\n\n 4\n\ffailure to communicate the 20-year plea offer (the Second IAC Claim); and (3) his\n\nsecond attorney failed to advise him to pursue an appeal or to withdraw his plea\n\nbased on the first attorney’s alleged ineffectiveness (the Third IAC Claim).\n\n The district court ruled that the Third IAC Claim was untimely—a ruling that\n\nisn’t before us. But its rulings related to the First and Second IAC Claims are before\n\nus: the district court declined to reach the merits of these claims because it concluded\n\nthat (1) the claims were procedurally defaulted and (2) Smith failed to show cause to\n\nexcuse the default. We need not and do not address the first part of the district court’s\n\nruling to resolve this appeal. Instead, we begin by assuming that the First and Second\n\nIAC Claims are procedurally defaulted and proceed to consider whether Smith has\n\nshown cause and prejudice sufficient to overcome that default.\n\n In answering that question, we begin by detailing the cause-and-prejudice\n\nstandard and applying it to this case, a process that includes addressing and\n\nincorporating substantive IAC principles. We ultimately conclude that because Smith\n\ndemonstrates cause and prejudice to excuse any procedural default, the district court\n\nerred in failing to address the merits of the First and Second IAC Claims. But\n\nbecause we determine that a critical factual conflict prevents us from resolving the\n\nmerits of these claims in the first instance, we remand to the district court for an\n\nevidentiary hearing.\n\nI. Cause and Prejudice to Excuse Procedural Default\n\n The procedural-default rule generally prevents a federal court from reviewing\n\na habeas claim when the state court declined to consider the merits of that claim\n\n 5\n\fbased “on independent and adequate state procedural grounds.” Maples v. Thomas,\n\n565 U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)).\n\nHere, for instance, we’ve assumed that Smith procedurally defaulted the First and\n\nSecond IAC Claims by failing to bring those claims in a timely direct appeal.2 See\n\nBanks, 692 F.3d at 1144 (explaining that procedural default occurs when “state court\n\ndismisses federal [habeas] claim on the basis of noncompliance with adequate and\n\nindependent state procedural rules”). But a court may excuse a procedural default “if\n\na petitioner can ‘demonstrate cause for the default and actual prejudice as a result of\n\nthe alleged violation of federal law.’” Magar, 490 F.3d at 819 (quoting Bland, 459\n\nF.3d at 1012). Smith argues that he can show both cause and prejudice here.\n\n A. Cause\n\n Smith first argues that the Third IAC Claim establishes the cause required to\n\novercome any procedural default of the First and Second IAC Claims. “Cause for a\n\nprocedural default exists where ‘something external to the petitioner, something that\n\ncannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the\n\n[s]tate’s procedural rule.’” Maples, 565 U.S. at 280 (first two alterations in original)\n\n\n 2\n The OCCA expressly refused to grant Smith an out-of-time direct appeal,\nthereby declining to reach the merits of the First and Second IAC Claims in such an\nappeal. See Okla. R. Crim. App. 2.1(E)(1) (governing when defendant may pursue\nout-of-time appeal). The OCCA also, albeit implicitly, refused to consider the merits\nof these two IAC claims in Smith’s postconviction proceeding. See Logan, 293 P.3d\nat 973 (providing that in postconviction proceeding, “issues that were not raised\npreviously on direct appeal, but which could have been raised, are waived”). At the\nheart of both conclusions is that the OCCA declined to consider the merits of Smith’s\nIAC claims because Smith failed to raise them in a timely direct appeal. See Okla. R.\nCrim. App. 2.1(B), 4.2(A).\n 6\n\f(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). And an attorney’s\n\nconstitutionally deficient performance constitutes cause when it’s an external factor\n\nbehind a petitioner’s failure to comply with state procedural rules. See Davila v.\n\nDavis, 137 S. Ct. 2058, 2065 (2017). An attorney’s performance is constitutionally\n\ndeficient if a defendant can show both that the attorney performed deficiently (i.e.,\n\n“that counsel’s representation fell below an objective standard of reasonableness”)\n\nand that the deficient performance caused prejudice (i.e., “there is a reasonable\n\nprobability that, but for counsel’s unprofessional errors, the result of the proceeding\n\nwould have been different”). Strickland v. Washington, 466 U.S. 668, 687–88, 694\n\n(1984). Thus, to demonstrate that the Third IAC Claim constitutes cause to overcome\n\nthe procedural default, Smith must demonstrate that (1) his second attorney\n\nperformed deficiently in failing to consult with him about an appeal and (2) but for\n\nthis deficient performance, there exists a reasonable probability that Smith would\n\nhave appealed. See Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (explaining\n\nhow Strickland test for IAC operates in context of failure-to-consult claims).\n\n But before analyzing whether Smith can show deficient performance and\n\nresulting prejudice, we first address and reject the state’s threshold arguments that\n\nthe Third IAC Claim can’t constitute cause because it’s unexhausted and untimely.\n\n The state accurately points out that when a petitioner relies on an IAC claim to\n\nestablish cause to overcome a procedural default, the petitioner must first exhaust\n\nthat IAC claim in state court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000)\n\n(holding that IAC claim must be presented to state court as independent claim before\n\n 7\n\fit can be used to establish cause for procedural default). And according to the state,\n\nSmith failed to exhaust the Third IAC Claim.\n\n We disagree. A claim is exhausted so long as it “was ‘presented’ to the state\n\ncourts.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). And when giving\n\nSmith’s pro se state-court pleadings the liberal construction they warrant, see Fogle\n\nv. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006), it’s clear that Smith presented the\n\nThird IAC Claim to the relevant state court. Indeed, the first ground in Smith’s\n\napplication to the OCCA for postconviction relief stated that “[a]s a result of not\n\nbeing timely [and] properly informed o[f] [his other IAC claims], [Smith] also wasn’t\n\nable to make an informed decision as to whether or not [he] should appeal the case.”\n\nR. 122. We need not read Smith’s pro se pleadings all that liberally to conclude that\n\nhe presented the Third IAC Claim, alleging failure to consult about an appeal, to the\n\nOCCA. See Edwards, 529 U.S. at 452. Thus, we reject the state’s argument that\n\nSmith failed to exhaust the Third IAC Claim.\n\n The state also suggests that the Third IAC Claim doesn’t establish cause\n\nbecause it was untimely. As we stated in our COA order, we agree that this claim was\n\nuntimely. See Order at 15–16, Smith, No. 17-5095. But we fail to see how that\n\nuntimeliness impacts the cause-and-prejudice analysis. And the state offers us no\n\nassistance on this point. Although it describes the Third IAC Claim as “untimely”\n\nand “time-barred,” it cites no on-point authority to support its implicit suggestion that\n\nan untimely IAC claim—though admittedly barred as a standalone basis for relief—\n\n\n\n 8\n\fcan’t serve as cause to overcome a procedural bar on other timely claims. Aplee. Br.\n\n30. Nor have we found any. As such, we find this argument unpersuasive.\n\n Having rejected the state’s threshold objections, we now turn to whether the\n\nThird IAC Claim provides cause to excuse Smith’s procedural default. In this claim,\n\nSmith alleges that his second attorney’s failure to consult with him about filing an\n\nappeal or withdrawing his plea amounts to constitutionally deficient performance. To\n\nmake that showing, he must demonstrate both deficient performance and resulting\n\nprejudice. See Flores-Ortega, 528 U.S. at 476–77. We consider each prong in turn.\n\n An attorney has “a constitutionally imposed duty to consult with” a convicted\n\ndefendant “about an appeal when there is reason to think . . . that a rational defendant\n\nwould want to appeal.” Id. at 480. One reason a rational defendant might want to\n\nappeal is if “there are nonfrivolous grounds for” doing so. Id.\n\n Critically, in determining whether a rational defendant would want to appeal,\n\n“courts must take into account all the information counsel knew or should have\n\nknown.” Id. Here, Smith contends that his second attorney had a duty to consult with\n\nhim about an appeal because the second attorney knew or should have known about a\n\nnonfrivolous ground for appeal—namely, that Smith’s first attorney was ineffective\n\nin failing to communicate a 20-year plea offer to him. See Missouri v. Frye, 566 U.S.\n\n134, 145–46 (2012) (noting that counsel performs deficiently if he or she fails to\n\ncommunicate plea offer to client and that prejudice results if, among other things,\n\ndefendant would have accepted offer and offer was more favorable result for\n\ndefendant). Notably, the state doesn’t dispute that an attorney’s alleged failure to\n\n 9\n\fcommunicate a plea offer is a nonfrivolous issue. But the state nevertheless argues\n\nthat the second attorney had no duty to consult with Smith about an appeal. That’s\n\nbecause, according to the state, the second attorney didn’t know and or have reason\n\nto know about this nonfrivolous issue. See Flores-Ortega, 528 U.S. at 480 (noting\n\nthat when determining whether rational defendant would want to appeal based on\n\nnonfrivolous claim on appeal, court must consider “all the information counsel knew\n\nor should have known”).\n\n But the record is not as clear as the state would have it. It does include a letter\n\nfrom the second attorney in which she tells Smith that she was “not privy” to any\n\nplea offers the state made through Smith’s first attorney. R. 87. But the record also\n\nincludes the sentencing transcript, in which (1) the prosecutor told the court that the\n\nstate offered Smith a 20-year plea deal and (2) the second attorney told the court that\n\na 20-year offer “at least coincide[d] with [her] memory of the recommendations.” Id.\n\nat 20. So from the transcript alone, it’s clear that Smith’s second attorney knew or\n\nshould have known about the possible existence of a 20-year plea offer. Further,\n\nSmith alleges in his habeas petition that he told his second attorney that his first\n\nattorney failed to inform him of this 20-year offer. Assuming that to be true, the\n\nsecond attorney knew or at least should have known about a nonfrivolous ground for\n\nappeal. See Flores-Ortega, 528 U.S. at 480; Williams v. Kaiser, 323 U.S. 471, 473–\n\n74 (1945) (noting that when lower court denies habeas petition “without giving\n\npetitioner an opportunity to prove his allegations,” appellate court “must assume that\n\nthe allegations of the petition are true”). Thus, we reject the state’s argument that the\n\n 10\n\fsecond attorney didn’t have a duty to consult with Smith about an appeal because she\n\ndidn’t know or have reason to know that a rational defendant would want to appeal.\n\n The state also notes that Smith himself learned about the 20-year plea offer\n\nduring the sentencing hearing, when the prosecutor described that offer. According to\n\nthe state, this means Smith can’t show his procedural default (that is, his failure to\n\npursue the First and Second IAC Claims on direct appeal) was caused by an external\n\nfactor. In support, the state cites Klein v. Neal, 45 F.3d 1395 (10th Cir. 1999), for the\n\nunremarkable position that a lack of formal legal training is insufficient to establish\n\ncause. But Smith doesn’t argue that his ignorance alone establishes cause. Instead, he\n\nargues that to the extent he was ignorant of the legal basis for an appeal, his\n\nignorance was the direct result of his second attorney’s constitutionally deficient\n\nfailure to consult with him about that basis. And that’s a distinction with a difference.\n\nCf. Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (distinguishing between\n\n(1) “basic ignorance of the rules or the law” and (2) “lack of [legal] knowledge”\n\nstemming from lack of “access to an attorney” for purposes of cause-and-prejudice\n\ntest). As such, the state’s point about the facts Smith was aware of simply isn’t\n\nrelevant to the cause inquiry.\n\n To summarize, a rational defendant would have wanted to appeal because there\n\nwas a nonfrivolous issue to raise in that appeal. See Flores-Ortega, 528 U.S. at 480.\n\nAnd because Smith’s second attorney knew or should have known about this\n\nnonfrivolous issue, she had a duty to consult with Smith about an appeal. See id. Her\n\nfailure to do so constitutes deficient performance. See id.; Heard v. Addison, 728\n\n 11\n\fF.3d 1170, 1187 (10th Cir. 2013) (finding deficient performance where counsel failed\n\nto consult defendant about appeal despite “obvious, nonfrivolous grounds for\n\nappeal”).\n\n Of course, to make out a meritorious IAC claim that establishes cause to\n\nexcuse any procedural default, Smith must show more than deficient performance; he\n\nmust show constitutionally deficient performance. See Davila, 137 S. Ct. at 2065 (“It\n\nhas long been the rule that attorney error is an objective external factor providing\n\ncause for excusing a procedural default only if that error amounted to a deprivation of\n\nthe constitutional right to counsel.”). As such, we move to the second prong of the\n\nIAC analysis and consider whether the deficient failure of Smith’s second attorney to\n\nconsult with him about an appeal caused him prejudice. See United States v. Horey,\n\n333 F.3d 1185, 1187 (2003) (noting that to succeed on IAC claim, petitioner must\n\nsatisfy both Strickland’s deficient-performance prong and its prejudice prong).\n\n Prejudice in the failure-to-consult context requires a defendant to show “there\n\nis a reasonable probability that, but for counsel’s deficient failure to consult . . .\n\nabout an appeal, [the defendant] would have timely appealed.” Flores-Ortega, 528\n\nU.S. at 484. To make this showing, a defendant may point to “evidence that there\n\nwere nonfrivolous grounds for appeal.” Id. at 485; see also id. at 485–86\n\n(acknowledging that nonfrivolousness is factor in both deficient-performance and\n\nprejudice prongs of failure-to-consult claim).\n\n Here, for the reasons already discussed above, the first attorney’s alleged\n\nfailure to communicate a plea offer to Smith is a nonfrivolous issue that the second\n\n 12\n\fattorney knew or at least should have known about. See Frye, 566 U.S. at 145. As\n\nsuch (and in the absence of any meaningful counterargument from the state on the\n\nprejudice prong), we find that there’s a reasonable probability that but for the second\n\nattorney’s failure to consult about an appeal, Smith would have appealed. See Heard,\n\n728 F.3d at 1187 (finding defendant was prejudiced by counsel’s failure to consult\n\nabout appeal on “obvious, nonfrivolous” issues). Thus, we conclude that Smith’s\n\nsecond attorney rendered constitutionally ineffective assistance when she failed to\n\nconsult with Smith about an appeal. See Davila, 137 S. Ct. at 2065.\n\n Accordingly, Smith’s Third IAC Claim constitutes cause to excuse any\n\nprocedural default of the First and Second IAC Claims, both of which could have\n\nbeen brought in the appeal that Smith was deprived of by his second attorney’s\n\nineffectiveness.\n\n B. Prejudice\n\n Having established cause, Smith next argues that he can show prejudice.\n\nCritically, in this context, prejudice doesn’t refer to the prejudice arising from\n\nSmith’s second attorney’s failure to consult with him about an appeal. Instead, it\n\nmeans prejudice arising “from the errors” that form the basis of Smith’s substantive\n\nclaims (here, the First and Second IAC Claims). United States v. Frady, 456 U.S.\n\n152, 167–68 (1982). And because Smith’s substantive claims are also IAC claims,\n\nthe test for determining whether the errors that form the basis of those claims caused\n\nhim prejudice mirrors the prejudice prong of the Strickland test. See id. at 169\n\n(noting that prejudice for purposes of cause-and-prejudice analysis depends on type\n\n 13\n\fof claim at issue; finding allegedly erroneous jury instructions caused no prejudice);\n\nBanks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (treating prejudice prong of\n\nStrickland test as equivalent to prejudice prong of cause-and-prejudice analysis); cf.\n\nStrickler v. Greene, 527 U.S. 263, 282 (1999) (considering prejudice prong of\n\nunderlying constitutional violation as coextensive with prejudice prong of cause-and-\n\nprejudice standard). That is, Smith must show (for both the First and Second IAC\n\nClaims) “a reasonable probability that, but for counsel’s unprofessional errors, the\n\nresult of the proceeding would have been different.” Strickland, 466 U.S. at 694. We\n\nconsider each claim in turn.\n\n In the First IAC Claim, Smith alleges that his first attorney deficiently failed to\n\nconvey a 20-year plea offer to him. See Frye, 566 U.S. at 145 (noting that counsel\n\nperforms deficiently if he or she fails to fulfill “duty to communicate formal [plea]\n\noffers from the prosecution”).3 In this context, prejudice results from such deficient\n\nperformance if there’s a reasonable probability that, but for counsel’s failure to\n\nconvey the offer, (1) the defendant would have accepted it; (2) the state would not\n\nhave withdrawn or cancelled the offer; (3) the court would have accepted the plea;\n\nand (4) the plea would have led to a more favorable result for the defendant. See id.\n\nat 147.\n\n\n\n 3\n At this stage of the proceedings and in the context of the prejudice prong of\nthe cause-and-prejudice analysis, we assume Smith’s factual allegations are true. See\nWilliams, 323 U.S. at 473–74 (noting that when lower court denies habeas petition\n“without giving petitioner an opportunity to prove his allegations,” appellate court\n“must assume that the allegations of the petition are true”).\n 14\n\f Here, Smith satisfies these four requirements. As an initial matter, although he\n\nrejected the 25-year offer that his first attorney conveyed to him, he explained in his\n\nbrief in support of his § 2254 petition that he would have accepted a 20-year offer\n\nbecause “[a] 20[-]year sentence would have allowed [him] to make [p]arole in time to\n\nattend his son’s graduation.” R. 42. Further, there’s nothing in the record to indicate\n\nthe state would have withdrawn or canceled the offer. Likewise, we see nothing in\n\nthe record to suggest that the sentencing court wouldn’t have accepted such a plea.\n\nFinally, a 20-year sentence is obviously more favorable than the 30-year sentence\n\nSmith received. Thus, Smith has established a reasonable probability that had his first\n\nattorney conveyed the 20-year plea offer to him, the result of the proceeding would\n\nhave been different. See Frye, 566 U.S. at 147. We therefore conclude that for the\n\nFirst IAC Claim, Smith has established both cause and prejudice to excuse any\n\nprocedural default.\n\n The same is true for Smith’s Second IAC Claim. In that claim, Smith alleges\n\nthat his second attorney deficiently failed to alert the sentencing court to the first\n\nattorney’s failure to convey the 20-year plea to Smith. Assuming the truth of this\n\ndeficient-performance assertion, the Second IAC Claim likewise resulted in prejudice\n\nto Smith. See Williams, 323 U.S. at 473–74. That’s because if the second attorney\n\nhad alerted the sentencing court to the alleged error, there’s a reasonable probability\n\nthat the sentencing court would have remedied the error of Smith’s first attorney by\n\nsentencing Smith to 20 years. Cf. Jiminez v. State, 144 P.3d 903, 907 (Okla. Crim.\n\nApp. 2006) (remedying attorney’s failure to timely communicate plea offer by\n\n 15\n\fmodifying defendant’s sentence to match lapsed offer). Thus, we conclude that Smith\n\nhas shown cause and prejudice to excuse any procedural default of the Second IAC\n\nClaim.\n\nII. Evidentiary Hearing\n\n Because Smith has established cause and prejudice sufficient to overcome any\n\nprocedural default, a “federal habeas court will consider the merits of” the First and\n\nSecond IAC Claims. Edwards, 529 U.S. at 451. But we will not be that court.\n\nInstead, we agree with Smith that a critical factual conflict exists in the record that\n\nrequires us to remand for an evidentiary hearing. Cf. Milton v. Miller, 744 F.3d 660,\n\n673 (10th Cir. 2014) (remanding for evidentiary hearing because “disputed issues of\n\nfact exist[ed] that preclude[d] us from completing our own de novo review” of\n\npetitioner’s IAC claim). The state agrees that if we find a conflict in the record,\n\nremand is the proper remedy. But it argues that there isn’t a conflict and that the\n\nrecord clearly establishes Smith isn’t entitled to relief on either the First or Second\n\nIAC Claims. For the reasons explained below, we reject the state’s contention that\n\nthe record is clear, and we remand for an evidentiary hearing.\n\n The state argues the record clearly demonstrates that the prosecution never\n\noffered Smith a 20-year plea deal—and as such, any IAC claim premised on Smith’s\n\nfirst attorney not conveying a 20-year offer to Smith necessarily fails. We disagree\n\nwith the state’s interpretation of the record. Most obviously, the record shows that the\n\nprosecutor told the trial court that the state offered Smith a 20-year plea deal. The\n\nstate concedes that the record “irrefutabl[y]” shows the prosecutor referenced a 20-\n\n 16\n\fyear plea deal. Aplee. Br. 38. But it insists the prosecutor qualified that statement\n\nwith a “clarif[ying]” phrase—i.e., “if I remember correctly”—and thus introduced\n\nsome ambiguity into the matter. Id. (quoting R. 90). But the state takes the\n\nprosecutor’s qualification out of context. In informing the trial court about the earlier\n\nplea deal, the prosecutor said it “was 20 years, and, if I remember correctly, a\n\ndismissal against [Smith’s] co-defendant.” R. 90 (emphasis added). Given the\n\nphrasing of this statement, the clearest interpretation is that the prosecutor meant to\n\nquestion his memory of the offer’s second component—the dismissal against Smith’s\n\ncodefendant—and not the length of the sentence the state offered to recommend.\n\n Further, the state’s assertion that the record clearly shows the state never\n\noffered Smith a 20-year deal ignores what Smith’s second attorney said to the\n\nsentencing court: she agreed that the prosecutor’s description of the 20-year offer “at\n\nleast coincide[d] with [her] memory.” Id. Likewise, the state’s position ignores\n\nSmith’s allegation that his second attorney told him that the state’s 20-year offer had\n\nlapsed. Yes, the state points to a letter from Smith’s first attorney in which he says\n\nthe state only offered Smith a 25-year sentence, which Smith rejected. But at best,\n\nthis letter creates a conflict in the record about whether the state offered Smith a 20-\n\nyear sentence or a 25-year sentence; it doesn’t conclusively establish that no 20-year\n\noffer existed.\n\n Indeed, we find that the record reasonably suggests at least three possibilities:\n\n(1) the state offered Smith a 25-year sentence, which Smith rejected, and then the\n\nstate offered Smith a 20-year sentence, which Smith’s first attorney failed to\n\n 17\n\fcommunicate to him; (2) the state offered Smith a 20-year sentence, but Smith’s first\n\nattorney mistakenly told Smith the state offered him a 25-year sentence; or (3) the\n\nstate only offered Smith a 25-year sentence, which Smith’s first attorney properly\n\ncommunicated to Smith. Only an evidentiary hearing can resolve what actually\n\noccurred. Because the merits of both the First and Second IAC Claims hinge on that\n\nresolution, we remand for an evidentiary hearing.\n\n Conclusion\n\n We find that the Third IAC Claim has merit and establishes cause to overcome any\n\nprocedural default of the First and Second IAC Claims. The district court erred in\n\nconcluding otherwise. Further, at this stage of the proceedings, Smith has established\n\nprejudice resulting from the constitutional violations he alleges in the First and Second\n\nIAC Claims. See Davila, 137 S. Ct. at 2065. We therefore conclude that Smith has shown\n\nboth cause and prejudice to overcome any procedural default of those two claims. But\n\nbecause unresolved factual issues preclude us from resolving the merits of these claims,\n\nwe reverse and remand to the district court with directions to conduct an evidentiary\n\nhearing and to subsequently review the First and Second IAC Claims on the merits.\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Antonio Deandre SMITH, Petitioner - Appellant, v. Joe M. ALLBAUGH, Director, Respondent - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n ANTONIO DEANDRE SMITH,\\n\\n Petitioner - Appellant,\\n\\n v. No. 17-5095\\n\\n JOE M. ALLBAUGH, Director,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:15-CV-00445-GKF-FHM)\\n _________________________________\\n\\nJohn T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public\\nDefender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.\\n\\nAshley L. Willis, Assistant Attorney General (Mike Hunter, Attorney General of\\nOklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.\\n _________________________________\\n\\nBefore McHUGH, MORITZ, and EID, Circuit Judges.\\n _________________________________\\n\\nMORITZ, Circuit Judge.\\n _________________________________\\n\\n Antonio Smith appeals the district court’s order denying his 28 U.S.C. § 2254\\n\\npetition. For the reasons discussed below, we reverse the district court’s order and\\n\\nremand for further proceedings.\\n\\f Background1\\n\\n Smith pleaded guilty in Oklahoma state court to drug trafficking,\\n possessing a firearm as a felon, and a variety of related charges. Smith’s\\n habeas claims center around a plea offer that one of Smith’s attorneys\\n allegedly didn’t communicate to him. Essentially, Smith says that he\\n rejected a plea offer from the state that his first attorney presented to\\n him, under which Smith would serve 25 years in prison. Smith’s first\\n attorney subsequently withdrew[,] and the sentencing court appointed a\\n new attorney to represent him. Smith says that his second attorney told\\n him shortly after she was appointed that the state had withdrawn an\\n offer for a 20-year sentence. But Smith told his second attorney that his\\n first attorney never communicated a 20-year offer to him.\\n On the day his case was set to go to trial, Smith pleaded guilty\\n without the benefit of a plea agreement. During the plea hearing, the\\n state told the court that Smith had rejected its offer for a 20-year\\n sentence. When the sentencing court asked Smith’s second attorney if\\n the state’s recollection of its prior offer coincided with her own, Smith’s\\n second attorney responded, “Yes, it does.” R. 20. But when the court\\n more specifically asked Smith’s second attorney if she discussed the 20-\\n year offer with Smith, she equivocated and responded, “We discussed\\n recommendations; we discussed counter-offers; I conveyed counter-\\n offers. Those were rejected.” Id.\\n It’s not clear from this vague response whether Smith’s second\\n attorney meant to convey to the court that Smith was presented with and\\n rejected the 20-year offer. But it is clear that she didn’t tell the court\\n about Smith’s assertion that his first attorney never communicated such\\n an offer to him. Nor did she mention that she didn’t represent Smith\\n when plea bargaining began, despite her representation to the court that\\n she discussed prior offers with Smith. And adding to this confusion,\\n Smith’s first attorney told the Oklahoma Bar Association that—contrary\\n to what the state told the sentencing court—the lowest sentence the state\\n ever offered Smith was 25 years. So it’s not clear from the record what\\n offer the state actually made and what offer Smith actually rejected.\\n The sentencing court ultimately sentenced Smith to 30 years in\\n prison. Smith neither sought to withdraw his plea nor appealed within\\n the 10 days in which Oklahoma allowed him to do so. See Okla. R.\\n Crim. App. 2.1(B), 4.2(A). But more than seven months later, Smith\\n\\n\\n 1\\n We take these facts from our earlier order granting Smith a certificate of\\nappealability (COA). See § 2253(c)(1)(A); Order, Smith v. Allgbaugh, No. 17-5095,\\n(10th Cir. Feb. 6, 2018).\\n 2\\n\\ffiled an application for post-conviction relief in state district court,\\nrequesting an appeal out of time.\\n In that application, Smith alleged that both his attorneys were\\nconstitutionally ineffective—his first attorney for failing to accurately\\ncommunicate a favorable plea offer, and his second attorney for failing\\nto alert the sentencing court to that issue. Smith further alleged that his\\nsecond attorney never advised him that he had meritorious grounds to\\nappeal his conviction. The state district court denied Smith’s motion\\nbecause Smith didn’t take any steps in the 10 days following his plea to\\nwithdraw the plea or appeal. See Okla. R. Crim. App. 2.1(B), 4.2(A). It\\nfurther found that Smith hadn’t shown he failed to appeal or to move to\\nwithdraw his plea through no fault of his own. See Okla. R. Crim. App.\\n2.1(E)(1) (“A petitioner’s right to appeal [out-of-time] is dependent\\nupon the ability to prove he/she was denied an appeal through no fault\\nof his/her own.”).\\n Smith appealed to the Oklahoma Court of Criminal Appeals\\n(OCCA), which likewise concluded that Smith hadn’t established that\\nhis failure to appeal was through no fault of his own. See id.\\nSpecifically, the OCCA explained that Smith “knew about the [20-year]\\nplea offer, and heard his counsel state that it had been rejected, before\\nhe entered his plea of guilty” but nevertheless “voluntarily entered his\\nplea of guilty, and did not elect to initiate appeal proceedings.” R. 130.\\nIn other words, the OCCA apparently concluded that it was Smith’s\\nfault he didn’t appeal because he knew the factual basis for his appeal\\nduring the 10 days following his sentence. It therefore denied his\\napplication for an appeal out-of-time. And without an appeal out-of-\\ntime, the OCCA couldn’t reach his claims that his attorneys were\\nineffective. See Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.\\n2013) (explaining that “issues that were not raised previously on direct\\nappeal, but which could have been raised, are waived for [post-\\nconviction] review” (citing Okla. Stat. Ann. tit. 22, § 1086)).\\n Smith then filed the instant petition in federal district court.\\nSmith’s original petition only asserted two grounds for relief:\\nineffective assistance [of counsel (IAC)] by his first attorney for failing\\nto accurately communicate the state’s 20-year plea offer, and [IAC] by\\nhis second attorney for failing to alert the court to the first attorney’s\\nerror. More than 17 months later, Smith filed a motion to supplement\\nhis petition, alleging that his second attorney had also been\\nconstitutionally ineffective in failing to advise him to appeal and move\\nto withdraw his plea.\\n The district court treated Smith’s motion [to supplement] as a\\nmotion to amend; determined that Smith’s new [IAC] claim didn’t relate\\nback to the initial filing date; and concluded that the claim was therefore\\n\\n 3\\n\\f untimely under [§ 2244(d)(1)]. See Fed. R. Civ. P. 15(c). It further ruled\\n that Smith’s two timely [IAC] claims were procedurally defaulted\\n because the OCCA denied them on independent and adequate state\\n procedural grounds—i.e., that Smith neither (1) timely appealed or\\n sought to withdraw his plea; nor (2) demonstrated that he failed to do so\\n through no fault of his own. See Banks v. Workman, 692 F.3d 1133,\\n 1144 (10th Cir. 2012) (explaining that constitutional claims rejected by\\n state court on independent and adequate state procedural grounds are\\n normally barred from habeas review in federal court). The district court\\n also concluded that Smith hadn’t shown cause and prejudice to excuse\\n this procedural default. See Magar v. Parker, 490 F.3d 816, 819 (10th\\n Cir. 2007) (explaining that § 2254 petitioner can overcome procedural\\n default by showing “cause for the default and actual prejudice” (quoting\\n Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006))). In doing so,\\n the district court deferred to the OCCA’s factual conclusions that Smith\\n knew about the 20-year plea deal during the time he had to appeal and\\n move to withdraw his plea but nevertheless failed to do so. Thus, the\\n district court denied Smith’s petition.\\n\\n Order at 1-5, Smith, No. 17-5095.\\n\\n\\n After the district court denied Smith’s motion, we declined to grant Smith’s\\n\\nrequest for a COA to appeal the portion of the district court’s order treating as\\n\\nuntimely the IAC claim he raised in his motion to supplement. See § 2253(c)(1)(A).\\n\\nBut we did grant Smith a COA to appeal the portions of the district court’s order\\n\\ndenying relief on his two timely IAC claims.\\n\\n Analysis\\n\\n Smith’s habeas petition advances three overlapping and layered IAC claims.\\n\\nFor ease of reference, we refer to these claims numerically, in the order in which the\\n\\nactions giving rise to them allegedly occurred. Smith asserts that (1) his first attorney\\n\\nfailed to communicate a favorable 20-year plea offer to him (the First IAC Claim);\\n\\n(2) his second attorney failed to alert the sentencing court to the first attorney’s\\n\\n 4\\n\\ffailure to communicate the 20-year plea offer (the Second IAC Claim); and (3) his\\n\\nsecond attorney failed to advise him to pursue an appeal or to withdraw his plea\\n\\nbased on the first attorney’s alleged ineffectiveness (the Third IAC Claim).\\n\\n The district court ruled that the Third IAC Claim was untimely—a ruling that\\n\\nisn’t before us. But its rulings related to the First and Second IAC Claims are before\\n\\nus: the district court declined to reach the merits of these claims because it concluded\\n\\nthat (1) the claims were procedurally defaulted and (2) Smith failed to show cause to\\n\\nexcuse the default. We need not and do not address the first part of the district court’s\\n\\nruling to resolve this appeal. Instead, we begin by assuming that the First and Second\\n\\nIAC Claims are procedurally defaulted and proceed to consider whether Smith has\\n\\nshown cause and prejudice sufficient to overcome that default.\\n\\n In answering that question, we begin by detailing the cause-and-prejudice\\n\\nstandard and applying it to this case, a process that includes addressing and\\n\\nincorporating substantive IAC principles. We ultimately conclude that because Smith\\n\\ndemonstrates cause and prejudice to excuse any procedural default, the district court\\n\\nerred in failing to address the merits of the First and Second IAC Claims. But\\n\\nbecause we determine that a critical factual conflict prevents us from resolving the\\n\\nmerits of these claims in the first instance, we remand to the district court for an\\n\\nevidentiary hearing.\\n\\nI. Cause and Prejudice to Excuse Procedural Default\\n\\n The procedural-default rule generally prevents a federal court from reviewing\\n\\na habeas claim when the state court declined to consider the merits of that claim\\n\\n 5\\n\\fbased “on independent and adequate state procedural grounds.” Maples v. Thomas,\\n\\n565 U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)).\\n\\nHere, for instance, we’ve assumed that Smith procedurally defaulted the First and\\n\\nSecond IAC Claims by failing to bring those claims in a timely direct appeal.2 See\\n\\nBanks, 692 F.3d at 1144 (explaining that procedural default occurs when “state court\\n\\ndismisses federal [habeas] claim on the basis of noncompliance with adequate and\\n\\nindependent state procedural rules”). But a court may excuse a procedural default “if\\n\\na petitioner can ‘demonstrate cause for the default and actual prejudice as a result of\\n\\nthe alleged violation of federal law.’” Magar, 490 F.3d at 819 (quoting Bland, 459\\n\\nF.3d at 1012). Smith argues that he can show both cause and prejudice here.\\n\\n A. Cause\\n\\n Smith first argues that the Third IAC Claim establishes the cause required to\\n\\novercome any procedural default of the First and Second IAC Claims. “Cause for a\\n\\nprocedural default exists where ‘something external to the petitioner, something that\\n\\ncannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the\\n\\n[s]tate’s procedural rule.’” Maples, 565 U.S. at 280 (first two alterations in original)\\n\\n\\n 2\\n The OCCA expressly refused to grant Smith an out-of-time direct appeal,\\nthereby declining to reach the merits of the First and Second IAC Claims in such an\\nappeal. See Okla. R. Crim. App. 2.1(E)(1) (governing when defendant may pursue\\nout-of-time appeal). The OCCA also, albeit implicitly, refused to consider the merits\\nof these two IAC claims in Smith’s postconviction proceeding. See Logan, 293 P.3d\\nat 973 (providing that in postconviction proceeding, “issues that were not raised\\npreviously on direct appeal, but which could have been raised, are waived”). At the\\nheart of both conclusions is that the OCCA declined to consider the merits of Smith’s\\nIAC claims because Smith failed to raise them in a timely direct appeal. See Okla. R.\\nCrim. App. 2.1(B), 4.2(A).\\n 6\\n\\f(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). And an attorney’s\\n\\nconstitutionally deficient performance constitutes cause when it’s an external factor\\n\\nbehind a petitioner’s failure to comply with state procedural rules. See Davila v.\\n\\nDavis, 137 S. Ct. 2058, 2065 (2017). An attorney’s performance is constitutionally\\n\\ndeficient if a defendant can show both that the attorney performed deficiently (i.e.,\\n\\n“that counsel’s representation fell below an objective standard of reasonableness”)\\n\\nand that the deficient performance caused prejudice (i.e., “there is a reasonable\\n\\nprobability that, but for counsel’s unprofessional errors, the result of the proceeding\\n\\nwould have been different”). Strickland v. Washington, 466 U.S. 668, 687–88, 694\\n\\n(1984). Thus, to demonstrate that the Third IAC Claim constitutes cause to overcome\\n\\nthe procedural default, Smith must demonstrate that (1) his second attorney\\n\\nperformed deficiently in failing to consult with him about an appeal and (2) but for\\n\\nthis deficient performance, there exists a reasonable probability that Smith would\\n\\nhave appealed. See Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (explaining\\n\\nhow Strickland test for IAC operates in context of failure-to-consult claims).\\n\\n But before analyzing whether Smith can show deficient performance and\\n\\nresulting prejudice, we first address and reject the state’s threshold arguments that\\n\\nthe Third IAC Claim can’t constitute cause because it’s unexhausted and untimely.\\n\\n The state accurately points out that when a petitioner relies on an IAC claim to\\n\\nestablish cause to overcome a procedural default, the petitioner must first exhaust\\n\\nthat IAC claim in state court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000)\\n\\n(holding that IAC claim must be presented to state court as independent claim before\\n\\n 7\\n\\fit can be used to establish cause for procedural default). And according to the state,\\n\\nSmith failed to exhaust the Third IAC Claim.\\n\\n We disagree. A claim is exhausted so long as it “was ‘presented’ to the state\\n\\ncourts.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). And when giving\\n\\nSmith’s pro se state-court pleadings the liberal construction they warrant, see Fogle\\n\\nv. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006), it’s clear that Smith presented the\\n\\nThird IAC Claim to the relevant state court. Indeed, the first ground in Smith’s\\n\\napplication to the OCCA for postconviction relief stated that “[a]s a result of not\\n\\nbeing timely [and] properly informed o[f] [his other IAC claims], [Smith] also wasn’t\\n\\nable to make an informed decision as to whether or not [he] should appeal the case.”\\n\\nR. 122. We need not read Smith’s pro se pleadings all that liberally to conclude that\\n\\nhe presented the Third IAC Claim, alleging failure to consult about an appeal, to the\\n\\nOCCA. See Edwards, 529 U.S. at 452. Thus, we reject the state’s argument that\\n\\nSmith failed to exhaust the Third IAC Claim.\\n\\n The state also suggests that the Third IAC Claim doesn’t establish cause\\n\\nbecause it was untimely. As we stated in our COA order, we agree that this claim was\\n\\nuntimely. See Order at 15–16, Smith, No. 17-5095. But we fail to see how that\\n\\nuntimeliness impacts the cause-and-prejudice analysis. And the state offers us no\\n\\nassistance on this point. Although it describes the Third IAC Claim as “untimely”\\n\\nand “time-barred,” it cites no on-point authority to support its implicit suggestion that\\n\\nan untimely IAC claim—though admittedly barred as a standalone basis for relief—\\n\\n\\n\\n 8\\n\\fcan’t serve as cause to overcome a procedural bar on other timely claims. Aplee. Br.\\n\\n30. Nor have we found any. As such, we find this argument unpersuasive.\\n\\n Having rejected the state’s threshold objections, we now turn to whether the\\n\\nThird IAC Claim provides cause to excuse Smith’s procedural default. In this claim,\\n\\nSmith alleges that his second attorney’s failure to consult with him about filing an\\n\\nappeal or withdrawing his plea amounts to constitutionally deficient performance. To\\n\\nmake that showing, he must demonstrate both deficient performance and resulting\\n\\nprejudice. See Flores-Ortega, 528 U.S. at 476–77. We consider each prong in turn.\\n\\n An attorney has “a constitutionally imposed duty to consult with” a convicted\\n\\ndefendant “about an appeal when there is reason to think . . . that a rational defendant\\n\\nwould want to appeal.” Id. at 480. One reason a rational defendant might want to\\n\\nappeal is if “there are nonfrivolous grounds for” doing so. Id.\\n\\n Critically, in determining whether a rational defendant would want to appeal,\\n\\n“courts must take into account all the information counsel knew or should have\\n\\nknown.” Id. Here, Smith contends that his second attorney had a duty to consult with\\n\\nhim about an appeal because the second attorney knew or should have known about a\\n\\nnonfrivolous ground for appeal—namely, that Smith’s first attorney was ineffective\\n\\nin failing to communicate a 20-year plea offer to him. See Missouri v. Frye, 566 U.S.\\n\\n134, 145–46 (2012) (noting that counsel performs deficiently if he or she fails to\\n\\ncommunicate plea offer to client and that prejudice results if, among other things,\\n\\ndefendant would have accepted offer and offer was more favorable result for\\n\\ndefendant). Notably, the state doesn’t dispute that an attorney’s alleged failure to\\n\\n 9\\n\\fcommunicate a plea offer is a nonfrivolous issue. But the state nevertheless argues\\n\\nthat the second attorney had no duty to consult with Smith about an appeal. That’s\\n\\nbecause, according to the state, the second attorney didn’t know and or have reason\\n\\nto know about this nonfrivolous issue. See Flores-Ortega, 528 U.S. at 480 (noting\\n\\nthat when determining whether rational defendant would want to appeal based on\\n\\nnonfrivolous claim on appeal, court must consider “all the information counsel knew\\n\\nor should have known”).\\n\\n But the record is not as clear as the state would have it. It does include a letter\\n\\nfrom the second attorney in which she tells Smith that she was “not privy” to any\\n\\nplea offers the state made through Smith’s first attorney. R. 87. But the record also\\n\\nincludes the sentencing transcript, in which (1) the prosecutor told the court that the\\n\\nstate offered Smith a 20-year plea deal and (2) the second attorney told the court that\\n\\na 20-year offer “at least coincide[d] with [her] memory of the recommendations.” Id.\\n\\nat 20. So from the transcript alone, it’s clear that Smith’s second attorney knew or\\n\\nshould have known about the possible existence of a 20-year plea offer. Further,\\n\\nSmith alleges in his habeas petition that he told his second attorney that his first\\n\\nattorney failed to inform him of this 20-year offer. Assuming that to be true, the\\n\\nsecond attorney knew or at least should have known about a nonfrivolous ground for\\n\\nappeal. See Flores-Ortega, 528 U.S. at 480; Williams v. Kaiser, 323 U.S. 471, 473–\\n\\n74 (1945) (noting that when lower court denies habeas petition “without giving\\n\\npetitioner an opportunity to prove his allegations,” appellate court “must assume that\\n\\nthe allegations of the petition are true”). Thus, we reject the state’s argument that the\\n\\n 10\\n\\fsecond attorney didn’t have a duty to consult with Smith about an appeal because she\\n\\ndidn’t know or have reason to know that a rational defendant would want to appeal.\\n\\n The state also notes that Smith himself learned about the 20-year plea offer\\n\\nduring the sentencing hearing, when the prosecutor described that offer. According to\\n\\nthe state, this means Smith can’t show his procedural default (that is, his failure to\\n\\npursue the First and Second IAC Claims on direct appeal) was caused by an external\\n\\nfactor. In support, the state cites Klein v. Neal, 45 F.3d 1395 (10th Cir. 1999), for the\\n\\nunremarkable position that a lack of formal legal training is insufficient to establish\\n\\ncause. But Smith doesn’t argue that his ignorance alone establishes cause. Instead, he\\n\\nargues that to the extent he was ignorant of the legal basis for an appeal, his\\n\\nignorance was the direct result of his second attorney’s constitutionally deficient\\n\\nfailure to consult with him about that basis. And that’s a distinction with a difference.\\n\\nCf. Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (distinguishing between\\n\\n(1) “basic ignorance of the rules or the law” and (2) “lack of [legal] knowledge”\\n\\nstemming from lack of “access to an attorney” for purposes of cause-and-prejudice\\n\\ntest). As such, the state’s point about the facts Smith was aware of simply isn’t\\n\\nrelevant to the cause inquiry.\\n\\n To summarize, a rational defendant would have wanted to appeal because there\\n\\nwas a nonfrivolous issue to raise in that appeal. See Flores-Ortega, 528 U.S. at 480.\\n\\nAnd because Smith’s second attorney knew or should have known about this\\n\\nnonfrivolous issue, she had a duty to consult with Smith about an appeal. See id. Her\\n\\nfailure to do so constitutes deficient performance. See id.; Heard v. Addison, 728\\n\\n 11\\n\\fF.3d 1170, 1187 (10th Cir. 2013) (finding deficient performance where counsel failed\\n\\nto consult defendant about appeal despite “obvious, nonfrivolous grounds for\\n\\nappeal”).\\n\\n Of course, to make out a meritorious IAC claim that establishes cause to\\n\\nexcuse any procedural default, Smith must show more than deficient performance; he\\n\\nmust show constitutionally deficient performance. See Davila, 137 S. Ct. at 2065 (“It\\n\\nhas long been the rule that attorney error is an objective external factor providing\\n\\ncause for excusing a procedural default only if that error amounted to a deprivation of\\n\\nthe constitutional right to counsel.”). As such, we move to the second prong of the\\n\\nIAC analysis and consider whether the deficient failure of Smith’s second attorney to\\n\\nconsult with him about an appeal caused him prejudice. See United States v. Horey,\\n\\n333 F.3d 1185, 1187 (2003) (noting that to succeed on IAC claim, petitioner must\\n\\nsatisfy both Strickland’s deficient-performance prong and its prejudice prong).\\n\\n Prejudice in the failure-to-consult context requires a defendant to show “there\\n\\nis a reasonable probability that, but for counsel’s deficient failure to consult . . .\\n\\nabout an appeal, [the defendant] would have timely appealed.” Flores-Ortega, 528\\n\\nU.S. at 484. To make this showing, a defendant may point to “evidence that there\\n\\nwere nonfrivolous grounds for appeal.” Id. at 485; see also id. at 485–86\\n\\n(acknowledging that nonfrivolousness is factor in both deficient-performance and\\n\\nprejudice prongs of failure-to-consult claim).\\n\\n Here, for the reasons already discussed above, the first attorney’s alleged\\n\\nfailure to communicate a plea offer to Smith is a nonfrivolous issue that the second\\n\\n 12\\n\\fattorney knew or at least should have known about. See Frye, 566 U.S. at 145. As\\n\\nsuch (and in the absence of any meaningful counterargument from the state on the\\n\\nprejudice prong), we find that there’s a reasonable probability that but for the second\\n\\nattorney’s failure to consult about an appeal, Smith would have appealed. See Heard,\\n\\n728 F.3d at 1187 (finding defendant was prejudiced by counsel’s failure to consult\\n\\nabout appeal on “obvious, nonfrivolous” issues). Thus, we conclude that Smith’s\\n\\nsecond attorney rendered constitutionally ineffective assistance when she failed to\\n\\nconsult with Smith about an appeal. See Davila, 137 S. Ct. at 2065.\\n\\n Accordingly, Smith’s Third IAC Claim constitutes cause to excuse any\\n\\nprocedural default of the First and Second IAC Claims, both of which could have\\n\\nbeen brought in the appeal that Smith was deprived of by his second attorney’s\\n\\nineffectiveness.\\n\\n B. Prejudice\\n\\n Having established cause, Smith next argues that he can show prejudice.\\n\\nCritically, in this context, prejudice doesn’t refer to the prejudice arising from\\n\\nSmith’s second attorney’s failure to consult with him about an appeal. Instead, it\\n\\nmeans prejudice arising “from the errors” that form the basis of Smith’s substantive\\n\\nclaims (here, the First and Second IAC Claims). United States v. Frady, 456 U.S.\\n\\n152, 167–68 (1982). And because Smith’s substantive claims are also IAC claims,\\n\\nthe test for determining whether the errors that form the basis of those claims caused\\n\\nhim prejudice mirrors the prejudice prong of the Strickland test. See id. at 169\\n\\n(noting that prejudice for purposes of cause-and-prejudice analysis depends on type\\n\\n 13\\n\\fof claim at issue; finding allegedly erroneous jury instructions caused no prejudice);\\n\\nBanks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (treating prejudice prong of\\n\\nStrickland test as equivalent to prejudice prong of cause-and-prejudice analysis); cf.\\n\\nStrickler v. Greene, 527 U.S. 263, 282 (1999) (considering prejudice prong of\\n\\nunderlying constitutional violation as coextensive with prejudice prong of cause-and-\\n\\nprejudice standard). That is, Smith must show (for both the First and Second IAC\\n\\nClaims) “a reasonable probability that, but for counsel’s unprofessional errors, the\\n\\nresult of the proceeding would have been different.” Strickland, 466 U.S. at 694. We\\n\\nconsider each claim in turn.\\n\\n In the First IAC Claim, Smith alleges that his first attorney deficiently failed to\\n\\nconvey a 20-year plea offer to him. See Frye, 566 U.S. at 145 (noting that counsel\\n\\nperforms deficiently if he or she fails to fulfill “duty to communicate formal [plea]\\n\\noffers from the prosecution”).3 In this context, prejudice results from such deficient\\n\\nperformance if there’s a reasonable probability that, but for counsel’s failure to\\n\\nconvey the offer, (1) the defendant would have accepted it; (2) the state would not\\n\\nhave withdrawn or cancelled the offer; (3) the court would have accepted the plea;\\n\\nand (4) the plea would have led to a more favorable result for the defendant. See id.\\n\\nat 147.\\n\\n\\n\\n 3\\n At this stage of the proceedings and in the context of the prejudice prong of\\nthe cause-and-prejudice analysis, we assume Smith’s factual allegations are true. See\\nWilliams, 323 U.S. at 473–74 (noting that when lower court denies habeas petition\\n“without giving petitioner an opportunity to prove his allegations,” appellate court\\n“must assume that the allegations of the petition are true”).\\n 14\\n\\f Here, Smith satisfies these four requirements. As an initial matter, although he\\n\\nrejected the 25-year offer that his first attorney conveyed to him, he explained in his\\n\\nbrief in support of his § 2254 petition that he would have accepted a 20-year offer\\n\\nbecause “[a] 20[-]year sentence would have allowed [him] to make [p]arole in time to\\n\\nattend his son’s graduation.” R. 42. Further, there’s nothing in the record to indicate\\n\\nthe state would have withdrawn or canceled the offer. Likewise, we see nothing in\\n\\nthe record to suggest that the sentencing court wouldn’t have accepted such a plea.\\n\\nFinally, a 20-year sentence is obviously more favorable than the 30-year sentence\\n\\nSmith received. Thus, Smith has established a reasonable probability that had his first\\n\\nattorney conveyed the 20-year plea offer to him, the result of the proceeding would\\n\\nhave been different. See Frye, 566 U.S. at 147. We therefore conclude that for the\\n\\nFirst IAC Claim, Smith has established both cause and prejudice to excuse any\\n\\nprocedural default.\\n\\n The same is true for Smith’s Second IAC Claim. In that claim, Smith alleges\\n\\nthat his second attorney deficiently failed to alert the sentencing court to the first\\n\\nattorney’s failure to convey the 20-year plea to Smith. Assuming the truth of this\\n\\ndeficient-performance assertion, the Second IAC Claim likewise resulted in prejudice\\n\\nto Smith. See Williams, 323 U.S. at 473–74. That’s because if the second attorney\\n\\nhad alerted the sentencing court to the alleged error, there’s a reasonable probability\\n\\nthat the sentencing court would have remedied the error of Smith’s first attorney by\\n\\nsentencing Smith to 20 years. Cf. Jiminez v. State, 144 P.3d 903, 907 (Okla. Crim.\\n\\nApp. 2006) (remedying attorney’s failure to timely communicate plea offer by\\n\\n 15\\n\\fmodifying defendant’s sentence to match lapsed offer). Thus, we conclude that Smith\\n\\nhas shown cause and prejudice to excuse any procedural default of the Second IAC\\n\\nClaim.\\n\\nII. Evidentiary Hearing\\n\\n Because Smith has established cause and prejudice sufficient to overcome any\\n\\nprocedural default, a “federal habeas court will consider the merits of” the First and\\n\\nSecond IAC Claims. Edwards, 529 U.S. at 451. But we will not be that court.\\n\\nInstead, we agree with Smith that a critical factual conflict exists in the record that\\n\\nrequires us to remand for an evidentiary hearing. Cf. Milton v. Miller, 744 F.3d 660,\\n\\n673 (10th Cir. 2014) (remanding for evidentiary hearing because “disputed issues of\\n\\nfact exist[ed] that preclude[d] us from completing our own de novo review” of\\n\\npetitioner’s IAC claim). The state agrees that if we find a conflict in the record,\\n\\nremand is the proper remedy. But it argues that there isn’t a conflict and that the\\n\\nrecord clearly establishes Smith isn’t entitled to relief on either the First or Second\\n\\nIAC Claims. For the reasons explained below, we reject the state’s contention that\\n\\nthe record is clear, and we remand for an evidentiary hearing.\\n\\n The state argues the record clearly demonstrates that the prosecution never\\n\\noffered Smith a 20-year plea deal—and as such, any IAC claim premised on Smith’s\\n\\nfirst attorney not conveying a 20-year offer to Smith necessarily fails. We disagree\\n\\nwith the state’s interpretation of the record. Most obviously, the record shows that the\\n\\nprosecutor told the trial court that the state offered Smith a 20-year plea deal. The\\n\\nstate concedes that the record “irrefutabl[y]” shows the prosecutor referenced a 20-\\n\\n 16\\n\\fyear plea deal. Aplee. Br. 38. But it insists the prosecutor qualified that statement\\n\\nwith a “clarif[ying]” phrase—i.e., “if I remember correctly”—and thus introduced\\n\\nsome ambiguity into the matter. Id. (quoting R. 90). But the state takes the\\n\\nprosecutor’s qualification out of context. In informing the trial court about the earlier\\n\\nplea deal, the prosecutor said it “was 20 years, and, if I remember correctly, a\\n\\ndismissal against [Smith’s] co-defendant.” R. 90 (emphasis added). Given the\\n\\nphrasing of this statement, the clearest interpretation is that the prosecutor meant to\\n\\nquestion his memory of the offer’s second component—the dismissal against Smith’s\\n\\ncodefendant—and not the length of the sentence the state offered to recommend.\\n\\n Further, the state’s assertion that the record clearly shows the state never\\n\\noffered Smith a 20-year deal ignores what Smith’s second attorney said to the\\n\\nsentencing court: she agreed that the prosecutor’s description of the 20-year offer “at\\n\\nleast coincide[d] with [her] memory.” Id. Likewise, the state’s position ignores\\n\\nSmith’s allegation that his second attorney told him that the state’s 20-year offer had\\n\\nlapsed. Yes, the state points to a letter from Smith’s first attorney in which he says\\n\\nthe state only offered Smith a 25-year sentence, which Smith rejected. But at best,\\n\\nthis letter creates a conflict in the record about whether the state offered Smith a 20-\\n\\nyear sentence or a 25-year sentence; it doesn’t conclusively establish that no 20-year\\n\\noffer existed.\\n\\n Indeed, we find that the record reasonably suggests at least three possibilities:\\n\\n(1) the state offered Smith a 25-year sentence, which Smith rejected, and then the\\n\\nstate offered Smith a 20-year sentence, which Smith’s first attorney failed to\\n\\n 17\\n\\fcommunicate to him; (2) the state offered Smith a 20-year sentence, but Smith’s first\\n\\nattorney mistakenly told Smith the state offered him a 25-year sentence; or (3) the\\n\\nstate only offered Smith a 25-year sentence, which Smith’s first attorney properly\\n\\ncommunicated to Smith. Only an evidentiary hearing can resolve what actually\\n\\noccurred. Because the merits of both the First and Second IAC Claims hinge on that\\n\\nresolution, we remand for an evidentiary hearing.\\n\\n Conclusion\\n\\n We find that the Third IAC Claim has merit and establishes cause to overcome any\\n\\nprocedural default of the First and Second IAC Claims. The district court erred in\\n\\nconcluding otherwise. Further, at this stage of the proceedings, Smith has established\\n\\nprejudice resulting from the constitutional violations he alleges in the First and Second\\n\\nIAC Claims. See Davila, 137 S. Ct. at 2065. We therefore conclude that Smith has shown\\n\\nboth cause and prejudice to overcome any procedural default of those two claims. But\\n\\nbecause unresolved factual issues preclude us from resolving the merits of these claims,\\n\\nwe reverse and remand to the district court with directions to conduct an evidentiary\\n\\nhearing and to subsequently review the First and Second IAC Claims on the merits.\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1868,"cells":{"id":{"kind":"number","value":4614428,"string":"4,614,428"},"name":{"kind":"string","value":"John L. ROTH; Deanne M. Roth, Petitioners - Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee."},"name_abbreviation":{"kind":"string","value":"Roth v. C.I.R."},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"18-9006"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Lucero, Bacharach, McHugh\", \"parties\": \"\", \"opinions\": [{\"author\": \"McHUGH\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n JOHN L. ROTH; DEANNE M. ROTH,\\n\\n Petitioners - Appellants,\\n\\n v. No. 18-9006\\n\\n COMMISSIONER OF INTERNAL\\n REVENUE,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States Tax Court\\n (CIR No. 005544-12)\\n _________________________________\\n\\nJames R. Walker, Lewis Roca Rothgerber Christie LLP, Denver, Colorado, for\\nPetitioners - Appellants.\\n\\nBethany B. Hauser, Tax Division Attorney (Richard E. Zuckerman, Principal Deputy\\nAssistant Attorney General, and Bruce R. Ellisen, Tax Division Attorney, with her on the\\nbrief), Department of Justice, Washington, DC, for Respondent - Appellee.\\n _________________________________\\n\\nBefore LUCERO, BACHARACH, and McHUGH, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\n\\n The Roths appeal from a decision of the Tax Court imposing a 40% penalty for\\n\\ntheir gross misstatement of the value of a conservation easement they donated to a\\n\\nland trust in Colorado. The Roths primarily contend that, before imposing the\\n\\fpenalty, the IRS failed to obtain written, supervisory approval for its “initial\\n\\ndetermination” of a penalty assessment as required by I.R.C. § 6751(b). The Roths\\n\\nalso seek a deduction in 2007 for repayments they made on the proceeds from their\\n\\nsale of tax credits generated by their donation of a separate conservation easement in\\n\\n2006. We disagree on both counts and therefore affirm the judgment of the Tax\\n\\nCourt.\\n\\n I. BACKGROUND\\n\\n In 2007, John and Deanne Roth donated a conservation easement (“the 2007\\n\\nEasement”) encumbering 40 acres of land they owned in Prowers County, Colorado\\n\\nto the Colorado Natural Land Trust. The 2007 Easement relinquished the Roths’\\n\\nrights to, among other things, mine gravel from the subject property.1\\n\\n On their 2007 income tax return, the Roths valued the 2007 Easement at\\n\\n$970,000 and claimed a charitable-contribution deduction based on that amount.\\n\\nBecause they could not make use of the entire claimed value as a deduction in 2007,\\n\\nthe Roths claimed a carryover contribution on their 2008 tax return based on the\\n\\nunused portion of the $970,000.\\n\\n\\n\\n\\n 1\\n The Roths’ case is one of the so-called “gravel-pit cases” in which Colorado\\ntaxpayers claimed large deductions based on the appraisal and donation of\\nconservation easements prohibiting the mining of gravel on what had historically\\nbeen farmland. The IRS later determined these easements to be effectively worthless\\n(or worth drastically less than the taxpayers claimed) because the subject farmland\\nwas more valuable as farmland than it would be if mined for gravel. Esgar Corp. v.\\nComm’r, 744 F.3d 648, 658 (10th Cir. 2014).\\n 2\\n\\f In 2011, the IRS audited the Roths’ tax returns for 2007, 2008, and 2009. In\\n\\nthe course of this evaluation, the IRS hired an appraiser to provide an opinion of the\\n\\nfair market value of the 2007 Easement. The appraiser determined the easement to be\\n\\nworthless, although the parties later stipulated to a value of $40,000.\\n\\n After the audit, an IRS Revenue Agent, Denise Soss (“RA Soss”), issued the\\n\\nRoths a set of Income Tax Discrepancy Adjustments. Based on the revaluation of the\\n\\n2007 Easement, RA Soss determined the Roths were subject to a “gross valuation\\n\\nmisstatement” penalty under I.R.C. § 6662(h), which allows for a 40% penalty on\\n\\nunpaid taxes when the claimed value of property exceeds its actual value by 200% or\\n\\nmore. See I.R.C. §§ 6662(e)(1)(A), (h). RA Soss’s “Group Manager” signed a “Civil\\n\\nPenalty Approval Form,” approving the gross valuation misstatement penalty. RA\\n\\nSoss informed the Roths by letter of the proposed 40% penalty under § 6662(h).\\n\\n The Roths filed a protest in response to the letter, seeking administrative\\n\\nreview of RA Soss’s proposed 40% penalty with the Internal Revenue Service Office\\n\\nof Appeals. The IRS granted review and assigned the Roths’ case to Appeals Officer\\n\\nMark Kawakami (“AO Kawakami”). AO Kawakami produced a memorandum\\n\\nconcluding that “all issues including [RA Soss’s proposed] penalties should be fully\\n\\nsustained for the government” with respect to the 2007 Easement. App. at 16.\\n\\n Despite AO Kawakami’s apparent agreement with RA Soss’s proposal,\\n\\nhowever, his memo detailed a set of revised penalties owed by the Roths for 2007\\n\\nand 2008. For each year, AO Kawakami’s memo recites the Roths’ tax obligation and\\n\\nthe 40% penalty on that obligation proposed by RA Soss, but then it also states a\\n\\n 3\\n\\frevised tax obligation and a revised penalty calculated at 20% of that obligation. An\\n\\n“Explanation of Items” attached to AO Kawakami’s memo explains that the Roths\\n\\nare liable for an “accuracy-related” penalty under I.R.C. § 6662(a) amounting to 20%\\n\\nof their unpaid taxes. App. at 19. Nowhere in the memo does AO Kawakami explain\\n\\nthe IRS’s pivot from a 40% penalty under § 6662(h) to a 20% penalty under\\n\\n§ 6662(a). In fact, the memo states RA Soss’s proposed penalties were “[n]ot\\n\\nsustained in full by [the] Appeals [Office] due to a computational adjustment only.”\\n\\nApp. at 14. The IRS, for its part, explains the change as a clerical error. Whatever the\\n\\nreason, AO Kawakami’s supervisor signed the memo, indicating her approval of the\\n\\nrevised 20% penalty.\\n\\n The IRS then sent the Roths a notice of deficiency setting forth the revised\\n\\n20% penalty. The notice makes no mention of a 40% penalty under § 6662(h), and\\n\\nthe pages attached to the notice clearly calculate a 20% penalty on the Roths’ unpaid\\n\\ntaxes for 2007 and 2008 under § 6662(a). The notice also informed the Roths of their\\n\\nright to file a petition with the United States Tax Court contesting the IRS’s\\n\\ndeterminations, which the Roths did in 2012. In response to the Roths’ petition, the\\n\\nIRS filed an answer re-asserting the Roths’ liability for “a [40%] gross valuation\\n\\nmisstatement penalty under I.R.C § 6662(a) & (h)[2] for each of the 2007 and 2008\\n\\n\\n\\n 2\\n Strictly speaking, § 6662(h) modifies § 6662(a) by providing that, when a\\ngross valuation misstatement results in underpayment of taxes, “subsection (a) shall\\nbe applied with respect to [unpaid taxes] by substituting ‘40 percent’ for ‘20\\npercent.’” I.R.C. § 6662(h)(1). For that reason, 40% penalties might be said to arise\\nunder § 6662(a) and (h), while 20% penalties arise under only § 6662(a). For ease of\\n 4\\n\\ftaxable years.” App. at 84. Sara Barkley, Senior Counsel for the IRS (“SC Barkley”),\\n\\nand her supervisor Robert Varra, Associate Area Counsel (“AAC Varra”), both\\n\\nsigned the IRS’s answer.\\n\\n Separately, in 2006, the Roths donated another conservation easement (the\\n\\n“2006 Easement”) on a different forty-acre parcel of land to the Noah Land\\n\\nConservation. In exchange for this donation, the Roths received $260,000 of tax\\n\\ncredits that they later sold for $195,000. They reported the proceeds from this sale on\\n\\ntheir 2007 return. As a result of litigation in Colorado state courts, the Roths repaid\\n\\nportions of these proceeds in 2013 and 2014.\\n\\n In 2016, the Roths and the IRS agreed to a set of stipulated facts with respect\\n\\nto the 2006 and 2007 Easements and submitted two questions to the Tax Court for\\n\\ndecision: first, whether the IRS complied with § 6751(b)’s written-approval\\n\\nrequirement before attempting to impose a gross valuation misstatement penalty; and\\n\\nsecond, whether I.R.C. § 1341 or a similar doctrine entitles the Roths to a deduction\\n\\nin 2007 for the repayments they made in 2013 and 2014.\\n\\n The Tax Court entered judgment against the Roths on both counts. With\\n\\nrespect to the 2007 Easement, the Tax Court reasoned that any of three instances in\\n\\nthe Roths’ case could be interpreted as fulfilling § 6751(b)’s “initial determination”\\n\\nwritten-approval requirement. First, RA Soss obtained the written approval of her\\n\\nsupervisor for a 40% penalty at the conclusion of the IRS’s audit. Second, AO\\n\\n\\nreference and simplicity’s sake, however, this opinion refers to 40% penalties under\\n§ 6662(h) and 20% penalties under § 6662(a).\\n 5\\n\\fKawakami obtained written approval from his supervisor supporting his conclusion\\n\\nthat RA Soss’s “proposed penalties [would be] fully sustained for the government,”\\n\\neven though AO Kawakami’s memo and the notice of deficiency actually calculated a\\n\\n20% penalty. Finally, SC Barkley asserted in the IRS’s answer that the Roths should\\n\\nbe liable for a 40% penalty. On this final point, the Tax Court considered itself bound\\n\\nby Graev v. Commissioner (Graev III), 149 T.C. 485 (Dec. 20, 2017), and Chai v.\\n\\nCommissioner, 851 F.3d 190 (2d Cir. 2017), which, together with I.R.C. § 6214(a),\\n\\nallow the IRS to assert additional penalties in an answer to a taxpayer’s petition.\\n\\nWith respect to the 2006 Easement, the Tax Court held that nothing in the I.R.C.\\n\\nentitles the Roths to a deduction in 2007 for repayments made in later years.\\n\\n The Roths timely appealed.\\n\\n II. DISCUSSION\\n\\n Section 6751(b) requires the IRS to obtain written, supervisory approval for its\\n\\n“initial determination” of a penalty assessment. The Roths do not dispute that the IRS\\n\\nobtained written, supervisory approval at every step in the agency’s attempt to\\n\\npenalize them for the misstated value of the 2007 Easement. Nor do they dispute that\\n\\nboth RA Soss and SC Barkley deemed a 40% penalty appropriate or even that a 40%\\n\\npenalty could apply under § 6662(h) to their gross misstatement of the 2007\\n\\nEasement’s value. Rather, the Roths contend that the notice of deficiency produced\\n\\nby the IRS after AO Kawakami’s review is the agency’s initial determination of the\\n\\npenalty under § 6751(b). Because that notice included only a 20% penalty under\\n\\n§ 6662(a), the Roths continue, § 6751(b) now prevents the IRS from attempting to\\n\\n 6\\n\\fimpose anything other than the 20% penalty it “initially determined.”3 In short, the\\n\\nRoths raise a narrow question of statutory construction: whether the statutory notice\\n\\nof deficiency constitutes the IRS’s § 6751(b) initial determination. To answer this\\n\\nquestion, after stating the standard for our review, we consider the meaning of\\n\\n§ 6751(b) generally before applying that meaning to the facts before us.\\n\\n A. Standard of Review\\n\\n We review Tax Court decisions “in the same manner and to the same extent as\\n\\ndecisions of the district courts in civil actions tried without a jury.” 26 U.S.C.\\n\\n§ 7482(a)(1). Our review of the Tax Court’s interpretation of law is de novo. Esgar\\n\\nCorp. v. Comm’r, 744 F.3d 648, 652 (10th Cir. 2014). Although the Tax Court’s\\n\\ndecisions “may not be binding precedents . . . , uniform administration would be\\n\\npromoted by conforming to them where possible,” Dobson v. Comm’r, 320 U.S. 489,\\n\\n502 (1943). Therefore, we consider rulings by the Tax Court on matters of law to be\\n\\npersuasive authority, “especially if consistently followed,” Esgar, 744 F.3d at 652.\\n\\n B. Section 6751(b) Generally\\n\\n When faced with a question of statutory construction, we begin with the\\n\\nlanguage of the statute itself. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242,\\n\\n1244 (10th Cir. 1999). I.R.C § 6751(b)(1) provides:\\n\\n No penalty under this title shall be assessed unless the initial determination of\\n such assessment is personally approved (in writing) by the immediate\\n\\n\\n 3\\n The parties do not dispute that the Roths have a reasonable-cause defense for\\na 20% penalty under § 6662(a), and the IRS concedes that the Roths may not be held\\nliable for such a penalty. See I.R.C. § 6662(c).\\n 7\\n\\f supervisor of the individual making such determination or such higher level\\n official as the Secretary may designate.4\\n\\nUnderstanding § 6751(b)’s plain language requires a review of the process by which\\n\\nthe IRS may assert a penalty and a definition of the key Internal Revenue Code terms\\n\\n“assessment,” “penalty,” “deficiency,” and “determination.”\\n\\n Assessment is “the formal recording and establishment of a taxpayer’s\\n\\nliability, fixing the amount owed by the taxpayer.” Keller Tank Servs. II, Inc. v.\\n\\nComm’r, 854 F.3d 1178, 1183–84 (10th Cir. 2017); see also United States v. Galletti,\\n\\n541 U.S. 114, 122 (“[T]he term ‘assessment’ refers to little more than the calculation\\n\\nor recording of a tax liability.”). Assessing a taxpayer’s liability “triggers the IRS’s\\n\\nability to collect on the liability,” whether the liability stems from a “penalty or [a]\\n\\ndeficiency.” Keller Tank, 854 F.3d at 1184; see also Chai, 851 F.3d at 218\\n\\n(“[Assessment is,] in essence . . . the last of a number of steps required before the\\n\\nIRS can collect a [liability] . . . .”).\\n\\n The term “penalty,” for purposes of § 6751, includes “any addition to tax or\\n\\nany additional amount.” I.R.C. § 6751(c). Penalties are “imposed on taxpayers by the\\n\\nIRS to encourage compliance with tax laws.” Keller Tank, 854 F.3d at 1183. A\\n\\n“deficiency,” in turn, is “the amount by which the tax value imposed by the IRS\\n\\nexceeds the amount reported by the taxpayer on its return.” Id.\\n\\n\\n\\n\\n 4\\n I.R.C. § 6751(b)(2) details certain exceptions to the written approval\\nrequirement, including penalties “automatically calculated through electronic\\nmeans.” The parties agree that these exceptions do not apply here.\\n 8\\n\\f Before a liability related to a deficiency or penalty may be assessed, the\\n\\nCommissioner must “determine” whether one exists in the first place. See I.R.C.\\n\\n§ 6201(a) (giving the IRS Commissioner authority to “make the inquiries,\\n\\ndeterminations, and assessments of all taxes (including interest, additional amounts,\\n\\nadditions to the tax, and assessable penalties) imposed by [the Internal Revenue\\n\\nCode].”) (emphasis added). Once the Commissioner determines a taxpayer’s liability,\\n\\nthe Commissioner may send a notice of deficiency (including any applicable penalty)\\n\\nto the taxpayer. See I.R.C. § 6212(a); Graev III, 149 T.C. at 499 (holding IRS carried\\n\\n“burden to show that section 6751(b) is satisfied with respect to the . . . penalties as\\n\\nasserted in the notice of deficiency”). After receiving such notice, the taxpayer has\\n\\nninety days to file a petition with the Tax Court contesting the IRS’s determination.\\n\\nI.R.C. § 6213(a). The Tax Court then has jurisdiction in a so-called “deficiency\\n\\nproceeding” to “redetermine the correct amount of the deficiency . . . and to\\n\\ndetermine whether any additional amount, or any addition to the tax should be\\n\\nassessed, if claim therefor is asserted by the Secretary at or before the hearing or a\\n\\nrehearing.” I.R.C. § 6214(a). Once a deficiency proceeding begins, the IRS generally\\n\\nmay not assess any liability “until the decision of the Tax Court has become final.”\\n\\nI.R.C. § 6213(a).\\n\\n Given these accepted definitions, § 6751(b)’s phrase “the initial determination\\n\\nof such assessment” poses an obstacle to plain-language interpretation. The Code\\n\\ndoes not require, or even contemplate, that “assessments” will be “determined.” See\\n\\nChai, 851 F.3d at 218–19 (“[O]ne can determine a deficiency, and whether to make\\n\\n 9\\n\\fan assessment, but one cannot ‘determine’ an ‘assessment.’” (quoting Graev v.\\n\\nCommissioner (Graev II), 147 T.C. 16, No. 30638-08, 2016 WL 6996650 (2016) at\\n\\n*31 (Gustafson, J., dissenting) (internal citations omitted))). Indeed, the IRS has\\n\\nseemingly little discretion to make any determination with respect to the assessment\\n\\nof a liability. See I.R.C. § 6213(c) (explaining that, if a taxpayer does not file a\\n\\npetition contesting a notice of deficiency, the liability “shall be assessed”) (emphasis\\n\\nadded); I.R.C. § 6215(a) (explaining that once a decision of the Tax Court has\\n\\nbecome final “the entire amount redetermined as the deficiency . . . shall be\\n\\nassessed”) (emphasis added). And because assessment is the final step in a deficiency\\n\\nproceeding, occurring after the IRS has determined, and in some cases the Tax Court\\n\\nhas redetermined, a taxpayer’s liability, § 6751(b)’s plain language leaves open to\\n\\ndebate when an initial determination takes place and whether that determination\\n\\npertains to the IRS’s early decision to seek a penalty or the later affirmance of that\\n\\npenalty and its resulting assessment.\\n\\n Accordingly, we agree with the Second Circuit that the plain language of\\n\\n§ 6751(b) is ambiguous, see Chai, 851 F.3d at 218, and we turn “to the legislative\\n\\nhistory and the underlying public policy of the statute” as indicators of the\\n\\ncongressional intent lurking behind § 6751(b)’s words. United States v. Manning, 526\\n\\nF.3d 611, 614 (10th Cir. 2008) (quotation marks omitted)\\n\\n Congress added § 6751 to the I.R.C. with the Internal Revenue Service\\n\\nRestructuring and Reform Act of 1998. Pub. Law. No. 105–206, 112 Stat. 685.\\n\\nSection 6751 requires two things of the IRS: first, the agency must explain any\\n\\n 10\\n\\fpenalty to be assessed and that penalty’s computation in a notice to the taxpayer, see\\n\\nI.R.C. § 6751(a); and second, the agency must secure written, supervisory approval\\n\\nfor its initial determination of “such assessment,” see I.R.C. § 6751(b). The Senate\\n\\nFinance Committee’s report on § 6751 sheds light on the purpose of these additions\\n\\nto the I.R.C. The report expresses the Committee’s concern that “[prior] law d[id] not\\n\\nrequire the IRS to show how penalties are computed,” and in some cases, penalties\\n\\ncould be “imposed without supervisory approval.” S. Rep. No. 105-174, at 65 (1998).\\n\\nAs reasons for the change, the report states “[t]he Committee believes that taxpayers\\n\\nare entitled to an explanation of the penalties imposed upon them. The Committee\\n\\nbelieves that penalties should only be imposed where appropriate and not as a\\n\\nbargaining chip.” Id.\\n\\n Evidently, Congress passed § 6751 to “clamp down on a perceived IRS\\n\\npractice.” Williams v. Comm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3,\\n\\n2018); see also Chai, 851 F.3d at 219 (“[Section 6751] was meant to prevent IRS\\n\\nagents from threatening unjustified penalties to encourage taxpayers to settle.”).\\n\\nRequiring IRS employees to obtain supervisory approval for penalties under\\n\\n§ 6751(b) (and to include computations of those penalties in a notice to the taxpayer\\n\\nunder § 6751(a)) could conceivably “prevent the IRS from improperly using penalties\\n\\n. . . to coerce settlements.” Williams, 2018 WL 3301501 at *5; see also Graev III,\\n\\n149 T.C. at 500 (Lauber, J., concurring) (“[Congress] desired to prevent rogue IRS\\n\\npersonnel from using penalties as leverage to extract concessions from taxpayers.”).\\n\\nReasoning from this purpose, the Tax Court and Second Circuit have interpreted\\n\\n 11\\n\\f§ 6751(b) as requiring the IRS’s “initial penalty determination” (rather than any\\n\\ndetermination with respect to the assessment itself) to receive written, supervisory\\n\\napproval. See Chai, 851 F.3d at 221; see also Graev III, 149 T.C. at 498. But see\\n\\nGraev III, 149 T.C. at 516 (Holmes, J., concurring in the result) (advocating a\\n\\ntextualist interpretation of § 6751(b) as “a restriction on ‘assessment’” and opining\\n\\nthat, because assessment cannot occur until a Tax Court decision becomes final,\\n\\n“compliance with section 6751(b)(1) is not ripe for review in a deficiency setting\\n\\nbecause the penalties have not yet been ‘assessed’”).\\n\\n Thus equipped with an understanding of § 6751(b)’s plain language and other\\n\\nindicators of Congress’s intent, we apply § 6751(b) to the facts before us.\\n\\n C. Section 6751(b) Applied\\n\\n The Roths can succeed on this appeal only if § 6751(b), read in light of its\\n\\nlegislative history and underlying public policy, restricts the IRS’s “initial\\n\\ndetermination” in this case to the 20% penalty specified in the notice of deficiency.\\n\\nThis is because every other IRS employee to consider the Roths’ case determined,\\n\\nand received written, supervisory approval of, a 40% penalty under § 6662(h). For\\n\\nthe reasons discussed below, we conclude § 6751(b) does not so restrict the meaning\\n\\nof “initial determination,” and the IRS may assess a 40% penalty despite its inclusion\\n\\nof a 20% penalty in the Roths’ notice of deficiency.\\n\\n First, nothing in the broader statutory scheme requires the IRS to include its\\n\\n“initial determination” in a notice of deficiency. The Roths suggest we should\\n\\ninterpret § 6751(b) as a “harmonious whole” with other provisions of the I.R.C.,\\n\\n 12\\n\\fincluding § 6212(a). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,\\n\\n133 (2000) (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). We\\n\\nagree. But reading § 6751(b) in context cuts against, not for, the Roths’ position. For\\n\\nexample, § 6212(a) provides that, if the Commissioner determines a deficiency, “he\\n\\nis authorized to send notice of such deficiency” to the taxpayer. I.R.C. § 6212(a). It\\n\\ndoes not provide that the notice is or must contain the IRS’s determination, and in\\n\\nfact § 6212(a) appears to contemplate that the Commissioner’s determination will\\n\\nprecede the sending of a notice. Id. (providing “[i]f the [Commissioner] determines\\n\\nthat there is a deficiency” then “he is authorized to send notice . . . .”) (emphasis\\n\\nadded). Likewise, I.R.C. § 6214(a) explicitly allows the Tax Court to redetermine a\\n\\ndeficiency and any additional penalties stated in the notice “if claim therefor is\\n\\nasserted by the [Commissioner] at or before the hearing or a rehearing.” Because a\\n\\nTax Court proceeding necessarily occurs after the taxpayer has received a notice of\\n\\ndeficiency, see I.R.C. § 6213(a), reading § 6751(b) in harmony with § 6214(a)\\n\\nsuggests some initial determinations of penalty assessments will not be contained in a\\n\\nstatutory notice of deficiency.\\n\\n Second, the IRS’s “initial determination” of a 40% penalty under § 6662(h) in\\n\\nthe Roths’ case could, consistent with the statute’s language, be said to rest with\\n\\neither RA Soss or SC Barkley.5 As the first IRS employee to find a 40% penalty\\n\\n\\n 5\\n The Tax Court concluded that AO Kawakami’s statement “[RA Soss’s]\\nproposed penalties are fully sustained for the government” constituted an initial\\ndetermination that a 40% penalty should apply for purposes of § 6751(b). See App. at\\n190, 195. As discussed above, a fuller reading of the memo produced by AO\\n 13\\n\\funder § 6662(h) applicable to the Roths’ valuation misstatement, RA Soss represents\\n\\na logical “initial determination”-maker. See Webster’s New World College\\n\\nDictionary 735 (4th ed. 2010) (defining “initial” as “having to do with, indicating, or\\n\\noccurring at the beginning”); Black’s Law Dictionary 544 (10th ed. 2014) (offering\\n\\n“[t]he first determination made by the Social Security Administration of a person’s\\n\\neligibility for benefits” as an example of an “initial determination”). Although the\\n\\nRoths object that RA Soss’s conclusions are merely “proposed,” and therefore cannot\\n\\nbe determinative, the Tax Court persuasively rejected a similar argument in Graev\\n\\nIII, observing that “[a]ny ‘initial determination’ governed by section 6751(b),\\n\\nwhether made by an examining agent or a chief counsel attorney, is mere advice until\\n\\nit receives the requisite supervisory approval.” 149 T.C. at 496 (explaining “[t]he\\n\\ndistinction petitioners seek to draw between ‘advice’ and an ‘initial determination’\\n\\nlacks any firm basis in the statute”).\\n\\n And if RA Soss did not make the initial determination, SC Barkley’s answer to\\n\\nthe Roths’ petition in Tax Court, signed by her immediate supervisor AAC Varra and\\n\\nasserting the Roths’ liability for a 40% penalty under § 6662(h), satisfied § 6751(b).\\n\\nThe Tax Court in Graev III specifically held that a § 6751(b) initial determination\\n\\ncan take the form of advice from an IRS attorney. Id. And although the Roths argue\\n\\nIRS counsel have no authority to make initial determinations (based on various\\n\\n\\nKawakami and signed by his supervisor reveals, to the contrary, that AO Kawakami\\nhad determined to apply a 20% penalty under § 6662(a). But we need not decide\\nwhether such an inconsistent document can satisfy § 6751(b)’s requirements because\\nwe conclude § 6751(b) could have been satisfied by either RA Soss or SC Barkley.\\n 14\\n\\finternal IRS guidance documents), these arguments lack statutory support. Nothing in\\n\\nthe I.R.C. delimits the employees who may make § 6751(b) initial determinations.\\n\\nSection 6751(b) itself restricts only which IRS officials may personally approve an\\n\\ninitial determination, to the “immediate supervisor of the individual making such\\n\\ndetermination or such higher level official as the Secretary [through the\\n\\nCommissioner] may designate.” I.R.C. § 6751(b). And the internal IRS guidance\\n\\ndocuments on which the Roths rely do not have the force of law. See Rhone-Poulenc\\n\\nSurfactants & Specialties, L.P. v. Comm’r, 114 T.C. 533, 543 n.16 (2000) (“The\\n\\nInternal Revenue Manual does not have the force of law.”).\\n\\n As discussed above, § 6214(a) expressly contemplates the IRS’s ability to\\n\\nbring claims for “any addition” to a taxpayer’s deficiency in a proceeding before the\\n\\nTax Court. I.R.C. § 6214(a). After the IRS asserts such a claim, as SC Barkley did\\n\\nhere, the Tax Court has “jurisdiction to redetermine the correct amount of the\\n\\ndeficiency even if the amount so redetermined” exceeds that in the “notice . . . mailed\\n\\nto the taxpayer,” including “any additional amount, or any addition to the tax.” Id.\\n\\nNumerous cases decided before and after the passage of § 6751 have upheld the Tax\\n\\nCourt’s “jurisdiction to consider a claim by the Commissioner for an increased\\n\\ndeficiency and penalties asserted at or before the hearing or a rehearing.” Kramer v.\\n\\nComm’r, 104 T.C.M. (CCH) 38 (T.C. 2012); see, e.g., Powell v. Comm’r, 581 F.3d\\n\\n1267, 1271 (10th Cir. 2009); Ferrill v. Comm’r, 684 F.2d 261, 265 (3d Cir. 1982);\\n\\nHenningsen v. Comm’r, 243 F.2d 954, 959 (4th Cir. 1957). We agree with the IRS\\n\\nthat adopting the Roths’ proposed interpretation of § 6751(b) would effectively\\n\\n 15\\n\\frepeal the Tax Court’s well-settled jurisdiction to consider claims for new penalties\\n\\nasserted by the IRS in a deficiency proceeding.6\\n\\n Furthermore, the Roths provide no support for a crucial premise of their\\n\\nargument—that the IRS may make only one “initial determination” in a given case.\\n\\nOnce the IRS sent a notice of deficiency determining a 20% penalty, the Roths\\n\\ncontend, no other penalty could ever be assessed consistent with § 6751(b). But even\\n\\nif we were to agree with the Roths, set aside RA Soss’s 40% penalty as merely\\n\\n“proposed,” and conclude that the notice of deficiency constituted an “initial\\n\\ndetermination” that a 20% penalty under § 6662(a) should apply, it is not clear why\\n\\nthe IRS (in this case, SC Barkley) could not subsequently make another “initial\\n\\ndetermination” (with written, supervisory approval) that a different, 40% penalty\\n\\nshould apply under § 6662(h). Each of these determinations would appear to be\\n\\n“initial” with respect to the actual penalty sought, whether under § 6662(a) or\\n\\n\\n 6\\n The Roths concede that “[n]owhere in the legislative history of [§ 6751] is\\nthere any hint that Congress intended to modify the jurisdictional award set forth in\\nSection 6214(a).” Reply Br. at 12. Nevertheless, their proposed reading of § 6751(b)\\namounts to an argument that the Tax Court may not determine penalties asserted for\\nthe first time in an IRS answer, which the tax court plainly has jurisdiction to do\\nunder § 6214(a). To the extent the Roths effectively argue implied repeal, the text of\\n§ 6751(b) does not exhibit a manifest intent to repeal § 6214(a) or any other\\nprovision of the I.R.C., and no court has understood it to do so. See Williams v.\\nComm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3, 2018) (holding\\n§ 6751(b) did not impliedly repeal the Tax Court’s power to impose penalties on its\\nown motion and without supervisory approval because “[s]ection 6751(b)(1) is\\nclearly not intended as a mechanism to restrain the Tax Court”); see also In re\\nStephens, 704 F.3d 1279, 1287 (10th Cir. 2013) (“Where a party contends ‘that\\nlegislative action changed settled law,’ that party ‘has the burden of showing that the\\nlegislature intended such a change.’” (quoting Green v. Bock Laundry Mach. Co.,\\n490 U.S. 504, 521 (1989)).\\n 16\\n\\f§ 6662(h). Notably, this reading of the statute harmonizes § 6751(b)’s initial\\n\\ndetermination requirement with § 6214(a)’s grant of jurisdiction to the Tax Court to\\n\\nconsider new penalties asserted by IRS counsel in a deficiency proceeding.\\n\\n Finally, adopting the Roths’ reading of § 6751(b) would put us out of step with\\n\\nthe Tax Court’s jurisprudence in cases appealable to other circuits. See Golsen v.\\n\\nComm’r, 54 T.C. 742, 757 (1970) (holding the Tax Court must “follow a Court of\\n\\nAppeals decision which is squarely [o]n point where appeal from [its] decision lies to\\n\\nthat Court of Appeals and to that court alone”). While we are not bound by the Tax\\n\\nCourt’s decisions, we conform to them where possible in the interest of “uniform\\n\\nadministration.” Dobson, 320 U.S. at 502.\\n\\n Conformity in this instance is not only possible but preferable because it\\n\\nharmonizes various provisions of the statute. Section 6751(b) does not limit the IRS’s\\n\\n“initial determination” with respect to a penalty assessment to the penalty included in\\n\\nthe statutory notice of deficiency.\\n\\n D. Deductions in Past Years\\n\\n The Roths also claim they should be entitled to a deduction in 2007 for\\n\\nrepayments made in 2013 and 2014 on proceeds from the sale of tax credits generated\\n\\nby their donation of the 2006 Easement. The Roths reported gains from this sale in\\n\\n2007, but repaid portions in 2013 and 2014 following litigation in Colorado state\\n\\ncourts.\\n\\n Nothing entitles the Roths to a deduction in 2007 for repayments made years\\n\\nlater.\\n\\n 17\\n\\f As the Tax Court noted, I.R.C. § 1341 provides relief to taxpayers who include\\n\\nan amount received under a claim of right in their income but then repay that amount\\n\\nin a later tax year. If a taxpayer satisfies § 1341’s requirements, then the taxpayer\\n\\nmay take a deduction in the year repayment was made or reduce his taxable income\\n\\nfor the year of repayment by the amount his taxes increased in the year he first\\n\\nclaimed the income. See I.R.C. § 1341 (a)(1)–(3), (4), (5). Congress passed § 1341 to\\n\\n“alleviate some of the inequities” caused by application of the “claim-of-right”\\n\\ndoctrine, which requires a taxpayer to report as income earnings received “under a\\n\\nclaim of right . . . even though it may still be claimed that he is not entitled to retain\\n\\nthe money, and even though he may still be adjudged liable to restore its equivalent.”\\n\\nU.S. v. Skelly Oil, 394 U.S. 678, 680–81 (quoting N. Am. Oil Consol. v. Burnet, 286\\n\\nU.S. 417, 424 (1932)); see also United States v. Lewis, 340 U.S. 590, 590–591 (1951)\\n\\n(disallowing a 1944 tax refund for a taxpayer who received a bonus in 1944 and was\\n\\nrequired to pay it back in 1946).\\n\\n The Roths complain the Tax Court used § 1341 as a “time bar” to disallow\\n\\ntheir 2007 deduction. Aplt. Br. at 39. This is incorrect. Section 1341, as the Tax\\n\\nCourt explained, is a remedy for taxpayers—it eases the harsh application of the\\n\\nclaim-of-right doctrine for qualifying taxpayers by either “reducing taxable income in\\n\\nthe year of [repayment] . . . or by giving a credit in the year of [repayment].”\\n\\nMidAmerican Energy Co. v. Comm’r, 114 T.C. 570, 581 (2000), aff’d, 271 F.3d 740\\n\\n(8th Cir. 2001). Nothing in § 1341 allows a taxpayer to reduce taxable income or take\\n\\na tax credit in a year other than the year of repayment. And without § 1341, the Roths\\n\\n 18\\n\\ffall squarely within the ambit of the claim-of-right doctrine. See Skelly Oil, 394 U.S.\\n\\nat 680–81 (“Should it later appear that the taxpayer was not entitled to keep the\\n\\nmoney . . . he would be entitled to a deduction in the year of repayment; the taxes due\\n\\nfor the year of receipt would not be affected.”). They point to no alternative remedy\\n\\nand no law, statutory or otherwise, that would allow them to take a deduction in 2007\\n\\nfor repayments made in 2013 and 2014.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the decision of the Tax Court.\\n\\n\\n\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391681/\", \"author_raw\": \"McHUGH\"}]}"},"judge1":{"kind":"string","value":"LUCERO"},"judge2":{"kind":"string","value":"BACHARACH"},"judge3":{"kind":"string","value":"MCHUGH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614428/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: John L. ROTH; Deanne M. Roth, Petitioners - Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n JOHN L. ROTH; DEANNE M. ROTH,\n\n Petitioners - Appellants,\n\n v. No. 18-9006\n\n COMMISSIONER OF INTERNAL\n REVENUE,\n\n Respondent - Appellee.\n _________________________________\n\n Appeal from the United States Tax Court\n (CIR No. 005544-12)\n _________________________________\n\nJames R. Walker, Lewis Roca Rothgerber Christie LLP, Denver, Colorado, for\nPetitioners - Appellants.\n\nBethany B. Hauser, Tax Division Attorney (Richard E. Zuckerman, Principal Deputy\nAssistant Attorney General, and Bruce R. Ellisen, Tax Division Attorney, with her on the\nbrief), Department of Justice, Washington, DC, for Respondent - Appellee.\n _________________________________\n\nBefore LUCERO, BACHARACH, and McHUGH, Circuit Judges.\n _________________________________\n\nMcHUGH, Circuit Judge.\n _________________________________\n\n\n The Roths appeal from a decision of the Tax Court imposing a 40% penalty for\n\ntheir gross misstatement of the value of a conservation easement they donated to a\n\nland trust in Colorado. The Roths primarily contend that, before imposing the\n\fpenalty, the IRS failed to obtain written, supervisory approval for its “initial\n\ndetermination” of a penalty assessment as required by I.R.C. § 6751(b). The Roths\n\nalso seek a deduction in 2007 for repayments they made on the proceeds from their\n\nsale of tax credits generated by their donation of a separate conservation easement in\n\n2006. We disagree on both counts and therefore affirm the judgment of the Tax\n\nCourt.\n\n I. BACKGROUND\n\n In 2007, John and Deanne Roth donated a conservation easement (“the 2007\n\nEasement”) encumbering 40 acres of land they owned in Prowers County, Colorado\n\nto the Colorado Natural Land Trust. The 2007 Easement relinquished the Roths’\n\nrights to, among other things, mine gravel from the subject property.1\n\n On their 2007 income tax return, the Roths valued the 2007 Easement at\n\n$970,000 and claimed a charitable-contribution deduction based on that amount.\n\nBecause they could not make use of the entire claimed value as a deduction in 2007,\n\nthe Roths claimed a carryover contribution on their 2008 tax return based on the\n\nunused portion of the $970,000.\n\n\n\n\n 1\n The Roths’ case is one of the so-called “gravel-pit cases” in which Colorado\ntaxpayers claimed large deductions based on the appraisal and donation of\nconservation easements prohibiting the mining of gravel on what had historically\nbeen farmland. The IRS later determined these easements to be effectively worthless\n(or worth drastically less than the taxpayers claimed) because the subject farmland\nwas more valuable as farmland than it would be if mined for gravel. Esgar Corp. v.\nComm’r, 744 F.3d 648, 658 (10th Cir. 2014).\n 2\n\f In 2011, the IRS audited the Roths’ tax returns for 2007, 2008, and 2009. In\n\nthe course of this evaluation, the IRS hired an appraiser to provide an opinion of the\n\nfair market value of the 2007 Easement. The appraiser determined the easement to be\n\nworthless, although the parties later stipulated to a value of $40,000.\n\n After the audit, an IRS Revenue Agent, Denise Soss (“RA Soss”), issued the\n\nRoths a set of Income Tax Discrepancy Adjustments. Based on the revaluation of the\n\n2007 Easement, RA Soss determined the Roths were subject to a “gross valuation\n\nmisstatement” penalty under I.R.C. § 6662(h), which allows for a 40% penalty on\n\nunpaid taxes when the claimed value of property exceeds its actual value by 200% or\n\nmore. See I.R.C. §§ 6662(e)(1)(A), (h). RA Soss’s “Group Manager” signed a “Civil\n\nPenalty Approval Form,” approving the gross valuation misstatement penalty. RA\n\nSoss informed the Roths by letter of the proposed 40% penalty under § 6662(h).\n\n The Roths filed a protest in response to the letter, seeking administrative\n\nreview of RA Soss’s proposed 40% penalty with the Internal Revenue Service Office\n\nof Appeals. The IRS granted review and assigned the Roths’ case to Appeals Officer\n\nMark Kawakami (“AO Kawakami”). AO Kawakami produced a memorandum\n\nconcluding that “all issues including [RA Soss’s proposed] penalties should be fully\n\nsustained for the government” with respect to the 2007 Easement. App. at 16.\n\n Despite AO Kawakami’s apparent agreement with RA Soss’s proposal,\n\nhowever, his memo detailed a set of revised penalties owed by the Roths for 2007\n\nand 2008. For each year, AO Kawakami’s memo recites the Roths’ tax obligation and\n\nthe 40% penalty on that obligation proposed by RA Soss, but then it also states a\n\n 3\n\frevised tax obligation and a revised penalty calculated at 20% of that obligation. An\n\n“Explanation of Items” attached to AO Kawakami’s memo explains that the Roths\n\nare liable for an “accuracy-related” penalty under I.R.C. § 6662(a) amounting to 20%\n\nof their unpaid taxes. App. at 19. Nowhere in the memo does AO Kawakami explain\n\nthe IRS’s pivot from a 40% penalty under § 6662(h) to a 20% penalty under\n\n§ 6662(a). In fact, the memo states RA Soss’s proposed penalties were “[n]ot\n\nsustained in full by [the] Appeals [Office] due to a computational adjustment only.”\n\nApp. at 14. The IRS, for its part, explains the change as a clerical error. Whatever the\n\nreason, AO Kawakami’s supervisor signed the memo, indicating her approval of the\n\nrevised 20% penalty.\n\n The IRS then sent the Roths a notice of deficiency setting forth the revised\n\n20% penalty. The notice makes no mention of a 40% penalty under § 6662(h), and\n\nthe pages attached to the notice clearly calculate a 20% penalty on the Roths’ unpaid\n\ntaxes for 2007 and 2008 under § 6662(a). The notice also informed the Roths of their\n\nright to file a petition with the United States Tax Court contesting the IRS’s\n\ndeterminations, which the Roths did in 2012. In response to the Roths’ petition, the\n\nIRS filed an answer re-asserting the Roths’ liability for “a [40%] gross valuation\n\nmisstatement penalty under I.R.C § 6662(a) & (h)[2] for each of the 2007 and 2008\n\n\n\n 2\n Strictly speaking, § 6662(h) modifies § 6662(a) by providing that, when a\ngross valuation misstatement results in underpayment of taxes, “subsection (a) shall\nbe applied with respect to [unpaid taxes] by substituting ‘40 percent’ for ‘20\npercent.’” I.R.C. § 6662(h)(1). For that reason, 40% penalties might be said to arise\nunder § 6662(a) and (h), while 20% penalties arise under only § 6662(a). For ease of\n 4\n\ftaxable years.” App. at 84. Sara Barkley, Senior Counsel for the IRS (“SC Barkley”),\n\nand her supervisor Robert Varra, Associate Area Counsel (“AAC Varra”), both\n\nsigned the IRS’s answer.\n\n Separately, in 2006, the Roths donated another conservation easement (the\n\n“2006 Easement”) on a different forty-acre parcel of land to the Noah Land\n\nConservation. In exchange for this donation, the Roths received $260,000 of tax\n\ncredits that they later sold for $195,000. They reported the proceeds from this sale on\n\ntheir 2007 return. As a result of litigation in Colorado state courts, the Roths repaid\n\nportions of these proceeds in 2013 and 2014.\n\n In 2016, the Roths and the IRS agreed to a set of stipulated facts with respect\n\nto the 2006 and 2007 Easements and submitted two questions to the Tax Court for\n\ndecision: first, whether the IRS complied with § 6751(b)’s written-approval\n\nrequirement before attempting to impose a gross valuation misstatement penalty; and\n\nsecond, whether I.R.C. § 1341 or a similar doctrine entitles the Roths to a deduction\n\nin 2007 for the repayments they made in 2013 and 2014.\n\n The Tax Court entered judgment against the Roths on both counts. With\n\nrespect to the 2007 Easement, the Tax Court reasoned that any of three instances in\n\nthe Roths’ case could be interpreted as fulfilling § 6751(b)’s “initial determination”\n\nwritten-approval requirement. First, RA Soss obtained the written approval of her\n\nsupervisor for a 40% penalty at the conclusion of the IRS’s audit. Second, AO\n\n\nreference and simplicity’s sake, however, this opinion refers to 40% penalties under\n§ 6662(h) and 20% penalties under § 6662(a).\n 5\n\fKawakami obtained written approval from his supervisor supporting his conclusion\n\nthat RA Soss’s “proposed penalties [would be] fully sustained for the government,”\n\neven though AO Kawakami’s memo and the notice of deficiency actually calculated a\n\n20% penalty. Finally, SC Barkley asserted in the IRS’s answer that the Roths should\n\nbe liable for a 40% penalty. On this final point, the Tax Court considered itself bound\n\nby Graev v. Commissioner (Graev III), 149 T.C. 485 (Dec. 20, 2017), and Chai v.\n\nCommissioner, 851 F.3d 190 (2d Cir. 2017), which, together with I.R.C. § 6214(a),\n\nallow the IRS to assert additional penalties in an answer to a taxpayer’s petition.\n\nWith respect to the 2006 Easement, the Tax Court held that nothing in the I.R.C.\n\nentitles the Roths to a deduction in 2007 for repayments made in later years.\n\n The Roths timely appealed.\n\n II. DISCUSSION\n\n Section 6751(b) requires the IRS to obtain written, supervisory approval for its\n\n“initial determination” of a penalty assessment. The Roths do not dispute that the IRS\n\nobtained written, supervisory approval at every step in the agency’s attempt to\n\npenalize them for the misstated value of the 2007 Easement. Nor do they dispute that\n\nboth RA Soss and SC Barkley deemed a 40% penalty appropriate or even that a 40%\n\npenalty could apply under § 6662(h) to their gross misstatement of the 2007\n\nEasement’s value. Rather, the Roths contend that the notice of deficiency produced\n\nby the IRS after AO Kawakami’s review is the agency’s initial determination of the\n\npenalty under § 6751(b). Because that notice included only a 20% penalty under\n\n§ 6662(a), the Roths continue, § 6751(b) now prevents the IRS from attempting to\n\n 6\n\fimpose anything other than the 20% penalty it “initially determined.”3 In short, the\n\nRoths raise a narrow question of statutory construction: whether the statutory notice\n\nof deficiency constitutes the IRS’s § 6751(b) initial determination. To answer this\n\nquestion, after stating the standard for our review, we consider the meaning of\n\n§ 6751(b) generally before applying that meaning to the facts before us.\n\n A. Standard of Review\n\n We review Tax Court decisions “in the same manner and to the same extent as\n\ndecisions of the district courts in civil actions tried without a jury.” 26 U.S.C.\n\n§ 7482(a)(1). Our review of the Tax Court’s interpretation of law is de novo. Esgar\n\nCorp. v. Comm’r, 744 F.3d 648, 652 (10th Cir. 2014). Although the Tax Court’s\n\ndecisions “may not be binding precedents . . . , uniform administration would be\n\npromoted by conforming to them where possible,” Dobson v. Comm’r, 320 U.S. 489,\n\n502 (1943). Therefore, we consider rulings by the Tax Court on matters of law to be\n\npersuasive authority, “especially if consistently followed,” Esgar, 744 F.3d at 652.\n\n B. Section 6751(b) Generally\n\n When faced with a question of statutory construction, we begin with the\n\nlanguage of the statute itself. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242,\n\n1244 (10th Cir. 1999). I.R.C § 6751(b)(1) provides:\n\n No penalty under this title shall be assessed unless the initial determination of\n such assessment is personally approved (in writing) by the immediate\n\n\n 3\n The parties do not dispute that the Roths have a reasonable-cause defense for\na 20% penalty under § 6662(a), and the IRS concedes that the Roths may not be held\nliable for such a penalty. See I.R.C. § 6662(c).\n 7\n\f supervisor of the individual making such determination or such higher level\n official as the Secretary may designate.4\n\nUnderstanding § 6751(b)’s plain language requires a review of the process by which\n\nthe IRS may assert a penalty and a definition of the key Internal Revenue Code terms\n\n“assessment,” “penalty,” “deficiency,” and “determination.”\n\n Assessment is “the formal recording and establishment of a taxpayer’s\n\nliability, fixing the amount owed by the taxpayer.” Keller Tank Servs. II, Inc. v.\n\nComm’r, 854 F.3d 1178, 1183–84 (10th Cir. 2017); see also United States v. Galletti,\n\n541 U.S. 114, 122 (“[T]he term ‘assessment’ refers to little more than the calculation\n\nor recording of a tax liability.”). Assessing a taxpayer’s liability “triggers the IRS’s\n\nability to collect on the liability,” whether the liability stems from a “penalty or [a]\n\ndeficiency.” Keller Tank, 854 F.3d at 1184; see also Chai, 851 F.3d at 218\n\n(“[Assessment is,] in essence . . . the last of a number of steps required before the\n\nIRS can collect a [liability] . . . .”).\n\n The term “penalty,” for purposes of § 6751, includes “any addition to tax or\n\nany additional amount.” I.R.C. § 6751(c). Penalties are “imposed on taxpayers by the\n\nIRS to encourage compliance with tax laws.” Keller Tank, 854 F.3d at 1183. A\n\n“deficiency,” in turn, is “the amount by which the tax value imposed by the IRS\n\nexceeds the amount reported by the taxpayer on its return.” Id.\n\n\n\n\n 4\n I.R.C. § 6751(b)(2) details certain exceptions to the written approval\nrequirement, including penalties “automatically calculated through electronic\nmeans.” The parties agree that these exceptions do not apply here.\n 8\n\f Before a liability related to a deficiency or penalty may be assessed, the\n\nCommissioner must “determine” whether one exists in the first place. See I.R.C.\n\n§ 6201(a) (giving the IRS Commissioner authority to “make the inquiries,\n\ndeterminations, and assessments of all taxes (including interest, additional amounts,\n\nadditions to the tax, and assessable penalties) imposed by [the Internal Revenue\n\nCode].”) (emphasis added). Once the Commissioner determines a taxpayer’s liability,\n\nthe Commissioner may send a notice of deficiency (including any applicable penalty)\n\nto the taxpayer. See I.R.C. § 6212(a); Graev III, 149 T.C. at 499 (holding IRS carried\n\n“burden to show that section 6751(b) is satisfied with respect to the . . . penalties as\n\nasserted in the notice of deficiency”). After receiving such notice, the taxpayer has\n\nninety days to file a petition with the Tax Court contesting the IRS’s determination.\n\nI.R.C. § 6213(a). The Tax Court then has jurisdiction in a so-called “deficiency\n\nproceeding” to “redetermine the correct amount of the deficiency . . . and to\n\ndetermine whether any additional amount, or any addition to the tax should be\n\nassessed, if claim therefor is asserted by the Secretary at or before the hearing or a\n\nrehearing.” I.R.C. § 6214(a). Once a deficiency proceeding begins, the IRS generally\n\nmay not assess any liability “until the decision of the Tax Court has become final.”\n\nI.R.C. § 6213(a).\n\n Given these accepted definitions, § 6751(b)’s phrase “the initial determination\n\nof such assessment” poses an obstacle to plain-language interpretation. The Code\n\ndoes not require, or even contemplate, that “assessments” will be “determined.” See\n\nChai, 851 F.3d at 218–19 (“[O]ne can determine a deficiency, and whether to make\n\n 9\n\fan assessment, but one cannot ‘determine’ an ‘assessment.’” (quoting Graev v.\n\nCommissioner (Graev II), 147 T.C. 16, No. 30638-08, 2016 WL 6996650 (2016) at\n\n*31 (Gustafson, J., dissenting) (internal citations omitted))). Indeed, the IRS has\n\nseemingly little discretion to make any determination with respect to the assessment\n\nof a liability. See I.R.C. § 6213(c) (explaining that, if a taxpayer does not file a\n\npetition contesting a notice of deficiency, the liability “shall be assessed”) (emphasis\n\nadded); I.R.C. § 6215(a) (explaining that once a decision of the Tax Court has\n\nbecome final “the entire amount redetermined as the deficiency . . . shall be\n\nassessed”) (emphasis added). And because assessment is the final step in a deficiency\n\nproceeding, occurring after the IRS has determined, and in some cases the Tax Court\n\nhas redetermined, a taxpayer’s liability, § 6751(b)’s plain language leaves open to\n\ndebate when an initial determination takes place and whether that determination\n\npertains to the IRS’s early decision to seek a penalty or the later affirmance of that\n\npenalty and its resulting assessment.\n\n Accordingly, we agree with the Second Circuit that the plain language of\n\n§ 6751(b) is ambiguous, see Chai, 851 F.3d at 218, and we turn “to the legislative\n\nhistory and the underlying public policy of the statute” as indicators of the\n\ncongressional intent lurking behind § 6751(b)’s words. United States v. Manning, 526\n\nF.3d 611, 614 (10th Cir. 2008) (quotation marks omitted)\n\n Congress added § 6751 to the I.R.C. with the Internal Revenue Service\n\nRestructuring and Reform Act of 1998. Pub. Law. No. 105–206, 112 Stat. 685.\n\nSection 6751 requires two things of the IRS: first, the agency must explain any\n\n 10\n\fpenalty to be assessed and that penalty’s computation in a notice to the taxpayer, see\n\nI.R.C. § 6751(a); and second, the agency must secure written, supervisory approval\n\nfor its initial determination of “such assessment,” see I.R.C. § 6751(b). The Senate\n\nFinance Committee’s report on § 6751 sheds light on the purpose of these additions\n\nto the I.R.C. The report expresses the Committee’s concern that “[prior] law d[id] not\n\nrequire the IRS to show how penalties are computed,” and in some cases, penalties\n\ncould be “imposed without supervisory approval.” S. Rep. No. 105-174, at 65 (1998).\n\nAs reasons for the change, the report states “[t]he Committee believes that taxpayers\n\nare entitled to an explanation of the penalties imposed upon them. The Committee\n\nbelieves that penalties should only be imposed where appropriate and not as a\n\nbargaining chip.” Id.\n\n Evidently, Congress passed § 6751 to “clamp down on a perceived IRS\n\npractice.” Williams v. Comm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3,\n\n2018); see also Chai, 851 F.3d at 219 (“[Section 6751] was meant to prevent IRS\n\nagents from threatening unjustified penalties to encourage taxpayers to settle.”).\n\nRequiring IRS employees to obtain supervisory approval for penalties under\n\n§ 6751(b) (and to include computations of those penalties in a notice to the taxpayer\n\nunder § 6751(a)) could conceivably “prevent the IRS from improperly using penalties\n\n. . . to coerce settlements.” Williams, 2018 WL 3301501 at *5; see also Graev III,\n\n149 T.C. at 500 (Lauber, J., concurring) (“[Congress] desired to prevent rogue IRS\n\npersonnel from using penalties as leverage to extract concessions from taxpayers.”).\n\nReasoning from this purpose, the Tax Court and Second Circuit have interpreted\n\n 11\n\f§ 6751(b) as requiring the IRS’s “initial penalty determination” (rather than any\n\ndetermination with respect to the assessment itself) to receive written, supervisory\n\napproval. See Chai, 851 F.3d at 221; see also Graev III, 149 T.C. at 498. But see\n\nGraev III, 149 T.C. at 516 (Holmes, J., concurring in the result) (advocating a\n\ntextualist interpretation of § 6751(b) as “a restriction on ‘assessment’” and opining\n\nthat, because assessment cannot occur until a Tax Court decision becomes final,\n\n“compliance with section 6751(b)(1) is not ripe for review in a deficiency setting\n\nbecause the penalties have not yet been ‘assessed’”).\n\n Thus equipped with an understanding of § 6751(b)’s plain language and other\n\nindicators of Congress’s intent, we apply § 6751(b) to the facts before us.\n\n C. Section 6751(b) Applied\n\n The Roths can succeed on this appeal only if § 6751(b), read in light of its\n\nlegislative history and underlying public policy, restricts the IRS’s “initial\n\ndetermination” in this case to the 20% penalty specified in the notice of deficiency.\n\nThis is because every other IRS employee to consider the Roths’ case determined,\n\nand received written, supervisory approval of, a 40% penalty under § 6662(h). For\n\nthe reasons discussed below, we conclude § 6751(b) does not so restrict the meaning\n\nof “initial determination,” and the IRS may assess a 40% penalty despite its inclusion\n\nof a 20% penalty in the Roths’ notice of deficiency.\n\n First, nothing in the broader statutory scheme requires the IRS to include its\n\n“initial determination” in a notice of deficiency. The Roths suggest we should\n\ninterpret § 6751(b) as a “harmonious whole” with other provisions of the I.R.C.,\n\n 12\n\fincluding § 6212(a). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,\n\n133 (2000) (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). We\n\nagree. But reading § 6751(b) in context cuts against, not for, the Roths’ position. For\n\nexample, § 6212(a) provides that, if the Commissioner determines a deficiency, “he\n\nis authorized to send notice of such deficiency” to the taxpayer. I.R.C. § 6212(a). It\n\ndoes not provide that the notice is or must contain the IRS’s determination, and in\n\nfact § 6212(a) appears to contemplate that the Commissioner’s determination will\n\nprecede the sending of a notice. Id. (providing “[i]f the [Commissioner] determines\n\nthat there is a deficiency” then “he is authorized to send notice . . . .”) (emphasis\n\nadded). Likewise, I.R.C. § 6214(a) explicitly allows the Tax Court to redetermine a\n\ndeficiency and any additional penalties stated in the notice “if claim therefor is\n\nasserted by the [Commissioner] at or before the hearing or a rehearing.” Because a\n\nTax Court proceeding necessarily occurs after the taxpayer has received a notice of\n\ndeficiency, see I.R.C. § 6213(a), reading § 6751(b) in harmony with § 6214(a)\n\nsuggests some initial determinations of penalty assessments will not be contained in a\n\nstatutory notice of deficiency.\n\n Second, the IRS’s “initial determination” of a 40% penalty under § 6662(h) in\n\nthe Roths’ case could, consistent with the statute’s language, be said to rest with\n\neither RA Soss or SC Barkley.5 As the first IRS employee to find a 40% penalty\n\n\n 5\n The Tax Court concluded that AO Kawakami’s statement “[RA Soss’s]\nproposed penalties are fully sustained for the government” constituted an initial\ndetermination that a 40% penalty should apply for purposes of § 6751(b). See App. at\n190, 195. As discussed above, a fuller reading of the memo produced by AO\n 13\n\funder § 6662(h) applicable to the Roths’ valuation misstatement, RA Soss represents\n\na logical “initial determination”-maker. See Webster’s New World College\n\nDictionary 735 (4th ed. 2010) (defining “initial” as “having to do with, indicating, or\n\noccurring at the beginning”); Black’s Law Dictionary 544 (10th ed. 2014) (offering\n\n“[t]he first determination made by the Social Security Administration of a person’s\n\neligibility for benefits” as an example of an “initial determination”). Although the\n\nRoths object that RA Soss’s conclusions are merely “proposed,” and therefore cannot\n\nbe determinative, the Tax Court persuasively rejected a similar argument in Graev\n\nIII, observing that “[a]ny ‘initial determination’ governed by section 6751(b),\n\nwhether made by an examining agent or a chief counsel attorney, is mere advice until\n\nit receives the requisite supervisory approval.” 149 T.C. at 496 (explaining “[t]he\n\ndistinction petitioners seek to draw between ‘advice’ and an ‘initial determination’\n\nlacks any firm basis in the statute”).\n\n And if RA Soss did not make the initial determination, SC Barkley’s answer to\n\nthe Roths’ petition in Tax Court, signed by her immediate supervisor AAC Varra and\n\nasserting the Roths’ liability for a 40% penalty under § 6662(h), satisfied § 6751(b).\n\nThe Tax Court in Graev III specifically held that a § 6751(b) initial determination\n\ncan take the form of advice from an IRS attorney. Id. And although the Roths argue\n\nIRS counsel have no authority to make initial determinations (based on various\n\n\nKawakami and signed by his supervisor reveals, to the contrary, that AO Kawakami\nhad determined to apply a 20% penalty under § 6662(a). But we need not decide\nwhether such an inconsistent document can satisfy § 6751(b)’s requirements because\nwe conclude § 6751(b) could have been satisfied by either RA Soss or SC Barkley.\n 14\n\finternal IRS guidance documents), these arguments lack statutory support. Nothing in\n\nthe I.R.C. delimits the employees who may make § 6751(b) initial determinations.\n\nSection 6751(b) itself restricts only which IRS officials may personally approve an\n\ninitial determination, to the “immediate supervisor of the individual making such\n\ndetermination or such higher level official as the Secretary [through the\n\nCommissioner] may designate.” I.R.C. § 6751(b). And the internal IRS guidance\n\ndocuments on which the Roths rely do not have the force of law. See Rhone-Poulenc\n\nSurfactants & Specialties, L.P. v. Comm’r, 114 T.C. 533, 543 n.16 (2000) (“The\n\nInternal Revenue Manual does not have the force of law.”).\n\n As discussed above, § 6214(a) expressly contemplates the IRS’s ability to\n\nbring claims for “any addition” to a taxpayer’s deficiency in a proceeding before the\n\nTax Court. I.R.C. § 6214(a). After the IRS asserts such a claim, as SC Barkley did\n\nhere, the Tax Court has “jurisdiction to redetermine the correct amount of the\n\ndeficiency even if the amount so redetermined” exceeds that in the “notice . . . mailed\n\nto the taxpayer,” including “any additional amount, or any addition to the tax.” Id.\n\nNumerous cases decided before and after the passage of § 6751 have upheld the Tax\n\nCourt’s “jurisdiction to consider a claim by the Commissioner for an increased\n\ndeficiency and penalties asserted at or before the hearing or a rehearing.” Kramer v.\n\nComm’r, 104 T.C.M. (CCH) 38 (T.C. 2012); see, e.g., Powell v. Comm’r, 581 F.3d\n\n1267, 1271 (10th Cir. 2009); Ferrill v. Comm’r, 684 F.2d 261, 265 (3d Cir. 1982);\n\nHenningsen v. Comm’r, 243 F.2d 954, 959 (4th Cir. 1957). We agree with the IRS\n\nthat adopting the Roths’ proposed interpretation of § 6751(b) would effectively\n\n 15\n\frepeal the Tax Court’s well-settled jurisdiction to consider claims for new penalties\n\nasserted by the IRS in a deficiency proceeding.6\n\n Furthermore, the Roths provide no support for a crucial premise of their\n\nargument—that the IRS may make only one “initial determination” in a given case.\n\nOnce the IRS sent a notice of deficiency determining a 20% penalty, the Roths\n\ncontend, no other penalty could ever be assessed consistent with § 6751(b). But even\n\nif we were to agree with the Roths, set aside RA Soss’s 40% penalty as merely\n\n“proposed,” and conclude that the notice of deficiency constituted an “initial\n\ndetermination” that a 20% penalty under § 6662(a) should apply, it is not clear why\n\nthe IRS (in this case, SC Barkley) could not subsequently make another “initial\n\ndetermination” (with written, supervisory approval) that a different, 40% penalty\n\nshould apply under § 6662(h). Each of these determinations would appear to be\n\n“initial” with respect to the actual penalty sought, whether under § 6662(a) or\n\n\n 6\n The Roths concede that “[n]owhere in the legislative history of [§ 6751] is\nthere any hint that Congress intended to modify the jurisdictional award set forth in\nSection 6214(a).” Reply Br. at 12. Nevertheless, their proposed reading of § 6751(b)\namounts to an argument that the Tax Court may not determine penalties asserted for\nthe first time in an IRS answer, which the tax court plainly has jurisdiction to do\nunder § 6214(a). To the extent the Roths effectively argue implied repeal, the text of\n§ 6751(b) does not exhibit a manifest intent to repeal § 6214(a) or any other\nprovision of the I.R.C., and no court has understood it to do so. See Williams v.\nComm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3, 2018) (holding\n§ 6751(b) did not impliedly repeal the Tax Court’s power to impose penalties on its\nown motion and without supervisory approval because “[s]ection 6751(b)(1) is\nclearly not intended as a mechanism to restrain the Tax Court”); see also In re\nStephens, 704 F.3d 1279, 1287 (10th Cir. 2013) (“Where a party contends ‘that\nlegislative action changed settled law,’ that party ‘has the burden of showing that the\nlegislature intended such a change.’” (quoting Green v. Bock Laundry Mach. Co.,\n490 U.S. 504, 521 (1989)).\n 16\n\f§ 6662(h). Notably, this reading of the statute harmonizes § 6751(b)’s initial\n\ndetermination requirement with § 6214(a)’s grant of jurisdiction to the Tax Court to\n\nconsider new penalties asserted by IRS counsel in a deficiency proceeding.\n\n Finally, adopting the Roths’ reading of § 6751(b) would put us out of step with\n\nthe Tax Court’s jurisprudence in cases appealable to other circuits. See Golsen v.\n\nComm’r, 54 T.C. 742, 757 (1970) (holding the Tax Court must “follow a Court of\n\nAppeals decision which is squarely [o]n point where appeal from [its] decision lies to\n\nthat Court of Appeals and to that court alone”). While we are not bound by the Tax\n\nCourt’s decisions, we conform to them where possible in the interest of “uniform\n\nadministration.” Dobson, 320 U.S. at 502.\n\n Conformity in this instance is not only possible but preferable because it\n\nharmonizes various provisions of the statute. Section 6751(b) does not limit the IRS’s\n\n“initial determination” with respect to a penalty assessment to the penalty included in\n\nthe statutory notice of deficiency.\n\n D. Deductions in Past Years\n\n The Roths also claim they should be entitled to a deduction in 2007 for\n\nrepayments made in 2013 and 2014 on proceeds from the sale of tax credits generated\n\nby their donation of the 2006 Easement. The Roths reported gains from this sale in\n\n2007, but repaid portions in 2013 and 2014 following litigation in Colorado state\n\ncourts.\n\n Nothing entitles the Roths to a deduction in 2007 for repayments made years\n\nlater.\n\n 17\n\f As the Tax Court noted, I.R.C. § 1341 provides relief to taxpayers who include\n\nan amount received under a claim of right in their income but then repay that amount\n\nin a later tax year. If a taxpayer satisfies § 1341’s requirements, then the taxpayer\n\nmay take a deduction in the year repayment was made or reduce his taxable income\n\nfor the year of repayment by the amount his taxes increased in the year he first\n\nclaimed the income. See I.R.C. § 1341 (a)(1)–(3), (4), (5). Congress passed § 1341 to\n\n“alleviate some of the inequities” caused by application of the “claim-of-right”\n\ndoctrine, which requires a taxpayer to report as income earnings received “under a\n\nclaim of right . . . even though it may still be claimed that he is not entitled to retain\n\nthe money, and even though he may still be adjudged liable to restore its equivalent.”\n\nU.S. v. Skelly Oil, 394 U.S. 678, 680–81 (quoting N. Am. Oil Consol. v. Burnet, 286\n\nU.S. 417, 424 (1932)); see also United States v. Lewis, 340 U.S. 590, 590–591 (1951)\n\n(disallowing a 1944 tax refund for a taxpayer who received a bonus in 1944 and was\n\nrequired to pay it back in 1946).\n\n The Roths complain the Tax Court used § 1341 as a “time bar” to disallow\n\ntheir 2007 deduction. Aplt. Br. at 39. This is incorrect. Section 1341, as the Tax\n\nCourt explained, is a remedy for taxpayers—it eases the harsh application of the\n\nclaim-of-right doctrine for qualifying taxpayers by either “reducing taxable income in\n\nthe year of [repayment] . . . or by giving a credit in the year of [repayment].”\n\nMidAmerican Energy Co. v. Comm’r, 114 T.C. 570, 581 (2000), aff’d, 271 F.3d 740\n\n(8th Cir. 2001). Nothing in § 1341 allows a taxpayer to reduce taxable income or take\n\na tax credit in a year other than the year of repayment. And without § 1341, the Roths\n\n 18\n\ffall squarely within the ambit of the claim-of-right doctrine. See Skelly Oil, 394 U.S.\n\nat 680–81 (“Should it later appear that the taxpayer was not entitled to keep the\n\nmoney . . . he would be entitled to a deduction in the year of repayment; the taxes due\n\nfor the year of receipt would not be affected.”). They point to no alternative remedy\n\nand no law, statutory or otherwise, that would allow them to take a deduction in 2007\n\nfor repayments made in 2013 and 2014.\n\n III. CONCLUSION\n\n For these reasons, we AFFIRM the decision of the Tax Court.\n\n\n\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: John L. ROTH; Deanne M. Roth, Petitioners - Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n JOHN L. ROTH; DEANNE M. ROTH,\\n\\n Petitioners - Appellants,\\n\\n v. No. 18-9006\\n\\n COMMISSIONER OF INTERNAL\\n REVENUE,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States Tax Court\\n (CIR No. 005544-12)\\n _________________________________\\n\\nJames R. Walker, Lewis Roca Rothgerber Christie LLP, Denver, Colorado, for\\nPetitioners - Appellants.\\n\\nBethany B. Hauser, Tax Division Attorney (Richard E. Zuckerman, Principal Deputy\\nAssistant Attorney General, and Bruce R. Ellisen, Tax Division Attorney, with her on the\\nbrief), Department of Justice, Washington, DC, for Respondent - Appellee.\\n _________________________________\\n\\nBefore LUCERO, BACHARACH, and McHUGH, Circuit Judges.\\n _________________________________\\n\\nMcHUGH, Circuit Judge.\\n _________________________________\\n\\n\\n The Roths appeal from a decision of the Tax Court imposing a 40% penalty for\\n\\ntheir gross misstatement of the value of a conservation easement they donated to a\\n\\nland trust in Colorado. The Roths primarily contend that, before imposing the\\n\\fpenalty, the IRS failed to obtain written, supervisory approval for its “initial\\n\\ndetermination” of a penalty assessment as required by I.R.C. § 6751(b). The Roths\\n\\nalso seek a deduction in 2007 for repayments they made on the proceeds from their\\n\\nsale of tax credits generated by their donation of a separate conservation easement in\\n\\n2006. We disagree on both counts and therefore affirm the judgment of the Tax\\n\\nCourt.\\n\\n I. BACKGROUND\\n\\n In 2007, John and Deanne Roth donated a conservation easement (“the 2007\\n\\nEasement”) encumbering 40 acres of land they owned in Prowers County, Colorado\\n\\nto the Colorado Natural Land Trust. The 2007 Easement relinquished the Roths’\\n\\nrights to, among other things, mine gravel from the subject property.1\\n\\n On their 2007 income tax return, the Roths valued the 2007 Easement at\\n\\n$970,000 and claimed a charitable-contribution deduction based on that amount.\\n\\nBecause they could not make use of the entire claimed value as a deduction in 2007,\\n\\nthe Roths claimed a carryover contribution on their 2008 tax return based on the\\n\\nunused portion of the $970,000.\\n\\n\\n\\n\\n 1\\n The Roths’ case is one of the so-called “gravel-pit cases” in which Colorado\\ntaxpayers claimed large deductions based on the appraisal and donation of\\nconservation easements prohibiting the mining of gravel on what had historically\\nbeen farmland. The IRS later determined these easements to be effectively worthless\\n(or worth drastically less than the taxpayers claimed) because the subject farmland\\nwas more valuable as farmland than it would be if mined for gravel. Esgar Corp. v.\\nComm’r, 744 F.3d 648, 658 (10th Cir. 2014).\\n 2\\n\\f In 2011, the IRS audited the Roths’ tax returns for 2007, 2008, and 2009. In\\n\\nthe course of this evaluation, the IRS hired an appraiser to provide an opinion of the\\n\\nfair market value of the 2007 Easement. The appraiser determined the easement to be\\n\\nworthless, although the parties later stipulated to a value of $40,000.\\n\\n After the audit, an IRS Revenue Agent, Denise Soss (“RA Soss”), issued the\\n\\nRoths a set of Income Tax Discrepancy Adjustments. Based on the revaluation of the\\n\\n2007 Easement, RA Soss determined the Roths were subject to a “gross valuation\\n\\nmisstatement” penalty under I.R.C. § 6662(h), which allows for a 40% penalty on\\n\\nunpaid taxes when the claimed value of property exceeds its actual value by 200% or\\n\\nmore. See I.R.C. §§ 6662(e)(1)(A), (h). RA Soss’s “Group Manager” signed a “Civil\\n\\nPenalty Approval Form,” approving the gross valuation misstatement penalty. RA\\n\\nSoss informed the Roths by letter of the proposed 40% penalty under § 6662(h).\\n\\n The Roths filed a protest in response to the letter, seeking administrative\\n\\nreview of RA Soss’s proposed 40% penalty with the Internal Revenue Service Office\\n\\nof Appeals. The IRS granted review and assigned the Roths’ case to Appeals Officer\\n\\nMark Kawakami (“AO Kawakami”). AO Kawakami produced a memorandum\\n\\nconcluding that “all issues including [RA Soss’s proposed] penalties should be fully\\n\\nsustained for the government” with respect to the 2007 Easement. App. at 16.\\n\\n Despite AO Kawakami’s apparent agreement with RA Soss’s proposal,\\n\\nhowever, his memo detailed a set of revised penalties owed by the Roths for 2007\\n\\nand 2008. For each year, AO Kawakami’s memo recites the Roths’ tax obligation and\\n\\nthe 40% penalty on that obligation proposed by RA Soss, but then it also states a\\n\\n 3\\n\\frevised tax obligation and a revised penalty calculated at 20% of that obligation. An\\n\\n“Explanation of Items” attached to AO Kawakami’s memo explains that the Roths\\n\\nare liable for an “accuracy-related” penalty under I.R.C. § 6662(a) amounting to 20%\\n\\nof their unpaid taxes. App. at 19. Nowhere in the memo does AO Kawakami explain\\n\\nthe IRS’s pivot from a 40% penalty under § 6662(h) to a 20% penalty under\\n\\n§ 6662(a). In fact, the memo states RA Soss’s proposed penalties were “[n]ot\\n\\nsustained in full by [the] Appeals [Office] due to a computational adjustment only.”\\n\\nApp. at 14. The IRS, for its part, explains the change as a clerical error. Whatever the\\n\\nreason, AO Kawakami’s supervisor signed the memo, indicating her approval of the\\n\\nrevised 20% penalty.\\n\\n The IRS then sent the Roths a notice of deficiency setting forth the revised\\n\\n20% penalty. The notice makes no mention of a 40% penalty under § 6662(h), and\\n\\nthe pages attached to the notice clearly calculate a 20% penalty on the Roths’ unpaid\\n\\ntaxes for 2007 and 2008 under § 6662(a). The notice also informed the Roths of their\\n\\nright to file a petition with the United States Tax Court contesting the IRS’s\\n\\ndeterminations, which the Roths did in 2012. In response to the Roths’ petition, the\\n\\nIRS filed an answer re-asserting the Roths’ liability for “a [40%] gross valuation\\n\\nmisstatement penalty under I.R.C § 6662(a) & (h)[2] for each of the 2007 and 2008\\n\\n\\n\\n 2\\n Strictly speaking, § 6662(h) modifies § 6662(a) by providing that, when a\\ngross valuation misstatement results in underpayment of taxes, “subsection (a) shall\\nbe applied with respect to [unpaid taxes] by substituting ‘40 percent’ for ‘20\\npercent.’” I.R.C. § 6662(h)(1). For that reason, 40% penalties might be said to arise\\nunder § 6662(a) and (h), while 20% penalties arise under only § 6662(a). For ease of\\n 4\\n\\ftaxable years.” App. at 84. Sara Barkley, Senior Counsel for the IRS (“SC Barkley”),\\n\\nand her supervisor Robert Varra, Associate Area Counsel (“AAC Varra”), both\\n\\nsigned the IRS’s answer.\\n\\n Separately, in 2006, the Roths donated another conservation easement (the\\n\\n“2006 Easement”) on a different forty-acre parcel of land to the Noah Land\\n\\nConservation. In exchange for this donation, the Roths received $260,000 of tax\\n\\ncredits that they later sold for $195,000. They reported the proceeds from this sale on\\n\\ntheir 2007 return. As a result of litigation in Colorado state courts, the Roths repaid\\n\\nportions of these proceeds in 2013 and 2014.\\n\\n In 2016, the Roths and the IRS agreed to a set of stipulated facts with respect\\n\\nto the 2006 and 2007 Easements and submitted two questions to the Tax Court for\\n\\ndecision: first, whether the IRS complied with § 6751(b)’s written-approval\\n\\nrequirement before attempting to impose a gross valuation misstatement penalty; and\\n\\nsecond, whether I.R.C. § 1341 or a similar doctrine entitles the Roths to a deduction\\n\\nin 2007 for the repayments they made in 2013 and 2014.\\n\\n The Tax Court entered judgment against the Roths on both counts. With\\n\\nrespect to the 2007 Easement, the Tax Court reasoned that any of three instances in\\n\\nthe Roths’ case could be interpreted as fulfilling § 6751(b)’s “initial determination”\\n\\nwritten-approval requirement. First, RA Soss obtained the written approval of her\\n\\nsupervisor for a 40% penalty at the conclusion of the IRS’s audit. Second, AO\\n\\n\\nreference and simplicity’s sake, however, this opinion refers to 40% penalties under\\n§ 6662(h) and 20% penalties under § 6662(a).\\n 5\\n\\fKawakami obtained written approval from his supervisor supporting his conclusion\\n\\nthat RA Soss’s “proposed penalties [would be] fully sustained for the government,”\\n\\neven though AO Kawakami’s memo and the notice of deficiency actually calculated a\\n\\n20% penalty. Finally, SC Barkley asserted in the IRS’s answer that the Roths should\\n\\nbe liable for a 40% penalty. On this final point, the Tax Court considered itself bound\\n\\nby Graev v. Commissioner (Graev III), 149 T.C. 485 (Dec. 20, 2017), and Chai v.\\n\\nCommissioner, 851 F.3d 190 (2d Cir. 2017), which, together with I.R.C. § 6214(a),\\n\\nallow the IRS to assert additional penalties in an answer to a taxpayer’s petition.\\n\\nWith respect to the 2006 Easement, the Tax Court held that nothing in the I.R.C.\\n\\nentitles the Roths to a deduction in 2007 for repayments made in later years.\\n\\n The Roths timely appealed.\\n\\n II. DISCUSSION\\n\\n Section 6751(b) requires the IRS to obtain written, supervisory approval for its\\n\\n“initial determination” of a penalty assessment. The Roths do not dispute that the IRS\\n\\nobtained written, supervisory approval at every step in the agency’s attempt to\\n\\npenalize them for the misstated value of the 2007 Easement. Nor do they dispute that\\n\\nboth RA Soss and SC Barkley deemed a 40% penalty appropriate or even that a 40%\\n\\npenalty could apply under § 6662(h) to their gross misstatement of the 2007\\n\\nEasement’s value. Rather, the Roths contend that the notice of deficiency produced\\n\\nby the IRS after AO Kawakami’s review is the agency’s initial determination of the\\n\\npenalty under § 6751(b). Because that notice included only a 20% penalty under\\n\\n§ 6662(a), the Roths continue, § 6751(b) now prevents the IRS from attempting to\\n\\n 6\\n\\fimpose anything other than the 20% penalty it “initially determined.”3 In short, the\\n\\nRoths raise a narrow question of statutory construction: whether the statutory notice\\n\\nof deficiency constitutes the IRS’s § 6751(b) initial determination. To answer this\\n\\nquestion, after stating the standard for our review, we consider the meaning of\\n\\n§ 6751(b) generally before applying that meaning to the facts before us.\\n\\n A. Standard of Review\\n\\n We review Tax Court decisions “in the same manner and to the same extent as\\n\\ndecisions of the district courts in civil actions tried without a jury.” 26 U.S.C.\\n\\n§ 7482(a)(1). Our review of the Tax Court’s interpretation of law is de novo. Esgar\\n\\nCorp. v. Comm’r, 744 F.3d 648, 652 (10th Cir. 2014). Although the Tax Court’s\\n\\ndecisions “may not be binding precedents . . . , uniform administration would be\\n\\npromoted by conforming to them where possible,” Dobson v. Comm’r, 320 U.S. 489,\\n\\n502 (1943). Therefore, we consider rulings by the Tax Court on matters of law to be\\n\\npersuasive authority, “especially if consistently followed,” Esgar, 744 F.3d at 652.\\n\\n B. Section 6751(b) Generally\\n\\n When faced with a question of statutory construction, we begin with the\\n\\nlanguage of the statute itself. Matthiesen v. Banc One Mortg. Corp., 173 F.3d 1242,\\n\\n1244 (10th Cir. 1999). I.R.C § 6751(b)(1) provides:\\n\\n No penalty under this title shall be assessed unless the initial determination of\\n such assessment is personally approved (in writing) by the immediate\\n\\n\\n 3\\n The parties do not dispute that the Roths have a reasonable-cause defense for\\na 20% penalty under § 6662(a), and the IRS concedes that the Roths may not be held\\nliable for such a penalty. See I.R.C. § 6662(c).\\n 7\\n\\f supervisor of the individual making such determination or such higher level\\n official as the Secretary may designate.4\\n\\nUnderstanding § 6751(b)’s plain language requires a review of the process by which\\n\\nthe IRS may assert a penalty and a definition of the key Internal Revenue Code terms\\n\\n“assessment,” “penalty,” “deficiency,” and “determination.”\\n\\n Assessment is “the formal recording and establishment of a taxpayer’s\\n\\nliability, fixing the amount owed by the taxpayer.” Keller Tank Servs. II, Inc. v.\\n\\nComm’r, 854 F.3d 1178, 1183–84 (10th Cir. 2017); see also United States v. Galletti,\\n\\n541 U.S. 114, 122 (“[T]he term ‘assessment’ refers to little more than the calculation\\n\\nor recording of a tax liability.”). Assessing a taxpayer’s liability “triggers the IRS’s\\n\\nability to collect on the liability,” whether the liability stems from a “penalty or [a]\\n\\ndeficiency.” Keller Tank, 854 F.3d at 1184; see also Chai, 851 F.3d at 218\\n\\n(“[Assessment is,] in essence . . . the last of a number of steps required before the\\n\\nIRS can collect a [liability] . . . .”).\\n\\n The term “penalty,” for purposes of § 6751, includes “any addition to tax or\\n\\nany additional amount.” I.R.C. § 6751(c). Penalties are “imposed on taxpayers by the\\n\\nIRS to encourage compliance with tax laws.” Keller Tank, 854 F.3d at 1183. A\\n\\n“deficiency,” in turn, is “the amount by which the tax value imposed by the IRS\\n\\nexceeds the amount reported by the taxpayer on its return.” Id.\\n\\n\\n\\n\\n 4\\n I.R.C. § 6751(b)(2) details certain exceptions to the written approval\\nrequirement, including penalties “automatically calculated through electronic\\nmeans.” The parties agree that these exceptions do not apply here.\\n 8\\n\\f Before a liability related to a deficiency or penalty may be assessed, the\\n\\nCommissioner must “determine” whether one exists in the first place. See I.R.C.\\n\\n§ 6201(a) (giving the IRS Commissioner authority to “make the inquiries,\\n\\ndeterminations, and assessments of all taxes (including interest, additional amounts,\\n\\nadditions to the tax, and assessable penalties) imposed by [the Internal Revenue\\n\\nCode].”) (emphasis added). Once the Commissioner determines a taxpayer’s liability,\\n\\nthe Commissioner may send a notice of deficiency (including any applicable penalty)\\n\\nto the taxpayer. See I.R.C. § 6212(a); Graev III, 149 T.C. at 499 (holding IRS carried\\n\\n“burden to show that section 6751(b) is satisfied with respect to the . . . penalties as\\n\\nasserted in the notice of deficiency”). After receiving such notice, the taxpayer has\\n\\nninety days to file a petition with the Tax Court contesting the IRS’s determination.\\n\\nI.R.C. § 6213(a). The Tax Court then has jurisdiction in a so-called “deficiency\\n\\nproceeding” to “redetermine the correct amount of the deficiency . . . and to\\n\\ndetermine whether any additional amount, or any addition to the tax should be\\n\\nassessed, if claim therefor is asserted by the Secretary at or before the hearing or a\\n\\nrehearing.” I.R.C. § 6214(a). Once a deficiency proceeding begins, the IRS generally\\n\\nmay not assess any liability “until the decision of the Tax Court has become final.”\\n\\nI.R.C. § 6213(a).\\n\\n Given these accepted definitions, § 6751(b)’s phrase “the initial determination\\n\\nof such assessment” poses an obstacle to plain-language interpretation. The Code\\n\\ndoes not require, or even contemplate, that “assessments” will be “determined.” See\\n\\nChai, 851 F.3d at 218–19 (“[O]ne can determine a deficiency, and whether to make\\n\\n 9\\n\\fan assessment, but one cannot ‘determine’ an ‘assessment.’” (quoting Graev v.\\n\\nCommissioner (Graev II), 147 T.C. 16, No. 30638-08, 2016 WL 6996650 (2016) at\\n\\n*31 (Gustafson, J., dissenting) (internal citations omitted))). Indeed, the IRS has\\n\\nseemingly little discretion to make any determination with respect to the assessment\\n\\nof a liability. See I.R.C. § 6213(c) (explaining that, if a taxpayer does not file a\\n\\npetition contesting a notice of deficiency, the liability “shall be assessed”) (emphasis\\n\\nadded); I.R.C. § 6215(a) (explaining that once a decision of the Tax Court has\\n\\nbecome final “the entire amount redetermined as the deficiency . . . shall be\\n\\nassessed”) (emphasis added). And because assessment is the final step in a deficiency\\n\\nproceeding, occurring after the IRS has determined, and in some cases the Tax Court\\n\\nhas redetermined, a taxpayer’s liability, § 6751(b)’s plain language leaves open to\\n\\ndebate when an initial determination takes place and whether that determination\\n\\npertains to the IRS’s early decision to seek a penalty or the later affirmance of that\\n\\npenalty and its resulting assessment.\\n\\n Accordingly, we agree with the Second Circuit that the plain language of\\n\\n§ 6751(b) is ambiguous, see Chai, 851 F.3d at 218, and we turn “to the legislative\\n\\nhistory and the underlying public policy of the statute” as indicators of the\\n\\ncongressional intent lurking behind § 6751(b)’s words. United States v. Manning, 526\\n\\nF.3d 611, 614 (10th Cir. 2008) (quotation marks omitted)\\n\\n Congress added § 6751 to the I.R.C. with the Internal Revenue Service\\n\\nRestructuring and Reform Act of 1998. Pub. Law. No. 105–206, 112 Stat. 685.\\n\\nSection 6751 requires two things of the IRS: first, the agency must explain any\\n\\n 10\\n\\fpenalty to be assessed and that penalty’s computation in a notice to the taxpayer, see\\n\\nI.R.C. § 6751(a); and second, the agency must secure written, supervisory approval\\n\\nfor its initial determination of “such assessment,” see I.R.C. § 6751(b). The Senate\\n\\nFinance Committee’s report on § 6751 sheds light on the purpose of these additions\\n\\nto the I.R.C. The report expresses the Committee’s concern that “[prior] law d[id] not\\n\\nrequire the IRS to show how penalties are computed,” and in some cases, penalties\\n\\ncould be “imposed without supervisory approval.” S. Rep. No. 105-174, at 65 (1998).\\n\\nAs reasons for the change, the report states “[t]he Committee believes that taxpayers\\n\\nare entitled to an explanation of the penalties imposed upon them. The Committee\\n\\nbelieves that penalties should only be imposed where appropriate and not as a\\n\\nbargaining chip.” Id.\\n\\n Evidently, Congress passed § 6751 to “clamp down on a perceived IRS\\n\\npractice.” Williams v. Comm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3,\\n\\n2018); see also Chai, 851 F.3d at 219 (“[Section 6751] was meant to prevent IRS\\n\\nagents from threatening unjustified penalties to encourage taxpayers to settle.”).\\n\\nRequiring IRS employees to obtain supervisory approval for penalties under\\n\\n§ 6751(b) (and to include computations of those penalties in a notice to the taxpayer\\n\\nunder § 6751(a)) could conceivably “prevent the IRS from improperly using penalties\\n\\n. . . to coerce settlements.” Williams, 2018 WL 3301501 at *5; see also Graev III,\\n\\n149 T.C. at 500 (Lauber, J., concurring) (“[Congress] desired to prevent rogue IRS\\n\\npersonnel from using penalties as leverage to extract concessions from taxpayers.”).\\n\\nReasoning from this purpose, the Tax Court and Second Circuit have interpreted\\n\\n 11\\n\\f§ 6751(b) as requiring the IRS’s “initial penalty determination” (rather than any\\n\\ndetermination with respect to the assessment itself) to receive written, supervisory\\n\\napproval. See Chai, 851 F.3d at 221; see also Graev III, 149 T.C. at 498. But see\\n\\nGraev III, 149 T.C. at 516 (Holmes, J., concurring in the result) (advocating a\\n\\ntextualist interpretation of § 6751(b) as “a restriction on ‘assessment’” and opining\\n\\nthat, because assessment cannot occur until a Tax Court decision becomes final,\\n\\n“compliance with section 6751(b)(1) is not ripe for review in a deficiency setting\\n\\nbecause the penalties have not yet been ‘assessed’”).\\n\\n Thus equipped with an understanding of § 6751(b)’s plain language and other\\n\\nindicators of Congress’s intent, we apply § 6751(b) to the facts before us.\\n\\n C. Section 6751(b) Applied\\n\\n The Roths can succeed on this appeal only if § 6751(b), read in light of its\\n\\nlegislative history and underlying public policy, restricts the IRS’s “initial\\n\\ndetermination” in this case to the 20% penalty specified in the notice of deficiency.\\n\\nThis is because every other IRS employee to consider the Roths’ case determined,\\n\\nand received written, supervisory approval of, a 40% penalty under § 6662(h). For\\n\\nthe reasons discussed below, we conclude § 6751(b) does not so restrict the meaning\\n\\nof “initial determination,” and the IRS may assess a 40% penalty despite its inclusion\\n\\nof a 20% penalty in the Roths’ notice of deficiency.\\n\\n First, nothing in the broader statutory scheme requires the IRS to include its\\n\\n“initial determination” in a notice of deficiency. The Roths suggest we should\\n\\ninterpret § 6751(b) as a “harmonious whole” with other provisions of the I.R.C.,\\n\\n 12\\n\\fincluding § 6212(a). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,\\n\\n133 (2000) (quoting FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389 (1959)). We\\n\\nagree. But reading § 6751(b) in context cuts against, not for, the Roths’ position. For\\n\\nexample, § 6212(a) provides that, if the Commissioner determines a deficiency, “he\\n\\nis authorized to send notice of such deficiency” to the taxpayer. I.R.C. § 6212(a). It\\n\\ndoes not provide that the notice is or must contain the IRS’s determination, and in\\n\\nfact § 6212(a) appears to contemplate that the Commissioner’s determination will\\n\\nprecede the sending of a notice. Id. (providing “[i]f the [Commissioner] determines\\n\\nthat there is a deficiency” then “he is authorized to send notice . . . .”) (emphasis\\n\\nadded). Likewise, I.R.C. § 6214(a) explicitly allows the Tax Court to redetermine a\\n\\ndeficiency and any additional penalties stated in the notice “if claim therefor is\\n\\nasserted by the [Commissioner] at or before the hearing or a rehearing.” Because a\\n\\nTax Court proceeding necessarily occurs after the taxpayer has received a notice of\\n\\ndeficiency, see I.R.C. § 6213(a), reading § 6751(b) in harmony with § 6214(a)\\n\\nsuggests some initial determinations of penalty assessments will not be contained in a\\n\\nstatutory notice of deficiency.\\n\\n Second, the IRS’s “initial determination” of a 40% penalty under § 6662(h) in\\n\\nthe Roths’ case could, consistent with the statute’s language, be said to rest with\\n\\neither RA Soss or SC Barkley.5 As the first IRS employee to find a 40% penalty\\n\\n\\n 5\\n The Tax Court concluded that AO Kawakami’s statement “[RA Soss’s]\\nproposed penalties are fully sustained for the government” constituted an initial\\ndetermination that a 40% penalty should apply for purposes of § 6751(b). See App. at\\n190, 195. As discussed above, a fuller reading of the memo produced by AO\\n 13\\n\\funder § 6662(h) applicable to the Roths’ valuation misstatement, RA Soss represents\\n\\na logical “initial determination”-maker. See Webster’s New World College\\n\\nDictionary 735 (4th ed. 2010) (defining “initial” as “having to do with, indicating, or\\n\\noccurring at the beginning”); Black’s Law Dictionary 544 (10th ed. 2014) (offering\\n\\n“[t]he first determination made by the Social Security Administration of a person’s\\n\\neligibility for benefits” as an example of an “initial determination”). Although the\\n\\nRoths object that RA Soss’s conclusions are merely “proposed,” and therefore cannot\\n\\nbe determinative, the Tax Court persuasively rejected a similar argument in Graev\\n\\nIII, observing that “[a]ny ‘initial determination’ governed by section 6751(b),\\n\\nwhether made by an examining agent or a chief counsel attorney, is mere advice until\\n\\nit receives the requisite supervisory approval.” 149 T.C. at 496 (explaining “[t]he\\n\\ndistinction petitioners seek to draw between ‘advice’ and an ‘initial determination’\\n\\nlacks any firm basis in the statute”).\\n\\n And if RA Soss did not make the initial determination, SC Barkley’s answer to\\n\\nthe Roths’ petition in Tax Court, signed by her immediate supervisor AAC Varra and\\n\\nasserting the Roths’ liability for a 40% penalty under § 6662(h), satisfied § 6751(b).\\n\\nThe Tax Court in Graev III specifically held that a § 6751(b) initial determination\\n\\ncan take the form of advice from an IRS attorney. Id. And although the Roths argue\\n\\nIRS counsel have no authority to make initial determinations (based on various\\n\\n\\nKawakami and signed by his supervisor reveals, to the contrary, that AO Kawakami\\nhad determined to apply a 20% penalty under § 6662(a). But we need not decide\\nwhether such an inconsistent document can satisfy § 6751(b)’s requirements because\\nwe conclude § 6751(b) could have been satisfied by either RA Soss or SC Barkley.\\n 14\\n\\finternal IRS guidance documents), these arguments lack statutory support. Nothing in\\n\\nthe I.R.C. delimits the employees who may make § 6751(b) initial determinations.\\n\\nSection 6751(b) itself restricts only which IRS officials may personally approve an\\n\\ninitial determination, to the “immediate supervisor of the individual making such\\n\\ndetermination or such higher level official as the Secretary [through the\\n\\nCommissioner] may designate.” I.R.C. § 6751(b). And the internal IRS guidance\\n\\ndocuments on which the Roths rely do not have the force of law. See Rhone-Poulenc\\n\\nSurfactants & Specialties, L.P. v. Comm’r, 114 T.C. 533, 543 n.16 (2000) (“The\\n\\nInternal Revenue Manual does not have the force of law.”).\\n\\n As discussed above, § 6214(a) expressly contemplates the IRS’s ability to\\n\\nbring claims for “any addition” to a taxpayer’s deficiency in a proceeding before the\\n\\nTax Court. I.R.C. § 6214(a). After the IRS asserts such a claim, as SC Barkley did\\n\\nhere, the Tax Court has “jurisdiction to redetermine the correct amount of the\\n\\ndeficiency even if the amount so redetermined” exceeds that in the “notice . . . mailed\\n\\nto the taxpayer,” including “any additional amount, or any addition to the tax.” Id.\\n\\nNumerous cases decided before and after the passage of § 6751 have upheld the Tax\\n\\nCourt’s “jurisdiction to consider a claim by the Commissioner for an increased\\n\\ndeficiency and penalties asserted at or before the hearing or a rehearing.” Kramer v.\\n\\nComm’r, 104 T.C.M. (CCH) 38 (T.C. 2012); see, e.g., Powell v. Comm’r, 581 F.3d\\n\\n1267, 1271 (10th Cir. 2009); Ferrill v. Comm’r, 684 F.2d 261, 265 (3d Cir. 1982);\\n\\nHenningsen v. Comm’r, 243 F.2d 954, 959 (4th Cir. 1957). We agree with the IRS\\n\\nthat adopting the Roths’ proposed interpretation of § 6751(b) would effectively\\n\\n 15\\n\\frepeal the Tax Court’s well-settled jurisdiction to consider claims for new penalties\\n\\nasserted by the IRS in a deficiency proceeding.6\\n\\n Furthermore, the Roths provide no support for a crucial premise of their\\n\\nargument—that the IRS may make only one “initial determination” in a given case.\\n\\nOnce the IRS sent a notice of deficiency determining a 20% penalty, the Roths\\n\\ncontend, no other penalty could ever be assessed consistent with § 6751(b). But even\\n\\nif we were to agree with the Roths, set aside RA Soss’s 40% penalty as merely\\n\\n“proposed,” and conclude that the notice of deficiency constituted an “initial\\n\\ndetermination” that a 20% penalty under § 6662(a) should apply, it is not clear why\\n\\nthe IRS (in this case, SC Barkley) could not subsequently make another “initial\\n\\ndetermination” (with written, supervisory approval) that a different, 40% penalty\\n\\nshould apply under § 6662(h). Each of these determinations would appear to be\\n\\n“initial” with respect to the actual penalty sought, whether under § 6662(a) or\\n\\n\\n 6\\n The Roths concede that “[n]owhere in the legislative history of [§ 6751] is\\nthere any hint that Congress intended to modify the jurisdictional award set forth in\\nSection 6214(a).” Reply Br. at 12. Nevertheless, their proposed reading of § 6751(b)\\namounts to an argument that the Tax Court may not determine penalties asserted for\\nthe first time in an IRS answer, which the tax court plainly has jurisdiction to do\\nunder § 6214(a). To the extent the Roths effectively argue implied repeal, the text of\\n§ 6751(b) does not exhibit a manifest intent to repeal § 6214(a) or any other\\nprovision of the I.R.C., and no court has understood it to do so. See Williams v.\\nComm’r, No. 30487-15, 2018 WL 3301501, at *5 (T.C. July 3, 2018) (holding\\n§ 6751(b) did not impliedly repeal the Tax Court’s power to impose penalties on its\\nown motion and without supervisory approval because “[s]ection 6751(b)(1) is\\nclearly not intended as a mechanism to restrain the Tax Court”); see also In re\\nStephens, 704 F.3d 1279, 1287 (10th Cir. 2013) (“Where a party contends ‘that\\nlegislative action changed settled law,’ that party ‘has the burden of showing that the\\nlegislature intended such a change.’” (quoting Green v. Bock Laundry Mach. Co.,\\n490 U.S. 504, 521 (1989)).\\n 16\\n\\f§ 6662(h). Notably, this reading of the statute harmonizes § 6751(b)’s initial\\n\\ndetermination requirement with § 6214(a)’s grant of jurisdiction to the Tax Court to\\n\\nconsider new penalties asserted by IRS counsel in a deficiency proceeding.\\n\\n Finally, adopting the Roths’ reading of § 6751(b) would put us out of step with\\n\\nthe Tax Court’s jurisprudence in cases appealable to other circuits. See Golsen v.\\n\\nComm’r, 54 T.C. 742, 757 (1970) (holding the Tax Court must “follow a Court of\\n\\nAppeals decision which is squarely [o]n point where appeal from [its] decision lies to\\n\\nthat Court of Appeals and to that court alone”). While we are not bound by the Tax\\n\\nCourt’s decisions, we conform to them where possible in the interest of “uniform\\n\\nadministration.” Dobson, 320 U.S. at 502.\\n\\n Conformity in this instance is not only possible but preferable because it\\n\\nharmonizes various provisions of the statute. Section 6751(b) does not limit the IRS’s\\n\\n“initial determination” with respect to a penalty assessment to the penalty included in\\n\\nthe statutory notice of deficiency.\\n\\n D. Deductions in Past Years\\n\\n The Roths also claim they should be entitled to a deduction in 2007 for\\n\\nrepayments made in 2013 and 2014 on proceeds from the sale of tax credits generated\\n\\nby their donation of the 2006 Easement. The Roths reported gains from this sale in\\n\\n2007, but repaid portions in 2013 and 2014 following litigation in Colorado state\\n\\ncourts.\\n\\n Nothing entitles the Roths to a deduction in 2007 for repayments made years\\n\\nlater.\\n\\n 17\\n\\f As the Tax Court noted, I.R.C. § 1341 provides relief to taxpayers who include\\n\\nan amount received under a claim of right in their income but then repay that amount\\n\\nin a later tax year. If a taxpayer satisfies § 1341’s requirements, then the taxpayer\\n\\nmay take a deduction in the year repayment was made or reduce his taxable income\\n\\nfor the year of repayment by the amount his taxes increased in the year he first\\n\\nclaimed the income. See I.R.C. § 1341 (a)(1)–(3), (4), (5). Congress passed § 1341 to\\n\\n“alleviate some of the inequities” caused by application of the “claim-of-right”\\n\\ndoctrine, which requires a taxpayer to report as income earnings received “under a\\n\\nclaim of right . . . even though it may still be claimed that he is not entitled to retain\\n\\nthe money, and even though he may still be adjudged liable to restore its equivalent.”\\n\\nU.S. v. Skelly Oil, 394 U.S. 678, 680–81 (quoting N. Am. Oil Consol. v. Burnet, 286\\n\\nU.S. 417, 424 (1932)); see also United States v. Lewis, 340 U.S. 590, 590–591 (1951)\\n\\n(disallowing a 1944 tax refund for a taxpayer who received a bonus in 1944 and was\\n\\nrequired to pay it back in 1946).\\n\\n The Roths complain the Tax Court used § 1341 as a “time bar” to disallow\\n\\ntheir 2007 deduction. Aplt. Br. at 39. This is incorrect. Section 1341, as the Tax\\n\\nCourt explained, is a remedy for taxpayers—it eases the harsh application of the\\n\\nclaim-of-right doctrine for qualifying taxpayers by either “reducing taxable income in\\n\\nthe year of [repayment] . . . or by giving a credit in the year of [repayment].”\\n\\nMidAmerican Energy Co. v. Comm’r, 114 T.C. 570, 581 (2000), aff’d, 271 F.3d 740\\n\\n(8th Cir. 2001). Nothing in § 1341 allows a taxpayer to reduce taxable income or take\\n\\na tax credit in a year other than the year of repayment. And without § 1341, the Roths\\n\\n 18\\n\\ffall squarely within the ambit of the claim-of-right doctrine. See Skelly Oil, 394 U.S.\\n\\nat 680–81 (“Should it later appear that the taxpayer was not entitled to keep the\\n\\nmoney . . . he would be entitled to a deduction in the year of repayment; the taxes due\\n\\nfor the year of receipt would not be affected.”). They point to no alternative remedy\\n\\nand no law, statutory or otherwise, that would allow them to take a deduction in 2007\\n\\nfor repayments made in 2013 and 2014.\\n\\n III. CONCLUSION\\n\\n For these reasons, we AFFIRM the decision of the Tax Court.\\n\\n\\n\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1869,"cells":{"id":{"kind":"number","value":4614462,"string":"4,614,462"},"name":{"kind":"string","value":"Clarence Rozell GOODE, Jr., Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee."},"name_abbreviation":{"kind":"string","value":"Goode v. Carpenter"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"16-5124"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Hartz, Phillips\", \"parties\": \"\", \"opinions\": [{\"author\": \"HARTZ, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n CLARENCE ROZELL GOODE, JR.,\\n\\n Petitioner - Appellant,\\n\\n v. No. 16-5124\\n\\n MIKE CARPENTER, Warden, Oklahoma\\n State Penitentiary,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:11-CV-00150-GKF-FHM)\\n _________________________________\\n\\nThomas D. Hird, Assistant Federal Public Defender (Emma V. Rolls, Assistant Federal\\nPublic Defender, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-\\nAppellant.\\n\\nJennifer L. Crabb, Assistant Attorney General (Joshua L. Lockett, Assistant Attorney\\nGeneral, and Mike Hunter, Attorney General of Oklahoma, on the brief), Oklahoma City,\\nOklahoma, for Respondent-Appellee.\\n _________________________________\\n\\nBefore BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.\\n _________________________________\\n\\nHARTZ, Circuit Judge.\\n _________________________________\\n\\n Clarence Rozell Goode, Jr., who was convicted of first-degree murder and\\n\\nsentenced to death by the State of Oklahoma, appeals the denial by the United States\\n\\fDistrict Court for the Northern District of Oklahoma of his application for relief under\\n\\n28 U.S.C. § 2254. Goode’s application raises two claims: (1) a claim under Brady v.\\n\\nMaryland, 373 U.S. 83 (1963), that the State suppressed material information about the\\n\\ncorrupt conduct of Jeff Henderson, one of its investigating officers, and (2) an\\n\\nineffective-assistance-of-counsel claim with numerous subclaims. Because none of\\n\\nGoode’s claims merits relief under § 2254, we affirm the district court’s denial of the\\n\\napplication.\\n\\n I. BACKGROUND\\n\\n The strength of the evidence of Goode’s guilt is important in resolving several\\n\\nissues on appeal, in particular the Brady issue. We therefore review that evidence in\\n\\nsome detail.\\n\\n During the overnight hours of August 25–26, 2005, intruders entered the home of\\n\\nMitch Thompson and his wife Tara Burchett-Thompson at 9707 North 112th East\\n\\nAvenue in Owasso, Oklahoma. (For convenience we will refer to it as Tara’s home.)\\n\\nTara’s ten-year-old daughter Kayla, who lived with her grandmother Brenda Smalygo at\\n\\na separate address, happened to be staying with her mother that night. All three\\n\\noccupants were murdered. The crime was discovered about 9:00 a.m. on August 26,\\n\\nwhen Ms. Smalygo learned that Kayla was not in school and came by the house to check\\n\\non her. She observed that the garage door was open, as was the door from the garage into\\n\\nthe house. She found Tara and Kayla nonresponsive in the bedroom and called the\\n\\npolice, who later found Mitch’s body in that room.\\n\\n\\n\\n\\n 2\\n\\f Evidence recovered from the crime scene and forensic examination showed that\\n\\nthe victims had been killed by shots from three firearms—a .22, a 9mm, and a .357.\\n\\nSeven .357 casings and seven 9mm casings were found at the crime scene. A .22 caliber\\n\\nprojectile was found in a dresser drawer. In addition, six projectiles were found in and\\n\\nunder the bed. The ballistics expert determined that at least three of those projectiles\\n\\ncame from the .357, and one came from the 9mm. The origin of the other two projectiles\\n\\ncould not be determined.\\n\\n Mitch was shot at close range once in the upper back and once in the cheek. No\\n\\nbullets were recovered from his body, but one of the .357 projectiles found under the bed\\n\\nwas directly beneath his head.\\n\\n Tara’s body had 10 gunshot wounds: three on the head, two on the chest, one on\\n\\nthe abdomen, two on the leg, one through the arm, and one through the hand. The\\n\\nmedical examiner observed that five or six shots entered and fully exited her body. Four\\n\\nbullets were recovered from Tara’s body—one from her head and three from her body\\n\\ncavity—all of which came from the 9mm gun. One of the .357 projectiles was found\\n\\nbeneath her head.\\n\\n Kayla was shot once in the head, once in the back, and three times in the hip.\\n\\nThree bullets lodged near her hip were recovered; one came from a .22, and two were\\n\\nfrom the 9mm. Kayla’s head wound was not attributed to a particular weapon, but seven\\n\\n9mm casings were found, and seven 9mm shots were accounted for. And the wound was\\n\\nnot of the distinctly smaller sort attributable to a .22. Based on the above evidence, the\\n\\nState theorized that shots from the .357 gun caused the head wounds of all three victims.\\n\\n\\n 3\\n\\f Three neighbors testified for the prosecution at trial. James Deeter said that at\\n\\n12:12 a.m. on August 26 he took out his garbage and noticed that the Thompsons’ garage\\n\\ndoor was open, but the interior door from the garage into the house was “definitely\\n\\nclosed.” Trial Tr. Vol. III at 606. He and his wife both described loud barking coming\\n\\nfrom the side of their yard adjacent to Tara’s home at about 12:45 a.m. Another neighbor\\n\\nwas awakened close to that time but could not state the cause.\\n\\n A possible motive for the murders was a feud involving Mitch. On one side of the\\n\\nfeud were Mitch and a family friend, J.R. Hoffman, who usually spent the night at Tara’s\\n\\nhome or the home of Mitch’s parents. On the other side were Mitch’s sister Michelle\\n\\nChastain; his cousin Ronald Thompson (called “Bunny,” because he was born on Easter),\\n\\nwho lived with Michelle; and Goode, who was Michelle’s boyfriend. At trial, Michelle\\n\\nand Bunny testified to the events of the feud, with some corroboration from others,\\n\\nincluding a statement by Goode to the police. The gist of the events is not disputed and\\n\\nwas endorsed in the defense closing argument.\\n\\n About July 14, 2005, Goode gave J.R. money to run an errand for him in\\n\\nClaremore, Oklahoma. J.R. borrowed Michelle’s car for the trip. He wrecked the car and\\n\\nwas arrested for driving under the influence. When they learned that J.R. was in jail,\\n\\nMitch’s mother and Bunny bailed him out. Goode and Bunny retrieved the car, which\\n\\nwas badly damaged.\\n\\n Two weeks later, Bunny and Goode confronted J.R. at the home of Mitch’s\\n\\nparents. Goode demanded that J.R. pay for the damage to the car, J.R. refused, and\\n\\nGoode punched him in the mouth. Goode and Bunny left and went to Michelle’s house.\\n\\n\\n 4\\n\\fGoode’s friend Damos “Peanut” Joseph came to that house and gave Goode a handgun,\\n\\nwhich Goode tucked into his pants. Meanwhile, Mitch’s mother drove J.R. to Tara’s\\n\\nhouse because he was drunk and acting erratically.\\n\\n Later that night, Michelle heard a knock at her door. She and Bunny went to\\n\\nanswer it and found Mitch accompanied by J.R. and armed with a baseball bat. Mitch\\n\\nbegan attacking Bunny with the bat. He was badly beating Bunny when Michelle called\\n\\nfor Goode, who emerged from a bedroom carrying a gun. Michelle had never seen\\n\\nGoode with a gun before that night and did not know where he obtained it.\\n\\n Goode ordered everyone outside. But Mitch continued to beat Bunny, while J.R.\\n\\npointed at Goode and yelled “I want this motherfucker right here.” Trial Tr. Vol. V at\\n\\n1022. About this time, Peanut joined the group in the yard. Goode handed Peanut his\\n\\ngun and engaged in a fistfight with J.R, which he won. An ambulance was called for\\n\\nBunny, who suffered a broken rib from the beating with a bat.\\n\\n After this incident, Mitch called the child-welfare division of the Oklahoma\\n\\nDepartment of Human Services (DHS) to say that Michelle had not reported the income\\n\\nof people living in her home. DHS initiated an investigation and scheduled a home visit.\\n\\nMitch also called the dental office where Michelle worked and said that she was involved\\n\\nwith drugs, causing her to be fired. He similarly attempted to get Goode fired from his\\n\\njob as an aide at Brookhaven Hospital by reporting to the hospital that he was selling\\n\\ndrugs, but this effort was unsuccessful.\\n\\n At Goode’s trial, two witnesses gave accounts of the murders. One, Bunny\\n\\nThompson, confessed to participating in the crime. On August 25 he reported to his\\n\\n\\n 5\\n\\fusual job as a cart puller at Walmart. Because his car was inoperable, he was driven to\\n\\nwork by his uncle, Mitch’s father. Not long before 10:00 p.m. his boss told him to leave\\n\\nthe store, but did not fire him, for taking Xanax at work. Bunny tried calling Michelle to\\n\\npick him up but could not reach her, so he called Goode to get a ride home. Goode said\\n\\nhe was already coming to Walmart and could pick him up. He arrived at Walmart with\\n\\nKenneth “Fu Fu” Johnson in Johnson’s white four-door Mercury Marquis. The two men\\n\\ndid some shopping at the store and then connected with Bunny, who had never met\\n\\nJohnson before.\\n\\n Bunny got in the car with Goode and Johnson. He sat in the back, Goode sat in\\n\\nthe front passenger seat, and Johnson drove. As they departed, Goode told Bunny they\\n\\nwere going to “take care of some business.” Trial Tr. Vol. V at 909–10. He gave Bunny\\n\\na .22 gun and latex gloves. At trial Bunny first described the gloves as “yellow ones, like\\n\\nthe doctors use” but then said they were clear. Trial Tr. Vol. V at 910. Johnson had a\\n\\n9mm gun and Goode had a .357. Bunny put on the latex gloves, and Johnson and Goode\\n\\nput on both latex gloves and another set of gloves, which Bunny first described as “[l]ike\\n\\nbatting gloves” and then as “painter gloves” that were “blue on the outside.” Trial Tr.\\n\\nVol. V at 911–12. Bunny testified that they then drove straight to Tara’s home, though\\n\\nthe State said that the murders did not occur until later that night. Bunny said that when\\n\\nhe left Walmart with Goode and Johnson, he took some ecstasy in Johnson’s car, which,\\n\\ncombined with Xanax, muddled his recall.\\n\\n When the three men arrived at Tara’s house, Bunny rang the doorbell. Getting no\\n\\nresponse, he went through the open garage door and kicked in the interior door to the\\n\\n\\n 6\\n\\fhouse. He went to the left, heading for the room where J.R. regularly stayed. Goode and\\n\\nJohnson went to the right, to Mitch and Tara’s bedroom. Bunny heard gunshots coming\\n\\nfrom that bedroom and went there, where he found Goode and Johnson shooting.\\n\\nJohnson held his gun to Bunny’s head and demanded that he start shooting or he would\\n\\n“be next.” Trial Tr. Vol. V at 917–18. Bunny fired three or four shots into the wall over\\n\\nthe bed. He admitted that he “might have shot” Kayla in the hip as he “raised up the\\n\\ngun.” Trial Tr. Vol. V at 923. Bunny then ran out of the home, with Goode and Johnson\\n\\nbehind him.\\n\\n The three headed to the home of “Peanut” Joseph. While driving there on\\n\\nHighway 169, they threw their gloves out the car windows. Upon arriving at Peanut’s,\\n\\nGoode told Bunny to “get rid of the bullets” from his gun. Trial Tr. Vol. V at 925.\\n\\nBunny gave his gun to Goode and then tossed what he said were the bullets “outside in a\\n\\nfield.” Trial Tr. Vol. V at 925. (It is possible that Bunny was referring to the casings, not\\n\\nthe bullets themselves. The .22 was the only gun used in the murders to retain its\\n\\ncasings; the other two firearms were automatic weapons, so their casings were\\n\\nautomatically discharged upon firing.)\\n\\n Later that morning, Bunny awoke at Michelle’s house, where someone picked him\\n\\nup and took him to his sister’s home. The next day, August 27, Bunny confessed to his\\n\\nsister “what all happened,” and she drove him to the police station.1 Trial Tr. Vol. V at\\n\\n929.\\n\\n\\n1\\n Bunny’s sister, Tressa Beasley, testified that on August 26 Bunny came to her home\\nfrom Michelle’s house and spent the night. He told her that Mitch and his family were in\\n\\n 7\\n\\f In his interview with the police, Bunny at first denied involvement in the\\n\\nshootings. Although he admitted that he got in the car with Goode and Johnson, he said\\n\\nthat after they pulled into Tara’s neighborhood and showed him the gloves and guns, he\\n\\ngot out of the car but did not enter Tara’s home. Then he admitted entering Tara’s home\\n\\nbut claimed he did not have a gun. He initially said that Johnson kicked in the door to the\\n\\nhome, but then admitted that he was the one who had done so. He then modified his\\n\\naccount once again, admitting to using a .22 caliber gun to fire shots into a wall at the\\n\\nhome. And when officers told Bunny that a .22 bullet was recovered from Kayla’s hip,\\n\\nhe admitted that one of his shots might have hit her. In exchange for Bunny’s testimony,\\n\\nthe State withdrew the death penalty in his case.\\n\\n The other account of the murders came from Michelle Chastain, who described\\n\\ntwo occasions on which Goode confessed to the murders. Goode woke her up at her\\n\\nhome at 4:18 a.m. on August 26. He rubbed her face and then went to the other side of\\n\\nthe bed. Michelle told him she had called and left messages on his phone several times\\n\\nthat evening and accused him of being with another woman. They argued until Goode\\n\\nshouted out, “I just shot your fucking brother, is that what you wanted to hear?” Trial Tr.\\n\\nVol. V at 1043.\\n\\n Michelle did not take his statement about her brother seriously because Goode\\n\\nimmediately changed the subject, talking about jerseys that his “cousin” Fu Fu (Johnson)\\n\\n\\nthe hospital. But when she learned from her mother that they had been murdered, she\\nconfronted him and told him to tell her the truth about what had happened. After he\\nresponded (she did not testify about the contents of his statement) she told him he needed\\nto turn himself in and drove him to speak with the police.\\n\\n 8\\n\\fhad given him. About this time, Michelle heard the microwave in the kitchen and\\n\\nassumed it was Bunny. But Goode explained that it was Johnson, who then came to the\\n\\nbedroom. Michelle got out of bed and Goode introduced Johnson to her as his cousin.\\n\\nMichelle had never met Johnson before that night. Johnson asked Michelle to get\\n\\nBunny’s stuff out of his car. She followed Goode and Johnson outside and saw a four-\\n\\ndoor vehicle, which she had never seen until that night, parked curbside with Bunny lying\\n\\nbeside it unconscious. She took Bunny’s bag out of the backseat of the car and helped\\n\\ntake Bunny to the guest room, where he often stayed.\\n\\n Sometime before 6:00 a.m., Johnson left, followed shortly thereafter by Goode.\\n\\nBefore he left, Goode told Michelle to watch the news. Michelle did not know how\\n\\nGoode got home; she did not recall seeing Goode’s truck outside her house, but said it\\n\\nwas possible the truck was there. Later that morning, Goode, his friend Peanut, and\\n\\nanother man came to Michelle’s to help clean up her home for the DHS inspection\\n\\nscheduled for that day. Goode then left to visit his brother in prison.\\n\\n Michelle learned of the murders the early afternoon of August 26 when Detective\\n\\nJeff Felton and a police chaplain came to her home. Until then she had not known that\\n\\nanyone had actually been killed. She soon learned that her father had suffered a heart\\n\\nattack upon hearing of the murders, and she went to the hospital to be with him. While\\n\\nthere, she spoke with Detective Felton and Officer Mike Denton. During this time,\\n\\nGoode called her to say she was “making him nervous.” Trial Tr. Vol. V at 1059. She\\n\\nsaid nothing to the police implicating Goode.\\n\\n\\n\\n\\n 9\\n\\f She again spoke with Goode in the early morning hours of August 27. After he\\n\\nthreatened to come to the hospital, she agreed to meet him at a Denny’s restaurant\\n\\ninstead. At Denny’s, Goode told Michelle that her brother was a “punk and a coward”\\n\\nand further described the murders. Trial Tr. Vol. V at 1061. Goode told Michelle that on\\n\\nthe night of the murders he, Johnson, and Bunny went to Tara’s home and waited outside\\n\\nfor the occupants to fall asleep. The garage door had been left open. When they decided\\n\\nto go in, Bunny kicked in the door from the garage to the house, leaving a footprint.\\n\\nBunny was supposed to go to J.R.’s room, but instead came up behind Goode and\\n\\nJohnson and shot Kayla. As they were leaving the home, Goode heard something move.\\n\\nHe turned on the lights and saw Mitch—who had previously been shot—trying to crawl\\n\\naway. Goode went over to Mitch and demanded that he look him in the eye, but he did\\n\\nnot do so. He told Mitch that he should have “never snitched” on him and he should “die\\n\\nlike a bitch.” Trial Tr. Vol. V at 1062. He then shot Mitch again. Goode claimed that he\\n\\nshot Mitch eight times and that Johnson shot Tara. He and Johnson would have shot\\n\\nBunny, but he took off running. Goode had a shotgun and Bunny had a .22.\\n\\n Michelle gave two recorded statements to the police. On August 27 the police\\n\\nasked to speak with her, and she came to the police department. She was first\\n\\ninterviewed by Detective Sonya DeArmond, who was essentially stalling for time until\\n\\nOfficer Denton—who had been at the crime scene and was thus familiar with the case—\\n\\nreturned to the police department from another assignment. DeArmond asked Michelle\\n\\nabout the baseball-bat incident, and she said that Goode did not have a gun during that\\n\\nencounter. She did not tell DeArmond about Goode’s confession or his involvement in\\n\\n\\n 10\\n\\fthe murders, or that she had seen Goode during the early morning hours of August 26.\\n\\nDenton continued the interview once he arrived at the police department.\\n\\n Because the audio quality of the August 27 interview was poor, Denton\\n\\ninterviewed Michelle again on August 30. (Denton did not testify about what Michelle\\n\\ntold him on August 27.) At this interview—which occurred after Goode had been\\n\\narrested—Michelle told Denton of Goode’s confession to her. At trial the defense\\n\\npointed to several inconsistencies between what she said at her August 30 interview and\\n\\nher trial testimony. In the interview, for instance, Michelle said that she first saw Bunny\\n\\non August 26 when she woke up in the later morning hours, not when she went outside to\\n\\nJohnson’s car. Also, she said that Goode confessed to her at her home, and they went to\\n\\nDenny’s only after his confession. On the other hand, there is one indication that she was\\n\\nnot distorting her account of the confession to fit what she later learned about the crimes:\\n\\nduring the interview she expressed surprise at Goode’s claim that he had shot Mitch eight\\n\\ntimes, because she had seen on the news that it was Tara, and not Mitch, who had been\\n\\nshot multiple times.\\n\\n The accounts of the murders given by Michelle and Bunny were corroborated by a\\n\\nvariety of other evidence at trial. To begin with, a Walmart security video showed\\n\\nGoode, Johnson, and Bunny leaving the store where Bunny worked at about 10:00 p.m.\\n\\non the night of August 25. They departed in a white four-door vehicle that looked like\\n\\nJohnson’s Mercury Marquis.\\n\\n Also supportive were records of Goode’s cell-phone activity, which were obtained\\n\\nby an investigator for the defense at least five months after the murders and introduced by\\n\\n\\n 11\\n\\fthe defense at trial. They showed very frequent calls throughout August 25, but no\\n\\nactivity from 11:48 p.m. to 1:03 a.m. The call at 1:03 a.m. was placed to the phone of\\n\\nDamos “Peanut” Joseph, who, according to Bunny’s statement to the police a few days\\n\\nafter the murders, was the person with whom the murder weapons were left promptly\\n\\nafter the crime.\\n\\n Detective William Mozingo, who investigated the murders, provided\\n\\ncorroboration on three points. Two involved the crime scene. He testified that officers\\n\\nfound a partial footprint on the door from the garage into Tara’s house, corroborating\\n\\nBunny’s testimony and Goode’s confession to Michelle that Bunny kicked in the door to\\n\\nthe home. And he said that he observed two small holes in the wall in the Thompsons’\\n\\nbedroom, supporting Bunny’s account that he shot the .22 into the bedroom wall.\\n\\n The third item of corroborating evidence related to the gloves mentioned by\\n\\nBunny. On August 30 officers searched a four-mile stretch of Highway 169 for “[a] latex\\n\\nglove and blue knobby work glove.” Trial Tr. Vol. VI at 1263. In a grassy area near an\\n\\nofframp from the highway, Mozingo found a “blue and white work glove,” a “latex\\n\\nglove,” and a “blue and white work glove encased in a latex glove,” supporting Bunny’s\\n\\naccount that these types of gloves were worn the night of the murders and were thrown\\n\\nout the car window as they left for Peanut’s house.2 Trial Tr. Vol. VI at 1264, 1266–67.\\n\\nOther officers found a portion of a latex glove on the front floor mat of Johnson’s\\n\\n\\n\\n\\n2\\n In addition, on the side of that highway about a quarter of a mile away, officers found\\n21 latex gloves, two leather gloves, and two cloth gloves.\\n\\n\\n 12\\n\\fMercury Marquis, and a box of latex gloves in the bed of Goode’s truck under a locked\\n\\ncover.3 Goode had access to latex gloves as part of his job with Brookhaven Hospital.\\n\\n Further corroborating Bunny’s account was the testimony of Officer Jeff\\n\\nHenderson. (Goode’s Brady claim concerns impeachment of this testimony.) He said\\n\\nthat on August 29 he went with other officers to Peanut Joseph’s home because of\\n\\ninformation received from Bunny. He found two .22 casings and one live .22 round in\\n\\nthe vacant lot across from Peanut’s home.\\n\\n Forensic evidence partially corroborated Michelle’s account of how Goode\\n\\ndescribed his role in the murders. First, a shot was fired through Mitch’s cheek at close\\n\\nrange, which fit with Michelle’s testimony that Goode said he hovered over Mitch and\\n\\ndemanded that he look him in the eye as he shot him. Also, seven .357 casings were\\n\\nfound at the crime scene, nearly matching Goode’s statement to Michelle that he fired his\\n\\ngun eight times (although Michelle reported that Goode told her he had used a shotgun,\\n\\nnot a .357). Finally, Goode told Michelle that Johnson shot Tara, and four bullets from\\n\\nthe 9mm—the gun Bunny said was used by Johnson—were found in her body.\\n\\n In addition, a defense witness, Penny Avans, supported the State’s theory of the\\n\\ncase in important respects. Penny, a friend of Goode and Michelle, was called to testify\\n\\nthat Michelle had told her she wanted to kill Mitch after he got her fired and called child\\n\\nservices, and that she had heard Michelle tell Bunny where Mitch kept a gun in his\\n\\n\\n\\n\\n3\\n Officers also found a brown jersey glove in the backseat of Johnson’s car.\\n\\n 13\\n\\fhome.4 But her account of what happened the night of the murders is generally consistent\\n\\nwith the other descriptions. She stated that she was at Michelle’s home the evening of\\n\\nAugust 25, that Goode left around 6:00 or 6:30 p.m., saying that he was going to “take\\n\\ncare of some business,” Trial Tr. Vol VII at 1497–98, and that when she left Michelle’s\\n\\nnear 12:10 a.m., Goode had not returned. She also said that Michelle called her at 3:18\\n\\na.m. and told her that she should come over because Goode had brought a good-looking\\n\\nguy named Fu Fu (Johnson) to her home. (Michelle, however, denied making that call.)\\n\\nAnd Penny said that she went to Michelle’s house later that morning to pick up Bunny.\\n\\nWhen asked whether she thought of Bunny as someone who is easily led by others, she\\n\\nsaid she did.\\n\\n Goode did not testify but he gave a statement to police the afternoon of August 28,\\n\\nless than three days after the murders. Detective Mozingo, who interviewed Goode,\\n\\ntestified to the content of his statement. Goode admitted that he and Johnson picked up\\n\\nBunny from Walmart on the night of August 25 in Johnson’s white vehicle. He referred\\n\\nto Johnson as his cousin and said that though they were not actually related they had\\n\\ngrown up together. Goode’s mother, whom Goode lived with, lived across the street\\n\\n\\n\\n\\n4\\n Penny also claimed that Michelle told her to tell the police that Goode had confessed to\\nPenny, even though he had not done so. But in the recorded interview with the police on\\nAugust 30, Michelle said that Penny did not know anything about the murders because\\nshe was out of town on the days immediately following the crime. (Penny testified that\\nshe and her husband left on a trip on August 26 (shortly after news of the murders was\\npublicized) and they were out of town until late August 28 or early August 29, by which\\ntime Goode had been arrested.)\\n\\n 14\\n\\ffrom Johnson’s grandmother. Goode said that he and Johnson were reconnecting on the\\n\\nnight of the murders after not seeing each other for a year or two.\\n\\n Goode at first told police that after he and Johnson picked up Bunny from\\n\\nWalmart, Bunny asked to be dropped off in Mannford (a community about 38 miles\\n\\naway) at the home of a woman who was either his girlfriend or his wife (Goode was\\n\\nunsure who exactly the person was). Johnson drove, and Bunny provided directions. He\\n\\nand Johnson dropped Bunny off (he did not specify where), and Johnson then drove\\n\\nGoode home, where the two conversed. Goode said that he needed to go home because\\n\\nhe and his mother were going to visit his brother in prison the next day.\\n\\n After a break in the interview, however, Goode changed his story. Explaining that\\n\\nhe now remembered what had occurred less than three days before, he claimed that after\\n\\nhe and Johnson picked up Bunny from Walmart, Johnson dropped Goode at his truck,\\n\\nand Goode drove home. Johnson then took Bunny—whom he had met for the first time\\n\\nthat night—to Michelle’s house. Back at home, Goode later received a call from Johnson\\n\\ntelling him that there was something wrong with Bunny, and Goode then met Bunny and\\n\\nJohnson at Michelle’s. When Goode arrived, Bunny “was fucked up,” so he pulled\\n\\nBunny out of Johnson’s car and attempted to bring him into the home. Trial Tr. Vol. VI\\n\\nat 1284.\\n\\n According to Mozingo, Goode “stated that he couldn’t see Bunny doing anything\\n\\nlike [the murders] . . . . [H]e said something to the effect of he don’t have it in him or he\\n\\ndon’t – doesn’t have the heart for it.” Trial Tr. Vol. VI at 1287–88.\\n\\n\\n\\n\\n 15\\n\\f Goode was asked whether he knew Peanut (the person with whom Bunny said the\\n\\ntrio stashed their weapons after the murders). He responded that he “kn[ew] a lot of\\n\\nPeanuts.” Trial Tr. Vol. VI at 1284. Also, Goode admitted that J.R. had wrecked\\n\\nMichelle’s car, that he had previously been involved in a fistfight with J.R., and that\\n\\nMitch had attempted to get him fired from his job and had successfully gotten Michelle\\n\\nfired.\\n\\n Goode called two alibi witnesses, but neither could account for his whereabouts\\n\\nafter midnight on August 25. Goode’s mother saw him at home before 8:00 p.m. on\\n\\nAugust 25 but knew nothing of his whereabouts thereafter. She said that she had planned\\n\\nto go with Goode to visit his brother in prison early the next morning but admitted that\\n\\nthey left for the visit later than expected because she was waiting on Goode.\\n\\n Ruby Gilyard—the partner of Goode’s imprisoned brother who lived with\\n\\nGoode’s mother—testified that she saw Goode at his home the night of the murders. He\\n\\nleft at 8:00 p.m., but then returned about 11:00 p.m. They conversed for a short time\\n\\nbefore she went to shower and get ready for bed. When she got out of the shower, she\\n\\nheard Goode rummaging through his things in another room. She did not see or hear\\n\\nfrom Goode the rest of the night. Neither Goode’s mother nor Gilyard saw Johnson at\\n\\nthe home that night, as Goode had initially claimed in his statement to police.\\n\\n On December 13, 2007, Goode was convicted on three counts of first-degree\\n\\nmurder and one count of first-degree burglary. The State alleged two aggravating\\n\\ncircumstances for each of the three murder offenses: (1) the defendant knowingly created\\n\\na great risk of death to more than one person; and (2) there exists a probability that the\\n\\n\\n 16\\n\\fdefendant would commit criminal acts of violence that would constitute a continuing\\n\\nthreat to society. The jury found that both aggravating circumstances applied to each\\n\\nmurder. Goode was sentenced to death on each of the murders and 20 years’\\n\\nimprisonment (and a $10,000 fine) on the burglary count. Goode unsuccessfully\\n\\nappealed the convictions and sentences and filed three applications for postconviction\\n\\nrelief in the state court.5\\n\\n II. DISCUSSION\\n\\n A. Standards of Review under § 2254\\n\\n Standards of review of state proceedings under § 2254 are set forth in the\\n\\nAntiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA provides for\\n\\n“highly deferential” review of decisions by state courts. Hanson v. Sherrod, 797 F.3d\\n\\n810, 824 (10th Cir. 2015). When a state court has considered a claim on the merits, we\\n\\nmay grant relief on that claim if the state court’s decision “was contrary to, or involved\\n\\nan unreasonable application of, clearly established Federal law, as determined by the\\n\\nSupreme Court of the United States.” 28 U.S.C. § 2254(d)(1).\\n\\n The threshold question for review under § 2254(d)(1) is whether there exists\\n\\nclearly established federal law on the issue raised by the prisoner. See Littlejohn v.\\n\\nTrammell, 704 F.3d 817, 825 (10th Cir. 2013) (internal quotation marks omitted). “The\\n\\nabsence of clearly established federal law is dispositive under § 2254(d)(1)” and requires\\n\\nthe denial of relief. Id.\\n\\n\\n5\\n Goode raised numerous issues in these state proceedings. For the sake of brevity, we\\nnote only those issues that are relevant to claims raised in this appeal.\\n\\n 17\\n\\f If such clearly established law does exist, “a state court decision is ‘contrary to’ it\\n\\nonly if the state court applies a rule that contradicts the governing law set forth in\\n\\nSupreme Court cases or if the state court confronts a set of facts that are materially\\n\\nindistinguishable from a decision of the Supreme Court and nonetheless arrives at a\\n\\ndifferent result.” Hanson, 797 F.3d at 824 (brackets and further internal quotation marks\\n\\nomitted). Relief can be provided under the “unreasonable application” clause of\\n\\n§ 2254(d)(1) “only if the state court identifies the correct governing legal principle from\\n\\nthe Supreme Court’s decisions but unreasonably applies that principle to the facts of the\\n\\nprisoner’s case.” Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and\\n\\ninternal quotation marks omitted). Thus, a federal court may not grant relief just because\\n\\nit concludes in its “independent judgment that the relevant state-court decision applied\\n\\nclearly established federal law erroneously or incorrectly.” Id. (internal quotation marks\\n\\nomitted). Rather, “[i]n order for a state court’s decision to be an unreasonable application\\n\\nof [the Supreme] Court’s case law, the ruling must be objectively unreasonable, not\\n\\nmerely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726,\\n\\n1728 (2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must\\n\\nshow that the state court’s ruling was so lacking in justification that there was an error\\n\\nwell understood and comprehended in existing law beyond any possibility for fairminded\\n\\ndisagreement.” Id. (ellipsis and internal quotation marks omitted). “If this standard is\\n\\ndifficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86,\\n\\n102 (2011).\\n\\n\\n\\n\\n 18\\n\\f Relief may also be warranted under AEDPA “if the state court’s adjudication of a\\n\\nclaim on the merits ‘resulted in a decision that was based on an unreasonable\\n\\ndetermination of the facts in light of the evidence presented in the State court\\n\\nproceeding.’” Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (quoting 28\\n\\nU.S.C. § 2254(d)(2)). “[F]actual findings of the state court are presumed correct unless\\n\\nthe applicant rebuts that presumption by ‘clear and convincing evidence.’” Id. (quoting\\n\\n28 U.S.C. § 2254(e)(1)). “We will not conclude a state court’s factual findings are\\n\\nunreasonable merely because we would have reached a different conclusion in the first\\n\\ninstance.” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (internal quotation\\n\\nmarks omitted).\\n\\n In reviewing a state court’s decision under § 2254(d)(1) or (d)(2), “we must\\n\\n‘limit[]’ our inquiry ‘to the record that was before the state court that adjudicated the\\n\\nclaim on the merits.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“We now hold\\n\\nthat review under § 2254(d)(1) is limited to the record that was before the state court that\\n\\nadjudicated the claim on the merits.”); see id. at n.7 (explaining that § 2254(d)(2)\\n\\nexpressly limits review to “the evidence presented in the State court proceeding”). This\\n\\nis in keeping with “[t]he federal habeas scheme[, which] leaves primary responsibility\\n\\nwith the state courts.” Id. at 182. And given AEDPA’s “intent to channel prisoners’\\n\\nclaims first to the state courts,” it would not make sense “to allow a petitioner to\\n\\novercome an adverse state-court decision with new evidence introduced in a federal\\n\\nhabeas court and reviewed by that court in the first instance effectively de novo.” Id.\\n\\n\\n\\n\\n 19\\n\\f Finally, we do not consider an issue that was not adequately raised in the federal\\n\\ndistrict court. See Simpson v. Carpenter, 912 F.3d 542, 565 (10th Cir. 2018) (“[W]hen a\\n\\nlitigant fails to raise an issue below in a timely fashion and the court below does not\\n\\naddress the merits of the issue, the litigant has not preserved the issue for appellate\\n\\nreview.”); see also Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005) (“We do not\\n\\nreview these claims because [the applicant] failed to assert them in his district court\\n\\npetition for habeas relief.”). “To properly raise an argument below, a litigant must\\n\\npresent the argument with sufficient clarity and specificity.” Simpson, 912 F.3d at 565\\n\\n(internal quotation marks omitted). Any “vague, arguable references to a point in the\\n\\ndistrict court proceedings do not preserve the issue on appeal because such perfunctory\\n\\npresentation deprives the trial court of its opportunity to consider and rule on an issue in\\n\\nany detail.” Id. (ellipsis and internal quotation marks omitted).\\n\\n B. Brady v. Maryland Claim\\n\\n The Supreme Court held in Brady v. Maryland that “the suppression by the\\n\\nprosecution of evidence favorable to an accused upon request violates due process where\\n\\nthe evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. To\\n\\nprevail on a Brady claim, the proponent must show that “(1) the prosecution suppressed\\n\\nevidence, (2) the evidence was favorable to the defendant, and (3) the evidence was\\n\\nmaterial.” United States v. Ford, 550 F.3d 975, 981 (10th Cir. 2008) (internal quotation\\n\\nmarks omitted). “[E]vidence is ‘material’ within the meaning of Brady when there is a\\n\\nreasonable probability that, had the evidence been disclosed, the result of the proceeding\\n\\nwould have been different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009).\\n\\n\\n 20\\n\\f Goode alleges that the prosecution violated Brady in withholding information\\n\\nabout Jeff Henderson, one of the Tulsa Police Department officers investigating the\\n\\nmurders. There is no doubt that Henderson was a bad cop. Nine days after Goode’s\\n\\nsecond application for postconviction relief was filed in state court in July 2010,\\n\\nHenderson was charged in a 62-count federal indictment, accusing him of, among other\\n\\nthings, falsifying search warrants, committing perjury, and engaging in witness\\n\\ntampering. He was convicted by a jury on two counts of civil-rights violations and six\\n\\ncounts of perjury. See United States v. Henderson, 564 F. App’x 352, 354 (10th Cir.\\n\\n2014).\\n\\n At Goode’s trial, Henderson testified to his discovery of two .22 casings and one\\n\\nlive .22 round on a vacant lot across from the home of Damos “Peanut” Joseph. This\\n\\ndiscovery corroborated Bunny Thompson’s testimony that after the murder the three\\n\\nculprits went to Peanut’s home, where Goode instructed him to dispose of the bullets and\\n\\ncasings in his .22 by tossing them in the lot.\\n\\n Goode argues in this court that disclosure by the prosecution of Henderson’s\\n\\negregious misconduct would have helped the defense in two important respects. First,\\n\\nGoode describes Henderson’s contribution as “vital.” Aplt. Br. at 10. He contends that\\n\\nthe prosecution’s two main witnesses—Bunny Thompson and Michelle Chastain—had\\n\\nquestionable credibility (both because of the impeachment of their testimony and the fact\\n\\nthat they had stronger motives to commit the murders than did Goode) and there was\\n\\nlittle corroboration of their accounts. As a result, he concludes, the corroboration by an\\n\\napparently honorable police officer (Henderson) could well have tipped the scales in\\n\\n\\n 21\\n\\ffavor of a conviction; and his impeachment “could have been key to the defense.” Id.\\n\\nSecond, Goode argues that disclosure of Henderson’s misconduct would have\\n\\n“reverberate[d] to all parts of the State’s case,” Aplt. Br. at 43, by undermining the\\n\\ncredibility of the State’s other witnesses and suggesting that officers improperly targeted\\n\\nGoode in their investigation. He asserts that there is a reasonable probability that\\n\\nintroduction of evidence of Henderson’s misconduct would have changed the result of\\n\\nboth his trial and his sentence. But in federal district court Goode did not argue that\\n\\ndisclosure would have enabled him to undermine the entire prosecution (as opposed to\\n\\njust impeaching Henderson); nor did he preserve an argument regarding the impact of the\\n\\nalleged Brady violation on anything other than his conviction (not his sentence).\\n\\nTherefore, we do not consider those matters. See Simpson, 912 F.3d at 565.\\n\\n Goode first raised a Brady claim in his second postconviction application to the\\n\\nOCCA. That claim spanned a total of two pages of the application.6 His barebones\\n\\n\\n\\n\\n6\\n Because of its brevity, we provide the entirety of Goode’s Brady argument to the\\nOCCA:\\n\\n PROPOSITION ONE\\n\\n MR. GOODE’S DUE PROCESS RIGHTS WERE VIOLATED BY THE\\n PROSECUTION’S WITHHOLDING OF EVIDENCE RELEVANT TO THE\\n VERACITY AND CREDIBILITY OF ONE OF ITS WITNESSES, TULSA\\n POLICE OFFICER JEFF HENDERSON\\n\\n A. Standard of Review\\n\\n An appellate court reviews de novo claims that the prosecution violated Brady v.\\nMaryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), including whether\\n\\n 22\\n\\fsuppressed evidence was material. United States v. Hughes, 33 F.3d 1248, 1251 (10th\\nCir. 1994).\\n\\n B. Argument and Authority\\n\\n The Due Process Clause of the Fifth Amendment provides that “[n]o person shall .\\n. . be deprived of life, liberty, or property, without due process of law.” U.S. Const.\\namend. V. In criminal prosecutions, that clause’s primary guarantee is the right to a\\nfundamentally fair trial. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94\\nL. Ed. 2d 40 (1987). The prosecution’s suppression of evidence favorable to the accused\\nviolates due process where the evidence is material either to guilt or to punishment.\\nBrady, 373 U.S. at 87, 83 S. Ct. 1194.\\n\\n “[E]vidence is material . . . if there is a reasonable probability that, had the\\nevidence been disclosed to the defense, the result of the proceeding would have been\\ndifferent. A ‘reasonable probability’ is a probability sufficient to undermine confidence\\nin the outcome.” Ritchie, 480 U.S. at 57, 107 S. Ct. 989 (quotation and alteration\\nomitted). A defendant need not show that the withheld evidence would have “resulted\\nultimately in [his] acquittal.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131\\nL. Ed. 2d 490 (1995). Rather, the touchstone is simply whether the ultimate verdict is\\none “worthy of confidence.” Strickler v. Green, 527 U.S. 263, 290, 119 S. Ct. 1936, 144\\nL. Ed. 2d 286 (1999). “Impeachment evidence, . . . as well as exculpatory evidence, falls\\nwithin the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L.\\nEd. 2d 481 (1985). See Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009)\\n(“[E]vidence significantly enhancing the quality of the impeachment evidence usually\\nwill [be material.]”).\\n\\n Although the documents contained in App., Ex. 6 chronicle some of the more\\nrecent allegations leveled against Officer Henderson, other documents, documents which\\nconcern events that preceded Mr. Goode’s December 2007 trial, also bear on Officer\\nHenderson’s credibility. For example, in January of 2002, Officer Henderson was\\nsuspended from the Tulsa Police Department for misusing his authority as a police officer\\nto resolve a personal dispute. See App., Ex. 7. In December of 2000, Officer Henderson\\nwas investigated by the Tulsa Police Department’s Internal Affairs Division for, among\\nother things, entering false information in a probable cause affidavit. See App., Ex. 8.\\n\\n C. Conclusion\\n\\n Evidence affecting Officer Henderson’s credibility was known, or should have\\nbeen known, to the state and because such evidence was material to an assessment of\\nOfficer Henderson’s credibility, it should have been disclosed to Mr. Goode. It was not.\\nSee App., Ex. 9. Accordingly, this Court should find that the state violated its obligations\\n\\n 23\\n\\fargument was that evidence of Henderson’s misconduct was “known, or should have\\n\\nbeen known, to the state” and that “because such evidence was material to an assessment\\n\\nof Officer Henderson’s credibility, it should have been disclosed to Mr. Goode.” Def.’s\\n\\nSecond APCR at 12–13. In support of his claim, Goode submitted affidavits by Damos\\n\\n“Peanut” Joseph and his wife alleging that Henderson stated he would manufacture\\n\\nevidence in Goode’s case, and newspaper articles that described the ongoing\\n\\ninvestigation into Henderson’s misconduct in other matters.7 Goode also provided two\\n\\ninternal police documents: an interoffice memorandum notifying Henderson of a two-\\n\\nday suspension for wrongfully using police power in a personal dispute, and a factual\\n\\nsummary of an investigation into an incident of alleged excessive force (the summary is\\n\\nnotably without legal conclusions).8 Goode did not adequately argue before the OCCA\\n\\n(or in federal district court), as he does here, that the purported Brady evidence would\\n\\nhave had resounding effects on the entire prosecution (as opposed to the evidence just\\n\\nimpeaching Henderson and thereby leaving Bunny uncorroborated), or that the evidence\\n\\ncould have affected his sentence.9\\n\\n\\n\\nimposed by Brady and its progeny and Mr. Goode’s sentences should be reversed and his\\ncase remanded to the district court for a new trial.\\nDef.’s Second Application for Post-Conviction Relief, PCD 2010-661, at 11–13 (July 9,\\n2010) (Def.’s Second APCR).\\n7\\n We question, but have no occasion to resolve, whether this evidence was available to\\nthe prosecution and could have been disclosed to Goode by the time of trial.\\n8\\n We also question, but need not resolve, whether this evidence had any significant\\nimpeachment value and could have been used by Goode at trial.\\n9\\n One other argument we need not resolve that is raised by Goode in this court but was\\nnot raised before the OCCA is whether Henderson’s personal knowledge of his own\\n\\n 24\\n\\f The OCCA denied Goode’s request for relief. It assumed that Henderson was\\n\\n“completely impeached,” and concluded that even if “the evidence regarding these specific\\n\\ncartridges had been excluded from the trial, the outcome of this trial would have been the\\n\\nsame.” OCCA Opinion Denying Second APCR at 5–6 (Sept. 13, 2010). It explained:\\n\\n Goode’s claims in this subsequent application are based on Tulsa\\n Police Department’s Detective Jeff Henderson and his publicized alleged\\n illegal conduct, which came to light earlier in 2010 and led Petitioner to the\\n discovery of alleged improper activity occurring prior to Goode’s trial. First,\\n Goode alleges that the State withheld critical evidence which was relevant to\\n Henderson’s veracity and credibility. . . .\\n\\n We need not determine whether the evidence proffered against\\n Henderson is true and would have been relevant, admissible and sufficient to\\n impeach Henderson’s testimony, or whether the State failed in its duty to turn\\n the evidence over to the defense. We conclude, after reviewing these claims,\\n that even if Henderson’s testimony was impeached or if the evidence found\\n by Henderson was excluded from this trial, Goode would have suffered the\\n same fate, beyond any doubt. The facts of this case are compelling.\\n\\n During the trial, witness and co-defendant Ronald Thompson testified\\n that, after the murders, they took the guns to Damos Joseph’s house. He\\n testified that while parked at the house, he threw some .22 caliber rounds in\\n a field. He obviously gave investigators this information, as Henderson was\\n called to assist the Owasso police department by going to Damos Joseph’s\\n residence, meeting with Owasso Detectives, and requesting permission to\\n search the Joseph residence. While there, Henderson testified that he found\\n two spent .22 shell casings and a live .22 cartridge across the street in a lot\\n 5–6 feet from the curb. He notified Owasso detective Bill Mozingo so he\\n could view and recover the items. We briefly noted the finding of these items\\n in our recitation of facts on direct appeal.\\n\\n These shell casings were not vital to the case against Goode, nor were\\n they the only pieces of evidence corroborating Ronald Thompson’s\\n testimony. Thompson also testified that they threw latex gloves out of the\\n car windows after the shooting, and latex gloves were found along the\\n highway consistent with his testimony and statements to police. Thompson\\n\\n\\nmisdeeds in other investigations can be attributed to the prosecution in this case for Brady\\npurposes.\\n\\n 25\\n\\f testified about the three different caliber of handguns used in the murders,\\n and evidence supporting that testimony was found at the scene and during\\n the autopsy examination.\\n\\n After disposing of the guns, co-defendant Kenneth Johnson drove the\\n trio to Michelle Chastain’s house, and although she did not see Thompson,\\n she saw his Walmart vest in the car and testified that Johnson drove Goode\\n to her house, just as Thompson testified.\\n\\n Not only was there plenty of additional corroborating evidence,\\n besides the .22 caliber cartridges, Goode himself confessed to Michelle\\n Chastain that he killed the victims. He even provided specific details of the\\n murders. Needless to say, sufficient evidence existed, even absent evidence\\n of these cartridges, to prove beyond a reasonable doubt that Goode was guilty\\n of these crimes.\\n\\n We conclude that, if Henderson’s testimony had been completely\\n impeached, or if the evidence regarding these specific cartridges had been\\n excluded from the trial, the outcome of this trial would have been the same.\\n\\nOCCA Opinion Denying Second APCR at 3–6 (footnotes omitted).\\n\\n In reviewing the OCCA’s decision, we are limited to the record that was before\\n\\nthe state court.10 See Pinholster, 563 U.S. at 181. The parties interpret the OCCA’s\\n\\ndecision as denying relief under the materiality prong of Brady, as do we. Given the\\n\\nrelatively minimal value of Henderson’s testimony in light of the other evidence\\n\\nintroduced at trial implicating Goode in the murders and corroborating Bunny’s and\\n\\nMichelle’s incriminatory accounts, we cannot hold that the OCCA’s decision was an\\n\\nunreasonable application of Brady.\\n\\n Henderson’s testimony, which consumed just nine of the more than 1000 pages of\\n\\nthe trial transcript, was of little importance to the verdict. First, his testimony had only\\n\\n\\n\\n10\\n We therefore need not consider the documents from Henderson’s trial that Goode\\npresents to our court but did not present to the OCCA.\\n\\n 26\\n\\fmodest corroborative effect. Henderson accounted for two .22 casings found across from\\n\\nPeanut Joseph’s home. But as defense counsel pointed out in closing argument (without\\n\\ndispute from the prosecutor), there should have been four, not two, .22 casings from the\\n\\nmurders—two from the shots to the wall, one from the shot in Kayla’s hip, and one from\\n\\nthe projectile found in the dresser. In addition, Henderson acknowledged on cross-\\n\\nexamination that it would not be that uncommon to find such casings on a vacant lot in\\n\\nthe part of town where he found them.\\n\\n Moreover, the evidence incriminating Goode was compelling. The testimony of\\n\\nBunny and Michelle may have been enough to convince the jury, but there was much\\n\\nmore. It is undisputed that Bunny was one of the culprits. It is hard to believe that he\\n\\ncommitted the crimes on his own, using three different firearms to kill the victims. Who\\n\\nelse could have been involved?\\n\\n The neighbors’ testimony sets the time of the murders at about 12:45 a.m. on\\n\\nAugust 26. An undisputed video shows Bunny with Goode and Johnson at 10:00 p.m. on\\n\\nAugust 25 leaving the Walmart in Johnson’s Mercury Marquis. And trial testimony\\n\\nplaced the three men together again at Michelle’s house at 4:18 a.m. (per Michelle’s\\n\\naccount), with Bunny in a stupor. (Recall also that Penny Avans testified that Michelle\\n\\ncalled her at 3:18 a.m. and said that Goode and Johnson had come to her home.) Even\\n\\nGoode admitted in his statement to the police that he was with Johnson and Bunny\\n\\naround 10:00 p.m., and that later that night he met Johnson and Bunny at Michelle’s after\\n\\nJohnson called to say that something was wrong with Bunny, who, it turned out, was\\n\\nincapacitated. Is it reasonable to believe that Bunny, whose car was not operational,\\n\\n\\n 27\\n\\fsomehow during this five- or six-hour window in the middle of the night hooked up with\\n\\nsomeone other than Goode and Johnson to commit the crimes and then fell into a stupor,\\n\\nonly to be discovered by Goode, Johnson, or both? Penny Avans, a defense witness,\\n\\ntestified that she left Michelle at her house at about 12:10 a.m., in itself making\\n\\nMichelle’s participation unlikely.\\n\\n What about Johnson? Goode told the police (in his second version of events) that\\n\\nhe had gone home from the Walmart, leaving Bunny and Johnson together. But it\\n\\nbeggars belief to think that those two men, who had first met at 10:00 p.m., joined\\n\\ntogether in this heinous crime without any involvement of the man who brought them\\n\\ntogether—Johnson’s old friend Goode, with whom he was connecting after a separation\\n\\nof one or two years.\\n\\n This is to say nothing of the corroborating nontestimonial evidence and testimony\\n\\nfrom persons who could hardly be suspect (from Goode’s point of view). Long after\\n\\nBunny had told the police that the men had gone to Peanut’s home after the murders, a\\n\\ndefense investigator obtained the records for Goode’s cell phone, showing that a call had\\n\\nbeen placed to Peanut’s phone at 1:03 a.m., some 20 minutes after the likely time of the\\n\\nmurders. That call ended a significant hiatus in the use of Goode’s cell phone since\\n\\n11:48 p.m., after a day of near-constant activity on the phone. And Bunny’s testimony\\n\\nregarding the trip to Peanut’s home and the culprits’ use of gloves is further corroborated\\n\\nby the discovery of gloves disposed of near the side of Highway 169, in particular a “blue\\n\\nand white work glove encased in a latex glove,” Trial Tr. Vol VI at 1266, and the\\n\\ndiscovery of part of a latex glove in Johnson’s vehicle. Also, the forensic evidence\\n\\n\\n 28\\n\\fpartially corroborated Michelle’s testimony that Goode confessed to firing eight shots\\n\\nand, apparently, trying to shoot Mitch in the face.\\n\\n In addition, Ruby Gilyard, who lived with Goode and his mother and was called as\\n\\na defense alibi witness, testified that Goode had come home about 11:00 p.m., they had\\n\\ntalked for a short while and then, after she took a shower and got ready for bed, the last\\n\\nshe heard of Goode was his rummaging through things in another room—all consistent\\n\\nwith his coming home to get the tools necessary for his “business” of the evening. (Both\\n\\nBunny and Penny testified that he said that he had “business” to take care of that night.)\\n\\n On top of this evidence is Goode’s initial version of events when talking to police.\\n\\nWhy, if there was nothing to hide, make up the story about driving to Mannford from the\\n\\nWalmart, when his memory of the events less than three days earlier must have been\\n\\nfresh?\\n\\n Because of the minimal value of Henderson’s testimony and the strength of the\\n\\nincriminatory evidence, we cannot say that it was unreasonable of the OCCA to\\n\\ndetermine that impeaching Henderson would not have had a reasonable probability of\\n\\nchanging the outcome of Goode’s trial.\\n\\n Finally, Goode argues that the impeachment evidence, even if not enough on its\\n\\nown to establish materiality, is at least sufficient to require an evidentiary hearing\\n\\nregarding Henderson’s activities and the extent of the prosecution’s knowledge. But\\n\\nbecause we have not overturned the OCCA’s decision as unreasonable, we cannot grant\\n\\nan evidentiary hearing. See Smith v. Aldridge, 904 F.3d 874, 886 (10th Cir. 2018). We\\n\\naffirm the district court’s denial of Goode’s Brady claim.\\n\\n\\n 29\\n\\f C. Ineffective-Assistance-of-Counsel Claims\\n\\n Goode claims that he received ineffective assistance of trial counsel at both the\\n\\nguilt phase and penalty phase of his trial. Trial counsel was allegedly ineffective at the\\n\\nguilt phase because (1) counsel did not interview or present testimony from Douglas\\n\\nMiller, a friend of the victims, about a jailhouse conversation with Bunny Thompson that\\n\\nwould have impeached him; (2) counsel did not use a statement from Damos “Peanut”\\n\\nJoseph to the police that contradicted Bunny’s account of disposing of evidence after the\\n\\ncrime; and (3) counsel did not adequately pursue the possibility that Officer Henderson\\n\\nhad planted evidence since they did not follow up on statements to police by Peanut’s\\n\\nwife, Lashaun Joseph, or interview Peanut himself about the matter. With respect to the\\n\\npenalty phase of the trial, Goode alleges that counsel failed to adequately investigate and\\n\\npresent evidence of (1) his mental-health disorders, his being the victim of childhood\\n\\nsexual abuse, and his ongoing substance dependence; and (2) mitigating circumstances\\n\\nknown to family, friends, and coworkers.\\n\\n 1. Standards of Review\\n\\n A defendant alleging ineffective assistance of counsel must show both that\\n\\ncounsel’s performance was deficient and that defendant was prejudiced thereby. See\\n\\nStrickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the first prong, “counsel\\n\\nis strongly presumed to have rendered adequate assistance and made all significant\\n\\ndecisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at\\n\\n690. Overcoming this presumption is a “heavy burden” for the defendant. Byrd v.\\n\\nWorkman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation marks omitted). “To\\n\\n\\n 30\\n\\fbe deficient, the performance must be outside the wide range of professionally competent\\n\\nassistance. In other words, it must have been completely unreasonable, not merely\\n\\nwrong.” Hooks v. Workman (Danny Hooks), 606 F.3d 715, 723 (2010) (citation and\\n\\ninternal quotation marks omitted). On the second prong, “[t]he defendant must show that\\n\\nthere is a reasonable probability that, but for counsel’s unprofessional errors, the result of\\n\\nthe proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable\\n\\nprobability is a probability sufficient to undermine confidence in the outcome.” Id. A\\n\\ncourt is not bound to consider these two prongs in order, or even to consider them both, if\\n\\none is dispositive. See id. at 697.\\n\\n The burden on the defendant is even greater when AEDPA applies. “[H]abeas\\n\\ncorpus is a guard against extreme malfunctions in the state criminal justice systems, not a\\n\\nsubstitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S.\\n\\n86, 102–03 (2011) (internal quotation marks omitted). Review for unreasonableness\\n\\nunder § 2254(d) is different from review for unreasonableness solely under Strickland.\\n\\nSee id. at 105. “When 2254(d) applies, the question is not whether counsel’s actions\\n\\nwere reasonable. The question is whether there is any reasonable argument that counsel\\n\\nsatisfied Strickland’s deferential standard.” Id. Our review of ineffective-assistance\\n\\nclaims under § 2254, then, is “doubly deferential,” deferring both “to the state court’s\\n\\ndetermination that counsel’s performance was not deficient and . . . to the attorney’s\\n\\ndecision in how to best represent a client.” Byrd, 645 F.3d at 1168.\\n\\n 2. Analysis\\n\\n a. Guilt-Phase Ineffective-Assistance Claims\\n\\n\\n 31\\n\\f i. Douglas Miller\\n\\n Bunny was the key witness for the prosecution. He admitted participating in the\\n\\nmurders and testified to Goode’s involvement. Goode claims that competent defense\\n\\ncounsel would have impeached Bunny’s testimony with testimony from Douglas Miller\\n\\nabout his conversation with Bunny while they were incarcerated in adjacent cells at the\\n\\nTulsa County Jail after Bunny had been arrested for the murders. After trial, Goode’s\\n\\nappellate counsel obtained an affidavit from Miller about that conversation. Miller said\\n\\nthat he had been a friend of the murder victims and told Bunny as much. In the jailhouse\\n\\nconversation Miller told Bunny he wanted to know the truth about the murders, and\\n\\nBunny replied that he could not remember the night of the murders because he was high\\n\\non Xanax and ecstasy. He told Miller that when police investigators questioned him, they\\n\\nmentioned Goode and Johnson, so he went along with them and tried to place the blame\\n\\non his two associates because he did not want to be suspected himself.\\n\\n On direct appeal the OCCA rejected Goode’s claim that counsel was ineffective in\\n\\nfailing to impeach Bunny with Miller’s statement. It held that Goode had failed to\\n\\npresent sufficient evidence that his trial counsel’s performance had been deficient or that\\n\\nhe had been prejudiced by the alleged deficiency. Under the deference required by\\n\\nAEDPA, we cannot grant relief.\\n\\n To begin with, Goode has presented no evidence that the defense team failed to\\n\\ninterview Miller before trial, nor has he presented evidence that Miller would have\\n\\nreported the jailhouse conversation had he been interviewed at that time. Goode’s\\n\\nappellate counsel did not obtain the Miller affidavit until November 2008, 10 months\\n\\n\\n 32\\n\\fafter Goode was sentenced. The affidavit says nothing about whether Miller had\\n\\npreviously been interviewed, and Miller states in the affidavit that he had “failed to tell\\n\\nanyone about [the jailhouse conversation] due to not wanting to be in the middle of it.”\\n\\nMiller Affidavit, Application for Evidentiary Hearing on Sixth Amendment Claims, PCD\\n\\n2008–43, at Ex. A (Feb. 2, 2009).\\n\\n Further, the OCCA ruled that testimony by Miller, even if believed by the jury,\\n\\nwould not have changed the outcome of the trial. It noted that Bunny had been\\n\\nextensively cross-examined about his drug use during and after the murders and about his\\n\\ninconsistent statements to investigators. It also pointed out the obvious reason why\\n\\nBunny would not have been truthful with Miller: Miller’s friendship with the victims and\\n\\nBunny’s fear of retaliation if he admitted responsibility. See Goode, 236 P.3d at 687.\\n\\nThe court ruled that Goode had failed to show deficient performance by counsel or the\\n\\nrequisite prejudice. See id. We do not think that decision unreasonable.\\n\\n Goode contends that the OCCA and the federal district court both improperly\\n\\ndenied his requests for an evidentiary hearing on this issue. But on appeal in this court\\n\\nGoode does not dispute the State’s assertion that he failed to raise in federal district court\\n\\nany claim that the state court had improperly refused to conduct an evidentiary hearing.\\n\\nAnd Goode does not present to us any ground on which the district court could properly\\n\\nhave expanded the record beyond what was submitted to the state courts. See Pinholster,\\n\\n563 U.S. at 181 (“[R]eview under § 2254(d)(1) is limited to the record that was before the\\n\\nstate court that adjudicated the claim on the merits.”).\\n\\n Accordingly, we reject this claim.\\n\\n\\n 33\\n\\f ii. Damos “Peanut” Joseph and Lashaun Joseph\\n\\n Bunny testified that he, Goode, and Johnson visited the home of Peanut and\\n\\nLashaun Joseph shortly after the murders and disposed of his gun and ammunition there.\\n\\nGoode argues that trial counsels’ performance was deficient in not using evidence from\\n\\nthe Josephs to challenge the testimony of Bunny and Officer Henderson, who testified\\n\\nthat he found bullet casings near the home.\\n\\n First, Goode points to the failure of trial counsel to impeach Bunny’s testimony\\n\\nwith a police report of an interview with Peanut. According to the report, Peanut said\\n\\nthat Goode and Bunny came by his home about 9:00 a.m. on the morning of the murders\\n\\n(but not promptly after the murders), and the two men asked for help moving a chain saw\\n\\nand automobile parts. He denied receiving guns or ammunition. Goode fails, however,\\n\\nto explain how defense counsel could have used the report at trial. The report itself was\\n\\nclearly inadmissible hearsay. The only way to present the information at trial would have\\n\\nbeen for Peanut to testify. But Goode provides no evidence that Peanut had not been\\n\\ninterviewed by anyone on the defense team or that he would have been willing to testify\\n\\non that issue. (As we shall see shortly, he explicitly stated in an affidavit that he had not\\n\\nbeen willing to testify about information that would have impeached Henderson.) It is\\n\\nnot deficient performance for counsel to fail to put on inadmissible or unavailable\\n\\nevidence. Cf. Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (“[I]f the issue is\\n\\nmeritless, its omission will not constitute deficient performance.” (internal quotation\\n\\nmarks omitted)). Goode has failed to establish the first prong of Strickland with respect\\n\\nto this evidence.\\n\\n\\n 34\\n\\f Next, Goode argues that defense counsel were deficient in failing to follow up\\n\\nwith Peanut and his wife Lashaun about various statements made to them by Henderson\\n\\nwhile police searched their property after the murder. Because of this deficiency, Goode\\n\\nargues, the defense failed to “get to the bottom of” Henderson’s corruption. Aplt. Br. at\\n\\n100. His brief states, “While [at the Josephs’ home] the corrupt Henderson made\\n\\nmultiple statements indicating his determination to ‘get’ Clarence Goode by legal or\\n\\nillegal means and his intention to plant evidence against him.” Id. at 99. He points out\\n\\nthat it was Henderson who corroborated Bunny’s testimony that he had disposed of the\\n\\nshell casings from his gun near the Josephs’ home when Henderson found two .22 shell\\n\\ncasings and a .22 cartridge in the neighboring quarter-acre lot.\\n\\n Goode submitted affidavits from the two Josephs with his second application to\\n\\nthe OCCA for postconviction relief. Peanut’s affidavit stated that Henderson told him:\\n\\n“[W]e have been after Clarence for a long time and we are going to get him one way or\\n\\nanother. He let me know he was going to get Clarence any way he needed to.” Damos\\n\\nJoseph Affidavit, Def.’s Second APCR at Ex. 4. But Peanut also said that even though he\\n\\ntalked to a few members of Goode’s trial team, “I was afraid to testify at that time\\n\\nbecause I believe Officer Henderson would have retaliated against me. . . . I am now\\n\\nwilling to sign this affidavit because I no longer fear Officer Henderson because of all his\\n\\nleagal [sic] trouble.” Id. It is not deficient performance to fail to call a witness who will\\n\\ndecline to provide useful testimony. We reject this component of Goode’s\\n\\nineffectiveness claim.\\n\\n\\n\\n\\n 35\\n\\f As for Lashaun, she submitted an affidavit saying that had she been asked she\\n\\nwould have told trial counsel about Henderson’s intimidation and threats regarding\\n\\nGoode. But Goode does not argue that trial counsel should have called her as a witness.\\n\\nAs we understand his argument, he simply states that if Lashaun had been interviewed,\\n\\nher comments about Henderson would have led competent trial counsel on the path that\\n\\n“very well may have broken the case wide open and exposed to the jury a veteran police\\n\\nofficer who fabricates evidence.” Reply Br. at 36. This is sheer speculation, particularly\\n\\ngiven that there was no publicly available evidence of Henderson’s corruption at the time\\n\\nof trial.\\n\\n Moreover, even if defense counsel had been deficient in not pursuing from the\\n\\nJosephs potential evidence that could have been used to impeach Henderson, Goode has\\n\\nnot established the prejudice required by Strickland’s second prong—for the reasons\\n\\ndiscussed above with respect to Goode’s Brady claim. This claim thus fails.\\n\\n b. Penalty-Phase Ineffective-Assistance Claims\\n\\n i. Drug Use, Child Sexual Abuse, and Mental\\n Health\\n\\n In Goode’s first state postconviction proceeding he argued that his trial counsel\\n\\nwere ineffective at the penalty phase of his trial for failing to present in mitigation\\n\\navailable evidence of his abuse of Xanax and the sexual abuse he suffered as a child.\\n\\nAnd he contended that his appellate counsel were ineffective for failing to raise these\\n\\nissues on direct appeal. The OCCA rejected the claims on the second prong of\\n\\n\\n\\n\\n 36\\n\\fStrickland, holding that the failure to present the evidence did not prejudice Goode. It\\n\\nsaid:\\n\\n There was no evidence that Goode was under the influence of Xanax at the\\n time of these crimes and Goode presents no new evidence indicating that he\\n was. Also, Goode has presented no evidence regarding the effect of his\\n childhood experiences on him specifically. Without these pieces of\\n evidence, Goode cannot show that the outcome of his trial would have been\\n different.\\n\\nOCCA Opinion Denying Original Application for Post-Conviction Relief, PCD 2008–\\n\\n211, at 8 (Sept. 7, 2010).\\n\\n Goode raises three challenges to the OCCA’s decision. First, he argues that Dr.\\n\\nManual Saint Martin, a psychologist, provided the connection between the sexual abuse\\n\\nand Goode’s behavior resulting in the murders. But no statement by the doctor was\\n\\npresented to the OCCA in the first postconviction proceeding.\\n\\n Second, Goode argues that the OCCA applied the incorrect test for assessing\\n\\nprejudice under Strickland. He points to the OCCA’s language that Goode had failed to\\n\\nprove that “the outcome of his trial would have been different” if the additional evidence\\n\\nhad been presented. OCCA Opinion Denying Original Application for Post-Conviction\\n\\nRelief at 8. Goode is correct that the proper Strickland test is “whether there is a\\n\\nreasonable probability that, but for counsel’s unprofessional error, the result of the\\n\\nproceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added).\\n\\nBut the OCCA’s use of imprecise shorthand in stating the test does not demonstrate that\\n\\nthe OCCA was unaware of the correct standard. On the contrary, its discussion of the\\n\\nineffective-assistance claims began with citations to both Strickland and Harris v.\\n\\n\\n\\n 37\\n\\fOklahoma, 167 P.3d 438, 441 (OCCA 2007), which stated the Strickland reasonable-\\n\\nprobability standard. Goode has not overcome the presumption that the state court knew\\n\\nand applied the proper standard. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (we\\n\\npresume “that state courts know and follow the law,” and we give state-court decisions\\n\\n“the benefit of the doubt”). This is not one of those “extreme malfunctions” in the\\n\\ncriminal-justice process that can support habeas relief. Harrington, 562 U.S. at 102–03\\n\\n(internal quotation marks omitted); see Grant v. Royal, 886 F.3d 874, 906 (10th Cir.\\n\\n2018) (“The true question presented . . . is simply whether the overall substance of the\\n\\nOCCA’s analysis, as well as the result it reached, reflects that the court understood and\\n\\ndecided the ineffective-assistance issue under the proper Strickland framework.”).\\n\\nMoreover, as discussed below, the OCCA rejected an expanded version of this same\\n\\nclaim in Goode’s third state postconviction application and quoted the correct Strickland\\n\\ntest in the process.\\n\\n Third, Goode argues that the OCCA’s analysis is contrary to Eddings v.\\n\\nOklahoma, 455 U.S. 104 (1982), in requiring him to show a causal nexus between the\\n\\npurported mitigation evidence and an adverse effect upon him at the time of the crime.\\n\\nEddings, however, was not an ineffective-assistance case. That opinion held only that the\\n\\nsentencing judge in a capital case cannot refuse to consider relevant mitigating evidence\\n\\njust because it did not provide a legal excuse from criminal responsibility. See id. at 113–\\n\\n17. The Court made clear, however, that the sentencing and reviewing courts “may\\n\\ndetermine the weight to be given relevant mitigating evidence.” Id. at 114–15. Here, the\\n\\nOCCA did not refuse to consider the drug-use and sexual-abuse evidence; rather, it held\\n\\n\\n 38\\n\\fthat the evidence was entitled to minimal if any weight. That determination was not\\n\\ncontrary to Eddings. We therefore need not address the State’s argument that Goode\\n\\nfailed to preserve this issue in federal district court. We conclude that the OCCA did not\\n\\nunreasonably apply established federal law in rejecting this claim in Goode’s first\\n\\npostconviction application.\\n\\n Goode also challenges the OCCA’s rejection of an expansion of this claim in his\\n\\nthird state postconviction application. He argues that the performance of trial counsel\\n\\nwas deficient because they possessed “critical records” documenting Goode’s diagnosis\\n\\nand treatment for mental-health conditions, including depression and anxiety, yet they\\n\\nfailed to pursue this evidence and raise his mental-health problems in mitigation at the\\n\\npenalty phase of his trial. Aplt. Br. at 66. He contends that proper consideration of those\\n\\nrecords “would have led to the discovery of Goode’s prior diagnoses and treatment for\\n\\nmental health problems.” Id. at 67. And, the argument continues, defense counsel could\\n\\nthen have obtained expert testimony for the penalty phase. To show what an expert could\\n\\nhave testified to, Goode presented to the OCCA a report from Dr. Saint Martin, stating\\n\\nthat Goode had “confirmed diagnoses” of “major depression, post-traumatic stress\\n\\ndisorder and benzodiazepine (Xanax) and alcohol dependence,” and that all but Xanax\\n\\nwere “present at the time of the offense and they would have significantly impacted Mr.\\n\\nGoode’s behavior.” R., Vol. 1 at 240. The report asserted that Xanax and alcohol can\\n\\neach cause “dis-inhibition, cognitive dysfunction[,] lowered impulse control and\\n\\neuphoria.” Id. at 241. It further noted that Goode’s fiancée and his mother reported that\\n\\nGoode had been sexually abused as a child, and that this abuse, “followed by witnessing\\n\\n\\n 39\\n\\fnumerous shootings, death of friends, gang violence and his own violent injuries,” “could\\n\\nresult in” chronic PTSD and “would lead not only to heightened levels of anxiety, but\\n\\nalso to poor cognitive functioning and poor coping abilities.” Id. at 241–42. It also\\n\\nstated that his psychiatric history suggested possible “diagnoses of temporal epilepsy,\\n\\nbipolar disorder, and intermittent explosive disorder.” Id. at 242.\\n\\n The OCCA rejected the claim as procedurally barred. We need not worry whether\\n\\nthis procedural bar binds us because the OCCA essentially resolved the substantive issue\\n\\nnow before us while deciding the procedural bar. It said that the procedural bar could be\\n\\novercome if Goode’s counsel in the first postconviction proceeding had been ineffective\\n\\nin failing to raise the claim presented in the third postconviction application. It then held\\n\\nthat counsel had not been ineffective because the new claim failed for lack of a showing\\n\\nof prejudice. The OCCA ruled that Goode had not shown “a reasonable probability that\\n\\nthe evidence would have impacted the jury’s weighing of the aggravating and mitigating\\n\\nevidence.” It explained:\\n\\n The evidence of mental health issues caused by Goode’s chronic\\n substance abuse and a history of exposure to a violent environment could\\n lead the jury to a negative perception of Goode just as easily as the jury\\n might find it mitigating. This evidence, moreover, would have exposed\\n Goode’s deeply ingrained involvement in violent gang activity, including\\n shootings, stabbings, drug dealing, and other nefarious activities.\\n\\n This evidence, combined with the violent nature of the crime, the\\n gratuitous killing of an entire young family in an attempt to garner some\\n type of revenge, while seeking another intended target, would not have\\n caused this jury to determine that the mitigating evidence outweighed the\\n aggravating circumstances. The evidence would have bolstered the fact\\n that Goode is a continuing threat to society.\\n\\n\\n\\n\\n 40\\n\\fOCCA Opinion Denying Successive Application for Post-Conviction Relief, PCD 2012–\\n\\n261, at 5 (May 9, 2012) (citation omitted).\\n\\n We review that ruling with deference. Cf. Grant, 886 F.3d at 910–11 (reviewing\\n\\nprejudice prong of ineffective-assistance claim de novo because OCCA did not resolve\\n\\nclaim on that ground, but deferring to the OCCA’s “related, but distinct . . . merits\\n\\ndetermination” that defendant was competent in holding that applicant was not prejudiced\\n\\nby counsel’s failure to monitor his competency). And the OCCA’s analysis is not an\\n\\nunreasonable application of the prejudice prong of Strickland. The essence of Goode’s\\n\\nargument is that the possible downside to psychological evidence does not mean that it\\n\\ncannot be helpful. True. But one must look at the particular circumstances. And the\\n\\ncircumstances here do not help Goode. First, he does not argue that treatment of his\\n\\nmental disease would reduce his dangerousness. The report by Dr. Saint Martin does not\\n\\naddress the issue. Cf. Littlejohn, 704 F.3d at 865 & n.24 (report by psychiatrist stated\\n\\nthat defendant’s deficits were treatable and thereby provided “some assurance that,\\n\\nthrough medical treatments, his criminal, violent past would not be prologue”); Wilson v.\\n\\nSirmons, 536 F.3d 1064, 1094 (10th Cir. 2008) (separate opinion of Judge McConnell)\\n\\n(stating that juries are likely to regard as particularly mitigating those mental diseases\\n\\nassociated with brain abnormalities that can be treated with medication). Second, the\\n\\npsychological report added considerable information about Goode’s violent, antisocial\\n\\npast. He argues in his reply brief that the jury had already been exposed to a good deal of\\n\\nevidence of such misconduct. That evidence, however, related only to Goode’s feud with\\n\\nJ.R. Hoffman and Mitch Thompson (in which Goode injured them only with his fists and\\n\\n\\n 41\\n\\fused a gun only to try to stop Mitch from beating up Bunny), his prior conviction for\\n\\npossession of a firearm by a convicted felon, and the crimes charged in this case. The\\n\\njury was told nothing of his gang involvement or violent youth. The psychological report\\n\\nestablished that the violent conduct in this case was not a one-off brought about by a\\n\\nparticular episode but a way of life. Thus, this case is readily distinguishable from Smith\\n\\nv. Mullin, 379 F.3d 919, 943 & n.11 (10th Cir. 2004), where the “aggravating edge” to\\n\\nthe defendant’s mental impairments was already squarely before the jury. The OCCA\\n\\ncould therefore reasonably determine that the new mental-health evidence was unlikely to\\n\\nhave affected his sentence. Giving the OCCA decision the deference it is due, we cannot\\n\\ngrant relief on this claim.\\n\\n ii. Additional Mitigation Witnesses\\n\\n Goode argues that defense counsel provided inadequate representation by\\n\\npresenting at the penalty stage of his trial only two mitigation witnesses—his mother and\\n\\nhis fiancée. This testimony, along with the first-stage testimony of coworker Teresa\\n\\nSharpe, constituted his mitigation evidence. Goode claims that the jury should also have\\n\\nheard helpful evidence from coworkers, friends, and family. Goode first raised this claim\\n\\non direct appeal and attempted to supplement it in his first and third postconviction\\n\\napplications.\\n\\n On direct appeal Goode contended that his trial counsel were ineffective in not\\n\\npresenting additional family members (including two of his children), friends, and\\n\\ncoworkers as mitigation witnesses. He submitted affidavits from the witnesses and\\n\\nargued that their testimony “could have rounded out the jury’s picture of [his] overall\\n\\n\\n 42\\n\\fcharacter and history.” Aplt. Br. at 76, Goode v. State, No. D-2008-43. The OCCA\\n\\nrejected the argument for lack of prejudice:\\n\\n Goode cannot show that he was prejudiced by the absence of\\n additional mitigating evidence. Most of the information provided in the\\n affidavits was presented to the jury. Goode’s mother and fiancé testified\\n about his good family background, his childhood, his participation in high\\n school sports, and his devotion to his family and children. Goode’s\\n coworker testified about his employment and his ability to assist patients in\\n the mental health ward at the hospital.\\n\\n One affidavit describes Goode as coming from a good home, but\\n upon reaching his teen years he began getting into trouble because he was\\n influenced by peers. Affidavits from Goode’s children describe their life\\n with Goode in a very positive light. Coworkers’ affidavits also describe him\\n as a good worker. Other friends describe Goode as a good person while\\n around them. Much of Goode’s proposed additional mitigation evidence\\n was cumulative to that presented to the jury. Even if trial counsel had\\n presented all of the mitigating witnesses now proposed, there is no\\n reasonable probability that the outcome of the trial would have been\\n different.\\n\\nGoode, 236 P.3d at 688.\\n\\n In his first postconviction application, Goode again argued that counsel was\\n\\nineffective in failing to present additional mitigation witnesses. Three of the affidavits\\n\\nsubmitted in support of that claim—those by his children and his friend Penny Avans—\\n\\nwere similar to those submitted on direct appeal, and the OCCA accordingly held that\\n\\n“the argument regarding these potential mitigation witnesses is barred.” OCCA Opinion\\n\\nDenying Original Application for Post-Conviction Relief at 7. The remaining affidavits\\n\\nsetting forth allegedly mitigating evidence recounted Goode’s Xanax use and sexual\\n\\nabuse as a child and were rejected by the OCCA for the reasons described above.\\n\\n\\n\\n\\n 43\\n\\f In his third postconviction application, Goode submitted affidavits from friends\\n\\nand family members disclosing that he had been involved in gang activity, lost close\\n\\nfriends to gang violence, was shot in the face in a drive-by shooting, and grew up in a\\n\\nviolent neighborhood with a father who abused alcohol. The OCCA rejected this\\n\\nadditional evidence as procedurally barred but, as previously described, went on to\\n\\nexamine whether Goode had presented a claim of ineffective assistance of postconviction\\n\\ncounsel that would excuse the procedural bar.11 The OCCA denied that claim for lack of\\n\\nprejudice, holding that “[t]he evidence of . . . Goode’s . . . exposure to a violent\\n\\nenvironment could lead the jury to a negative perception of Goode just as easily as the\\n\\njury might find it mitigating” and “would have exposed Goode’s deeply ingrained\\n\\ninvolvement in violent gang activity.” OCCA Opinion Denying Successive Application\\n\\nfor Post-Conviction Relief at 5.\\n\\n In this court, Goode relies on an amalgamation of the alleged mitigating evidence\\n\\npresented at various proceedings before the OCCA. He states that his hospital coworkers\\n\\ncould have described how calm he was when working with emotionally unstable and\\n\\npotentially volatile patients; his children could have described him as a loving,\\n\\nencouraging, and generous father; and additional friends and family members could have\\n\\ndescribed the rough neighborhood where he grew up and where he was traumatized by\\n\\ngang violence that took the lives of close friends and injured him, including a gunshot to\\n\\n\\n11\\n Consideration of ineffective assistance of postconviction counsel was undertaken by\\nthe OCCA purely as a matter of state law. We doubt that the Supreme Court would\\nconsider such ineffective assistance as cause to overcome a procedural bar. See Davila v.\\nDavis, 137 S. Ct. 2058, 2062–63 (2017).\\n\\n 44\\n\\fthe face. Friends and family, he says, could also have described his father, who “became\\n\\nmean when he was drunk” and drank often, passing out nearly every day; who would\\n\\n“talk crazy” to Goode’s mother; and who behaved in such a controlling manner that he\\n\\nonce disabled the family vehicle so the mother and children could not leave.\\n\\n We see no basis for determining that the OCCA unreasonably applied Strickland\\n\\nin rejecting Goode’s claims based on the failure to investigate and present this additional\\n\\nevidence during the penalty phase of the trial. It was not unreasonable to hold that the\\n\\nevidence presented as part of Goode’s direct appeal was largely cumulative of that\\n\\npresented at Goode’s sentencing and that omission of that evidence was not prejudicial.\\n\\nSee James v. Gibson, 211 F.3d 543, 557 (10th Cir. 2002) (no prejudice when “[m]uch of\\n\\nthe [omitted mitigating] evidence [defendant] now points to was already before the\\n\\njury”). Nor was it unreasonable to decide that testimony bringing Goode’s violent past to\\n\\nlight (which would be in considerable tension with the normal-family evidence) was\\n\\nunlikely to do more good than harm. See Wackerly v. Workman, 580 F.3d 1171, 1178\\n\\n(10th Cir. 2009) (“[W]hatever mitigating effect such evidence might have had if\\n\\npresented, it is just as likely the jury would react negatively to it.” (internal quotation\\n\\nmarks omitted)); Davis v. Executive Director of Dep’t of Corr., 100 F.3d 750, 762 (10th\\n\\nCir. 1996) (failure to present mitigating evidence was not prejudicial when the evidence\\n\\n“if presented, would have constituted . . . a two-edged sword” (internal quotation marks\\n\\nomitted)).\\n\\n We uphold the OCCA’s determination as reasonable.\\n\\n\\n\\n\\n 45\\n\\f D. Cumulative Error\\n\\n “A cumulative-error analysis aggregates all errors found to be harmless and\\n\\nanalyzes whether their cumulative effect on the outcome of the trial is such that\\n\\ncollectively they can no longer be determined to be harmless.” Cargle v. Mullin, 317 F.3d\\n\\n1196, 1206 (10th Cir. 2003) (internal quotation marks omitted). In conducting a\\n\\ncumulative-error analysis, we include prejudice that has already been assessed in denying\\n\\nclaims, such as claims under Brady or claims of ineffective assistance of counsel that\\n\\nincorporate a prejudice component in determining whether a right has been violated. See\\n\\nid. at 1207. We have granted relief when the errors had an “inherent synergistic effect”\\n\\non the outcome. 317 F.3d at 1221.\\n\\n Goode argues that he suffered prejudice from the cumulative effect of counsel’s\\n\\nalleged deficiencies at his guilt and sentencing phases. He contends that “[t]he synergy\\n\\nbetween a bad cop, an awful witness, [and] a prosecution case aimed at propping them\\n\\nup” warrant relief for cumulative error. Aplt. Br. at 105–06.\\n\\n He asks us to include in the analysis an alleged error that we have not considered\\n\\nin this opinion because we declined to grant a COA on the issue—the improper\\n\\nadmission at trial of a 911 call from Ms. Smalygo when she discovered the murders. But\\n\\nthe OCCA ruled that the call was inadmissible (although not prejudicial) under state law,\\n\\nnot as a constitutional matter. See Goode, 236 P.3d at 680–81. And Goode has not\\n\\nargued in this court that the admission of the call into evidence was a constitutional error.\\n\\nWe therefore need not consider it in our cumulative-error analysis. See Matthews v.\\n\\n\\n\\n\\n 46\\n\\fWorkman, 577 F.3d 1175, 1195 n.10 (10th Cir. 2009) (“In the federal habeas context, the\\n\\nonly otherwise harmless errors that can be aggregated are federal constitutional errors[.]”)\\n\\n That leaves the claims that we have disposed of solely on prejudice grounds:\\n\\nGoode’s Brady claim and his claims that counsel were ineffective in (1) failing to\\n\\ninterview Lashaun Joseph, (2) failing to present evidence of Goode’s mental health and\\n\\nsexual abuse, and (3) failing to present additional mitigation witnesses. But we have\\n\\nalready determined that these alleged errors were not independently prejudicial and we\\n\\nsee no “inherent synergistic” or other cumulative effect that would call for relief, given\\n\\nthe limited value of Henderson’s testimony and the doubtful usefulness of the evidence\\n\\nomitted as the result of alleged deficient performance by counsel, to say nothing of the\\n\\ncompelling evidence against Goode. We therefore deny the claim of cumulative error.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the district court’s denial of Goode’s application for relief under 28\\n\\nU.S.C. § 2254.\\n\\n\\n\\n\\n 47\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391715/\", \"author_raw\": \"HARTZ, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"HARTZ"},"judge3":{"kind":"string","value":"PHILLIPS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614462/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Clarence Rozell GOODE, Jr., Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS April 29, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n CLARENCE ROZELL GOODE, JR.,\n\n Petitioner - Appellant,\n\n v. No. 16-5124\n\n MIKE CARPENTER, Warden, Oklahoma\n State Penitentiary,\n\n Respondent - Appellee.\n _________________________________\n\n Appeal from the United States District Court\n for the Northern District of Oklahoma\n (D.C. No. 4:11-CV-00150-GKF-FHM)\n _________________________________\n\nThomas D. Hird, Assistant Federal Public Defender (Emma V. Rolls, Assistant Federal\nPublic Defender, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-\nAppellant.\n\nJennifer L. Crabb, Assistant Attorney General (Joshua L. Lockett, Assistant Attorney\nGeneral, and Mike Hunter, Attorney General of Oklahoma, on the brief), Oklahoma City,\nOklahoma, for Respondent-Appellee.\n _________________________________\n\nBefore BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.\n _________________________________\n\nHARTZ, Circuit Judge.\n _________________________________\n\n Clarence Rozell Goode, Jr., who was convicted of first-degree murder and\n\nsentenced to death by the State of Oklahoma, appeals the denial by the United States\n\fDistrict Court for the Northern District of Oklahoma of his application for relief under\n\n28 U.S.C. § 2254. Goode’s application raises two claims: (1) a claim under Brady v.\n\nMaryland, 373 U.S. 83 (1963), that the State suppressed material information about the\n\ncorrupt conduct of Jeff Henderson, one of its investigating officers, and (2) an\n\nineffective-assistance-of-counsel claim with numerous subclaims. Because none of\n\nGoode’s claims merits relief under § 2254, we affirm the district court’s denial of the\n\napplication.\n\n I. BACKGROUND\n\n The strength of the evidence of Goode’s guilt is important in resolving several\n\nissues on appeal, in particular the Brady issue. We therefore review that evidence in\n\nsome detail.\n\n During the overnight hours of August 25–26, 2005, intruders entered the home of\n\nMitch Thompson and his wife Tara Burchett-Thompson at 9707 North 112th East\n\nAvenue in Owasso, Oklahoma. (For convenience we will refer to it as Tara’s home.)\n\nTara’s ten-year-old daughter Kayla, who lived with her grandmother Brenda Smalygo at\n\na separate address, happened to be staying with her mother that night. All three\n\noccupants were murdered. The crime was discovered about 9:00 a.m. on August 26,\n\nwhen Ms. Smalygo learned that Kayla was not in school and came by the house to check\n\non her. She observed that the garage door was open, as was the door from the garage into\n\nthe house. She found Tara and Kayla nonresponsive in the bedroom and called the\n\npolice, who later found Mitch’s body in that room.\n\n\n\n\n 2\n\f Evidence recovered from the crime scene and forensic examination showed that\n\nthe victims had been killed by shots from three firearms—a .22, a 9mm, and a .357.\n\nSeven .357 casings and seven 9mm casings were found at the crime scene. A .22 caliber\n\nprojectile was found in a dresser drawer. In addition, six projectiles were found in and\n\nunder the bed. The ballistics expert determined that at least three of those projectiles\n\ncame from the .357, and one came from the 9mm. The origin of the other two projectiles\n\ncould not be determined.\n\n Mitch was shot at close range once in the upper back and once in the cheek. No\n\nbullets were recovered from his body, but one of the .357 projectiles found under the bed\n\nwas directly beneath his head.\n\n Tara’s body had 10 gunshot wounds: three on the head, two on the chest, one on\n\nthe abdomen, two on the leg, one through the arm, and one through the hand. The\n\nmedical examiner observed that five or six shots entered and fully exited her body. Four\n\nbullets were recovered from Tara’s body—one from her head and three from her body\n\ncavity—all of which came from the 9mm gun. One of the .357 projectiles was found\n\nbeneath her head.\n\n Kayla was shot once in the head, once in the back, and three times in the hip.\n\nThree bullets lodged near her hip were recovered; one came from a .22, and two were\n\nfrom the 9mm. Kayla’s head wound was not attributed to a particular weapon, but seven\n\n9mm casings were found, and seven 9mm shots were accounted for. And the wound was\n\nnot of the distinctly smaller sort attributable to a .22. Based on the above evidence, the\n\nState theorized that shots from the .357 gun caused the head wounds of all three victims.\n\n\n 3\n\f Three neighbors testified for the prosecution at trial. James Deeter said that at\n\n12:12 a.m. on August 26 he took out his garbage and noticed that the Thompsons’ garage\n\ndoor was open, but the interior door from the garage into the house was “definitely\n\nclosed.” Trial Tr. Vol. III at 606. He and his wife both described loud barking coming\n\nfrom the side of their yard adjacent to Tara’s home at about 12:45 a.m. Another neighbor\n\nwas awakened close to that time but could not state the cause.\n\n A possible motive for the murders was a feud involving Mitch. On one side of the\n\nfeud were Mitch and a family friend, J.R. Hoffman, who usually spent the night at Tara’s\n\nhome or the home of Mitch’s parents. On the other side were Mitch’s sister Michelle\n\nChastain; his cousin Ronald Thompson (called “Bunny,” because he was born on Easter),\n\nwho lived with Michelle; and Goode, who was Michelle’s boyfriend. At trial, Michelle\n\nand Bunny testified to the events of the feud, with some corroboration from others,\n\nincluding a statement by Goode to the police. The gist of the events is not disputed and\n\nwas endorsed in the defense closing argument.\n\n About July 14, 2005, Goode gave J.R. money to run an errand for him in\n\nClaremore, Oklahoma. J.R. borrowed Michelle’s car for the trip. He wrecked the car and\n\nwas arrested for driving under the influence. When they learned that J.R. was in jail,\n\nMitch’s mother and Bunny bailed him out. Goode and Bunny retrieved the car, which\n\nwas badly damaged.\n\n Two weeks later, Bunny and Goode confronted J.R. at the home of Mitch’s\n\nparents. Goode demanded that J.R. pay for the damage to the car, J.R. refused, and\n\nGoode punched him in the mouth. Goode and Bunny left and went to Michelle’s house.\n\n\n 4\n\fGoode’s friend Damos “Peanut” Joseph came to that house and gave Goode a handgun,\n\nwhich Goode tucked into his pants. Meanwhile, Mitch’s mother drove J.R. to Tara’s\n\nhouse because he was drunk and acting erratically.\n\n Later that night, Michelle heard a knock at her door. She and Bunny went to\n\nanswer it and found Mitch accompanied by J.R. and armed with a baseball bat. Mitch\n\nbegan attacking Bunny with the bat. He was badly beating Bunny when Michelle called\n\nfor Goode, who emerged from a bedroom carrying a gun. Michelle had never seen\n\nGoode with a gun before that night and did not know where he obtained it.\n\n Goode ordered everyone outside. But Mitch continued to beat Bunny, while J.R.\n\npointed at Goode and yelled “I want this motherfucker right here.” Trial Tr. Vol. V at\n\n1022. About this time, Peanut joined the group in the yard. Goode handed Peanut his\n\ngun and engaged in a fistfight with J.R, which he won. An ambulance was called for\n\nBunny, who suffered a broken rib from the beating with a bat.\n\n After this incident, Mitch called the child-welfare division of the Oklahoma\n\nDepartment of Human Services (DHS) to say that Michelle had not reported the income\n\nof people living in her home. DHS initiated an investigation and scheduled a home visit.\n\nMitch also called the dental office where Michelle worked and said that she was involved\n\nwith drugs, causing her to be fired. He similarly attempted to get Goode fired from his\n\njob as an aide at Brookhaven Hospital by reporting to the hospital that he was selling\n\ndrugs, but this effort was unsuccessful.\n\n At Goode’s trial, two witnesses gave accounts of the murders. One, Bunny\n\nThompson, confessed to participating in the crime. On August 25 he reported to his\n\n\n 5\n\fusual job as a cart puller at Walmart. Because his car was inoperable, he was driven to\n\nwork by his uncle, Mitch’s father. Not long before 10:00 p.m. his boss told him to leave\n\nthe store, but did not fire him, for taking Xanax at work. Bunny tried calling Michelle to\n\npick him up but could not reach her, so he called Goode to get a ride home. Goode said\n\nhe was already coming to Walmart and could pick him up. He arrived at Walmart with\n\nKenneth “Fu Fu” Johnson in Johnson’s white four-door Mercury Marquis. The two men\n\ndid some shopping at the store and then connected with Bunny, who had never met\n\nJohnson before.\n\n Bunny got in the car with Goode and Johnson. He sat in the back, Goode sat in\n\nthe front passenger seat, and Johnson drove. As they departed, Goode told Bunny they\n\nwere going to “take care of some business.” Trial Tr. Vol. V at 909–10. He gave Bunny\n\na .22 gun and latex gloves. At trial Bunny first described the gloves as “yellow ones, like\n\nthe doctors use” but then said they were clear. Trial Tr. Vol. V at 910. Johnson had a\n\n9mm gun and Goode had a .357. Bunny put on the latex gloves, and Johnson and Goode\n\nput on both latex gloves and another set of gloves, which Bunny first described as “[l]ike\n\nbatting gloves” and then as “painter gloves” that were “blue on the outside.” Trial Tr.\n\nVol. V at 911–12. Bunny testified that they then drove straight to Tara’s home, though\n\nthe State said that the murders did not occur until later that night. Bunny said that when\n\nhe left Walmart with Goode and Johnson, he took some ecstasy in Johnson’s car, which,\n\ncombined with Xanax, muddled his recall.\n\n When the three men arrived at Tara’s house, Bunny rang the doorbell. Getting no\n\nresponse, he went through the open garage door and kicked in the interior door to the\n\n\n 6\n\fhouse. He went to the left, heading for the room where J.R. regularly stayed. Goode and\n\nJohnson went to the right, to Mitch and Tara’s bedroom. Bunny heard gunshots coming\n\nfrom that bedroom and went there, where he found Goode and Johnson shooting.\n\nJohnson held his gun to Bunny’s head and demanded that he start shooting or he would\n\n“be next.” Trial Tr. Vol. V at 917–18. Bunny fired three or four shots into the wall over\n\nthe bed. He admitted that he “might have shot” Kayla in the hip as he “raised up the\n\ngun.” Trial Tr. Vol. V at 923. Bunny then ran out of the home, with Goode and Johnson\n\nbehind him.\n\n The three headed to the home of “Peanut” Joseph. While driving there on\n\nHighway 169, they threw their gloves out the car windows. Upon arriving at Peanut’s,\n\nGoode told Bunny to “get rid of the bullets” from his gun. Trial Tr. Vol. V at 925.\n\nBunny gave his gun to Goode and then tossed what he said were the bullets “outside in a\n\nfield.” Trial Tr. Vol. V at 925. (It is possible that Bunny was referring to the casings, not\n\nthe bullets themselves. The .22 was the only gun used in the murders to retain its\n\ncasings; the other two firearms were automatic weapons, so their casings were\n\nautomatically discharged upon firing.)\n\n Later that morning, Bunny awoke at Michelle’s house, where someone picked him\n\nup and took him to his sister’s home. The next day, August 27, Bunny confessed to his\n\nsister “what all happened,” and she drove him to the police station.1 Trial Tr. Vol. V at\n\n929.\n\n\n1\n Bunny’s sister, Tressa Beasley, testified that on August 26 Bunny came to her home\nfrom Michelle’s house and spent the night. He told her that Mitch and his family were in\n\n 7\n\f In his interview with the police, Bunny at first denied involvement in the\n\nshootings. Although he admitted that he got in the car with Goode and Johnson, he said\n\nthat after they pulled into Tara’s neighborhood and showed him the gloves and guns, he\n\ngot out of the car but did not enter Tara’s home. Then he admitted entering Tara’s home\n\nbut claimed he did not have a gun. He initially said that Johnson kicked in the door to the\n\nhome, but then admitted that he was the one who had done so. He then modified his\n\naccount once again, admitting to using a .22 caliber gun to fire shots into a wall at the\n\nhome. And when officers told Bunny that a .22 bullet was recovered from Kayla’s hip,\n\nhe admitted that one of his shots might have hit her. In exchange for Bunny’s testimony,\n\nthe State withdrew the death penalty in his case.\n\n The other account of the murders came from Michelle Chastain, who described\n\ntwo occasions on which Goode confessed to the murders. Goode woke her up at her\n\nhome at 4:18 a.m. on August 26. He rubbed her face and then went to the other side of\n\nthe bed. Michelle told him she had called and left messages on his phone several times\n\nthat evening and accused him of being with another woman. They argued until Goode\n\nshouted out, “I just shot your fucking brother, is that what you wanted to hear?” Trial Tr.\n\nVol. V at 1043.\n\n Michelle did not take his statement about her brother seriously because Goode\n\nimmediately changed the subject, talking about jerseys that his “cousin” Fu Fu (Johnson)\n\n\nthe hospital. But when she learned from her mother that they had been murdered, she\nconfronted him and told him to tell her the truth about what had happened. After he\nresponded (she did not testify about the contents of his statement) she told him he needed\nto turn himself in and drove him to speak with the police.\n\n 8\n\fhad given him. About this time, Michelle heard the microwave in the kitchen and\n\nassumed it was Bunny. But Goode explained that it was Johnson, who then came to the\n\nbedroom. Michelle got out of bed and Goode introduced Johnson to her as his cousin.\n\nMichelle had never met Johnson before that night. Johnson asked Michelle to get\n\nBunny’s stuff out of his car. She followed Goode and Johnson outside and saw a four-\n\ndoor vehicle, which she had never seen until that night, parked curbside with Bunny lying\n\nbeside it unconscious. She took Bunny’s bag out of the backseat of the car and helped\n\ntake Bunny to the guest room, where he often stayed.\n\n Sometime before 6:00 a.m., Johnson left, followed shortly thereafter by Goode.\n\nBefore he left, Goode told Michelle to watch the news. Michelle did not know how\n\nGoode got home; she did not recall seeing Goode’s truck outside her house, but said it\n\nwas possible the truck was there. Later that morning, Goode, his friend Peanut, and\n\nanother man came to Michelle’s to help clean up her home for the DHS inspection\n\nscheduled for that day. Goode then left to visit his brother in prison.\n\n Michelle learned of the murders the early afternoon of August 26 when Detective\n\nJeff Felton and a police chaplain came to her home. Until then she had not known that\n\nanyone had actually been killed. She soon learned that her father had suffered a heart\n\nattack upon hearing of the murders, and she went to the hospital to be with him. While\n\nthere, she spoke with Detective Felton and Officer Mike Denton. During this time,\n\nGoode called her to say she was “making him nervous.” Trial Tr. Vol. V at 1059. She\n\nsaid nothing to the police implicating Goode.\n\n\n\n\n 9\n\f She again spoke with Goode in the early morning hours of August 27. After he\n\nthreatened to come to the hospital, she agreed to meet him at a Denny’s restaurant\n\ninstead. At Denny’s, Goode told Michelle that her brother was a “punk and a coward”\n\nand further described the murders. Trial Tr. Vol. V at 1061. Goode told Michelle that on\n\nthe night of the murders he, Johnson, and Bunny went to Tara’s home and waited outside\n\nfor the occupants to fall asleep. The garage door had been left open. When they decided\n\nto go in, Bunny kicked in the door from the garage to the house, leaving a footprint.\n\nBunny was supposed to go to J.R.’s room, but instead came up behind Goode and\n\nJohnson and shot Kayla. As they were leaving the home, Goode heard something move.\n\nHe turned on the lights and saw Mitch—who had previously been shot—trying to crawl\n\naway. Goode went over to Mitch and demanded that he look him in the eye, but he did\n\nnot do so. He told Mitch that he should have “never snitched” on him and he should “die\n\nlike a bitch.” Trial Tr. Vol. V at 1062. He then shot Mitch again. Goode claimed that he\n\nshot Mitch eight times and that Johnson shot Tara. He and Johnson would have shot\n\nBunny, but he took off running. Goode had a shotgun and Bunny had a .22.\n\n Michelle gave two recorded statements to the police. On August 27 the police\n\nasked to speak with her, and she came to the police department. She was first\n\ninterviewed by Detective Sonya DeArmond, who was essentially stalling for time until\n\nOfficer Denton—who had been at the crime scene and was thus familiar with the case—\n\nreturned to the police department from another assignment. DeArmond asked Michelle\n\nabout the baseball-bat incident, and she said that Goode did not have a gun during that\n\nencounter. She did not tell DeArmond about Goode’s confession or his involvement in\n\n\n 10\n\fthe murders, or that she had seen Goode during the early morning hours of August 26.\n\nDenton continued the interview once he arrived at the police department.\n\n Because the audio quality of the August 27 interview was poor, Denton\n\ninterviewed Michelle again on August 30. (Denton did not testify about what Michelle\n\ntold him on August 27.) At this interview—which occurred after Goode had been\n\narrested—Michelle told Denton of Goode’s confession to her. At trial the defense\n\npointed to several inconsistencies between what she said at her August 30 interview and\n\nher trial testimony. In the interview, for instance, Michelle said that she first saw Bunny\n\non August 26 when she woke up in the later morning hours, not when she went outside to\n\nJohnson’s car. Also, she said that Goode confessed to her at her home, and they went to\n\nDenny’s only after his confession. On the other hand, there is one indication that she was\n\nnot distorting her account of the confession to fit what she later learned about the crimes:\n\nduring the interview she expressed surprise at Goode’s claim that he had shot Mitch eight\n\ntimes, because she had seen on the news that it was Tara, and not Mitch, who had been\n\nshot multiple times.\n\n The accounts of the murders given by Michelle and Bunny were corroborated by a\n\nvariety of other evidence at trial. To begin with, a Walmart security video showed\n\nGoode, Johnson, and Bunny leaving the store where Bunny worked at about 10:00 p.m.\n\non the night of August 25. They departed in a white four-door vehicle that looked like\n\nJohnson’s Mercury Marquis.\n\n Also supportive were records of Goode’s cell-phone activity, which were obtained\n\nby an investigator for the defense at least five months after the murders and introduced by\n\n\n 11\n\fthe defense at trial. They showed very frequent calls throughout August 25, but no\n\nactivity from 11:48 p.m. to 1:03 a.m. The call at 1:03 a.m. was placed to the phone of\n\nDamos “Peanut” Joseph, who, according to Bunny’s statement to the police a few days\n\nafter the murders, was the person with whom the murder weapons were left promptly\n\nafter the crime.\n\n Detective William Mozingo, who investigated the murders, provided\n\ncorroboration on three points. Two involved the crime scene. He testified that officers\n\nfound a partial footprint on the door from the garage into Tara’s house, corroborating\n\nBunny’s testimony and Goode’s confession to Michelle that Bunny kicked in the door to\n\nthe home. And he said that he observed two small holes in the wall in the Thompsons’\n\nbedroom, supporting Bunny’s account that he shot the .22 into the bedroom wall.\n\n The third item of corroborating evidence related to the gloves mentioned by\n\nBunny. On August 30 officers searched a four-mile stretch of Highway 169 for “[a] latex\n\nglove and blue knobby work glove.” Trial Tr. Vol. VI at 1263. In a grassy area near an\n\nofframp from the highway, Mozingo found a “blue and white work glove,” a “latex\n\nglove,” and a “blue and white work glove encased in a latex glove,” supporting Bunny’s\n\naccount that these types of gloves were worn the night of the murders and were thrown\n\nout the car window as they left for Peanut’s house.2 Trial Tr. Vol. VI at 1264, 1266–67.\n\nOther officers found a portion of a latex glove on the front floor mat of Johnson’s\n\n\n\n\n2\n In addition, on the side of that highway about a quarter of a mile away, officers found\n21 latex gloves, two leather gloves, and two cloth gloves.\n\n\n 12\n\fMercury Marquis, and a box of latex gloves in the bed of Goode’s truck under a locked\n\ncover.3 Goode had access to latex gloves as part of his job with Brookhaven Hospital.\n\n Further corroborating Bunny’s account was the testimony of Officer Jeff\n\nHenderson. (Goode’s Brady claim concerns impeachment of this testimony.) He said\n\nthat on August 29 he went with other officers to Peanut Joseph’s home because of\n\ninformation received from Bunny. He found two .22 casings and one live .22 round in\n\nthe vacant lot across from Peanut’s home.\n\n Forensic evidence partially corroborated Michelle’s account of how Goode\n\ndescribed his role in the murders. First, a shot was fired through Mitch’s cheek at close\n\nrange, which fit with Michelle’s testimony that Goode said he hovered over Mitch and\n\ndemanded that he look him in the eye as he shot him. Also, seven .357 casings were\n\nfound at the crime scene, nearly matching Goode’s statement to Michelle that he fired his\n\ngun eight times (although Michelle reported that Goode told her he had used a shotgun,\n\nnot a .357). Finally, Goode told Michelle that Johnson shot Tara, and four bullets from\n\nthe 9mm—the gun Bunny said was used by Johnson—were found in her body.\n\n In addition, a defense witness, Penny Avans, supported the State’s theory of the\n\ncase in important respects. Penny, a friend of Goode and Michelle, was called to testify\n\nthat Michelle had told her she wanted to kill Mitch after he got her fired and called child\n\nservices, and that she had heard Michelle tell Bunny where Mitch kept a gun in his\n\n\n\n\n3\n Officers also found a brown jersey glove in the backseat of Johnson’s car.\n\n 13\n\fhome.4 But her account of what happened the night of the murders is generally consistent\n\nwith the other descriptions. She stated that she was at Michelle’s home the evening of\n\nAugust 25, that Goode left around 6:00 or 6:30 p.m., saying that he was going to “take\n\ncare of some business,” Trial Tr. Vol VII at 1497–98, and that when she left Michelle’s\n\nnear 12:10 a.m., Goode had not returned. She also said that Michelle called her at 3:18\n\na.m. and told her that she should come over because Goode had brought a good-looking\n\nguy named Fu Fu (Johnson) to her home. (Michelle, however, denied making that call.)\n\nAnd Penny said that she went to Michelle’s house later that morning to pick up Bunny.\n\nWhen asked whether she thought of Bunny as someone who is easily led by others, she\n\nsaid she did.\n\n Goode did not testify but he gave a statement to police the afternoon of August 28,\n\nless than three days after the murders. Detective Mozingo, who interviewed Goode,\n\ntestified to the content of his statement. Goode admitted that he and Johnson picked up\n\nBunny from Walmart on the night of August 25 in Johnson’s white vehicle. He referred\n\nto Johnson as his cousin and said that though they were not actually related they had\n\ngrown up together. Goode’s mother, whom Goode lived with, lived across the street\n\n\n\n\n4\n Penny also claimed that Michelle told her to tell the police that Goode had confessed to\nPenny, even though he had not done so. But in the recorded interview with the police on\nAugust 30, Michelle said that Penny did not know anything about the murders because\nshe was out of town on the days immediately following the crime. (Penny testified that\nshe and her husband left on a trip on August 26 (shortly after news of the murders was\npublicized) and they were out of town until late August 28 or early August 29, by which\ntime Goode had been arrested.)\n\n 14\n\ffrom Johnson’s grandmother. Goode said that he and Johnson were reconnecting on the\n\nnight of the murders after not seeing each other for a year or two.\n\n Goode at first told police that after he and Johnson picked up Bunny from\n\nWalmart, Bunny asked to be dropped off in Mannford (a community about 38 miles\n\naway) at the home of a woman who was either his girlfriend or his wife (Goode was\n\nunsure who exactly the person was). Johnson drove, and Bunny provided directions. He\n\nand Johnson dropped Bunny off (he did not specify where), and Johnson then drove\n\nGoode home, where the two conversed. Goode said that he needed to go home because\n\nhe and his mother were going to visit his brother in prison the next day.\n\n After a break in the interview, however, Goode changed his story. Explaining that\n\nhe now remembered what had occurred less than three days before, he claimed that after\n\nhe and Johnson picked up Bunny from Walmart, Johnson dropped Goode at his truck,\n\nand Goode drove home. Johnson then took Bunny—whom he had met for the first time\n\nthat night—to Michelle’s house. Back at home, Goode later received a call from Johnson\n\ntelling him that there was something wrong with Bunny, and Goode then met Bunny and\n\nJohnson at Michelle’s. When Goode arrived, Bunny “was fucked up,” so he pulled\n\nBunny out of Johnson’s car and attempted to bring him into the home. Trial Tr. Vol. VI\n\nat 1284.\n\n According to Mozingo, Goode “stated that he couldn’t see Bunny doing anything\n\nlike [the murders] . . . . [H]e said something to the effect of he don’t have it in him or he\n\ndon’t – doesn’t have the heart for it.” Trial Tr. Vol. VI at 1287–88.\n\n\n\n\n 15\n\f Goode was asked whether he knew Peanut (the person with whom Bunny said the\n\ntrio stashed their weapons after the murders). He responded that he “kn[ew] a lot of\n\nPeanuts.” Trial Tr. Vol. VI at 1284. Also, Goode admitted that J.R. had wrecked\n\nMichelle’s car, that he had previously been involved in a fistfight with J.R., and that\n\nMitch had attempted to get him fired from his job and had successfully gotten Michelle\n\nfired.\n\n Goode called two alibi witnesses, but neither could account for his whereabouts\n\nafter midnight on August 25. Goode’s mother saw him at home before 8:00 p.m. on\n\nAugust 25 but knew nothing of his whereabouts thereafter. She said that she had planned\n\nto go with Goode to visit his brother in prison early the next morning but admitted that\n\nthey left for the visit later than expected because she was waiting on Goode.\n\n Ruby Gilyard—the partner of Goode’s imprisoned brother who lived with\n\nGoode’s mother—testified that she saw Goode at his home the night of the murders. He\n\nleft at 8:00 p.m., but then returned about 11:00 p.m. They conversed for a short time\n\nbefore she went to shower and get ready for bed. When she got out of the shower, she\n\nheard Goode rummaging through his things in another room. She did not see or hear\n\nfrom Goode the rest of the night. Neither Goode’s mother nor Gilyard saw Johnson at\n\nthe home that night, as Goode had initially claimed in his statement to police.\n\n On December 13, 2007, Goode was convicted on three counts of first-degree\n\nmurder and one count of first-degree burglary. The State alleged two aggravating\n\ncircumstances for each of the three murder offenses: (1) the defendant knowingly created\n\na great risk of death to more than one person; and (2) there exists a probability that the\n\n\n 16\n\fdefendant would commit criminal acts of violence that would constitute a continuing\n\nthreat to society. The jury found that both aggravating circumstances applied to each\n\nmurder. Goode was sentenced to death on each of the murders and 20 years’\n\nimprisonment (and a $10,000 fine) on the burglary count. Goode unsuccessfully\n\nappealed the convictions and sentences and filed three applications for postconviction\n\nrelief in the state court.5\n\n II. DISCUSSION\n\n A. Standards of Review under § 2254\n\n Standards of review of state proceedings under § 2254 are set forth in the\n\nAntiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA provides for\n\n“highly deferential” review of decisions by state courts. Hanson v. Sherrod, 797 F.3d\n\n810, 824 (10th Cir. 2015). When a state court has considered a claim on the merits, we\n\nmay grant relief on that claim if the state court’s decision “was contrary to, or involved\n\nan unreasonable application of, clearly established Federal law, as determined by the\n\nSupreme Court of the United States.” 28 U.S.C. § 2254(d)(1).\n\n The threshold question for review under § 2254(d)(1) is whether there exists\n\nclearly established federal law on the issue raised by the prisoner. See Littlejohn v.\n\nTrammell, 704 F.3d 817, 825 (10th Cir. 2013) (internal quotation marks omitted). “The\n\nabsence of clearly established federal law is dispositive under § 2254(d)(1)” and requires\n\nthe denial of relief. Id.\n\n\n5\n Goode raised numerous issues in these state proceedings. For the sake of brevity, we\nnote only those issues that are relevant to claims raised in this appeal.\n\n 17\n\f If such clearly established law does exist, “a state court decision is ‘contrary to’ it\n\nonly if the state court applies a rule that contradicts the governing law set forth in\n\nSupreme Court cases or if the state court confronts a set of facts that are materially\n\nindistinguishable from a decision of the Supreme Court and nonetheless arrives at a\n\ndifferent result.” Hanson, 797 F.3d at 824 (brackets and further internal quotation marks\n\nomitted). Relief can be provided under the “unreasonable application” clause of\n\n§ 2254(d)(1) “only if the state court identifies the correct governing legal principle from\n\nthe Supreme Court’s decisions but unreasonably applies that principle to the facts of the\n\nprisoner’s case.” Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and\n\ninternal quotation marks omitted). Thus, a federal court may not grant relief just because\n\nit concludes in its “independent judgment that the relevant state-court decision applied\n\nclearly established federal law erroneously or incorrectly.” Id. (internal quotation marks\n\nomitted). Rather, “[i]n order for a state court’s decision to be an unreasonable application\n\nof [the Supreme] Court’s case law, the ruling must be objectively unreasonable, not\n\nmerely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726,\n\n1728 (2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must\n\nshow that the state court’s ruling was so lacking in justification that there was an error\n\nwell understood and comprehended in existing law beyond any possibility for fairminded\n\ndisagreement.” Id. (ellipsis and internal quotation marks omitted). “If this standard is\n\ndifficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86,\n\n102 (2011).\n\n\n\n\n 18\n\f Relief may also be warranted under AEDPA “if the state court’s adjudication of a\n\nclaim on the merits ‘resulted in a decision that was based on an unreasonable\n\ndetermination of the facts in light of the evidence presented in the State court\n\nproceeding.’” Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (quoting 28\n\nU.S.C. § 2254(d)(2)). “[F]actual findings of the state court are presumed correct unless\n\nthe applicant rebuts that presumption by ‘clear and convincing evidence.’” Id. (quoting\n\n28 U.S.C. § 2254(e)(1)). “We will not conclude a state court’s factual findings are\n\nunreasonable merely because we would have reached a different conclusion in the first\n\ninstance.” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (internal quotation\n\nmarks omitted).\n\n In reviewing a state court’s decision under § 2254(d)(1) or (d)(2), “we must\n\n‘limit[]’ our inquiry ‘to the record that was before the state court that adjudicated the\n\nclaim on the merits.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“We now hold\n\nthat review under § 2254(d)(1) is limited to the record that was before the state court that\n\nadjudicated the claim on the merits.”); see id. at n.7 (explaining that § 2254(d)(2)\n\nexpressly limits review to “the evidence presented in the State court proceeding”). This\n\nis in keeping with “[t]he federal habeas scheme[, which] leaves primary responsibility\n\nwith the state courts.” Id. at 182. And given AEDPA’s “intent to channel prisoners’\n\nclaims first to the state courts,” it would not make sense “to allow a petitioner to\n\novercome an adverse state-court decision with new evidence introduced in a federal\n\nhabeas court and reviewed by that court in the first instance effectively de novo.” Id.\n\n\n\n\n 19\n\f Finally, we do not consider an issue that was not adequately raised in the federal\n\ndistrict court. See Simpson v. Carpenter, 912 F.3d 542, 565 (10th Cir. 2018) (“[W]hen a\n\nlitigant fails to raise an issue below in a timely fashion and the court below does not\n\naddress the merits of the issue, the litigant has not preserved the issue for appellate\n\nreview.”); see also Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005) (“We do not\n\nreview these claims because [the applicant] failed to assert them in his district court\n\npetition for habeas relief.”). “To properly raise an argument below, a litigant must\n\npresent the argument with sufficient clarity and specificity.” Simpson, 912 F.3d at 565\n\n(internal quotation marks omitted). Any “vague, arguable references to a point in the\n\ndistrict court proceedings do not preserve the issue on appeal because such perfunctory\n\npresentation deprives the trial court of its opportunity to consider and rule on an issue in\n\nany detail.” Id. (ellipsis and internal quotation marks omitted).\n\n B. Brady v. Maryland Claim\n\n The Supreme Court held in Brady v. Maryland that “the suppression by the\n\nprosecution of evidence favorable to an accused upon request violates due process where\n\nthe evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. To\n\nprevail on a Brady claim, the proponent must show that “(1) the prosecution suppressed\n\nevidence, (2) the evidence was favorable to the defendant, and (3) the evidence was\n\nmaterial.” United States v. Ford, 550 F.3d 975, 981 (10th Cir. 2008) (internal quotation\n\nmarks omitted). “[E]vidence is ‘material’ within the meaning of Brady when there is a\n\nreasonable probability that, had the evidence been disclosed, the result of the proceeding\n\nwould have been different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009).\n\n\n 20\n\f Goode alleges that the prosecution violated Brady in withholding information\n\nabout Jeff Henderson, one of the Tulsa Police Department officers investigating the\n\nmurders. There is no doubt that Henderson was a bad cop. Nine days after Goode’s\n\nsecond application for postconviction relief was filed in state court in July 2010,\n\nHenderson was charged in a 62-count federal indictment, accusing him of, among other\n\nthings, falsifying search warrants, committing perjury, and engaging in witness\n\ntampering. He was convicted by a jury on two counts of civil-rights violations and six\n\ncounts of perjury. See United States v. Henderson, 564 F. App’x 352, 354 (10th Cir.\n\n2014).\n\n At Goode’s trial, Henderson testified to his discovery of two .22 casings and one\n\nlive .22 round on a vacant lot across from the home of Damos “Peanut” Joseph. This\n\ndiscovery corroborated Bunny Thompson’s testimony that after the murder the three\n\nculprits went to Peanut’s home, where Goode instructed him to dispose of the bullets and\n\ncasings in his .22 by tossing them in the lot.\n\n Goode argues in this court that disclosure by the prosecution of Henderson’s\n\negregious misconduct would have helped the defense in two important respects. First,\n\nGoode describes Henderson’s contribution as “vital.” Aplt. Br. at 10. He contends that\n\nthe prosecution’s two main witnesses—Bunny Thompson and Michelle Chastain—had\n\nquestionable credibility (both because of the impeachment of their testimony and the fact\n\nthat they had stronger motives to commit the murders than did Goode) and there was\n\nlittle corroboration of their accounts. As a result, he concludes, the corroboration by an\n\napparently honorable police officer (Henderson) could well have tipped the scales in\n\n\n 21\n\ffavor of a conviction; and his impeachment “could have been key to the defense.” Id.\n\nSecond, Goode argues that disclosure of Henderson’s misconduct would have\n\n“reverberate[d] to all parts of the State’s case,” Aplt. Br. at 43, by undermining the\n\ncredibility of the State’s other witnesses and suggesting that officers improperly targeted\n\nGoode in their investigation. He asserts that there is a reasonable probability that\n\nintroduction of evidence of Henderson’s misconduct would have changed the result of\n\nboth his trial and his sentence. But in federal district court Goode did not argue that\n\ndisclosure would have enabled him to undermine the entire prosecution (as opposed to\n\njust impeaching Henderson); nor did he preserve an argument regarding the impact of the\n\nalleged Brady violation on anything other than his conviction (not his sentence).\n\nTherefore, we do not consider those matters. See Simpson, 912 F.3d at 565.\n\n Goode first raised a Brady claim in his second postconviction application to the\n\nOCCA. That claim spanned a total of two pages of the application.6 His barebones\n\n\n\n\n6\n Because of its brevity, we provide the entirety of Goode’s Brady argument to the\nOCCA:\n\n PROPOSITION ONE\n\n MR. GOODE’S DUE PROCESS RIGHTS WERE VIOLATED BY THE\n PROSECUTION’S WITHHOLDING OF EVIDENCE RELEVANT TO THE\n VERACITY AND CREDIBILITY OF ONE OF ITS WITNESSES, TULSA\n POLICE OFFICER JEFF HENDERSON\n\n A. Standard of Review\n\n An appellate court reviews de novo claims that the prosecution violated Brady v.\nMaryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), including whether\n\n 22\n\fsuppressed evidence was material. United States v. Hughes, 33 F.3d 1248, 1251 (10th\nCir. 1994).\n\n B. Argument and Authority\n\n The Due Process Clause of the Fifth Amendment provides that “[n]o person shall .\n. . be deprived of life, liberty, or property, without due process of law.” U.S. Const.\namend. V. In criminal prosecutions, that clause’s primary guarantee is the right to a\nfundamentally fair trial. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94\nL. Ed. 2d 40 (1987). The prosecution’s suppression of evidence favorable to the accused\nviolates due process where the evidence is material either to guilt or to punishment.\nBrady, 373 U.S. at 87, 83 S. Ct. 1194.\n\n “[E]vidence is material . . . if there is a reasonable probability that, had the\nevidence been disclosed to the defense, the result of the proceeding would have been\ndifferent. A ‘reasonable probability’ is a probability sufficient to undermine confidence\nin the outcome.” Ritchie, 480 U.S. at 57, 107 S. Ct. 989 (quotation and alteration\nomitted). A defendant need not show that the withheld evidence would have “resulted\nultimately in [his] acquittal.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131\nL. Ed. 2d 490 (1995). Rather, the touchstone is simply whether the ultimate verdict is\none “worthy of confidence.” Strickler v. Green, 527 U.S. 263, 290, 119 S. Ct. 1936, 144\nL. Ed. 2d 286 (1999). “Impeachment evidence, . . . as well as exculpatory evidence, falls\nwithin the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L.\nEd. 2d 481 (1985). See Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009)\n(“[E]vidence significantly enhancing the quality of the impeachment evidence usually\nwill [be material.]”).\n\n Although the documents contained in App., Ex. 6 chronicle some of the more\nrecent allegations leveled against Officer Henderson, other documents, documents which\nconcern events that preceded Mr. Goode’s December 2007 trial, also bear on Officer\nHenderson’s credibility. For example, in January of 2002, Officer Henderson was\nsuspended from the Tulsa Police Department for misusing his authority as a police officer\nto resolve a personal dispute. See App., Ex. 7. In December of 2000, Officer Henderson\nwas investigated by the Tulsa Police Department’s Internal Affairs Division for, among\nother things, entering false information in a probable cause affidavit. See App., Ex. 8.\n\n C. Conclusion\n\n Evidence affecting Officer Henderson’s credibility was known, or should have\nbeen known, to the state and because such evidence was material to an assessment of\nOfficer Henderson’s credibility, it should have been disclosed to Mr. Goode. It was not.\nSee App., Ex. 9. Accordingly, this Court should find that the state violated its obligations\n\n 23\n\fargument was that evidence of Henderson’s misconduct was “known, or should have\n\nbeen known, to the state” and that “because such evidence was material to an assessment\n\nof Officer Henderson’s credibility, it should have been disclosed to Mr. Goode.” Def.’s\n\nSecond APCR at 12–13. In support of his claim, Goode submitted affidavits by Damos\n\n“Peanut” Joseph and his wife alleging that Henderson stated he would manufacture\n\nevidence in Goode’s case, and newspaper articles that described the ongoing\n\ninvestigation into Henderson’s misconduct in other matters.7 Goode also provided two\n\ninternal police documents: an interoffice memorandum notifying Henderson of a two-\n\nday suspension for wrongfully using police power in a personal dispute, and a factual\n\nsummary of an investigation into an incident of alleged excessive force (the summary is\n\nnotably without legal conclusions).8 Goode did not adequately argue before the OCCA\n\n(or in federal district court), as he does here, that the purported Brady evidence would\n\nhave had resounding effects on the entire prosecution (as opposed to the evidence just\n\nimpeaching Henderson and thereby leaving Bunny uncorroborated), or that the evidence\n\ncould have affected his sentence.9\n\n\n\nimposed by Brady and its progeny and Mr. Goode’s sentences should be reversed and his\ncase remanded to the district court for a new trial.\nDef.’s Second Application for Post-Conviction Relief, PCD 2010-661, at 11–13 (July 9,\n2010) (Def.’s Second APCR).\n7\n We question, but have no occasion to resolve, whether this evidence was available to\nthe prosecution and could have been disclosed to Goode by the time of trial.\n8\n We also question, but need not resolve, whether this evidence had any significant\nimpeachment value and could have been used by Goode at trial.\n9\n One other argument we need not resolve that is raised by Goode in this court but was\nnot raised before the OCCA is whether Henderson’s personal knowledge of his own\n\n 24\n\f The OCCA denied Goode’s request for relief. It assumed that Henderson was\n\n“completely impeached,” and concluded that even if “the evidence regarding these specific\n\ncartridges had been excluded from the trial, the outcome of this trial would have been the\n\nsame.” OCCA Opinion Denying Second APCR at 5–6 (Sept. 13, 2010). It explained:\n\n Goode’s claims in this subsequent application are based on Tulsa\n Police Department’s Detective Jeff Henderson and his publicized alleged\n illegal conduct, which came to light earlier in 2010 and led Petitioner to the\n discovery of alleged improper activity occurring prior to Goode’s trial. First,\n Goode alleges that the State withheld critical evidence which was relevant to\n Henderson’s veracity and credibility. . . .\n\n We need not determine whether the evidence proffered against\n Henderson is true and would have been relevant, admissible and sufficient to\n impeach Henderson’s testimony, or whether the State failed in its duty to turn\n the evidence over to the defense. We conclude, after reviewing these claims,\n that even if Henderson’s testimony was impeached or if the evidence found\n by Henderson was excluded from this trial, Goode would have suffered the\n same fate, beyond any doubt. The facts of this case are compelling.\n\n During the trial, witness and co-defendant Ronald Thompson testified\n that, after the murders, they took the guns to Damos Joseph’s house. He\n testified that while parked at the house, he threw some .22 caliber rounds in\n a field. He obviously gave investigators this information, as Henderson was\n called to assist the Owasso police department by going to Damos Joseph’s\n residence, meeting with Owasso Detectives, and requesting permission to\n search the Joseph residence. While there, Henderson testified that he found\n two spent .22 shell casings and a live .22 cartridge across the street in a lot\n 5–6 feet from the curb. He notified Owasso detective Bill Mozingo so he\n could view and recover the items. We briefly noted the finding of these items\n in our recitation of facts on direct appeal.\n\n These shell casings were not vital to the case against Goode, nor were\n they the only pieces of evidence corroborating Ronald Thompson’s\n testimony. Thompson also testified that they threw latex gloves out of the\n car windows after the shooting, and latex gloves were found along the\n highway consistent with his testimony and statements to police. Thompson\n\n\nmisdeeds in other investigations can be attributed to the prosecution in this case for Brady\npurposes.\n\n 25\n\f testified about the three different caliber of handguns used in the murders,\n and evidence supporting that testimony was found at the scene and during\n the autopsy examination.\n\n After disposing of the guns, co-defendant Kenneth Johnson drove the\n trio to Michelle Chastain’s house, and although she did not see Thompson,\n she saw his Walmart vest in the car and testified that Johnson drove Goode\n to her house, just as Thompson testified.\n\n Not only was there plenty of additional corroborating evidence,\n besides the .22 caliber cartridges, Goode himself confessed to Michelle\n Chastain that he killed the victims. He even provided specific details of the\n murders. Needless to say, sufficient evidence existed, even absent evidence\n of these cartridges, to prove beyond a reasonable doubt that Goode was guilty\n of these crimes.\n\n We conclude that, if Henderson’s testimony had been completely\n impeached, or if the evidence regarding these specific cartridges had been\n excluded from the trial, the outcome of this trial would have been the same.\n\nOCCA Opinion Denying Second APCR at 3–6 (footnotes omitted).\n\n In reviewing the OCCA’s decision, we are limited to the record that was before\n\nthe state court.10 See Pinholster, 563 U.S. at 181. The parties interpret the OCCA’s\n\ndecision as denying relief under the materiality prong of Brady, as do we. Given the\n\nrelatively minimal value of Henderson’s testimony in light of the other evidence\n\nintroduced at trial implicating Goode in the murders and corroborating Bunny’s and\n\nMichelle’s incriminatory accounts, we cannot hold that the OCCA’s decision was an\n\nunreasonable application of Brady.\n\n Henderson’s testimony, which consumed just nine of the more than 1000 pages of\n\nthe trial transcript, was of little importance to the verdict. First, his testimony had only\n\n\n\n10\n We therefore need not consider the documents from Henderson’s trial that Goode\npresents to our court but did not present to the OCCA.\n\n 26\n\fmodest corroborative effect. Henderson accounted for two .22 casings found across from\n\nPeanut Joseph’s home. But as defense counsel pointed out in closing argument (without\n\ndispute from the prosecutor), there should have been four, not two, .22 casings from the\n\nmurders—two from the shots to the wall, one from the shot in Kayla’s hip, and one from\n\nthe projectile found in the dresser. In addition, Henderson acknowledged on cross-\n\nexamination that it would not be that uncommon to find such casings on a vacant lot in\n\nthe part of town where he found them.\n\n Moreover, the evidence incriminating Goode was compelling. The testimony of\n\nBunny and Michelle may have been enough to convince the jury, but there was much\n\nmore. It is undisputed that Bunny was one of the culprits. It is hard to believe that he\n\ncommitted the crimes on his own, using three different firearms to kill the victims. Who\n\nelse could have been involved?\n\n The neighbors’ testimony sets the time of the murders at about 12:45 a.m. on\n\nAugust 26. An undisputed video shows Bunny with Goode and Johnson at 10:00 p.m. on\n\nAugust 25 leaving the Walmart in Johnson’s Mercury Marquis. And trial testimony\n\nplaced the three men together again at Michelle’s house at 4:18 a.m. (per Michelle’s\n\naccount), with Bunny in a stupor. (Recall also that Penny Avans testified that Michelle\n\ncalled her at 3:18 a.m. and said that Goode and Johnson had come to her home.) Even\n\nGoode admitted in his statement to the police that he was with Johnson and Bunny\n\naround 10:00 p.m., and that later that night he met Johnson and Bunny at Michelle’s after\n\nJohnson called to say that something was wrong with Bunny, who, it turned out, was\n\nincapacitated. Is it reasonable to believe that Bunny, whose car was not operational,\n\n\n 27\n\fsomehow during this five- or six-hour window in the middle of the night hooked up with\n\nsomeone other than Goode and Johnson to commit the crimes and then fell into a stupor,\n\nonly to be discovered by Goode, Johnson, or both? Penny Avans, a defense witness,\n\ntestified that she left Michelle at her house at about 12:10 a.m., in itself making\n\nMichelle’s participation unlikely.\n\n What about Johnson? Goode told the police (in his second version of events) that\n\nhe had gone home from the Walmart, leaving Bunny and Johnson together. But it\n\nbeggars belief to think that those two men, who had first met at 10:00 p.m., joined\n\ntogether in this heinous crime without any involvement of the man who brought them\n\ntogether—Johnson’s old friend Goode, with whom he was connecting after a separation\n\nof one or two years.\n\n This is to say nothing of the corroborating nontestimonial evidence and testimony\n\nfrom persons who could hardly be suspect (from Goode’s point of view). Long after\n\nBunny had told the police that the men had gone to Peanut’s home after the murders, a\n\ndefense investigator obtained the records for Goode’s cell phone, showing that a call had\n\nbeen placed to Peanut’s phone at 1:03 a.m., some 20 minutes after the likely time of the\n\nmurders. That call ended a significant hiatus in the use of Goode’s cell phone since\n\n11:48 p.m., after a day of near-constant activity on the phone. And Bunny’s testimony\n\nregarding the trip to Peanut’s home and the culprits’ use of gloves is further corroborated\n\nby the discovery of gloves disposed of near the side of Highway 169, in particular a “blue\n\nand white work glove encased in a latex glove,” Trial Tr. Vol VI at 1266, and the\n\ndiscovery of part of a latex glove in Johnson’s vehicle. Also, the forensic evidence\n\n\n 28\n\fpartially corroborated Michelle’s testimony that Goode confessed to firing eight shots\n\nand, apparently, trying to shoot Mitch in the face.\n\n In addition, Ruby Gilyard, who lived with Goode and his mother and was called as\n\na defense alibi witness, testified that Goode had come home about 11:00 p.m., they had\n\ntalked for a short while and then, after she took a shower and got ready for bed, the last\n\nshe heard of Goode was his rummaging through things in another room—all consistent\n\nwith his coming home to get the tools necessary for his “business” of the evening. (Both\n\nBunny and Penny testified that he said that he had “business” to take care of that night.)\n\n On top of this evidence is Goode’s initial version of events when talking to police.\n\nWhy, if there was nothing to hide, make up the story about driving to Mannford from the\n\nWalmart, when his memory of the events less than three days earlier must have been\n\nfresh?\n\n Because of the minimal value of Henderson’s testimony and the strength of the\n\nincriminatory evidence, we cannot say that it was unreasonable of the OCCA to\n\ndetermine that impeaching Henderson would not have had a reasonable probability of\n\nchanging the outcome of Goode’s trial.\n\n Finally, Goode argues that the impeachment evidence, even if not enough on its\n\nown to establish materiality, is at least sufficient to require an evidentiary hearing\n\nregarding Henderson’s activities and the extent of the prosecution’s knowledge. But\n\nbecause we have not overturned the OCCA’s decision as unreasonable, we cannot grant\n\nan evidentiary hearing. See Smith v. Aldridge, 904 F.3d 874, 886 (10th Cir. 2018). We\n\naffirm the district court’s denial of Goode’s Brady claim.\n\n\n 29\n\f C. Ineffective-Assistance-of-Counsel Claims\n\n Goode claims that he received ineffective assistance of trial counsel at both the\n\nguilt phase and penalty phase of his trial. Trial counsel was allegedly ineffective at the\n\nguilt phase because (1) counsel did not interview or present testimony from Douglas\n\nMiller, a friend of the victims, about a jailhouse conversation with Bunny Thompson that\n\nwould have impeached him; (2) counsel did not use a statement from Damos “Peanut”\n\nJoseph to the police that contradicted Bunny’s account of disposing of evidence after the\n\ncrime; and (3) counsel did not adequately pursue the possibility that Officer Henderson\n\nhad planted evidence since they did not follow up on statements to police by Peanut’s\n\nwife, Lashaun Joseph, or interview Peanut himself about the matter. With respect to the\n\npenalty phase of the trial, Goode alleges that counsel failed to adequately investigate and\n\npresent evidence of (1) his mental-health disorders, his being the victim of childhood\n\nsexual abuse, and his ongoing substance dependence; and (2) mitigating circumstances\n\nknown to family, friends, and coworkers.\n\n 1. Standards of Review\n\n A defendant alleging ineffective assistance of counsel must show both that\n\ncounsel’s performance was deficient and that defendant was prejudiced thereby. See\n\nStrickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the first prong, “counsel\n\nis strongly presumed to have rendered adequate assistance and made all significant\n\ndecisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at\n\n690. Overcoming this presumption is a “heavy burden” for the defendant. Byrd v.\n\nWorkman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation marks omitted). “To\n\n\n 30\n\fbe deficient, the performance must be outside the wide range of professionally competent\n\nassistance. In other words, it must have been completely unreasonable, not merely\n\nwrong.” Hooks v. Workman (Danny Hooks), 606 F.3d 715, 723 (2010) (citation and\n\ninternal quotation marks omitted). On the second prong, “[t]he defendant must show that\n\nthere is a reasonable probability that, but for counsel’s unprofessional errors, the result of\n\nthe proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable\n\nprobability is a probability sufficient to undermine confidence in the outcome.” Id. A\n\ncourt is not bound to consider these two prongs in order, or even to consider them both, if\n\none is dispositive. See id. at 697.\n\n The burden on the defendant is even greater when AEDPA applies. “[H]abeas\n\ncorpus is a guard against extreme malfunctions in the state criminal justice systems, not a\n\nsubstitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S.\n\n86, 102–03 (2011) (internal quotation marks omitted). Review for unreasonableness\n\nunder § 2254(d) is different from review for unreasonableness solely under Strickland.\n\nSee id. at 105. “When 2254(d) applies, the question is not whether counsel’s actions\n\nwere reasonable. The question is whether there is any reasonable argument that counsel\n\nsatisfied Strickland’s deferential standard.” Id. Our review of ineffective-assistance\n\nclaims under § 2254, then, is “doubly deferential,” deferring both “to the state court’s\n\ndetermination that counsel’s performance was not deficient and . . . to the attorney’s\n\ndecision in how to best represent a client.” Byrd, 645 F.3d at 1168.\n\n 2. Analysis\n\n a. Guilt-Phase Ineffective-Assistance Claims\n\n\n 31\n\f i. Douglas Miller\n\n Bunny was the key witness for the prosecution. He admitted participating in the\n\nmurders and testified to Goode’s involvement. Goode claims that competent defense\n\ncounsel would have impeached Bunny’s testimony with testimony from Douglas Miller\n\nabout his conversation with Bunny while they were incarcerated in adjacent cells at the\n\nTulsa County Jail after Bunny had been arrested for the murders. After trial, Goode’s\n\nappellate counsel obtained an affidavit from Miller about that conversation. Miller said\n\nthat he had been a friend of the murder victims and told Bunny as much. In the jailhouse\n\nconversation Miller told Bunny he wanted to know the truth about the murders, and\n\nBunny replied that he could not remember the night of the murders because he was high\n\non Xanax and ecstasy. He told Miller that when police investigators questioned him, they\n\nmentioned Goode and Johnson, so he went along with them and tried to place the blame\n\non his two associates because he did not want to be suspected himself.\n\n On direct appeal the OCCA rejected Goode’s claim that counsel was ineffective in\n\nfailing to impeach Bunny with Miller’s statement. It held that Goode had failed to\n\npresent sufficient evidence that his trial counsel’s performance had been deficient or that\n\nhe had been prejudiced by the alleged deficiency. Under the deference required by\n\nAEDPA, we cannot grant relief.\n\n To begin with, Goode has presented no evidence that the defense team failed to\n\ninterview Miller before trial, nor has he presented evidence that Miller would have\n\nreported the jailhouse conversation had he been interviewed at that time. Goode’s\n\nappellate counsel did not obtain the Miller affidavit until November 2008, 10 months\n\n\n 32\n\fafter Goode was sentenced. The affidavit says nothing about whether Miller had\n\npreviously been interviewed, and Miller states in the affidavit that he had “failed to tell\n\nanyone about [the jailhouse conversation] due to not wanting to be in the middle of it.”\n\nMiller Affidavit, Application for Evidentiary Hearing on Sixth Amendment Claims, PCD\n\n2008–43, at Ex. A (Feb. 2, 2009).\n\n Further, the OCCA ruled that testimony by Miller, even if believed by the jury,\n\nwould not have changed the outcome of the trial. It noted that Bunny had been\n\nextensively cross-examined about his drug use during and after the murders and about his\n\ninconsistent statements to investigators. It also pointed out the obvious reason why\n\nBunny would not have been truthful with Miller: Miller’s friendship with the victims and\n\nBunny’s fear of retaliation if he admitted responsibility. See Goode, 236 P.3d at 687.\n\nThe court ruled that Goode had failed to show deficient performance by counsel or the\n\nrequisite prejudice. See id. We do not think that decision unreasonable.\n\n Goode contends that the OCCA and the federal district court both improperly\n\ndenied his requests for an evidentiary hearing on this issue. But on appeal in this court\n\nGoode does not dispute the State’s assertion that he failed to raise in federal district court\n\nany claim that the state court had improperly refused to conduct an evidentiary hearing.\n\nAnd Goode does not present to us any ground on which the district court could properly\n\nhave expanded the record beyond what was submitted to the state courts. See Pinholster,\n\n563 U.S. at 181 (“[R]eview under § 2254(d)(1) is limited to the record that was before the\n\nstate court that adjudicated the claim on the merits.”).\n\n Accordingly, we reject this claim.\n\n\n 33\n\f ii. Damos “Peanut” Joseph and Lashaun Joseph\n\n Bunny testified that he, Goode, and Johnson visited the home of Peanut and\n\nLashaun Joseph shortly after the murders and disposed of his gun and ammunition there.\n\nGoode argues that trial counsels’ performance was deficient in not using evidence from\n\nthe Josephs to challenge the testimony of Bunny and Officer Henderson, who testified\n\nthat he found bullet casings near the home.\n\n First, Goode points to the failure of trial counsel to impeach Bunny’s testimony\n\nwith a police report of an interview with Peanut. According to the report, Peanut said\n\nthat Goode and Bunny came by his home about 9:00 a.m. on the morning of the murders\n\n(but not promptly after the murders), and the two men asked for help moving a chain saw\n\nand automobile parts. He denied receiving guns or ammunition. Goode fails, however,\n\nto explain how defense counsel could have used the report at trial. The report itself was\n\nclearly inadmissible hearsay. The only way to present the information at trial would have\n\nbeen for Peanut to testify. But Goode provides no evidence that Peanut had not been\n\ninterviewed by anyone on the defense team or that he would have been willing to testify\n\non that issue. (As we shall see shortly, he explicitly stated in an affidavit that he had not\n\nbeen willing to testify about information that would have impeached Henderson.) It is\n\nnot deficient performance for counsel to fail to put on inadmissible or unavailable\n\nevidence. Cf. Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (“[I]f the issue is\n\nmeritless, its omission will not constitute deficient performance.” (internal quotation\n\nmarks omitted)). Goode has failed to establish the first prong of Strickland with respect\n\nto this evidence.\n\n\n 34\n\f Next, Goode argues that defense counsel were deficient in failing to follow up\n\nwith Peanut and his wife Lashaun about various statements made to them by Henderson\n\nwhile police searched their property after the murder. Because of this deficiency, Goode\n\nargues, the defense failed to “get to the bottom of” Henderson’s corruption. Aplt. Br. at\n\n100. His brief states, “While [at the Josephs’ home] the corrupt Henderson made\n\nmultiple statements indicating his determination to ‘get’ Clarence Goode by legal or\n\nillegal means and his intention to plant evidence against him.” Id. at 99. He points out\n\nthat it was Henderson who corroborated Bunny’s testimony that he had disposed of the\n\nshell casings from his gun near the Josephs’ home when Henderson found two .22 shell\n\ncasings and a .22 cartridge in the neighboring quarter-acre lot.\n\n Goode submitted affidavits from the two Josephs with his second application to\n\nthe OCCA for postconviction relief. Peanut’s affidavit stated that Henderson told him:\n\n“[W]e have been after Clarence for a long time and we are going to get him one way or\n\nanother. He let me know he was going to get Clarence any way he needed to.” Damos\n\nJoseph Affidavit, Def.’s Second APCR at Ex. 4. But Peanut also said that even though he\n\ntalked to a few members of Goode’s trial team, “I was afraid to testify at that time\n\nbecause I believe Officer Henderson would have retaliated against me. . . . I am now\n\nwilling to sign this affidavit because I no longer fear Officer Henderson because of all his\n\nleagal [sic] trouble.” Id. It is not deficient performance to fail to call a witness who will\n\ndecline to provide useful testimony. We reject this component of Goode’s\n\nineffectiveness claim.\n\n\n\n\n 35\n\f As for Lashaun, she submitted an affidavit saying that had she been asked she\n\nwould have told trial counsel about Henderson’s intimidation and threats regarding\n\nGoode. But Goode does not argue that trial counsel should have called her as a witness.\n\nAs we understand his argument, he simply states that if Lashaun had been interviewed,\n\nher comments about Henderson would have led competent trial counsel on the path that\n\n“very well may have broken the case wide open and exposed to the jury a veteran police\n\nofficer who fabricates evidence.” Reply Br. at 36. This is sheer speculation, particularly\n\ngiven that there was no publicly available evidence of Henderson’s corruption at the time\n\nof trial.\n\n Moreover, even if defense counsel had been deficient in not pursuing from the\n\nJosephs potential evidence that could have been used to impeach Henderson, Goode has\n\nnot established the prejudice required by Strickland’s second prong—for the reasons\n\ndiscussed above with respect to Goode’s Brady claim. This claim thus fails.\n\n b. Penalty-Phase Ineffective-Assistance Claims\n\n i. Drug Use, Child Sexual Abuse, and Mental\n Health\n\n In Goode’s first state postconviction proceeding he argued that his trial counsel\n\nwere ineffective at the penalty phase of his trial for failing to present in mitigation\n\navailable evidence of his abuse of Xanax and the sexual abuse he suffered as a child.\n\nAnd he contended that his appellate counsel were ineffective for failing to raise these\n\nissues on direct appeal. The OCCA rejected the claims on the second prong of\n\n\n\n\n 36\n\fStrickland, holding that the failure to present the evidence did not prejudice Goode. It\n\nsaid:\n\n There was no evidence that Goode was under the influence of Xanax at the\n time of these crimes and Goode presents no new evidence indicating that he\n was. Also, Goode has presented no evidence regarding the effect of his\n childhood experiences on him specifically. Without these pieces of\n evidence, Goode cannot show that the outcome of his trial would have been\n different.\n\nOCCA Opinion Denying Original Application for Post-Conviction Relief, PCD 2008–\n\n211, at 8 (Sept. 7, 2010).\n\n Goode raises three challenges to the OCCA’s decision. First, he argues that Dr.\n\nManual Saint Martin, a psychologist, provided the connection between the sexual abuse\n\nand Goode’s behavior resulting in the murders. But no statement by the doctor was\n\npresented to the OCCA in the first postconviction proceeding.\n\n Second, Goode argues that the OCCA applied the incorrect test for assessing\n\nprejudice under Strickland. He points to the OCCA’s language that Goode had failed to\n\nprove that “the outcome of his trial would have been different” if the additional evidence\n\nhad been presented. OCCA Opinion Denying Original Application for Post-Conviction\n\nRelief at 8. Goode is correct that the proper Strickland test is “whether there is a\n\nreasonable probability that, but for counsel’s unprofessional error, the result of the\n\nproceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added).\n\nBut the OCCA’s use of imprecise shorthand in stating the test does not demonstrate that\n\nthe OCCA was unaware of the correct standard. On the contrary, its discussion of the\n\nineffective-assistance claims began with citations to both Strickland and Harris v.\n\n\n\n 37\n\fOklahoma, 167 P.3d 438, 441 (OCCA 2007), which stated the Strickland reasonable-\n\nprobability standard. Goode has not overcome the presumption that the state court knew\n\nand applied the proper standard. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (we\n\npresume “that state courts know and follow the law,” and we give state-court decisions\n\n“the benefit of the doubt”). This is not one of those “extreme malfunctions” in the\n\ncriminal-justice process that can support habeas relief. Harrington, 562 U.S. at 102–03\n\n(internal quotation marks omitted); see Grant v. Royal, 886 F.3d 874, 906 (10th Cir.\n\n2018) (“The true question presented . . . is simply whether the overall substance of the\n\nOCCA’s analysis, as well as the result it reached, reflects that the court understood and\n\ndecided the ineffective-assistance issue under the proper Strickland framework.”).\n\nMoreover, as discussed below, the OCCA rejected an expanded version of this same\n\nclaim in Goode’s third state postconviction application and quoted the correct Strickland\n\ntest in the process.\n\n Third, Goode argues that the OCCA’s analysis is contrary to Eddings v.\n\nOklahoma, 455 U.S. 104 (1982), in requiring him to show a causal nexus between the\n\npurported mitigation evidence and an adverse effect upon him at the time of the crime.\n\nEddings, however, was not an ineffective-assistance case. That opinion held only that the\n\nsentencing judge in a capital case cannot refuse to consider relevant mitigating evidence\n\njust because it did not provide a legal excuse from criminal responsibility. See id. at 113–\n\n17. The Court made clear, however, that the sentencing and reviewing courts “may\n\ndetermine the weight to be given relevant mitigating evidence.” Id. at 114–15. Here, the\n\nOCCA did not refuse to consider the drug-use and sexual-abuse evidence; rather, it held\n\n\n 38\n\fthat the evidence was entitled to minimal if any weight. That determination was not\n\ncontrary to Eddings. We therefore need not address the State’s argument that Goode\n\nfailed to preserve this issue in federal district court. We conclude that the OCCA did not\n\nunreasonably apply established federal law in rejecting this claim in Goode’s first\n\npostconviction application.\n\n Goode also challenges the OCCA’s rejection of an expansion of this claim in his\n\nthird state postconviction application. He argues that the performance of trial counsel\n\nwas deficient because they possessed “critical records” documenting Goode’s diagnosis\n\nand treatment for mental-health conditions, including depression and anxiety, yet they\n\nfailed to pursue this evidence and raise his mental-health problems in mitigation at the\n\npenalty phase of his trial. Aplt. Br. at 66. He contends that proper consideration of those\n\nrecords “would have led to the discovery of Goode’s prior diagnoses and treatment for\n\nmental health problems.” Id. at 67. And, the argument continues, defense counsel could\n\nthen have obtained expert testimony for the penalty phase. To show what an expert could\n\nhave testified to, Goode presented to the OCCA a report from Dr. Saint Martin, stating\n\nthat Goode had “confirmed diagnoses” of “major depression, post-traumatic stress\n\ndisorder and benzodiazepine (Xanax) and alcohol dependence,” and that all but Xanax\n\nwere “present at the time of the offense and they would have significantly impacted Mr.\n\nGoode’s behavior.” R., Vol. 1 at 240. The report asserted that Xanax and alcohol can\n\neach cause “dis-inhibition, cognitive dysfunction[,] lowered impulse control and\n\neuphoria.” Id. at 241. It further noted that Goode’s fiancée and his mother reported that\n\nGoode had been sexually abused as a child, and that this abuse, “followed by witnessing\n\n\n 39\n\fnumerous shootings, death of friends, gang violence and his own violent injuries,” “could\n\nresult in” chronic PTSD and “would lead not only to heightened levels of anxiety, but\n\nalso to poor cognitive functioning and poor coping abilities.” Id. at 241–42. It also\n\nstated that his psychiatric history suggested possible “diagnoses of temporal epilepsy,\n\nbipolar disorder, and intermittent explosive disorder.” Id. at 242.\n\n The OCCA rejected the claim as procedurally barred. We need not worry whether\n\nthis procedural bar binds us because the OCCA essentially resolved the substantive issue\n\nnow before us while deciding the procedural bar. It said that the procedural bar could be\n\novercome if Goode’s counsel in the first postconviction proceeding had been ineffective\n\nin failing to raise the claim presented in the third postconviction application. It then held\n\nthat counsel had not been ineffective because the new claim failed for lack of a showing\n\nof prejudice. The OCCA ruled that Goode had not shown “a reasonable probability that\n\nthe evidence would have impacted the jury’s weighing of the aggravating and mitigating\n\nevidence.” It explained:\n\n The evidence of mental health issues caused by Goode’s chronic\n substance abuse and a history of exposure to a violent environment could\n lead the jury to a negative perception of Goode just as easily as the jury\n might find it mitigating. This evidence, moreover, would have exposed\n Goode’s deeply ingrained involvement in violent gang activity, including\n shootings, stabbings, drug dealing, and other nefarious activities.\n\n This evidence, combined with the violent nature of the crime, the\n gratuitous killing of an entire young family in an attempt to garner some\n type of revenge, while seeking another intended target, would not have\n caused this jury to determine that the mitigating evidence outweighed the\n aggravating circumstances. The evidence would have bolstered the fact\n that Goode is a continuing threat to society.\n\n\n\n\n 40\n\fOCCA Opinion Denying Successive Application for Post-Conviction Relief, PCD 2012–\n\n261, at 5 (May 9, 2012) (citation omitted).\n\n We review that ruling with deference. Cf. Grant, 886 F.3d at 910–11 (reviewing\n\nprejudice prong of ineffective-assistance claim de novo because OCCA did not resolve\n\nclaim on that ground, but deferring to the OCCA’s “related, but distinct . . . merits\n\ndetermination” that defendant was competent in holding that applicant was not prejudiced\n\nby counsel’s failure to monitor his competency). And the OCCA’s analysis is not an\n\nunreasonable application of the prejudice prong of Strickland. The essence of Goode’s\n\nargument is that the possible downside to psychological evidence does not mean that it\n\ncannot be helpful. True. But one must look at the particular circumstances. And the\n\ncircumstances here do not help Goode. First, he does not argue that treatment of his\n\nmental disease would reduce his dangerousness. The report by Dr. Saint Martin does not\n\naddress the issue. Cf. Littlejohn, 704 F.3d at 865 & n.24 (report by psychiatrist stated\n\nthat defendant’s deficits were treatable and thereby provided “some assurance that,\n\nthrough medical treatments, his criminal, violent past would not be prologue”); Wilson v.\n\nSirmons, 536 F.3d 1064, 1094 (10th Cir. 2008) (separate opinion of Judge McConnell)\n\n(stating that juries are likely to regard as particularly mitigating those mental diseases\n\nassociated with brain abnormalities that can be treated with medication). Second, the\n\npsychological report added considerable information about Goode’s violent, antisocial\n\npast. He argues in his reply brief that the jury had already been exposed to a good deal of\n\nevidence of such misconduct. That evidence, however, related only to Goode’s feud with\n\nJ.R. Hoffman and Mitch Thompson (in which Goode injured them only with his fists and\n\n\n 41\n\fused a gun only to try to stop Mitch from beating up Bunny), his prior conviction for\n\npossession of a firearm by a convicted felon, and the crimes charged in this case. The\n\njury was told nothing of his gang involvement or violent youth. The psychological report\n\nestablished that the violent conduct in this case was not a one-off brought about by a\n\nparticular episode but a way of life. Thus, this case is readily distinguishable from Smith\n\nv. Mullin, 379 F.3d 919, 943 & n.11 (10th Cir. 2004), where the “aggravating edge” to\n\nthe defendant’s mental impairments was already squarely before the jury. The OCCA\n\ncould therefore reasonably determine that the new mental-health evidence was unlikely to\n\nhave affected his sentence. Giving the OCCA decision the deference it is due, we cannot\n\ngrant relief on this claim.\n\n ii. Additional Mitigation Witnesses\n\n Goode argues that defense counsel provided inadequate representation by\n\npresenting at the penalty stage of his trial only two mitigation witnesses—his mother and\n\nhis fiancée. This testimony, along with the first-stage testimony of coworker Teresa\n\nSharpe, constituted his mitigation evidence. Goode claims that the jury should also have\n\nheard helpful evidence from coworkers, friends, and family. Goode first raised this claim\n\non direct appeal and attempted to supplement it in his first and third postconviction\n\napplications.\n\n On direct appeal Goode contended that his trial counsel were ineffective in not\n\npresenting additional family members (including two of his children), friends, and\n\ncoworkers as mitigation witnesses. He submitted affidavits from the witnesses and\n\nargued that their testimony “could have rounded out the jury’s picture of [his] overall\n\n\n 42\n\fcharacter and history.” Aplt. Br. at 76, Goode v. State, No. D-2008-43. The OCCA\n\nrejected the argument for lack of prejudice:\n\n Goode cannot show that he was prejudiced by the absence of\n additional mitigating evidence. Most of the information provided in the\n affidavits was presented to the jury. Goode’s mother and fiancé testified\n about his good family background, his childhood, his participation in high\n school sports, and his devotion to his family and children. Goode’s\n coworker testified about his employment and his ability to assist patients in\n the mental health ward at the hospital.\n\n One affidavit describes Goode as coming from a good home, but\n upon reaching his teen years he began getting into trouble because he was\n influenced by peers. Affidavits from Goode’s children describe their life\n with Goode in a very positive light. Coworkers’ affidavits also describe him\n as a good worker. Other friends describe Goode as a good person while\n around them. Much of Goode’s proposed additional mitigation evidence\n was cumulative to that presented to the jury. Even if trial counsel had\n presented all of the mitigating witnesses now proposed, there is no\n reasonable probability that the outcome of the trial would have been\n different.\n\nGoode, 236 P.3d at 688.\n\n In his first postconviction application, Goode again argued that counsel was\n\nineffective in failing to present additional mitigation witnesses. Three of the affidavits\n\nsubmitted in support of that claim—those by his children and his friend Penny Avans—\n\nwere similar to those submitted on direct appeal, and the OCCA accordingly held that\n\n“the argument regarding these potential mitigation witnesses is barred.” OCCA Opinion\n\nDenying Original Application for Post-Conviction Relief at 7. The remaining affidavits\n\nsetting forth allegedly mitigating evidence recounted Goode’s Xanax use and sexual\n\nabuse as a child and were rejected by the OCCA for the reasons described above.\n\n\n\n\n 43\n\f In his third postconviction application, Goode submitted affidavits from friends\n\nand family members disclosing that he had been involved in gang activity, lost close\n\nfriends to gang violence, was shot in the face in a drive-by shooting, and grew up in a\n\nviolent neighborhood with a father who abused alcohol. The OCCA rejected this\n\nadditional evidence as procedurally barred but, as previously described, went on to\n\nexamine whether Goode had presented a claim of ineffective assistance of postconviction\n\ncounsel that would excuse the procedural bar.11 The OCCA denied that claim for lack of\n\nprejudice, holding that “[t]he evidence of . . . Goode’s . . . exposure to a violent\n\nenvironment could lead the jury to a negative perception of Goode just as easily as the\n\njury might find it mitigating” and “would have exposed Goode’s deeply ingrained\n\ninvolvement in violent gang activity.” OCCA Opinion Denying Successive Application\n\nfor Post-Conviction Relief at 5.\n\n In this court, Goode relies on an amalgamation of the alleged mitigating evidence\n\npresented at various proceedings before the OCCA. He states that his hospital coworkers\n\ncould have described how calm he was when working with emotionally unstable and\n\npotentially volatile patients; his children could have described him as a loving,\n\nencouraging, and generous father; and additional friends and family members could have\n\ndescribed the rough neighborhood where he grew up and where he was traumatized by\n\ngang violence that took the lives of close friends and injured him, including a gunshot to\n\n\n11\n Consideration of ineffective assistance of postconviction counsel was undertaken by\nthe OCCA purely as a matter of state law. We doubt that the Supreme Court would\nconsider such ineffective assistance as cause to overcome a procedural bar. See Davila v.\nDavis, 137 S. Ct. 2058, 2062–63 (2017).\n\n 44\n\fthe face. Friends and family, he says, could also have described his father, who “became\n\nmean when he was drunk” and drank often, passing out nearly every day; who would\n\n“talk crazy” to Goode’s mother; and who behaved in such a controlling manner that he\n\nonce disabled the family vehicle so the mother and children could not leave.\n\n We see no basis for determining that the OCCA unreasonably applied Strickland\n\nin rejecting Goode’s claims based on the failure to investigate and present this additional\n\nevidence during the penalty phase of the trial. It was not unreasonable to hold that the\n\nevidence presented as part of Goode’s direct appeal was largely cumulative of that\n\npresented at Goode’s sentencing and that omission of that evidence was not prejudicial.\n\nSee James v. Gibson, 211 F.3d 543, 557 (10th Cir. 2002) (no prejudice when “[m]uch of\n\nthe [omitted mitigating] evidence [defendant] now points to was already before the\n\njury”). Nor was it unreasonable to decide that testimony bringing Goode’s violent past to\n\nlight (which would be in considerable tension with the normal-family evidence) was\n\nunlikely to do more good than harm. See Wackerly v. Workman, 580 F.3d 1171, 1178\n\n(10th Cir. 2009) (“[W]hatever mitigating effect such evidence might have had if\n\npresented, it is just as likely the jury would react negatively to it.” (internal quotation\n\nmarks omitted)); Davis v. Executive Director of Dep’t of Corr., 100 F.3d 750, 762 (10th\n\nCir. 1996) (failure to present mitigating evidence was not prejudicial when the evidence\n\n“if presented, would have constituted . . . a two-edged sword” (internal quotation marks\n\nomitted)).\n\n We uphold the OCCA’s determination as reasonable.\n\n\n\n\n 45\n\f D. Cumulative Error\n\n “A cumulative-error analysis aggregates all errors found to be harmless and\n\nanalyzes whether their cumulative effect on the outcome of the trial is such that\n\ncollectively they can no longer be determined to be harmless.” Cargle v. Mullin, 317 F.3d\n\n1196, 1206 (10th Cir. 2003) (internal quotation marks omitted). In conducting a\n\ncumulative-error analysis, we include prejudice that has already been assessed in denying\n\nclaims, such as claims under Brady or claims of ineffective assistance of counsel that\n\nincorporate a prejudice component in determining whether a right has been violated. See\n\nid. at 1207. We have granted relief when the errors had an “inherent synergistic effect”\n\non the outcome. 317 F.3d at 1221.\n\n Goode argues that he suffered prejudice from the cumulative effect of counsel’s\n\nalleged deficiencies at his guilt and sentencing phases. He contends that “[t]he synergy\n\nbetween a bad cop, an awful witness, [and] a prosecution case aimed at propping them\n\nup” warrant relief for cumulative error. Aplt. Br. at 105–06.\n\n He asks us to include in the analysis an alleged error that we have not considered\n\nin this opinion because we declined to grant a COA on the issue—the improper\n\nadmission at trial of a 911 call from Ms. Smalygo when she discovered the murders. But\n\nthe OCCA ruled that the call was inadmissible (although not prejudicial) under state law,\n\nnot as a constitutional matter. See Goode, 236 P.3d at 680–81. And Goode has not\n\nargued in this court that the admission of the call into evidence was a constitutional error.\n\nWe therefore need not consider it in our cumulative-error analysis. See Matthews v.\n\n\n\n\n 46\n\fWorkman, 577 F.3d 1175, 1195 n.10 (10th Cir. 2009) (“In the federal habeas context, the\n\nonly otherwise harmless errors that can be aggregated are federal constitutional errors[.]”)\n\n That leaves the claims that we have disposed of solely on prejudice grounds:\n\nGoode’s Brady claim and his claims that counsel were ineffective in (1) failing to\n\ninterview Lashaun Joseph, (2) failing to present evidence of Goode’s mental health and\n\nsexual abuse, and (3) failing to present additional mitigation witnesses. But we have\n\nalready determined that these alleged errors were not independently prejudicial and we\n\nsee no “inherent synergistic” or other cumulative effect that would call for relief, given\n\nthe limited value of Henderson’s testimony and the doubtful usefulness of the evidence\n\nomitted as the result of alleged deficient performance by counsel, to say nothing of the\n\ncompelling evidence against Goode. We therefore deny the claim of cumulative error.\n\n IV. CONCLUSION\n\n We AFFIRM the district court’s denial of Goode’s application for relief under 28\n\nU.S.C. § 2254.\n\n\n\n\n 47\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Clarence Rozell GOODE, Jr., Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS April 29, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n CLARENCE ROZELL GOODE, JR.,\\n\\n Petitioner - Appellant,\\n\\n v. No. 16-5124\\n\\n MIKE CARPENTER, Warden, Oklahoma\\n State Penitentiary,\\n\\n Respondent - Appellee.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Oklahoma\\n (D.C. No. 4:11-CV-00150-GKF-FHM)\\n _________________________________\\n\\nThomas D. Hird, Assistant Federal Public Defender (Emma V. Rolls, Assistant Federal\\nPublic Defender, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-\\nAppellant.\\n\\nJennifer L. Crabb, Assistant Attorney General (Joshua L. Lockett, Assistant Attorney\\nGeneral, and Mike Hunter, Attorney General of Oklahoma, on the brief), Oklahoma City,\\nOklahoma, for Respondent-Appellee.\\n _________________________________\\n\\nBefore BRISCOE, HARTZ, and PHILLIPS, Circuit Judges.\\n _________________________________\\n\\nHARTZ, Circuit Judge.\\n _________________________________\\n\\n Clarence Rozell Goode, Jr., who was convicted of first-degree murder and\\n\\nsentenced to death by the State of Oklahoma, appeals the denial by the United States\\n\\fDistrict Court for the Northern District of Oklahoma of his application for relief under\\n\\n28 U.S.C. § 2254. Goode’s application raises two claims: (1) a claim under Brady v.\\n\\nMaryland, 373 U.S. 83 (1963), that the State suppressed material information about the\\n\\ncorrupt conduct of Jeff Henderson, one of its investigating officers, and (2) an\\n\\nineffective-assistance-of-counsel claim with numerous subclaims. Because none of\\n\\nGoode’s claims merits relief under § 2254, we affirm the district court’s denial of the\\n\\napplication.\\n\\n I. BACKGROUND\\n\\n The strength of the evidence of Goode’s guilt is important in resolving several\\n\\nissues on appeal, in particular the Brady issue. We therefore review that evidence in\\n\\nsome detail.\\n\\n During the overnight hours of August 25–26, 2005, intruders entered the home of\\n\\nMitch Thompson and his wife Tara Burchett-Thompson at 9707 North 112th East\\n\\nAvenue in Owasso, Oklahoma. (For convenience we will refer to it as Tara’s home.)\\n\\nTara’s ten-year-old daughter Kayla, who lived with her grandmother Brenda Smalygo at\\n\\na separate address, happened to be staying with her mother that night. All three\\n\\noccupants were murdered. The crime was discovered about 9:00 a.m. on August 26,\\n\\nwhen Ms. Smalygo learned that Kayla was not in school and came by the house to check\\n\\non her. She observed that the garage door was open, as was the door from the garage into\\n\\nthe house. She found Tara and Kayla nonresponsive in the bedroom and called the\\n\\npolice, who later found Mitch’s body in that room.\\n\\n\\n\\n\\n 2\\n\\f Evidence recovered from the crime scene and forensic examination showed that\\n\\nthe victims had been killed by shots from three firearms—a .22, a 9mm, and a .357.\\n\\nSeven .357 casings and seven 9mm casings were found at the crime scene. A .22 caliber\\n\\nprojectile was found in a dresser drawer. In addition, six projectiles were found in and\\n\\nunder the bed. The ballistics expert determined that at least three of those projectiles\\n\\ncame from the .357, and one came from the 9mm. The origin of the other two projectiles\\n\\ncould not be determined.\\n\\n Mitch was shot at close range once in the upper back and once in the cheek. No\\n\\nbullets were recovered from his body, but one of the .357 projectiles found under the bed\\n\\nwas directly beneath his head.\\n\\n Tara’s body had 10 gunshot wounds: three on the head, two on the chest, one on\\n\\nthe abdomen, two on the leg, one through the arm, and one through the hand. The\\n\\nmedical examiner observed that five or six shots entered and fully exited her body. Four\\n\\nbullets were recovered from Tara’s body—one from her head and three from her body\\n\\ncavity—all of which came from the 9mm gun. One of the .357 projectiles was found\\n\\nbeneath her head.\\n\\n Kayla was shot once in the head, once in the back, and three times in the hip.\\n\\nThree bullets lodged near her hip were recovered; one came from a .22, and two were\\n\\nfrom the 9mm. Kayla’s head wound was not attributed to a particular weapon, but seven\\n\\n9mm casings were found, and seven 9mm shots were accounted for. And the wound was\\n\\nnot of the distinctly smaller sort attributable to a .22. Based on the above evidence, the\\n\\nState theorized that shots from the .357 gun caused the head wounds of all three victims.\\n\\n\\n 3\\n\\f Three neighbors testified for the prosecution at trial. James Deeter said that at\\n\\n12:12 a.m. on August 26 he took out his garbage and noticed that the Thompsons’ garage\\n\\ndoor was open, but the interior door from the garage into the house was “definitely\\n\\nclosed.” Trial Tr. Vol. III at 606. He and his wife both described loud barking coming\\n\\nfrom the side of their yard adjacent to Tara’s home at about 12:45 a.m. Another neighbor\\n\\nwas awakened close to that time but could not state the cause.\\n\\n A possible motive for the murders was a feud involving Mitch. On one side of the\\n\\nfeud were Mitch and a family friend, J.R. Hoffman, who usually spent the night at Tara’s\\n\\nhome or the home of Mitch’s parents. On the other side were Mitch’s sister Michelle\\n\\nChastain; his cousin Ronald Thompson (called “Bunny,” because he was born on Easter),\\n\\nwho lived with Michelle; and Goode, who was Michelle’s boyfriend. At trial, Michelle\\n\\nand Bunny testified to the events of the feud, with some corroboration from others,\\n\\nincluding a statement by Goode to the police. The gist of the events is not disputed and\\n\\nwas endorsed in the defense closing argument.\\n\\n About July 14, 2005, Goode gave J.R. money to run an errand for him in\\n\\nClaremore, Oklahoma. J.R. borrowed Michelle’s car for the trip. He wrecked the car and\\n\\nwas arrested for driving under the influence. When they learned that J.R. was in jail,\\n\\nMitch’s mother and Bunny bailed him out. Goode and Bunny retrieved the car, which\\n\\nwas badly damaged.\\n\\n Two weeks later, Bunny and Goode confronted J.R. at the home of Mitch’s\\n\\nparents. Goode demanded that J.R. pay for the damage to the car, J.R. refused, and\\n\\nGoode punched him in the mouth. Goode and Bunny left and went to Michelle’s house.\\n\\n\\n 4\\n\\fGoode’s friend Damos “Peanut” Joseph came to that house and gave Goode a handgun,\\n\\nwhich Goode tucked into his pants. Meanwhile, Mitch’s mother drove J.R. to Tara’s\\n\\nhouse because he was drunk and acting erratically.\\n\\n Later that night, Michelle heard a knock at her door. She and Bunny went to\\n\\nanswer it and found Mitch accompanied by J.R. and armed with a baseball bat. Mitch\\n\\nbegan attacking Bunny with the bat. He was badly beating Bunny when Michelle called\\n\\nfor Goode, who emerged from a bedroom carrying a gun. Michelle had never seen\\n\\nGoode with a gun before that night and did not know where he obtained it.\\n\\n Goode ordered everyone outside. But Mitch continued to beat Bunny, while J.R.\\n\\npointed at Goode and yelled “I want this motherfucker right here.” Trial Tr. Vol. V at\\n\\n1022. About this time, Peanut joined the group in the yard. Goode handed Peanut his\\n\\ngun and engaged in a fistfight with J.R, which he won. An ambulance was called for\\n\\nBunny, who suffered a broken rib from the beating with a bat.\\n\\n After this incident, Mitch called the child-welfare division of the Oklahoma\\n\\nDepartment of Human Services (DHS) to say that Michelle had not reported the income\\n\\nof people living in her home. DHS initiated an investigation and scheduled a home visit.\\n\\nMitch also called the dental office where Michelle worked and said that she was involved\\n\\nwith drugs, causing her to be fired. He similarly attempted to get Goode fired from his\\n\\njob as an aide at Brookhaven Hospital by reporting to the hospital that he was selling\\n\\ndrugs, but this effort was unsuccessful.\\n\\n At Goode’s trial, two witnesses gave accounts of the murders. One, Bunny\\n\\nThompson, confessed to participating in the crime. On August 25 he reported to his\\n\\n\\n 5\\n\\fusual job as a cart puller at Walmart. Because his car was inoperable, he was driven to\\n\\nwork by his uncle, Mitch’s father. Not long before 10:00 p.m. his boss told him to leave\\n\\nthe store, but did not fire him, for taking Xanax at work. Bunny tried calling Michelle to\\n\\npick him up but could not reach her, so he called Goode to get a ride home. Goode said\\n\\nhe was already coming to Walmart and could pick him up. He arrived at Walmart with\\n\\nKenneth “Fu Fu” Johnson in Johnson’s white four-door Mercury Marquis. The two men\\n\\ndid some shopping at the store and then connected with Bunny, who had never met\\n\\nJohnson before.\\n\\n Bunny got in the car with Goode and Johnson. He sat in the back, Goode sat in\\n\\nthe front passenger seat, and Johnson drove. As they departed, Goode told Bunny they\\n\\nwere going to “take care of some business.” Trial Tr. Vol. V at 909–10. He gave Bunny\\n\\na .22 gun and latex gloves. At trial Bunny first described the gloves as “yellow ones, like\\n\\nthe doctors use” but then said they were clear. Trial Tr. Vol. V at 910. Johnson had a\\n\\n9mm gun and Goode had a .357. Bunny put on the latex gloves, and Johnson and Goode\\n\\nput on both latex gloves and another set of gloves, which Bunny first described as “[l]ike\\n\\nbatting gloves” and then as “painter gloves” that were “blue on the outside.” Trial Tr.\\n\\nVol. V at 911–12. Bunny testified that they then drove straight to Tara’s home, though\\n\\nthe State said that the murders did not occur until later that night. Bunny said that when\\n\\nhe left Walmart with Goode and Johnson, he took some ecstasy in Johnson’s car, which,\\n\\ncombined with Xanax, muddled his recall.\\n\\n When the three men arrived at Tara’s house, Bunny rang the doorbell. Getting no\\n\\nresponse, he went through the open garage door and kicked in the interior door to the\\n\\n\\n 6\\n\\fhouse. He went to the left, heading for the room where J.R. regularly stayed. Goode and\\n\\nJohnson went to the right, to Mitch and Tara’s bedroom. Bunny heard gunshots coming\\n\\nfrom that bedroom and went there, where he found Goode and Johnson shooting.\\n\\nJohnson held his gun to Bunny’s head and demanded that he start shooting or he would\\n\\n“be next.” Trial Tr. Vol. V at 917–18. Bunny fired three or four shots into the wall over\\n\\nthe bed. He admitted that he “might have shot” Kayla in the hip as he “raised up the\\n\\ngun.” Trial Tr. Vol. V at 923. Bunny then ran out of the home, with Goode and Johnson\\n\\nbehind him.\\n\\n The three headed to the home of “Peanut” Joseph. While driving there on\\n\\nHighway 169, they threw their gloves out the car windows. Upon arriving at Peanut’s,\\n\\nGoode told Bunny to “get rid of the bullets” from his gun. Trial Tr. Vol. V at 925.\\n\\nBunny gave his gun to Goode and then tossed what he said were the bullets “outside in a\\n\\nfield.” Trial Tr. Vol. V at 925. (It is possible that Bunny was referring to the casings, not\\n\\nthe bullets themselves. The .22 was the only gun used in the murders to retain its\\n\\ncasings; the other two firearms were automatic weapons, so their casings were\\n\\nautomatically discharged upon firing.)\\n\\n Later that morning, Bunny awoke at Michelle’s house, where someone picked him\\n\\nup and took him to his sister’s home. The next day, August 27, Bunny confessed to his\\n\\nsister “what all happened,” and she drove him to the police station.1 Trial Tr. Vol. V at\\n\\n929.\\n\\n\\n1\\n Bunny’s sister, Tressa Beasley, testified that on August 26 Bunny came to her home\\nfrom Michelle’s house and spent the night. He told her that Mitch and his family were in\\n\\n 7\\n\\f In his interview with the police, Bunny at first denied involvement in the\\n\\nshootings. Although he admitted that he got in the car with Goode and Johnson, he said\\n\\nthat after they pulled into Tara’s neighborhood and showed him the gloves and guns, he\\n\\ngot out of the car but did not enter Tara’s home. Then he admitted entering Tara’s home\\n\\nbut claimed he did not have a gun. He initially said that Johnson kicked in the door to the\\n\\nhome, but then admitted that he was the one who had done so. He then modified his\\n\\naccount once again, admitting to using a .22 caliber gun to fire shots into a wall at the\\n\\nhome. And when officers told Bunny that a .22 bullet was recovered from Kayla’s hip,\\n\\nhe admitted that one of his shots might have hit her. In exchange for Bunny’s testimony,\\n\\nthe State withdrew the death penalty in his case.\\n\\n The other account of the murders came from Michelle Chastain, who described\\n\\ntwo occasions on which Goode confessed to the murders. Goode woke her up at her\\n\\nhome at 4:18 a.m. on August 26. He rubbed her face and then went to the other side of\\n\\nthe bed. Michelle told him she had called and left messages on his phone several times\\n\\nthat evening and accused him of being with another woman. They argued until Goode\\n\\nshouted out, “I just shot your fucking brother, is that what you wanted to hear?” Trial Tr.\\n\\nVol. V at 1043.\\n\\n Michelle did not take his statement about her brother seriously because Goode\\n\\nimmediately changed the subject, talking about jerseys that his “cousin” Fu Fu (Johnson)\\n\\n\\nthe hospital. But when she learned from her mother that they had been murdered, she\\nconfronted him and told him to tell her the truth about what had happened. After he\\nresponded (she did not testify about the contents of his statement) she told him he needed\\nto turn himself in and drove him to speak with the police.\\n\\n 8\\n\\fhad given him. About this time, Michelle heard the microwave in the kitchen and\\n\\nassumed it was Bunny. But Goode explained that it was Johnson, who then came to the\\n\\nbedroom. Michelle got out of bed and Goode introduced Johnson to her as his cousin.\\n\\nMichelle had never met Johnson before that night. Johnson asked Michelle to get\\n\\nBunny’s stuff out of his car. She followed Goode and Johnson outside and saw a four-\\n\\ndoor vehicle, which she had never seen until that night, parked curbside with Bunny lying\\n\\nbeside it unconscious. She took Bunny’s bag out of the backseat of the car and helped\\n\\ntake Bunny to the guest room, where he often stayed.\\n\\n Sometime before 6:00 a.m., Johnson left, followed shortly thereafter by Goode.\\n\\nBefore he left, Goode told Michelle to watch the news. Michelle did not know how\\n\\nGoode got home; she did not recall seeing Goode’s truck outside her house, but said it\\n\\nwas possible the truck was there. Later that morning, Goode, his friend Peanut, and\\n\\nanother man came to Michelle’s to help clean up her home for the DHS inspection\\n\\nscheduled for that day. Goode then left to visit his brother in prison.\\n\\n Michelle learned of the murders the early afternoon of August 26 when Detective\\n\\nJeff Felton and a police chaplain came to her home. Until then she had not known that\\n\\nanyone had actually been killed. She soon learned that her father had suffered a heart\\n\\nattack upon hearing of the murders, and she went to the hospital to be with him. While\\n\\nthere, she spoke with Detective Felton and Officer Mike Denton. During this time,\\n\\nGoode called her to say she was “making him nervous.” Trial Tr. Vol. V at 1059. She\\n\\nsaid nothing to the police implicating Goode.\\n\\n\\n\\n\\n 9\\n\\f She again spoke with Goode in the early morning hours of August 27. After he\\n\\nthreatened to come to the hospital, she agreed to meet him at a Denny’s restaurant\\n\\ninstead. At Denny’s, Goode told Michelle that her brother was a “punk and a coward”\\n\\nand further described the murders. Trial Tr. Vol. V at 1061. Goode told Michelle that on\\n\\nthe night of the murders he, Johnson, and Bunny went to Tara’s home and waited outside\\n\\nfor the occupants to fall asleep. The garage door had been left open. When they decided\\n\\nto go in, Bunny kicked in the door from the garage to the house, leaving a footprint.\\n\\nBunny was supposed to go to J.R.’s room, but instead came up behind Goode and\\n\\nJohnson and shot Kayla. As they were leaving the home, Goode heard something move.\\n\\nHe turned on the lights and saw Mitch—who had previously been shot—trying to crawl\\n\\naway. Goode went over to Mitch and demanded that he look him in the eye, but he did\\n\\nnot do so. He told Mitch that he should have “never snitched” on him and he should “die\\n\\nlike a bitch.” Trial Tr. Vol. V at 1062. He then shot Mitch again. Goode claimed that he\\n\\nshot Mitch eight times and that Johnson shot Tara. He and Johnson would have shot\\n\\nBunny, but he took off running. Goode had a shotgun and Bunny had a .22.\\n\\n Michelle gave two recorded statements to the police. On August 27 the police\\n\\nasked to speak with her, and she came to the police department. She was first\\n\\ninterviewed by Detective Sonya DeArmond, who was essentially stalling for time until\\n\\nOfficer Denton—who had been at the crime scene and was thus familiar with the case—\\n\\nreturned to the police department from another assignment. DeArmond asked Michelle\\n\\nabout the baseball-bat incident, and she said that Goode did not have a gun during that\\n\\nencounter. She did not tell DeArmond about Goode’s confession or his involvement in\\n\\n\\n 10\\n\\fthe murders, or that she had seen Goode during the early morning hours of August 26.\\n\\nDenton continued the interview once he arrived at the police department.\\n\\n Because the audio quality of the August 27 interview was poor, Denton\\n\\ninterviewed Michelle again on August 30. (Denton did not testify about what Michelle\\n\\ntold him on August 27.) At this interview—which occurred after Goode had been\\n\\narrested—Michelle told Denton of Goode’s confession to her. At trial the defense\\n\\npointed to several inconsistencies between what she said at her August 30 interview and\\n\\nher trial testimony. In the interview, for instance, Michelle said that she first saw Bunny\\n\\non August 26 when she woke up in the later morning hours, not when she went outside to\\n\\nJohnson’s car. Also, she said that Goode confessed to her at her home, and they went to\\n\\nDenny’s only after his confession. On the other hand, there is one indication that she was\\n\\nnot distorting her account of the confession to fit what she later learned about the crimes:\\n\\nduring the interview she expressed surprise at Goode’s claim that he had shot Mitch eight\\n\\ntimes, because she had seen on the news that it was Tara, and not Mitch, who had been\\n\\nshot multiple times.\\n\\n The accounts of the murders given by Michelle and Bunny were corroborated by a\\n\\nvariety of other evidence at trial. To begin with, a Walmart security video showed\\n\\nGoode, Johnson, and Bunny leaving the store where Bunny worked at about 10:00 p.m.\\n\\non the night of August 25. They departed in a white four-door vehicle that looked like\\n\\nJohnson’s Mercury Marquis.\\n\\n Also supportive were records of Goode’s cell-phone activity, which were obtained\\n\\nby an investigator for the defense at least five months after the murders and introduced by\\n\\n\\n 11\\n\\fthe defense at trial. They showed very frequent calls throughout August 25, but no\\n\\nactivity from 11:48 p.m. to 1:03 a.m. The call at 1:03 a.m. was placed to the phone of\\n\\nDamos “Peanut” Joseph, who, according to Bunny’s statement to the police a few days\\n\\nafter the murders, was the person with whom the murder weapons were left promptly\\n\\nafter the crime.\\n\\n Detective William Mozingo, who investigated the murders, provided\\n\\ncorroboration on three points. Two involved the crime scene. He testified that officers\\n\\nfound a partial footprint on the door from the garage into Tara’s house, corroborating\\n\\nBunny’s testimony and Goode’s confession to Michelle that Bunny kicked in the door to\\n\\nthe home. And he said that he observed two small holes in the wall in the Thompsons’\\n\\nbedroom, supporting Bunny’s account that he shot the .22 into the bedroom wall.\\n\\n The third item of corroborating evidence related to the gloves mentioned by\\n\\nBunny. On August 30 officers searched a four-mile stretch of Highway 169 for “[a] latex\\n\\nglove and blue knobby work glove.” Trial Tr. Vol. VI at 1263. In a grassy area near an\\n\\nofframp from the highway, Mozingo found a “blue and white work glove,” a “latex\\n\\nglove,” and a “blue and white work glove encased in a latex glove,” supporting Bunny’s\\n\\naccount that these types of gloves were worn the night of the murders and were thrown\\n\\nout the car window as they left for Peanut’s house.2 Trial Tr. Vol. VI at 1264, 1266–67.\\n\\nOther officers found a portion of a latex glove on the front floor mat of Johnson’s\\n\\n\\n\\n\\n2\\n In addition, on the side of that highway about a quarter of a mile away, officers found\\n21 latex gloves, two leather gloves, and two cloth gloves.\\n\\n\\n 12\\n\\fMercury Marquis, and a box of latex gloves in the bed of Goode’s truck under a locked\\n\\ncover.3 Goode had access to latex gloves as part of his job with Brookhaven Hospital.\\n\\n Further corroborating Bunny’s account was the testimony of Officer Jeff\\n\\nHenderson. (Goode’s Brady claim concerns impeachment of this testimony.) He said\\n\\nthat on August 29 he went with other officers to Peanut Joseph’s home because of\\n\\ninformation received from Bunny. He found two .22 casings and one live .22 round in\\n\\nthe vacant lot across from Peanut’s home.\\n\\n Forensic evidence partially corroborated Michelle’s account of how Goode\\n\\ndescribed his role in the murders. First, a shot was fired through Mitch’s cheek at close\\n\\nrange, which fit with Michelle’s testimony that Goode said he hovered over Mitch and\\n\\ndemanded that he look him in the eye as he shot him. Also, seven .357 casings were\\n\\nfound at the crime scene, nearly matching Goode’s statement to Michelle that he fired his\\n\\ngun eight times (although Michelle reported that Goode told her he had used a shotgun,\\n\\nnot a .357). Finally, Goode told Michelle that Johnson shot Tara, and four bullets from\\n\\nthe 9mm—the gun Bunny said was used by Johnson—were found in her body.\\n\\n In addition, a defense witness, Penny Avans, supported the State’s theory of the\\n\\ncase in important respects. Penny, a friend of Goode and Michelle, was called to testify\\n\\nthat Michelle had told her she wanted to kill Mitch after he got her fired and called child\\n\\nservices, and that she had heard Michelle tell Bunny where Mitch kept a gun in his\\n\\n\\n\\n\\n3\\n Officers also found a brown jersey glove in the backseat of Johnson’s car.\\n\\n 13\\n\\fhome.4 But her account of what happened the night of the murders is generally consistent\\n\\nwith the other descriptions. She stated that she was at Michelle’s home the evening of\\n\\nAugust 25, that Goode left around 6:00 or 6:30 p.m., saying that he was going to “take\\n\\ncare of some business,” Trial Tr. Vol VII at 1497–98, and that when she left Michelle’s\\n\\nnear 12:10 a.m., Goode had not returned. She also said that Michelle called her at 3:18\\n\\na.m. and told her that she should come over because Goode had brought a good-looking\\n\\nguy named Fu Fu (Johnson) to her home. (Michelle, however, denied making that call.)\\n\\nAnd Penny said that she went to Michelle’s house later that morning to pick up Bunny.\\n\\nWhen asked whether she thought of Bunny as someone who is easily led by others, she\\n\\nsaid she did.\\n\\n Goode did not testify but he gave a statement to police the afternoon of August 28,\\n\\nless than three days after the murders. Detective Mozingo, who interviewed Goode,\\n\\ntestified to the content of his statement. Goode admitted that he and Johnson picked up\\n\\nBunny from Walmart on the night of August 25 in Johnson’s white vehicle. He referred\\n\\nto Johnson as his cousin and said that though they were not actually related they had\\n\\ngrown up together. Goode’s mother, whom Goode lived with, lived across the street\\n\\n\\n\\n\\n4\\n Penny also claimed that Michelle told her to tell the police that Goode had confessed to\\nPenny, even though he had not done so. But in the recorded interview with the police on\\nAugust 30, Michelle said that Penny did not know anything about the murders because\\nshe was out of town on the days immediately following the crime. (Penny testified that\\nshe and her husband left on a trip on August 26 (shortly after news of the murders was\\npublicized) and they were out of town until late August 28 or early August 29, by which\\ntime Goode had been arrested.)\\n\\n 14\\n\\ffrom Johnson’s grandmother. Goode said that he and Johnson were reconnecting on the\\n\\nnight of the murders after not seeing each other for a year or two.\\n\\n Goode at first told police that after he and Johnson picked up Bunny from\\n\\nWalmart, Bunny asked to be dropped off in Mannford (a community about 38 miles\\n\\naway) at the home of a woman who was either his girlfriend or his wife (Goode was\\n\\nunsure who exactly the person was). Johnson drove, and Bunny provided directions. He\\n\\nand Johnson dropped Bunny off (he did not specify where), and Johnson then drove\\n\\nGoode home, where the two conversed. Goode said that he needed to go home because\\n\\nhe and his mother were going to visit his brother in prison the next day.\\n\\n After a break in the interview, however, Goode changed his story. Explaining that\\n\\nhe now remembered what had occurred less than three days before, he claimed that after\\n\\nhe and Johnson picked up Bunny from Walmart, Johnson dropped Goode at his truck,\\n\\nand Goode drove home. Johnson then took Bunny—whom he had met for the first time\\n\\nthat night—to Michelle’s house. Back at home, Goode later received a call from Johnson\\n\\ntelling him that there was something wrong with Bunny, and Goode then met Bunny and\\n\\nJohnson at Michelle’s. When Goode arrived, Bunny “was fucked up,” so he pulled\\n\\nBunny out of Johnson’s car and attempted to bring him into the home. Trial Tr. Vol. VI\\n\\nat 1284.\\n\\n According to Mozingo, Goode “stated that he couldn’t see Bunny doing anything\\n\\nlike [the murders] . . . . [H]e said something to the effect of he don’t have it in him or he\\n\\ndon’t – doesn’t have the heart for it.” Trial Tr. Vol. VI at 1287–88.\\n\\n\\n\\n\\n 15\\n\\f Goode was asked whether he knew Peanut (the person with whom Bunny said the\\n\\ntrio stashed their weapons after the murders). He responded that he “kn[ew] a lot of\\n\\nPeanuts.” Trial Tr. Vol. VI at 1284. Also, Goode admitted that J.R. had wrecked\\n\\nMichelle’s car, that he had previously been involved in a fistfight with J.R., and that\\n\\nMitch had attempted to get him fired from his job and had successfully gotten Michelle\\n\\nfired.\\n\\n Goode called two alibi witnesses, but neither could account for his whereabouts\\n\\nafter midnight on August 25. Goode’s mother saw him at home before 8:00 p.m. on\\n\\nAugust 25 but knew nothing of his whereabouts thereafter. She said that she had planned\\n\\nto go with Goode to visit his brother in prison early the next morning but admitted that\\n\\nthey left for the visit later than expected because she was waiting on Goode.\\n\\n Ruby Gilyard—the partner of Goode’s imprisoned brother who lived with\\n\\nGoode’s mother—testified that she saw Goode at his home the night of the murders. He\\n\\nleft at 8:00 p.m., but then returned about 11:00 p.m. They conversed for a short time\\n\\nbefore she went to shower and get ready for bed. When she got out of the shower, she\\n\\nheard Goode rummaging through his things in another room. She did not see or hear\\n\\nfrom Goode the rest of the night. Neither Goode’s mother nor Gilyard saw Johnson at\\n\\nthe home that night, as Goode had initially claimed in his statement to police.\\n\\n On December 13, 2007, Goode was convicted on three counts of first-degree\\n\\nmurder and one count of first-degree burglary. The State alleged two aggravating\\n\\ncircumstances for each of the three murder offenses: (1) the defendant knowingly created\\n\\na great risk of death to more than one person; and (2) there exists a probability that the\\n\\n\\n 16\\n\\fdefendant would commit criminal acts of violence that would constitute a continuing\\n\\nthreat to society. The jury found that both aggravating circumstances applied to each\\n\\nmurder. Goode was sentenced to death on each of the murders and 20 years’\\n\\nimprisonment (and a $10,000 fine) on the burglary count. Goode unsuccessfully\\n\\nappealed the convictions and sentences and filed three applications for postconviction\\n\\nrelief in the state court.5\\n\\n II. DISCUSSION\\n\\n A. Standards of Review under § 2254\\n\\n Standards of review of state proceedings under § 2254 are set forth in the\\n\\nAntiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA provides for\\n\\n“highly deferential” review of decisions by state courts. Hanson v. Sherrod, 797 F.3d\\n\\n810, 824 (10th Cir. 2015). When a state court has considered a claim on the merits, we\\n\\nmay grant relief on that claim if the state court’s decision “was contrary to, or involved\\n\\nan unreasonable application of, clearly established Federal law, as determined by the\\n\\nSupreme Court of the United States.” 28 U.S.C. § 2254(d)(1).\\n\\n The threshold question for review under § 2254(d)(1) is whether there exists\\n\\nclearly established federal law on the issue raised by the prisoner. See Littlejohn v.\\n\\nTrammell, 704 F.3d 817, 825 (10th Cir. 2013) (internal quotation marks omitted). “The\\n\\nabsence of clearly established federal law is dispositive under § 2254(d)(1)” and requires\\n\\nthe denial of relief. Id.\\n\\n\\n5\\n Goode raised numerous issues in these state proceedings. For the sake of brevity, we\\nnote only those issues that are relevant to claims raised in this appeal.\\n\\n 17\\n\\f If such clearly established law does exist, “a state court decision is ‘contrary to’ it\\n\\nonly if the state court applies a rule that contradicts the governing law set forth in\\n\\nSupreme Court cases or if the state court confronts a set of facts that are materially\\n\\nindistinguishable from a decision of the Supreme Court and nonetheless arrives at a\\n\\ndifferent result.” Hanson, 797 F.3d at 824 (brackets and further internal quotation marks\\n\\nomitted). Relief can be provided under the “unreasonable application” clause of\\n\\n§ 2254(d)(1) “only if the state court identifies the correct governing legal principle from\\n\\nthe Supreme Court’s decisions but unreasonably applies that principle to the facts of the\\n\\nprisoner’s case.” Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and\\n\\ninternal quotation marks omitted). Thus, a federal court may not grant relief just because\\n\\nit concludes in its “independent judgment that the relevant state-court decision applied\\n\\nclearly established federal law erroneously or incorrectly.” Id. (internal quotation marks\\n\\nomitted). Rather, “[i]n order for a state court’s decision to be an unreasonable application\\n\\nof [the Supreme] Court’s case law, the ruling must be objectively unreasonable, not\\n\\nmerely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726,\\n\\n1728 (2017) (per curiam) (internal quotation marks omitted). To prevail, “a litigant must\\n\\nshow that the state court’s ruling was so lacking in justification that there was an error\\n\\nwell understood and comprehended in existing law beyond any possibility for fairminded\\n\\ndisagreement.” Id. (ellipsis and internal quotation marks omitted). “If this standard is\\n\\ndifficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86,\\n\\n102 (2011).\\n\\n\\n\\n\\n 18\\n\\f Relief may also be warranted under AEDPA “if the state court’s adjudication of a\\n\\nclaim on the merits ‘resulted in a decision that was based on an unreasonable\\n\\ndetermination of the facts in light of the evidence presented in the State court\\n\\nproceeding.’” Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (quoting 28\\n\\nU.S.C. § 2254(d)(2)). “[F]actual findings of the state court are presumed correct unless\\n\\nthe applicant rebuts that presumption by ‘clear and convincing evidence.’” Id. (quoting\\n\\n28 U.S.C. § 2254(e)(1)). “We will not conclude a state court’s factual findings are\\n\\nunreasonable merely because we would have reached a different conclusion in the first\\n\\ninstance.” Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (internal quotation\\n\\nmarks omitted).\\n\\n In reviewing a state court’s decision under § 2254(d)(1) or (d)(2), “we must\\n\\n‘limit[]’ our inquiry ‘to the record that was before the state court that adjudicated the\\n\\nclaim on the merits.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“We now hold\\n\\nthat review under § 2254(d)(1) is limited to the record that was before the state court that\\n\\nadjudicated the claim on the merits.”); see id. at n.7 (explaining that § 2254(d)(2)\\n\\nexpressly limits review to “the evidence presented in the State court proceeding”). This\\n\\nis in keeping with “[t]he federal habeas scheme[, which] leaves primary responsibility\\n\\nwith the state courts.” Id. at 182. And given AEDPA’s “intent to channel prisoners’\\n\\nclaims first to the state courts,” it would not make sense “to allow a petitioner to\\n\\novercome an adverse state-court decision with new evidence introduced in a federal\\n\\nhabeas court and reviewed by that court in the first instance effectively de novo.” Id.\\n\\n\\n\\n\\n 19\\n\\f Finally, we do not consider an issue that was not adequately raised in the federal\\n\\ndistrict court. See Simpson v. Carpenter, 912 F.3d 542, 565 (10th Cir. 2018) (“[W]hen a\\n\\nlitigant fails to raise an issue below in a timely fashion and the court below does not\\n\\naddress the merits of the issue, the litigant has not preserved the issue for appellate\\n\\nreview.”); see also Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005) (“We do not\\n\\nreview these claims because [the applicant] failed to assert them in his district court\\n\\npetition for habeas relief.”). “To properly raise an argument below, a litigant must\\n\\npresent the argument with sufficient clarity and specificity.” Simpson, 912 F.3d at 565\\n\\n(internal quotation marks omitted). Any “vague, arguable references to a point in the\\n\\ndistrict court proceedings do not preserve the issue on appeal because such perfunctory\\n\\npresentation deprives the trial court of its opportunity to consider and rule on an issue in\\n\\nany detail.” Id. (ellipsis and internal quotation marks omitted).\\n\\n B. Brady v. Maryland Claim\\n\\n The Supreme Court held in Brady v. Maryland that “the suppression by the\\n\\nprosecution of evidence favorable to an accused upon request violates due process where\\n\\nthe evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. To\\n\\nprevail on a Brady claim, the proponent must show that “(1) the prosecution suppressed\\n\\nevidence, (2) the evidence was favorable to the defendant, and (3) the evidence was\\n\\nmaterial.” United States v. Ford, 550 F.3d 975, 981 (10th Cir. 2008) (internal quotation\\n\\nmarks omitted). “[E]vidence is ‘material’ within the meaning of Brady when there is a\\n\\nreasonable probability that, had the evidence been disclosed, the result of the proceeding\\n\\nwould have been different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009).\\n\\n\\n 20\\n\\f Goode alleges that the prosecution violated Brady in withholding information\\n\\nabout Jeff Henderson, one of the Tulsa Police Department officers investigating the\\n\\nmurders. There is no doubt that Henderson was a bad cop. Nine days after Goode’s\\n\\nsecond application for postconviction relief was filed in state court in July 2010,\\n\\nHenderson was charged in a 62-count federal indictment, accusing him of, among other\\n\\nthings, falsifying search warrants, committing perjury, and engaging in witness\\n\\ntampering. He was convicted by a jury on two counts of civil-rights violations and six\\n\\ncounts of perjury. See United States v. Henderson, 564 F. App’x 352, 354 (10th Cir.\\n\\n2014).\\n\\n At Goode’s trial, Henderson testified to his discovery of two .22 casings and one\\n\\nlive .22 round on a vacant lot across from the home of Damos “Peanut” Joseph. This\\n\\ndiscovery corroborated Bunny Thompson’s testimony that after the murder the three\\n\\nculprits went to Peanut’s home, where Goode instructed him to dispose of the bullets and\\n\\ncasings in his .22 by tossing them in the lot.\\n\\n Goode argues in this court that disclosure by the prosecution of Henderson’s\\n\\negregious misconduct would have helped the defense in two important respects. First,\\n\\nGoode describes Henderson’s contribution as “vital.” Aplt. Br. at 10. He contends that\\n\\nthe prosecution’s two main witnesses—Bunny Thompson and Michelle Chastain—had\\n\\nquestionable credibility (both because of the impeachment of their testimony and the fact\\n\\nthat they had stronger motives to commit the murders than did Goode) and there was\\n\\nlittle corroboration of their accounts. As a result, he concludes, the corroboration by an\\n\\napparently honorable police officer (Henderson) could well have tipped the scales in\\n\\n\\n 21\\n\\ffavor of a conviction; and his impeachment “could have been key to the defense.” Id.\\n\\nSecond, Goode argues that disclosure of Henderson’s misconduct would have\\n\\n“reverberate[d] to all parts of the State’s case,” Aplt. Br. at 43, by undermining the\\n\\ncredibility of the State’s other witnesses and suggesting that officers improperly targeted\\n\\nGoode in their investigation. He asserts that there is a reasonable probability that\\n\\nintroduction of evidence of Henderson’s misconduct would have changed the result of\\n\\nboth his trial and his sentence. But in federal district court Goode did not argue that\\n\\ndisclosure would have enabled him to undermine the entire prosecution (as opposed to\\n\\njust impeaching Henderson); nor did he preserve an argument regarding the impact of the\\n\\nalleged Brady violation on anything other than his conviction (not his sentence).\\n\\nTherefore, we do not consider those matters. See Simpson, 912 F.3d at 565.\\n\\n Goode first raised a Brady claim in his second postconviction application to the\\n\\nOCCA. That claim spanned a total of two pages of the application.6 His barebones\\n\\n\\n\\n\\n6\\n Because of its brevity, we provide the entirety of Goode’s Brady argument to the\\nOCCA:\\n\\n PROPOSITION ONE\\n\\n MR. GOODE’S DUE PROCESS RIGHTS WERE VIOLATED BY THE\\n PROSECUTION’S WITHHOLDING OF EVIDENCE RELEVANT TO THE\\n VERACITY AND CREDIBILITY OF ONE OF ITS WITNESSES, TULSA\\n POLICE OFFICER JEFF HENDERSON\\n\\n A. Standard of Review\\n\\n An appellate court reviews de novo claims that the prosecution violated Brady v.\\nMaryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), including whether\\n\\n 22\\n\\fsuppressed evidence was material. United States v. Hughes, 33 F.3d 1248, 1251 (10th\\nCir. 1994).\\n\\n B. Argument and Authority\\n\\n The Due Process Clause of the Fifth Amendment provides that “[n]o person shall .\\n. . be deprived of life, liberty, or property, without due process of law.” U.S. Const.\\namend. V. In criminal prosecutions, that clause’s primary guarantee is the right to a\\nfundamentally fair trial. See Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94\\nL. Ed. 2d 40 (1987). The prosecution’s suppression of evidence favorable to the accused\\nviolates due process where the evidence is material either to guilt or to punishment.\\nBrady, 373 U.S. at 87, 83 S. Ct. 1194.\\n\\n “[E]vidence is material . . . if there is a reasonable probability that, had the\\nevidence been disclosed to the defense, the result of the proceeding would have been\\ndifferent. A ‘reasonable probability’ is a probability sufficient to undermine confidence\\nin the outcome.” Ritchie, 480 U.S. at 57, 107 S. Ct. 989 (quotation and alteration\\nomitted). A defendant need not show that the withheld evidence would have “resulted\\nultimately in [his] acquittal.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131\\nL. Ed. 2d 490 (1995). Rather, the touchstone is simply whether the ultimate verdict is\\none “worthy of confidence.” Strickler v. Green, 527 U.S. 263, 290, 119 S. Ct. 1936, 144\\nL. Ed. 2d 286 (1999). “Impeachment evidence, . . . as well as exculpatory evidence, falls\\nwithin the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L.\\nEd. 2d 481 (1985). See Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009)\\n(“[E]vidence significantly enhancing the quality of the impeachment evidence usually\\nwill [be material.]”).\\n\\n Although the documents contained in App., Ex. 6 chronicle some of the more\\nrecent allegations leveled against Officer Henderson, other documents, documents which\\nconcern events that preceded Mr. Goode’s December 2007 trial, also bear on Officer\\nHenderson’s credibility. For example, in January of 2002, Officer Henderson was\\nsuspended from the Tulsa Police Department for misusing his authority as a police officer\\nto resolve a personal dispute. See App., Ex. 7. In December of 2000, Officer Henderson\\nwas investigated by the Tulsa Police Department’s Internal Affairs Division for, among\\nother things, entering false information in a probable cause affidavit. See App., Ex. 8.\\n\\n C. Conclusion\\n\\n Evidence affecting Officer Henderson’s credibility was known, or should have\\nbeen known, to the state and because such evidence was material to an assessment of\\nOfficer Henderson’s credibility, it should have been disclosed to Mr. Goode. It was not.\\nSee App., Ex. 9. Accordingly, this Court should find that the state violated its obligations\\n\\n 23\\n\\fargument was that evidence of Henderson’s misconduct was “known, or should have\\n\\nbeen known, to the state” and that “because such evidence was material to an assessment\\n\\nof Officer Henderson’s credibility, it should have been disclosed to Mr. Goode.” Def.’s\\n\\nSecond APCR at 12–13. In support of his claim, Goode submitted affidavits by Damos\\n\\n“Peanut” Joseph and his wife alleging that Henderson stated he would manufacture\\n\\nevidence in Goode’s case, and newspaper articles that described the ongoing\\n\\ninvestigation into Henderson’s misconduct in other matters.7 Goode also provided two\\n\\ninternal police documents: an interoffice memorandum notifying Henderson of a two-\\n\\nday suspension for wrongfully using police power in a personal dispute, and a factual\\n\\nsummary of an investigation into an incident of alleged excessive force (the summary is\\n\\nnotably without legal conclusions).8 Goode did not adequately argue before the OCCA\\n\\n(or in federal district court), as he does here, that the purported Brady evidence would\\n\\nhave had resounding effects on the entire prosecution (as opposed to the evidence just\\n\\nimpeaching Henderson and thereby leaving Bunny uncorroborated), or that the evidence\\n\\ncould have affected his sentence.9\\n\\n\\n\\nimposed by Brady and its progeny and Mr. Goode’s sentences should be reversed and his\\ncase remanded to the district court for a new trial.\\nDef.’s Second Application for Post-Conviction Relief, PCD 2010-661, at 11–13 (July 9,\\n2010) (Def.’s Second APCR).\\n7\\n We question, but have no occasion to resolve, whether this evidence was available to\\nthe prosecution and could have been disclosed to Goode by the time of trial.\\n8\\n We also question, but need not resolve, whether this evidence had any significant\\nimpeachment value and could have been used by Goode at trial.\\n9\\n One other argument we need not resolve that is raised by Goode in this court but was\\nnot raised before the OCCA is whether Henderson’s personal knowledge of his own\\n\\n 24\\n\\f The OCCA denied Goode’s request for relief. It assumed that Henderson was\\n\\n“completely impeached,” and concluded that even if “the evidence regarding these specific\\n\\ncartridges had been excluded from the trial, the outcome of this trial would have been the\\n\\nsame.” OCCA Opinion Denying Second APCR at 5–6 (Sept. 13, 2010). It explained:\\n\\n Goode’s claims in this subsequent application are based on Tulsa\\n Police Department’s Detective Jeff Henderson and his publicized alleged\\n illegal conduct, which came to light earlier in 2010 and led Petitioner to the\\n discovery of alleged improper activity occurring prior to Goode’s trial. First,\\n Goode alleges that the State withheld critical evidence which was relevant to\\n Henderson’s veracity and credibility. . . .\\n\\n We need not determine whether the evidence proffered against\\n Henderson is true and would have been relevant, admissible and sufficient to\\n impeach Henderson’s testimony, or whether the State failed in its duty to turn\\n the evidence over to the defense. We conclude, after reviewing these claims,\\n that even if Henderson’s testimony was impeached or if the evidence found\\n by Henderson was excluded from this trial, Goode would have suffered the\\n same fate, beyond any doubt. The facts of this case are compelling.\\n\\n During the trial, witness and co-defendant Ronald Thompson testified\\n that, after the murders, they took the guns to Damos Joseph’s house. He\\n testified that while parked at the house, he threw some .22 caliber rounds in\\n a field. He obviously gave investigators this information, as Henderson was\\n called to assist the Owasso police department by going to Damos Joseph’s\\n residence, meeting with Owasso Detectives, and requesting permission to\\n search the Joseph residence. While there, Henderson testified that he found\\n two spent .22 shell casings and a live .22 cartridge across the street in a lot\\n 5–6 feet from the curb. He notified Owasso detective Bill Mozingo so he\\n could view and recover the items. We briefly noted the finding of these items\\n in our recitation of facts on direct appeal.\\n\\n These shell casings were not vital to the case against Goode, nor were\\n they the only pieces of evidence corroborating Ronald Thompson’s\\n testimony. Thompson also testified that they threw latex gloves out of the\\n car windows after the shooting, and latex gloves were found along the\\n highway consistent with his testimony and statements to police. Thompson\\n\\n\\nmisdeeds in other investigations can be attributed to the prosecution in this case for Brady\\npurposes.\\n\\n 25\\n\\f testified about the three different caliber of handguns used in the murders,\\n and evidence supporting that testimony was found at the scene and during\\n the autopsy examination.\\n\\n After disposing of the guns, co-defendant Kenneth Johnson drove the\\n trio to Michelle Chastain’s house, and although she did not see Thompson,\\n she saw his Walmart vest in the car and testified that Johnson drove Goode\\n to her house, just as Thompson testified.\\n\\n Not only was there plenty of additional corroborating evidence,\\n besides the .22 caliber cartridges, Goode himself confessed to Michelle\\n Chastain that he killed the victims. He even provided specific details of the\\n murders. Needless to say, sufficient evidence existed, even absent evidence\\n of these cartridges, to prove beyond a reasonable doubt that Goode was guilty\\n of these crimes.\\n\\n We conclude that, if Henderson’s testimony had been completely\\n impeached, or if the evidence regarding these specific cartridges had been\\n excluded from the trial, the outcome of this trial would have been the same.\\n\\nOCCA Opinion Denying Second APCR at 3–6 (footnotes omitted).\\n\\n In reviewing the OCCA’s decision, we are limited to the record that was before\\n\\nthe state court.10 See Pinholster, 563 U.S. at 181. The parties interpret the OCCA’s\\n\\ndecision as denying relief under the materiality prong of Brady, as do we. Given the\\n\\nrelatively minimal value of Henderson’s testimony in light of the other evidence\\n\\nintroduced at trial implicating Goode in the murders and corroborating Bunny’s and\\n\\nMichelle’s incriminatory accounts, we cannot hold that the OCCA’s decision was an\\n\\nunreasonable application of Brady.\\n\\n Henderson’s testimony, which consumed just nine of the more than 1000 pages of\\n\\nthe trial transcript, was of little importance to the verdict. First, his testimony had only\\n\\n\\n\\n10\\n We therefore need not consider the documents from Henderson’s trial that Goode\\npresents to our court but did not present to the OCCA.\\n\\n 26\\n\\fmodest corroborative effect. Henderson accounted for two .22 casings found across from\\n\\nPeanut Joseph’s home. But as defense counsel pointed out in closing argument (without\\n\\ndispute from the prosecutor), there should have been four, not two, .22 casings from the\\n\\nmurders—two from the shots to the wall, one from the shot in Kayla’s hip, and one from\\n\\nthe projectile found in the dresser. In addition, Henderson acknowledged on cross-\\n\\nexamination that it would not be that uncommon to find such casings on a vacant lot in\\n\\nthe part of town where he found them.\\n\\n Moreover, the evidence incriminating Goode was compelling. The testimony of\\n\\nBunny and Michelle may have been enough to convince the jury, but there was much\\n\\nmore. It is undisputed that Bunny was one of the culprits. It is hard to believe that he\\n\\ncommitted the crimes on his own, using three different firearms to kill the victims. Who\\n\\nelse could have been involved?\\n\\n The neighbors’ testimony sets the time of the murders at about 12:45 a.m. on\\n\\nAugust 26. An undisputed video shows Bunny with Goode and Johnson at 10:00 p.m. on\\n\\nAugust 25 leaving the Walmart in Johnson’s Mercury Marquis. And trial testimony\\n\\nplaced the three men together again at Michelle’s house at 4:18 a.m. (per Michelle’s\\n\\naccount), with Bunny in a stupor. (Recall also that Penny Avans testified that Michelle\\n\\ncalled her at 3:18 a.m. and said that Goode and Johnson had come to her home.) Even\\n\\nGoode admitted in his statement to the police that he was with Johnson and Bunny\\n\\naround 10:00 p.m., and that later that night he met Johnson and Bunny at Michelle’s after\\n\\nJohnson called to say that something was wrong with Bunny, who, it turned out, was\\n\\nincapacitated. Is it reasonable to believe that Bunny, whose car was not operational,\\n\\n\\n 27\\n\\fsomehow during this five- or six-hour window in the middle of the night hooked up with\\n\\nsomeone other than Goode and Johnson to commit the crimes and then fell into a stupor,\\n\\nonly to be discovered by Goode, Johnson, or both? Penny Avans, a defense witness,\\n\\ntestified that she left Michelle at her house at about 12:10 a.m., in itself making\\n\\nMichelle’s participation unlikely.\\n\\n What about Johnson? Goode told the police (in his second version of events) that\\n\\nhe had gone home from the Walmart, leaving Bunny and Johnson together. But it\\n\\nbeggars belief to think that those two men, who had first met at 10:00 p.m., joined\\n\\ntogether in this heinous crime without any involvement of the man who brought them\\n\\ntogether—Johnson’s old friend Goode, with whom he was connecting after a separation\\n\\nof one or two years.\\n\\n This is to say nothing of the corroborating nontestimonial evidence and testimony\\n\\nfrom persons who could hardly be suspect (from Goode’s point of view). Long after\\n\\nBunny had told the police that the men had gone to Peanut’s home after the murders, a\\n\\ndefense investigator obtained the records for Goode’s cell phone, showing that a call had\\n\\nbeen placed to Peanut’s phone at 1:03 a.m., some 20 minutes after the likely time of the\\n\\nmurders. That call ended a significant hiatus in the use of Goode’s cell phone since\\n\\n11:48 p.m., after a day of near-constant activity on the phone. And Bunny’s testimony\\n\\nregarding the trip to Peanut’s home and the culprits’ use of gloves is further corroborated\\n\\nby the discovery of gloves disposed of near the side of Highway 169, in particular a “blue\\n\\nand white work glove encased in a latex glove,” Trial Tr. Vol VI at 1266, and the\\n\\ndiscovery of part of a latex glove in Johnson’s vehicle. Also, the forensic evidence\\n\\n\\n 28\\n\\fpartially corroborated Michelle’s testimony that Goode confessed to firing eight shots\\n\\nand, apparently, trying to shoot Mitch in the face.\\n\\n In addition, Ruby Gilyard, who lived with Goode and his mother and was called as\\n\\na defense alibi witness, testified that Goode had come home about 11:00 p.m., they had\\n\\ntalked for a short while and then, after she took a shower and got ready for bed, the last\\n\\nshe heard of Goode was his rummaging through things in another room—all consistent\\n\\nwith his coming home to get the tools necessary for his “business” of the evening. (Both\\n\\nBunny and Penny testified that he said that he had “business” to take care of that night.)\\n\\n On top of this evidence is Goode’s initial version of events when talking to police.\\n\\nWhy, if there was nothing to hide, make up the story about driving to Mannford from the\\n\\nWalmart, when his memory of the events less than three days earlier must have been\\n\\nfresh?\\n\\n Because of the minimal value of Henderson’s testimony and the strength of the\\n\\nincriminatory evidence, we cannot say that it was unreasonable of the OCCA to\\n\\ndetermine that impeaching Henderson would not have had a reasonable probability of\\n\\nchanging the outcome of Goode’s trial.\\n\\n Finally, Goode argues that the impeachment evidence, even if not enough on its\\n\\nown to establish materiality, is at least sufficient to require an evidentiary hearing\\n\\nregarding Henderson’s activities and the extent of the prosecution’s knowledge. But\\n\\nbecause we have not overturned the OCCA’s decision as unreasonable, we cannot grant\\n\\nan evidentiary hearing. See Smith v. Aldridge, 904 F.3d 874, 886 (10th Cir. 2018). We\\n\\naffirm the district court’s denial of Goode’s Brady claim.\\n\\n\\n 29\\n\\f C. Ineffective-Assistance-of-Counsel Claims\\n\\n Goode claims that he received ineffective assistance of trial counsel at both the\\n\\nguilt phase and penalty phase of his trial. Trial counsel was allegedly ineffective at the\\n\\nguilt phase because (1) counsel did not interview or present testimony from Douglas\\n\\nMiller, a friend of the victims, about a jailhouse conversation with Bunny Thompson that\\n\\nwould have impeached him; (2) counsel did not use a statement from Damos “Peanut”\\n\\nJoseph to the police that contradicted Bunny’s account of disposing of evidence after the\\n\\ncrime; and (3) counsel did not adequately pursue the possibility that Officer Henderson\\n\\nhad planted evidence since they did not follow up on statements to police by Peanut’s\\n\\nwife, Lashaun Joseph, or interview Peanut himself about the matter. With respect to the\\n\\npenalty phase of the trial, Goode alleges that counsel failed to adequately investigate and\\n\\npresent evidence of (1) his mental-health disorders, his being the victim of childhood\\n\\nsexual abuse, and his ongoing substance dependence; and (2) mitigating circumstances\\n\\nknown to family, friends, and coworkers.\\n\\n 1. Standards of Review\\n\\n A defendant alleging ineffective assistance of counsel must show both that\\n\\ncounsel’s performance was deficient and that defendant was prejudiced thereby. See\\n\\nStrickland v. Washington, 466 U.S. 668, 687 (1984). Regarding the first prong, “counsel\\n\\nis strongly presumed to have rendered adequate assistance and made all significant\\n\\ndecisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at\\n\\n690. Overcoming this presumption is a “heavy burden” for the defendant. Byrd v.\\n\\nWorkman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation marks omitted). “To\\n\\n\\n 30\\n\\fbe deficient, the performance must be outside the wide range of professionally competent\\n\\nassistance. In other words, it must have been completely unreasonable, not merely\\n\\nwrong.” Hooks v. Workman (Danny Hooks), 606 F.3d 715, 723 (2010) (citation and\\n\\ninternal quotation marks omitted). On the second prong, “[t]he defendant must show that\\n\\nthere is a reasonable probability that, but for counsel’s unprofessional errors, the result of\\n\\nthe proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable\\n\\nprobability is a probability sufficient to undermine confidence in the outcome.” Id. A\\n\\ncourt is not bound to consider these two prongs in order, or even to consider them both, if\\n\\none is dispositive. See id. at 697.\\n\\n The burden on the defendant is even greater when AEDPA applies. “[H]abeas\\n\\ncorpus is a guard against extreme malfunctions in the state criminal justice systems, not a\\n\\nsubstitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S.\\n\\n86, 102–03 (2011) (internal quotation marks omitted). Review for unreasonableness\\n\\nunder § 2254(d) is different from review for unreasonableness solely under Strickland.\\n\\nSee id. at 105. “When 2254(d) applies, the question is not whether counsel’s actions\\n\\nwere reasonable. The question is whether there is any reasonable argument that counsel\\n\\nsatisfied Strickland’s deferential standard.” Id. Our review of ineffective-assistance\\n\\nclaims under § 2254, then, is “doubly deferential,” deferring both “to the state court’s\\n\\ndetermination that counsel’s performance was not deficient and . . . to the attorney’s\\n\\ndecision in how to best represent a client.” Byrd, 645 F.3d at 1168.\\n\\n 2. Analysis\\n\\n a. Guilt-Phase Ineffective-Assistance Claims\\n\\n\\n 31\\n\\f i. Douglas Miller\\n\\n Bunny was the key witness for the prosecution. He admitted participating in the\\n\\nmurders and testified to Goode’s involvement. Goode claims that competent defense\\n\\ncounsel would have impeached Bunny’s testimony with testimony from Douglas Miller\\n\\nabout his conversation with Bunny while they were incarcerated in adjacent cells at the\\n\\nTulsa County Jail after Bunny had been arrested for the murders. After trial, Goode’s\\n\\nappellate counsel obtained an affidavit from Miller about that conversation. Miller said\\n\\nthat he had been a friend of the murder victims and told Bunny as much. In the jailhouse\\n\\nconversation Miller told Bunny he wanted to know the truth about the murders, and\\n\\nBunny replied that he could not remember the night of the murders because he was high\\n\\non Xanax and ecstasy. He told Miller that when police investigators questioned him, they\\n\\nmentioned Goode and Johnson, so he went along with them and tried to place the blame\\n\\non his two associates because he did not want to be suspected himself.\\n\\n On direct appeal the OCCA rejected Goode’s claim that counsel was ineffective in\\n\\nfailing to impeach Bunny with Miller’s statement. It held that Goode had failed to\\n\\npresent sufficient evidence that his trial counsel’s performance had been deficient or that\\n\\nhe had been prejudiced by the alleged deficiency. Under the deference required by\\n\\nAEDPA, we cannot grant relief.\\n\\n To begin with, Goode has presented no evidence that the defense team failed to\\n\\ninterview Miller before trial, nor has he presented evidence that Miller would have\\n\\nreported the jailhouse conversation had he been interviewed at that time. Goode’s\\n\\nappellate counsel did not obtain the Miller affidavit until November 2008, 10 months\\n\\n\\n 32\\n\\fafter Goode was sentenced. The affidavit says nothing about whether Miller had\\n\\npreviously been interviewed, and Miller states in the affidavit that he had “failed to tell\\n\\nanyone about [the jailhouse conversation] due to not wanting to be in the middle of it.”\\n\\nMiller Affidavit, Application for Evidentiary Hearing on Sixth Amendment Claims, PCD\\n\\n2008–43, at Ex. A (Feb. 2, 2009).\\n\\n Further, the OCCA ruled that testimony by Miller, even if believed by the jury,\\n\\nwould not have changed the outcome of the trial. It noted that Bunny had been\\n\\nextensively cross-examined about his drug use during and after the murders and about his\\n\\ninconsistent statements to investigators. It also pointed out the obvious reason why\\n\\nBunny would not have been truthful with Miller: Miller’s friendship with the victims and\\n\\nBunny’s fear of retaliation if he admitted responsibility. See Goode, 236 P.3d at 687.\\n\\nThe court ruled that Goode had failed to show deficient performance by counsel or the\\n\\nrequisite prejudice. See id. We do not think that decision unreasonable.\\n\\n Goode contends that the OCCA and the federal district court both improperly\\n\\ndenied his requests for an evidentiary hearing on this issue. But on appeal in this court\\n\\nGoode does not dispute the State’s assertion that he failed to raise in federal district court\\n\\nany claim that the state court had improperly refused to conduct an evidentiary hearing.\\n\\nAnd Goode does not present to us any ground on which the district court could properly\\n\\nhave expanded the record beyond what was submitted to the state courts. See Pinholster,\\n\\n563 U.S. at 181 (“[R]eview under § 2254(d)(1) is limited to the record that was before the\\n\\nstate court that adjudicated the claim on the merits.”).\\n\\n Accordingly, we reject this claim.\\n\\n\\n 33\\n\\f ii. Damos “Peanut” Joseph and Lashaun Joseph\\n\\n Bunny testified that he, Goode, and Johnson visited the home of Peanut and\\n\\nLashaun Joseph shortly after the murders and disposed of his gun and ammunition there.\\n\\nGoode argues that trial counsels’ performance was deficient in not using evidence from\\n\\nthe Josephs to challenge the testimony of Bunny and Officer Henderson, who testified\\n\\nthat he found bullet casings near the home.\\n\\n First, Goode points to the failure of trial counsel to impeach Bunny’s testimony\\n\\nwith a police report of an interview with Peanut. According to the report, Peanut said\\n\\nthat Goode and Bunny came by his home about 9:00 a.m. on the morning of the murders\\n\\n(but not promptly after the murders), and the two men asked for help moving a chain saw\\n\\nand automobile parts. He denied receiving guns or ammunition. Goode fails, however,\\n\\nto explain how defense counsel could have used the report at trial. The report itself was\\n\\nclearly inadmissible hearsay. The only way to present the information at trial would have\\n\\nbeen for Peanut to testify. But Goode provides no evidence that Peanut had not been\\n\\ninterviewed by anyone on the defense team or that he would have been willing to testify\\n\\non that issue. (As we shall see shortly, he explicitly stated in an affidavit that he had not\\n\\nbeen willing to testify about information that would have impeached Henderson.) It is\\n\\nnot deficient performance for counsel to fail to put on inadmissible or unavailable\\n\\nevidence. Cf. Miller v. Mullin, 354 F.3d 1288, 1298 (10th Cir. 2004) (“[I]f the issue is\\n\\nmeritless, its omission will not constitute deficient performance.” (internal quotation\\n\\nmarks omitted)). Goode has failed to establish the first prong of Strickland with respect\\n\\nto this evidence.\\n\\n\\n 34\\n\\f Next, Goode argues that defense counsel were deficient in failing to follow up\\n\\nwith Peanut and his wife Lashaun about various statements made to them by Henderson\\n\\nwhile police searched their property after the murder. Because of this deficiency, Goode\\n\\nargues, the defense failed to “get to the bottom of” Henderson’s corruption. Aplt. Br. at\\n\\n100. His brief states, “While [at the Josephs’ home] the corrupt Henderson made\\n\\nmultiple statements indicating his determination to ‘get’ Clarence Goode by legal or\\n\\nillegal means and his intention to plant evidence against him.” Id. at 99. He points out\\n\\nthat it was Henderson who corroborated Bunny’s testimony that he had disposed of the\\n\\nshell casings from his gun near the Josephs’ home when Henderson found two .22 shell\\n\\ncasings and a .22 cartridge in the neighboring quarter-acre lot.\\n\\n Goode submitted affidavits from the two Josephs with his second application to\\n\\nthe OCCA for postconviction relief. Peanut’s affidavit stated that Henderson told him:\\n\\n“[W]e have been after Clarence for a long time and we are going to get him one way or\\n\\nanother. He let me know he was going to get Clarence any way he needed to.” Damos\\n\\nJoseph Affidavit, Def.’s Second APCR at Ex. 4. But Peanut also said that even though he\\n\\ntalked to a few members of Goode’s trial team, “I was afraid to testify at that time\\n\\nbecause I believe Officer Henderson would have retaliated against me. . . . I am now\\n\\nwilling to sign this affidavit because I no longer fear Officer Henderson because of all his\\n\\nleagal [sic] trouble.” Id. It is not deficient performance to fail to call a witness who will\\n\\ndecline to provide useful testimony. We reject this component of Goode’s\\n\\nineffectiveness claim.\\n\\n\\n\\n\\n 35\\n\\f As for Lashaun, she submitted an affidavit saying that had she been asked she\\n\\nwould have told trial counsel about Henderson’s intimidation and threats regarding\\n\\nGoode. But Goode does not argue that trial counsel should have called her as a witness.\\n\\nAs we understand his argument, he simply states that if Lashaun had been interviewed,\\n\\nher comments about Henderson would have led competent trial counsel on the path that\\n\\n“very well may have broken the case wide open and exposed to the jury a veteran police\\n\\nofficer who fabricates evidence.” Reply Br. at 36. This is sheer speculation, particularly\\n\\ngiven that there was no publicly available evidence of Henderson’s corruption at the time\\n\\nof trial.\\n\\n Moreover, even if defense counsel had been deficient in not pursuing from the\\n\\nJosephs potential evidence that could have been used to impeach Henderson, Goode has\\n\\nnot established the prejudice required by Strickland’s second prong—for the reasons\\n\\ndiscussed above with respect to Goode’s Brady claim. This claim thus fails.\\n\\n b. Penalty-Phase Ineffective-Assistance Claims\\n\\n i. Drug Use, Child Sexual Abuse, and Mental\\n Health\\n\\n In Goode’s first state postconviction proceeding he argued that his trial counsel\\n\\nwere ineffective at the penalty phase of his trial for failing to present in mitigation\\n\\navailable evidence of his abuse of Xanax and the sexual abuse he suffered as a child.\\n\\nAnd he contended that his appellate counsel were ineffective for failing to raise these\\n\\nissues on direct appeal. The OCCA rejected the claims on the second prong of\\n\\n\\n\\n\\n 36\\n\\fStrickland, holding that the failure to present the evidence did not prejudice Goode. It\\n\\nsaid:\\n\\n There was no evidence that Goode was under the influence of Xanax at the\\n time of these crimes and Goode presents no new evidence indicating that he\\n was. Also, Goode has presented no evidence regarding the effect of his\\n childhood experiences on him specifically. Without these pieces of\\n evidence, Goode cannot show that the outcome of his trial would have been\\n different.\\n\\nOCCA Opinion Denying Original Application for Post-Conviction Relief, PCD 2008–\\n\\n211, at 8 (Sept. 7, 2010).\\n\\n Goode raises three challenges to the OCCA’s decision. First, he argues that Dr.\\n\\nManual Saint Martin, a psychologist, provided the connection between the sexual abuse\\n\\nand Goode’s behavior resulting in the murders. But no statement by the doctor was\\n\\npresented to the OCCA in the first postconviction proceeding.\\n\\n Second, Goode argues that the OCCA applied the incorrect test for assessing\\n\\nprejudice under Strickland. He points to the OCCA’s language that Goode had failed to\\n\\nprove that “the outcome of his trial would have been different” if the additional evidence\\n\\nhad been presented. OCCA Opinion Denying Original Application for Post-Conviction\\n\\nRelief at 8. Goode is correct that the proper Strickland test is “whether there is a\\n\\nreasonable probability that, but for counsel’s unprofessional error, the result of the\\n\\nproceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added).\\n\\nBut the OCCA’s use of imprecise shorthand in stating the test does not demonstrate that\\n\\nthe OCCA was unaware of the correct standard. On the contrary, its discussion of the\\n\\nineffective-assistance claims began with citations to both Strickland and Harris v.\\n\\n\\n\\n 37\\n\\fOklahoma, 167 P.3d 438, 441 (OCCA 2007), which stated the Strickland reasonable-\\n\\nprobability standard. Goode has not overcome the presumption that the state court knew\\n\\nand applied the proper standard. See Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (we\\n\\npresume “that state courts know and follow the law,” and we give state-court decisions\\n\\n“the benefit of the doubt”). This is not one of those “extreme malfunctions” in the\\n\\ncriminal-justice process that can support habeas relief. Harrington, 562 U.S. at 102–03\\n\\n(internal quotation marks omitted); see Grant v. Royal, 886 F.3d 874, 906 (10th Cir.\\n\\n2018) (“The true question presented . . . is simply whether the overall substance of the\\n\\nOCCA’s analysis, as well as the result it reached, reflects that the court understood and\\n\\ndecided the ineffective-assistance issue under the proper Strickland framework.”).\\n\\nMoreover, as discussed below, the OCCA rejected an expanded version of this same\\n\\nclaim in Goode’s third state postconviction application and quoted the correct Strickland\\n\\ntest in the process.\\n\\n Third, Goode argues that the OCCA’s analysis is contrary to Eddings v.\\n\\nOklahoma, 455 U.S. 104 (1982), in requiring him to show a causal nexus between the\\n\\npurported mitigation evidence and an adverse effect upon him at the time of the crime.\\n\\nEddings, however, was not an ineffective-assistance case. That opinion held only that the\\n\\nsentencing judge in a capital case cannot refuse to consider relevant mitigating evidence\\n\\njust because it did not provide a legal excuse from criminal responsibility. See id. at 113–\\n\\n17. The Court made clear, however, that the sentencing and reviewing courts “may\\n\\ndetermine the weight to be given relevant mitigating evidence.” Id. at 114–15. Here, the\\n\\nOCCA did not refuse to consider the drug-use and sexual-abuse evidence; rather, it held\\n\\n\\n 38\\n\\fthat the evidence was entitled to minimal if any weight. That determination was not\\n\\ncontrary to Eddings. We therefore need not address the State’s argument that Goode\\n\\nfailed to preserve this issue in federal district court. We conclude that the OCCA did not\\n\\nunreasonably apply established federal law in rejecting this claim in Goode’s first\\n\\npostconviction application.\\n\\n Goode also challenges the OCCA’s rejection of an expansion of this claim in his\\n\\nthird state postconviction application. He argues that the performance of trial counsel\\n\\nwas deficient because they possessed “critical records” documenting Goode’s diagnosis\\n\\nand treatment for mental-health conditions, including depression and anxiety, yet they\\n\\nfailed to pursue this evidence and raise his mental-health problems in mitigation at the\\n\\npenalty phase of his trial. Aplt. Br. at 66. He contends that proper consideration of those\\n\\nrecords “would have led to the discovery of Goode’s prior diagnoses and treatment for\\n\\nmental health problems.” Id. at 67. And, the argument continues, defense counsel could\\n\\nthen have obtained expert testimony for the penalty phase. To show what an expert could\\n\\nhave testified to, Goode presented to the OCCA a report from Dr. Saint Martin, stating\\n\\nthat Goode had “confirmed diagnoses” of “major depression, post-traumatic stress\\n\\ndisorder and benzodiazepine (Xanax) and alcohol dependence,” and that all but Xanax\\n\\nwere “present at the time of the offense and they would have significantly impacted Mr.\\n\\nGoode’s behavior.” R., Vol. 1 at 240. The report asserted that Xanax and alcohol can\\n\\neach cause “dis-inhibition, cognitive dysfunction[,] lowered impulse control and\\n\\neuphoria.” Id. at 241. It further noted that Goode’s fiancée and his mother reported that\\n\\nGoode had been sexually abused as a child, and that this abuse, “followed by witnessing\\n\\n\\n 39\\n\\fnumerous shootings, death of friends, gang violence and his own violent injuries,” “could\\n\\nresult in” chronic PTSD and “would lead not only to heightened levels of anxiety, but\\n\\nalso to poor cognitive functioning and poor coping abilities.” Id. at 241–42. It also\\n\\nstated that his psychiatric history suggested possible “diagnoses of temporal epilepsy,\\n\\nbipolar disorder, and intermittent explosive disorder.” Id. at 242.\\n\\n The OCCA rejected the claim as procedurally barred. We need not worry whether\\n\\nthis procedural bar binds us because the OCCA essentially resolved the substantive issue\\n\\nnow before us while deciding the procedural bar. It said that the procedural bar could be\\n\\novercome if Goode’s counsel in the first postconviction proceeding had been ineffective\\n\\nin failing to raise the claim presented in the third postconviction application. It then held\\n\\nthat counsel had not been ineffective because the new claim failed for lack of a showing\\n\\nof prejudice. The OCCA ruled that Goode had not shown “a reasonable probability that\\n\\nthe evidence would have impacted the jury’s weighing of the aggravating and mitigating\\n\\nevidence.” It explained:\\n\\n The evidence of mental health issues caused by Goode’s chronic\\n substance abuse and a history of exposure to a violent environment could\\n lead the jury to a negative perception of Goode just as easily as the jury\\n might find it mitigating. This evidence, moreover, would have exposed\\n Goode’s deeply ingrained involvement in violent gang activity, including\\n shootings, stabbings, drug dealing, and other nefarious activities.\\n\\n This evidence, combined with the violent nature of the crime, the\\n gratuitous killing of an entire young family in an attempt to garner some\\n type of revenge, while seeking another intended target, would not have\\n caused this jury to determine that the mitigating evidence outweighed the\\n aggravating circumstances. The evidence would have bolstered the fact\\n that Goode is a continuing threat to society.\\n\\n\\n\\n\\n 40\\n\\fOCCA Opinion Denying Successive Application for Post-Conviction Relief, PCD 2012–\\n\\n261, at 5 (May 9, 2012) (citation omitted).\\n\\n We review that ruling with deference. Cf. Grant, 886 F.3d at 910–11 (reviewing\\n\\nprejudice prong of ineffective-assistance claim de novo because OCCA did not resolve\\n\\nclaim on that ground, but deferring to the OCCA’s “related, but distinct . . . merits\\n\\ndetermination” that defendant was competent in holding that applicant was not prejudiced\\n\\nby counsel’s failure to monitor his competency). And the OCCA’s analysis is not an\\n\\nunreasonable application of the prejudice prong of Strickland. The essence of Goode’s\\n\\nargument is that the possible downside to psychological evidence does not mean that it\\n\\ncannot be helpful. True. But one must look at the particular circumstances. And the\\n\\ncircumstances here do not help Goode. First, he does not argue that treatment of his\\n\\nmental disease would reduce his dangerousness. The report by Dr. Saint Martin does not\\n\\naddress the issue. Cf. Littlejohn, 704 F.3d at 865 & n.24 (report by psychiatrist stated\\n\\nthat defendant’s deficits were treatable and thereby provided “some assurance that,\\n\\nthrough medical treatments, his criminal, violent past would not be prologue”); Wilson v.\\n\\nSirmons, 536 F.3d 1064, 1094 (10th Cir. 2008) (separate opinion of Judge McConnell)\\n\\n(stating that juries are likely to regard as particularly mitigating those mental diseases\\n\\nassociated with brain abnormalities that can be treated with medication). Second, the\\n\\npsychological report added considerable information about Goode’s violent, antisocial\\n\\npast. He argues in his reply brief that the jury had already been exposed to a good deal of\\n\\nevidence of such misconduct. That evidence, however, related only to Goode’s feud with\\n\\nJ.R. Hoffman and Mitch Thompson (in which Goode injured them only with his fists and\\n\\n\\n 41\\n\\fused a gun only to try to stop Mitch from beating up Bunny), his prior conviction for\\n\\npossession of a firearm by a convicted felon, and the crimes charged in this case. The\\n\\njury was told nothing of his gang involvement or violent youth. The psychological report\\n\\nestablished that the violent conduct in this case was not a one-off brought about by a\\n\\nparticular episode but a way of life. Thus, this case is readily distinguishable from Smith\\n\\nv. Mullin, 379 F.3d 919, 943 & n.11 (10th Cir. 2004), where the “aggravating edge” to\\n\\nthe defendant’s mental impairments was already squarely before the jury. The OCCA\\n\\ncould therefore reasonably determine that the new mental-health evidence was unlikely to\\n\\nhave affected his sentence. Giving the OCCA decision the deference it is due, we cannot\\n\\ngrant relief on this claim.\\n\\n ii. Additional Mitigation Witnesses\\n\\n Goode argues that defense counsel provided inadequate representation by\\n\\npresenting at the penalty stage of his trial only two mitigation witnesses—his mother and\\n\\nhis fiancée. This testimony, along with the first-stage testimony of coworker Teresa\\n\\nSharpe, constituted his mitigation evidence. Goode claims that the jury should also have\\n\\nheard helpful evidence from coworkers, friends, and family. Goode first raised this claim\\n\\non direct appeal and attempted to supplement it in his first and third postconviction\\n\\napplications.\\n\\n On direct appeal Goode contended that his trial counsel were ineffective in not\\n\\npresenting additional family members (including two of his children), friends, and\\n\\ncoworkers as mitigation witnesses. He submitted affidavits from the witnesses and\\n\\nargued that their testimony “could have rounded out the jury’s picture of [his] overall\\n\\n\\n 42\\n\\fcharacter and history.” Aplt. Br. at 76, Goode v. State, No. D-2008-43. The OCCA\\n\\nrejected the argument for lack of prejudice:\\n\\n Goode cannot show that he was prejudiced by the absence of\\n additional mitigating evidence. Most of the information provided in the\\n affidavits was presented to the jury. Goode’s mother and fiancé testified\\n about his good family background, his childhood, his participation in high\\n school sports, and his devotion to his family and children. Goode’s\\n coworker testified about his employment and his ability to assist patients in\\n the mental health ward at the hospital.\\n\\n One affidavit describes Goode as coming from a good home, but\\n upon reaching his teen years he began getting into trouble because he was\\n influenced by peers. Affidavits from Goode’s children describe their life\\n with Goode in a very positive light. Coworkers’ affidavits also describe him\\n as a good worker. Other friends describe Goode as a good person while\\n around them. Much of Goode’s proposed additional mitigation evidence\\n was cumulative to that presented to the jury. Even if trial counsel had\\n presented all of the mitigating witnesses now proposed, there is no\\n reasonable probability that the outcome of the trial would have been\\n different.\\n\\nGoode, 236 P.3d at 688.\\n\\n In his first postconviction application, Goode again argued that counsel was\\n\\nineffective in failing to present additional mitigation witnesses. Three of the affidavits\\n\\nsubmitted in support of that claim—those by his children and his friend Penny Avans—\\n\\nwere similar to those submitted on direct appeal, and the OCCA accordingly held that\\n\\n“the argument regarding these potential mitigation witnesses is barred.” OCCA Opinion\\n\\nDenying Original Application for Post-Conviction Relief at 7. The remaining affidavits\\n\\nsetting forth allegedly mitigating evidence recounted Goode’s Xanax use and sexual\\n\\nabuse as a child and were rejected by the OCCA for the reasons described above.\\n\\n\\n\\n\\n 43\\n\\f In his third postconviction application, Goode submitted affidavits from friends\\n\\nand family members disclosing that he had been involved in gang activity, lost close\\n\\nfriends to gang violence, was shot in the face in a drive-by shooting, and grew up in a\\n\\nviolent neighborhood with a father who abused alcohol. The OCCA rejected this\\n\\nadditional evidence as procedurally barred but, as previously described, went on to\\n\\nexamine whether Goode had presented a claim of ineffective assistance of postconviction\\n\\ncounsel that would excuse the procedural bar.11 The OCCA denied that claim for lack of\\n\\nprejudice, holding that “[t]he evidence of . . . Goode’s . . . exposure to a violent\\n\\nenvironment could lead the jury to a negative perception of Goode just as easily as the\\n\\njury might find it mitigating” and “would have exposed Goode’s deeply ingrained\\n\\ninvolvement in violent gang activity.” OCCA Opinion Denying Successive Application\\n\\nfor Post-Conviction Relief at 5.\\n\\n In this court, Goode relies on an amalgamation of the alleged mitigating evidence\\n\\npresented at various proceedings before the OCCA. He states that his hospital coworkers\\n\\ncould have described how calm he was when working with emotionally unstable and\\n\\npotentially volatile patients; his children could have described him as a loving,\\n\\nencouraging, and generous father; and additional friends and family members could have\\n\\ndescribed the rough neighborhood where he grew up and where he was traumatized by\\n\\ngang violence that took the lives of close friends and injured him, including a gunshot to\\n\\n\\n11\\n Consideration of ineffective assistance of postconviction counsel was undertaken by\\nthe OCCA purely as a matter of state law. We doubt that the Supreme Court would\\nconsider such ineffective assistance as cause to overcome a procedural bar. See Davila v.\\nDavis, 137 S. Ct. 2058, 2062–63 (2017).\\n\\n 44\\n\\fthe face. Friends and family, he says, could also have described his father, who “became\\n\\nmean when he was drunk” and drank often, passing out nearly every day; who would\\n\\n“talk crazy” to Goode’s mother; and who behaved in such a controlling manner that he\\n\\nonce disabled the family vehicle so the mother and children could not leave.\\n\\n We see no basis for determining that the OCCA unreasonably applied Strickland\\n\\nin rejecting Goode’s claims based on the failure to investigate and present this additional\\n\\nevidence during the penalty phase of the trial. It was not unreasonable to hold that the\\n\\nevidence presented as part of Goode’s direct appeal was largely cumulative of that\\n\\npresented at Goode’s sentencing and that omission of that evidence was not prejudicial.\\n\\nSee James v. Gibson, 211 F.3d 543, 557 (10th Cir. 2002) (no prejudice when “[m]uch of\\n\\nthe [omitted mitigating] evidence [defendant] now points to was already before the\\n\\njury”). Nor was it unreasonable to decide that testimony bringing Goode’s violent past to\\n\\nlight (which would be in considerable tension with the normal-family evidence) was\\n\\nunlikely to do more good than harm. See Wackerly v. Workman, 580 F.3d 1171, 1178\\n\\n(10th Cir. 2009) (“[W]hatever mitigating effect such evidence might have had if\\n\\npresented, it is just as likely the jury would react negatively to it.” (internal quotation\\n\\nmarks omitted)); Davis v. Executive Director of Dep’t of Corr., 100 F.3d 750, 762 (10th\\n\\nCir. 1996) (failure to present mitigating evidence was not prejudicial when the evidence\\n\\n“if presented, would have constituted . . . a two-edged sword” (internal quotation marks\\n\\nomitted)).\\n\\n We uphold the OCCA’s determination as reasonable.\\n\\n\\n\\n\\n 45\\n\\f D. Cumulative Error\\n\\n “A cumulative-error analysis aggregates all errors found to be harmless and\\n\\nanalyzes whether their cumulative effect on the outcome of the trial is such that\\n\\ncollectively they can no longer be determined to be harmless.” Cargle v. Mullin, 317 F.3d\\n\\n1196, 1206 (10th Cir. 2003) (internal quotation marks omitted). In conducting a\\n\\ncumulative-error analysis, we include prejudice that has already been assessed in denying\\n\\nclaims, such as claims under Brady or claims of ineffective assistance of counsel that\\n\\nincorporate a prejudice component in determining whether a right has been violated. See\\n\\nid. at 1207. We have granted relief when the errors had an “inherent synergistic effect”\\n\\non the outcome. 317 F.3d at 1221.\\n\\n Goode argues that he suffered prejudice from the cumulative effect of counsel’s\\n\\nalleged deficiencies at his guilt and sentencing phases. He contends that “[t]he synergy\\n\\nbetween a bad cop, an awful witness, [and] a prosecution case aimed at propping them\\n\\nup” warrant relief for cumulative error. Aplt. Br. at 105–06.\\n\\n He asks us to include in the analysis an alleged error that we have not considered\\n\\nin this opinion because we declined to grant a COA on the issue—the improper\\n\\nadmission at trial of a 911 call from Ms. Smalygo when she discovered the murders. But\\n\\nthe OCCA ruled that the call was inadmissible (although not prejudicial) under state law,\\n\\nnot as a constitutional matter. See Goode, 236 P.3d at 680–81. And Goode has not\\n\\nargued in this court that the admission of the call into evidence was a constitutional error.\\n\\nWe therefore need not consider it in our cumulative-error analysis. See Matthews v.\\n\\n\\n\\n\\n 46\\n\\fWorkman, 577 F.3d 1175, 1195 n.10 (10th Cir. 2009) (“In the federal habeas context, the\\n\\nonly otherwise harmless errors that can be aggregated are federal constitutional errors[.]”)\\n\\n That leaves the claims that we have disposed of solely on prejudice grounds:\\n\\nGoode’s Brady claim and his claims that counsel were ineffective in (1) failing to\\n\\ninterview Lashaun Joseph, (2) failing to present evidence of Goode’s mental health and\\n\\nsexual abuse, and (3) failing to present additional mitigation witnesses. But we have\\n\\nalready determined that these alleged errors were not independently prejudicial and we\\n\\nsee no “inherent synergistic” or other cumulative effect that would call for relief, given\\n\\nthe limited value of Henderson’s testimony and the doubtful usefulness of the evidence\\n\\nomitted as the result of alleged deficient performance by counsel, to say nothing of the\\n\\ncompelling evidence against Goode. We therefore deny the claim of cumulative error.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the district court’s denial of Goode’s application for relief under 28\\n\\nU.S.C. § 2254.\\n\\n\\n\\n\\n 47\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1870,"cells":{"id":{"kind":"number","value":4614891,"string":"4,614,891"},"name":{"kind":"string","value":"UNITED STATES of America EX REL., Julie REED, Plaintiff - Appellant, v. KEYPOINT GOVERNMENT SOLUTIONS, Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"United States of America ex v. Keypoint Government Solutions"},"decision_date":{"kind":"string","value":"2019-04-30"},"docket_number":{"kind":"string","value":"17-1379"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Briscoe, Seymour, Holmes\", \"parties\": \"\", \"opinions\": [{\"author\": \"HOLMES, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH April 30, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nUNITED STATES OF AMERICA\\nEX REL., JULIE REED,\\n\\n Plaintiff - Appellant,\\n\\nv. No. 17-1379\\n\\nKEYPOINT GOVERNMENT\\nSOLUTIONS,\\n\\n Defendant - Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:14-CV-00004-CMA-MJW)\\n\\n\\nRichard E. Condit, Mehri & Skalet PLLC, Washington, District of Columbia\\n(Steven A. Skalet and Brett D. Watson, Mehri & Skalet PLLC, Washington,\\nDistrict of Columbia, and John T. Harrington and Robert S. Oswald, The\\nEmployment Law Group, Washington, District of Columbia, with him on the\\nbriefs), for Plaintiff-Appellant.\\n\\nRobert C. Blume, Gibson, Dunn & Crutcher LLP, Denver, Colorado (Ryan\\nT. Bergsieker and Allison Chapin, Gibson, Dunn & Crutcher LLP, Denver,\\nColorado, with him on the brief), for Defendant-Appellee.\\n\\n\\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n\\fHOLMES, Circuit Judge.\\n\\n\\n The False Claims Act (or the “Act”) allows for the recovery of civil\\n\\npenalties and treble damages from anyone who defrauds the government by\\n\\nsubmitting fraudulent claims for payment. 31 U.S.C. §§ 3729–3733. To\\n\\nenforce its provisions, the Act empowers individuals to file suits on behalf\\n\\nof the government alleging that a third party made a fraudulent claim for\\n\\npayment to the government. Id. § 3730(b)(1). These suits are known as\\n\\n“qui tam” suits, and the individual plaintiffs are called “relators.”\\n\\nRecognizing the risks relators face as prospective whistleblowers, the Act\\n\\nprohibits employers from retaliating against employees who try to stop\\n\\nviolations of the Act. Id. § 3730(h).\\n\\n Julie Reed sued her former employer, KeyPoint Government\\n\\nSolutions, LLC (“KeyPoint”), for violating the False Claims Act. Her qui\\n\\ntam claims alleged that KeyPoint violated the Act by knowingly and\\n\\nfraudulently billing the government for work that was inadequately or\\n\\nimproperly completed. Ms. Reed also claimed that KeyPoint fired her in\\n\\nretaliation for her efforts to stop KeyPoint’s fraud.\\n\\n This case presents two overarching questions. First, did the district\\n\\ncourt err in granting summary judgment in KeyPoint’s favor on Ms. Reed’s\\n\\nqui tam claims? Second, did the district court err in dismissing Ms. Reed’s\\n\\n 2\\n\\fretaliation claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)?\\n\\n Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the\\n\\ndistrict court erred in the first respect but not in the second. We therefore\\n\\nvacate the district court’s order insofar as it granted summary judgment on\\n\\nMs. Reed’s qui tam claims and remand for further proceedings. We affirm\\n\\nthe district court’s order insofar as it dismissed Ms. Reed’s retaliation\\n\\nclaim.\\n\\n I\\n\\n This is a whistleblower case. The relevant background has three\\n\\nparts: (1) the statutory background, (2) the underlying (alleged) bad acts,\\n\\nand (3) the whistleblowing and ensuing procedural history. We recount\\n\\neach part below.\\n\\n A\\n\\n The False Claims Act “covers all fraudulent attempts to cause the\\n\\ngovernment to pay out sums of money.” United States ex rel. Conner v.\\n\\nSalina Reg’l Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir. 2008)\\n\\n(quoting United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d\\n\\n1169, 1172 (10th Cir. 2007)). It does so by permitting the recovery of civil\\n\\npenalties and treble damages from anyone who “knowingly presents . . . a\\n\\nfalse or fraudulent claim for payment or approval.” 31 U.S.C.\\n\\n\\n 3\\n\\f§ 3729(a)(1)(A). Liability also attaches to anyone who “knowingly makes,\\n\\nuses, or causes to be made or used, a false record or statement material to a\\n\\nfalse or fraudulent claim.” Id. § 3729(a)(1)(B).\\n\\n The Act’s proscriptions may be effectuated in two ways. “First, the\\n\\nGovernment itself may” sue “the alleged false claimant” to remedy the\\n\\nfraud. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.\\n\\n765, 769 (2000). Second, “a private person (the relator) may bring a qui\\n\\ntam” suit on behalf of the government and also for herself alleging that a\\n\\nthird party made fraudulent claims for payment to the government. Id. “As\\n\\na bounty for identifying and prosecuting fraud,” relators get to keep a\\n\\nportion “of any recovery they obtain.” Boothe, 496 F.3d at 1172 (citing 31\\n\\nU.S.C. § 3730(d)).\\n\\n But there are limits to a relator’s right to bring a qui tam suit. One\\n\\nsuch limit is “known as the public disclosure bar.” Id.; see State Farm Fire\\n\\n& Cas. Co. v. United States ex rel. Rigsby, 580 U.S. ----, 137 S. Ct. 436,\\n\\n440 (2016) (describing the public disclosure bar as a threshold relators must\\n\\npass for their qui tam suits to proceed). That bar compels courts to dismiss\\n\\nqui tam claims “if substantially the same allegations . . . as alleged in the\\n\\naction or claim were publicly disclosed,” unless the relator “is an original\\n\\n\\n\\n\\n 4\\n\\fsource of the information.” 1 31 U.S.C. § 3730(e)(4)(A). The public\\n\\n\\n 1\\n Before Congress amended the False Claims Act in 2010, the public\\ndisclosure bar was jurisdictional—that is, if the bar applied, courts lacked subject-matter\\njurisdiction. See Boothe, 496 F.3d at 1177 (explaining that, as of 2007, the public\\ndisclosure bar was jurisdictional). The pre-2010 provision read: “No court shall have\\njurisdiction over” a qui tam action “based upon the public disclosure of allegations.” 31\\nU.S.C. § 3730(e)(4)(A) (2006). The 2010 amendments removed the reference to\\njurisdiction, counseling district courts instead to “dismiss an action” if the public\\ndisclosure bar applies. 31 U.S.C. § 3730(e)(4)(A) (2010). The federal courts of appeals\\nthat have confronted the issue have unanimously held that the 2010 “amendments\\ntransformed the public disclosure bar from a jurisdictional bar to an affirmative defense.”\\nUnited States ex rel. Prather v. AT&T, Inc., 847 F.3d 1097, 1102 (9th Cir.), cert denied,\\n137 S. Ct. 2309 (2017); see also United States ex rel. Beauchamp v. Academi Training\\nCtr., 816 F.3d 37, 40 (4th Cir. 2016) (holding the amended “public-disclosure bar is . . .\\nan affirmative defense,” not “a jurisdictional bar”); United States ex rel. Moore & Co. v.\\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) (same); United States ex\\nrel. Osheroff v. Humana Inc., 776 F.3d 805, 810 (11th Cir. 2015) (same).\\n Our circuit has yet to opine on this issue. And we need not do so today. Let us\\nbriefly explain the most salient reasons. KeyPoint properly raised the public disclosure\\nbar as a defense in its motion to dismiss before the district court. As a result, we need not\\ndetermine the jurisdictional status of the public disclosure bar here. If KeyPoint had\\nfailed to raise the bar before the district court and had asserted it for the first time on\\nappeal, we would have been obliged to consider the issue only if it was\\njurisdictional—that is, if it implicated our jurisdiction to hear the merits of Ms. Reed’s qui\\ntam claims—not if it was merely an affirmative defense. Therefore, under such\\nhypothetical circumstances, the jurisdictional status of the issue would have been an\\nimportant question that we needed to resolve. See Smith v. Cheyenne Ret. Inv’rs L.P.,\\n904 F.3d 1159, 1164 (10th Cir. 2018) (noting that “[i]n most cases, including this one,\\nthis distinction between a jurisdictional requirement and an affirmative defense is\\nimmaterial” because the party has “pled failure to exhaust as an affirmative defense”);\\nMcQueen ex rel. McQueen v. Colo. Springs Sch. Dist., 488 F.3d 868, 873 (10th Cir. 2007)\\n(explaining that the distinction between an affirmative defense and a jurisdictional\\nprerequisite “is important . . . only when the defendant has waived or forfeited the issue”\\nbut because “there is no question of waiver or forfeiture” the court “need not decide\\nwhether exhaustion is jurisdictional”); accord Coleman v. Newburgh Enlarged City Sch.\\nDist., 503 F.3d 198, 204 (2d Cir. 2007) (“[W]e are not forced to decide whether our\\nprecedent, which labels the IDEA’s exhaustion requirement as a rule affecting subject\\n (continued...)\\n\\n 5\\n\\fdisclosure bar aims to strike “the golden mean between” encouraging\\n\\n“whistle-blowing insiders with genuinely valuable information” to come\\n\\nforward while discouraging “opportunistic plaintiffs who have no\\n\\nsignificant information to contribute of their own.” United States ex rel.\\n\\nFine v. Sandia Corp., 70 F.3d 568, 571 (10th Cir. 1995) (quoting United\\n\\nStates ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C.\\n\\nCir. 1994)).\\n\\n\\n\\n\\n 1\\n (...continued)\\nmatter jurisdiction rather than an ‘inflexible claim-processing’ rule that may be waived or\\nforfeited, remains good law . . . because there can be no claim of waiver or forfeiture\\nhere.”); see also Davoll v. Webb, 194 F.3d 1116, 1128 (10th Cir. 1999) (“If [an] issue\\nimplicates subject matter jurisdiction, we have an obligation to address it ‘regardless of\\nnormal rules governing the presentation of issues.’” (quoting Int’l Union of Operating\\nEng’rs, Local 150 v. Rabine, 161 F.3d 427, 429 (7th Cir. 1998))). But those hypothetical\\ncircumstances are not present here; therefore, we need not consider the jurisdictional\\nstatus of the public disclosure bar. Furthermore, as we explain later, we conclude that the\\noriginal-source analysis that the district court used in concluding that the public\\ndisclosure bar precludes Ms. Reed’s qui tam claims is legally flawed. Accordingly, we\\nvacate its judgment and remand for further proceedings. As a product of that disposition,\\nMs. Reed’s qui tam claims are not (at least for the time being) subject to the public\\ndisclosure bar. Thus, also for this reason, whether that bar is jurisdictional or not is\\nimmaterial. Finally, we observe that the parties did not meaningfully address the public\\ndisclosure bar’s proper characterization—i.e., jurisdictional or an affirmative defense.\\nAlthough this failure would not obviate the need for us to independently consider that\\nquestion if our jurisdiction over the merits depended on the answer, the parties’\\nunderdeveloped arguments on this score further militate against us trying to answer the\\nquestion when the answer is not material here, let alone determinative of our jurisdiction.\\nCf. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007) (“Our system of justice, after all,\\nis not a self-directed inquisitorial one; to avoid error, we are dependent on the full\\ndevelopment of issues through the adversarial process . . . .”).\\n\\n 6\\n\\f And because insiders might be reluctant to use these qui tam\\n\\nprovisions due to fear of employer backlash, the False Claims Act protects\\n\\nwhistleblowers from employer retaliation. See Potts v. Ctr. for Excellence\\n\\nin Higher Educ., Inc., 908 F.3d 610, 613–14 (10th Cir. 2018) (discussing 31\\n\\nU.S.C. § 3730(h)). To qualify for whistleblower protection, an employee\\n\\nmust engage in “protected activity.” Armstrong v. Arcanum Grp., Inc., 897\\n\\nF.3d 1283, 1286 (10th Cir. 2018). Until 2009, protected activity included\\n\\nonly “lawful acts done by the employee . . . in furtherance of an action\\n\\nunder this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h) (2008). But\\n\\nCongress amended the anti-retaliation provision in 2009 and 2010, and it\\n\\nnow protects employees who take steps “in furtherance of” either a qui tam\\n\\nclaim or “other efforts to stop 1 or more violations” of the Act. 31 U.S.C.\\n\\n§ 3730(h)(1). A whistleblower who prevails on her retaliation claim is\\n\\nentitled to reinstatement, double back pay, litigation costs, and attorneys’\\n\\nfees. Id. § 3730(h)(2). The events giving rise to this litigation took place\\n\\nagainst this statutory backdrop.\\n\\n B\\n\\n 1\\n\\n KeyPoint is a private company that conducts background\\n\\ninvestigations for the federal government—specifically, the Office of\\n\\n\\n 7\\n\\fPersonnel Management (“OPM”). OPM uses KeyPoint to investigate\\n\\nprospective federal employees. The depth of KeyPoint’s investigations\\n\\nvaries according to the level of security clearance involved. Most\\n\\ninvestigations, though, entail running background checks, interviewing the\\n\\nsubject of the investigation, gathering testimony from the subject’s\\n\\nneighbors and coworkers, and then compiling the information in a report.\\n\\nGovernment agencies rely on these reports in making employment decisions\\n\\nand deciding whether to issue (or reject) security clearances.\\n\\n OPM’s contract with KeyPoint rewards timeliness. If KeyPoint\\n\\nfinishes its investigations on time, OPM pays KeyPoint a premium. But\\n\\nKeyPoint’s pay decreases for each day an investigation runs past the\\n\\ndeadline.\\n\\n The contract also includes safeguards to ensure that KeyPoint’s\\n\\ninvestigations are complete and accurate. For example, KeyPoint must do\\n\\nthorough case reviews of each investigation and reinterview a percentage of\\n\\nall sources. Another safeguard is the Telephone Testimony Program\\n\\n(“TTP”); KeyPoint developed such a program at OPM’s request, and OPM\\n\\nendorsed KeyPoint’s program. Ordinarily, investigators must conduct in-\\n\\nperson interviews. But they may do telephone interviews under some\\n\\ncircumstances, so long as they keep their total number of telephone\\n\\n\\n 8\\n\\finterviews below a certain percentage threshold. Under the TTP, each\\n\\nmonth OPM sends KeyPoint a list of investigators who exceeded their\\n\\nallotted number of telephone interviews during the last month. KeyPoint\\n\\nthen must send OPM “corrective action report[s]” explaining each\\n\\ninfraction and what it is doing to remedy the problem. Aplt.’s App. at 31, ¶\\n\\n54 (Second Am. Compl., filed Dec. 5, 2016). The contract and OPM’s\\n\\nInvestigator’s Handbook, which the contract incorporates, spell out these\\n\\nand other quality-control measures.\\n\\n 2\\n\\n Along with KeyPoint, the background-investigation industry has two\\n\\nother main players—U.S. Investigations Services (“USIS”) and CACI\\n\\nInternational, Inc. (“CACI”). This insular industry has had its share of\\n\\ntroubles. From 2008 to 2010, the government prosecuted several individual\\n\\ninvestigators, including a former KeyPoint employee, for rushing\\n\\ninvestigations and falsifying information in reports to OPM. And a 2010\\n\\nreport summarizing an OPM audit concluded that KeyPoint’s and its\\n\\ncompetitors’ “quality assurance process” needed improvement. Id. at 273\\n\\n(Final Audit Report, dated June 22, 2010).\\n\\n The year 2013 was a particularly turbulent one for the industry. That\\n\\nyear two federal government contractors—Edward Snowden and Aaron\\n\\n\\n 9\\n\\fAlexis—committed high-profile crimes after having received security\\n\\nclearances. These embarrassing episodes put the industry under intense\\n\\nscrutiny.\\n\\n With scrutiny came unflattering news reports. A June 2013 article\\n\\nreporting on allegations against USIS noted that the “concerns about\\n\\nbackground checks [were] not limited to USIS” and later named KeyPoint\\n\\nand CACI as USIS’s “two main competitors.” Id. at 159, 160 (Wash. Post\\n\\nArticle, dated June 27, 2013). Another article that month reported that “a\\n\\nselect group of private contractors conducting background checks for high-\\n\\nsecurity jobs were not doing enough to ensure the quality of their\\n\\ninvestigations.” Id. at 302 (Reuters Article, dated June 26, 2013). The\\n\\narticle noted “problems with procedures and safeguards used by all three\\n\\nprivate contractors—USIS, KeyPoint . . . and CACI.” Id. at 303. A slew of\\n\\nother news reports covered such allegations roiling the background-\\n\\ninvestigation industry.\\n\\n The allegations in the press worried Congress and OPM. Those\\n\\nworries led to several congressional hearings to probe the industry’s alleged\\n\\npractice of using “false, incomplete, or rushed information gathering” in its\\n\\nbackground investigations. Id. at 411 & n.3 (Order, entered Sept. 28,\\n\\n2017). And the bad press of its contractors prompted OPM to commission\\n\\n\\n 10\\n\\fan audit of KeyPoint’s and its competitors’ practices. The audit concluded\\n\\nthat “OPM need[ed] to strengthen its controls over its Contractors and the\\n\\nbackground investigation review process.” Id. at 164 (Audit Report, dated\\n\\nJune 4, 2014). 2\\n\\n Exacerbating the industry’s woes, a federal court unsealed a\\n\\ncomplaint against USIS in October 2013. See United States ex rel. Percival\\n\\nv. U.S. Investigations Servs., LLC, No. 2:11-cv-00527-WKW-WC (M.D.\\n\\nAla. July 1, 2011) (complaint reproduced in Aplt.’s Reply Br., Addendum\\n\\nA). That complaint leveled three accusations against USIS: first, that USIS\\n\\n“failed to provide accurate and complete investigations prior to Cases being\\n\\nsubmitted to the government,” Aplt.’s Reply Br., Addendum A, at 10;\\n\\nsecond, that USIS “knowingly submitted Cases to OPM for payment that [it]\\n\\nknew had not been reviewed,” id. at 6; and third, that USIS exploited “the\\n\\nBlue Zone software . . . . to submit Cases to OPM under the false pretense\\n\\nthat the Cases had been complete[d] and accurately and properly reviewed,”\\n\\nid. at 12. This USIS suit and the government’s intervention into it incited\\n\\n\\n 2\\n The copy of the audit report included in the record is undated. But a copy\\nof the report that is publicly available via the Internet lists the date the report was\\npublished as June 4, 2014. See OFFICE OF PERS. MGMT., AUDIT OF THE FEDERAL\\nINVESTIGATIVE SERVICES’ CASE REVIEW PROCESS OVER BACKGROUND INVESTIGATIONS\\n(2014), https://www.opm.gov/our-inspector-general/publications/reports/2014/audit-of-\\nthe-federal-investigative-services-case-review-process-over-background-\\ninvestigations.pdf.\\n\\n 11\\n\\fmore press accounts of the industry’s shoddy investigations.\\n\\n 3\\n\\n Ms. Reed worked for KeyPoint during this turbulent period. As a\\n\\nSenior Quality Control Analyst, she reviewed investigators’ work and\\n\\ndocumented incomplete investigations in monthly reports. Ms. Reed also\\n\\nran KeyPoint’s TTP by performing a “regular monthly audit of KeyPoint\\n\\ninvestigators who violated” the program. Aplt.’s App. at 34, ¶ 81. Along\\n\\nwith her “regular duties,” Ms. Reed “was occasionally tasked with extra\\n\\naudits of investigators,” id. at 61, ¶ 165, or assigned “to determine the\\n\\nnature of . . . chronic infractions,” id. at 84, ¶ 228. The precise scope of\\n\\nMs. Reed’s responsibilities as a Senior Quality Control Analyst and where\\n\\nshe fell in the KeyPoint hierarchy, however, are not specified in the\\n\\noperative complaint.\\n\\n Nevertheless, that complaint does clearly aver that, in discharging her\\n\\nduties, Ms. Reed observed what she described as “KeyPoint’s systemic\\n\\nviolations” of its contract with OPM and persistent submission of\\n\\nfraudulent claims for payment to the government based on incomplete or\\n\\nimproperly completed investigations. Id. at 29, ¶ 34. Ms. Reed’s position\\n\\nallowed her to see investigators falsely reporting applicants’ backgrounds\\n\\nas “clean” and omitting information showing otherwise, completing fewer\\n\\n\\n 12\\n\\fthan the required number of interviews, and generally cutting corners. Ms.\\n\\nReed also believed that she witnessed rampant violations of the TTP and a\\n\\nscheme by KeyPoint management to hide the violations by submitting\\n\\nknowingly false corrective action reports to OPM.\\n\\n According to Ms. Reed, KeyPoint’s management not only knew of the\\n\\nforegoing systemic violations but also encouraged them by pressuring\\n\\ninvestigators to rush investigations to maximize revenue. Alarmed by the\\n\\nabuses, Ms. Reed voiced her concerns within the company. Periodically,\\n\\nMs. Reed and her staff uncovered and reported violations. Ms. Reed also\\n\\n“regularly reported [certain] infractions to her supervisor . . . by submitting\\n\\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171. Along with these\\n\\nmonthly reports, Ms. Reed repeatedly shared her concerns with her\\n\\nsupervisor. She also discussed the problems with other individuals at\\n\\nKeyPoint, such as the Director of Training, the OPM Contract Director,\\n\\nRegional Managers, and certain Field Managers. But Ms. Reed’s efforts to\\n\\ncurb the violations failed. In fact, she alleges that the problems multiplied\\n\\nover time.\\n\\n Eventually, KeyPoint fired Ms. Reed in October 2013. About a month\\n\\nlater, Ms. Reed and her counsel contacted the Department of Justice\\n\\n(“DOJ”). She told DOJ about the abuses she claimed to have witnessed\\n\\n\\n 13\\n\\fwhile at KeyPoint. To back up her allegations, Ms. Reed provided a pre-\\n\\ndisclosure statement and a presentation detailing KeyPoint’s alleged\\n\\nviolations.\\n\\n C\\n\\n At the government’s urging, Ms. Reed sued KeyPoint in January 2014.\\n\\nHer operative complaint raised three qui tam claims and a retaliation\\n\\nclaim. 3 The qui tam claims alleged that KeyPoint violated the False Claims\\n\\nAct by: (1) falsely certifying that it performed complete and accurate\\n\\ninvestigations, (2) falsely certifying that it did proper case reviews and\\n\\nquality-control checks, and (3) falsifying corrective action reports. Ms.\\n\\nReed’s retaliation claim alleged that KeyPoint fired her for trying to stop it\\n\\nfrom violating the False Claims Act.\\n\\n After the government declined to intervene in the case, KeyPoint\\n\\nmoved to dismiss the suit. The district court then informed the parties that\\n\\nit intended to convert the portion of KeyPoint’s motion concerning the qui\\n\\ntam claims into a summary-judgment motion; the court did not perform a\\n\\nsimilar conversion on KeyPoint’s motion to dismiss the retaliation claim.\\n\\n\\n\\n 3\\n Ms. Reed also alleged that KeyPoint violated the Americans with\\nDisabilities Act by retaliating against her because of her disability. The district court\\ngranted KeyPoint’s motion to dismiss that claim. Ms. Reed does not challenge that ruling\\non appeal.\\n\\n 14\\n\\fAt the court’s invitation, Ms. Reed filed additional evidence to defend her\\n\\nqui tam claims from summary judgment.\\n\\n In September 2017, the district court entered judgment for KeyPoint\\n\\non all counts. Regarding the qui tam claims, the court declined to consider\\n\\nsome of the supplemental materials that Ms. Reed had proffered to oppose\\n\\nKeyPoint’s summary-judgment motion. And, on the merits, the court\\n\\ndetermined that the allegations in Ms. Reed’s qui tam claims were\\n\\n“substantially the same” as those that had been publicly disclosed in (1) the\\n\\ncriminal investigations of individual investigators, (2) the unflattering news\\n\\nreports about the background-investigation industry, (3) the congressional\\n\\nhearings and OPM audits, and (4) the USIS suit. Id. at 411. And, because\\n\\nthe court also concluded that Ms. Reed did not qualify as “an ‘original\\n\\nsource,’” it dismissed her qui tam claims under the public disclosure bar.\\n\\nId. at 414. As for Ms. Reed’s retaliation claim, the district court granted\\n\\nKeyPoint’s Rule 12(b)(6) motion to dismiss after determining that she had\\n\\ninadequately pleaded that KeyPoint was on notice that she was engaging in\\n\\nprotected activity.\\n\\n Ms. Reed now appeals from the district court’s order entering\\n\\njudgment for KeyPoint. Her appeal presents two questions. First, did the\\n\\ndistrict court err in granting KeyPoint summary judgment on the qui tam\\n\\n\\n 15\\n\\fclaims under the public disclosure bar? And second, did the district court\\n\\nerr in granting KeyPoint’s Rule 12(b)(6) motion to dismiss the retaliation\\n\\nclaim? For the reasons explicated below, we answer the first question in\\n\\nthe affirmative and the second in the negative.\\n\\n II\\n\\n We start with the first question. The public disclosure bar compels\\n\\ncourts to dismiss qui tam claims if (1) “substantially the same allegations . .\\n\\n. were publicly disclosed,” unless (2) the relator is “an original source of\\n\\nthe information.” 31 U.S.C. § 3730(e)(4)(A). The district court thought\\n\\nthe allegations in Ms. Reed’s qui tam claims were substantially the same as\\n\\nthose that had been publicly disclosed. And it further reasoned that Ms.\\n\\nReed was not an original source of that information. Thus, the district\\n\\ncourt granted KeyPoint summary judgment on Ms. Reed’s qui tam claims.\\n\\n We review that conclusion de novo and apply the same legal standard\\n\\nthat the district court used. See United States ex rel. Smith v. Boeing Co.,\\n\\n825 F.3d 1138, 1145 (10th Cir. 2016). “Summary judgment is appropriate\\n\\n‘if the movant shows that there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting\\n\\nF E D . R. C I V . P. 56(a)). When, as here, the district court granted the\\n\\ndefendant’s motion for summary judgment, “we accept as true the\\n\\n\\n 16\\n\\frelator[’s] evidence and draw all reasonable inferences in [her] favor.” Id.\\n\\n Ms. Reed argues that the district court erred twice en route to\\n\\ndismissing her qui tam claims under the public disclosure bar. 4 Its first\\n\\nerror, she says, was concluding that the allegations in her complaint were\\n\\nsubstantially the same as those aired in earlier public disclosures.\\n\\nCompounding that error, in her view, the district court then wrongly\\n\\ndetermined that she did not fall under the “original source” exception to the\\n\\npublic disclosure bar.\\n\\n Put differently, the fate of Ms. Reed’s qui tam claims hangs on two\\n\\nquestions. First, are the allegations in those claims substantially the same\\n\\nas those in earlier public disclosures? And second, if so, is Ms. Reed an\\n\\n“original source” of the information in her claims? Our answer to the first\\n\\nquestion does not favor Ms. Reed, but our answer to the second one does. 5\\n\\n 4\\n For the public disclosure bar to apply, two other conditions must be met.\\nFirst, “the alleged ‘public disclosure’” must “contain[] allegations . . . from one of the\\nlisted sources” in the Act. In re Nat. Gas Royalties, 562 F.3d 1032, 1039 (10th Cir. 2009)\\n(quoting United States ex rel. Holmes v. Consumer Ins. Grp., 318 F.3d 1199, 1203 (10th\\nCir. 2003)); see 31 U.S.C. § 3730(e)(4)(A)(i)–(iii) (listing, among other things, news\\nreports, congressional hearings, prior lawsuits, and federal audits as “sources”). Second,\\nthe disclosure must be “public.” See In re Nat. Gas Royalties, 562 F.3d at 1039. Because\\nthe parties agree that these conditions are met, we need not (and do not) consider them.\\n 5\\n We typically answer “only the questions we must, not those we can.”\\nValley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th\\nCir. 2010). Thus, we pause to explain our rationale for resolving the substantially-the-\\nsame question even though we ultimately vacate the district court’s judgment regarding\\n (continued...)\\n\\n 17\\n\\f 5\\n (...continued)\\nthe qui tam claims because of its error in resolving the original-source question. In other\\nwords, because the original-source error is ultimately determinative here in our resolution\\nof the public-disclosure-bar issue, some might question the need to first rule on the\\nsubstantially-the-same component of the public-disclosure-bar issue. But our precedent\\nteaches that application of the public disclosure bar “requires a four-step inquiry.”\\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1042 (10th Cir. 2004). The first two\\nsteps—which are not at issue here—relate to whether the information in question\\nqualifies under the Act as a public disclosure. See id. The third step is the substantially-\\nthe-same inquiry. These first three steps determine whether, absent an exception, the\\npublic disclosure bar applies at all. See id. And so our circuit has counseled courts to\\n“address the first three public disclosure issues first.” Id. (quoting United States ex rel.\\nHafter v. Spectrum Emergency Care, 190 F.3d 1156, 1161 (10th Cir. 1999)). Reaching\\n“the fourth, ‘original source’ issue is necessary only if the court answers the first three\\nquestions in the affirmative.” Id. (emphasis added) (quoting Hafter, 190 F.3d at 1161).\\nIn Kennard, for example, we first concluded that the public disclosure bar’s three\\nprerequisites applied. Id. Then we held that the relators “qualif[ied] as an original\\nsource,” thus reversing the district court’s order. Id. at 1046.\\n Admittedly, this precedent instructing courts to reach the original-source question\\nonly after answering in the affirmative the substantially-the-same question interpreted the\\npre-2010 version of the public disclosure bar, which was jurisdictional. That said, we see\\nno reason why the 2010 amendment—irrespective of its jurisdictional import—should\\nchange our view that the substantially-the-same “analysis is a threshold inquiry” that we\\nshould resolve before “reach[ing] the ‘original source’ analysis.” United States ex rel.\\nFine v. MK-Ferguson Co., 99 F.3d 1538, 1545 (10th Cir. 1996) (quoting United States ex\\nrel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 552 (10th Cir. 1992)). After all, as\\nwe explain below, the 2010 amendment establishes an analytical rubric consistent with\\nour pre-2010 precedent. Moreover, the structure of the amended provision—like the\\nunamended version—supports the proposition that the substantially-the-same inquiry is a\\nthreshold one. That provision instructs courts to dismiss a qui tam claim “if substantially\\nthe same allegations . . . were publicly disclosed . . . . unless . . . the person bringing the\\naction is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (2010)\\n(emphasis added); see Moore, 812 F.3d at 297–98 (quoting this amended language and\\nconcluding that a relator’s allegations were substantially the same as those in the public\\nsphere, “but that [the relator] was nevertheless an original source”). Thus, we adhere to\\nour pre-2010-amendment view that courts should resolve the substantially-the-same\\nquestion before considering whether a relator’s qui tam claims may proceed under the\\n (continued...)\\n\\n 18\\n\\fSpecifically, we hold that Ms. Reed’s complaint averments are substantially\\n\\nthe same as the allegations in the available public disclosures, but the\\n\\ndistrict court erred in finding that Ms. Reed’s averments do not materially\\n\\nadd to those disclosures’ allegations, such that she does not qualify as an\\n\\noriginal source. But this holding does not fully resolve the original-source\\n\\nquestion. Consequently, we vacate the district court’s summary-judgment\\n\\norder and remand for further proceedings regarding whether Ms. Reed\\n\\nqualifies as an original source.\\n\\n A\\n\\n We agree with the district court that Ms. Reed’s allegations\\n\\nundergirding her qui tam claims are “substantially the same” as the\\n\\nallegations in the public disclosures. We explain this conclusion in three\\n\\nsteps. First, we discuss the applicable legal standard that guides our\\n\\nsubstantially-the-same inquiry. Second, we compare the allegations in Ms.\\n\\nReed’s qui tam claims with those in the public disclosures. And third, we\\n\\nclose by concluding that the allegations in the qui tam claims are\\n\\n“substantially the same” as the publicly disclosed allegations.\\n\\n\\n\\n\\n 5\\n (...continued)\\noriginal-source exception.\\n\\n 19\\n\\f 1\\n\\n Congress amended the False Claims Act in 2010. See Pub. L. No.\\n\\n111-148, § 10104(j)(2), 124 Stat. 119, 901–02 (“2010 amendment”). Before\\n\\nthat year, the provision setting out the public disclosure bar read: “No\\n\\ncourt shall have jurisdiction over an action under this section based upon\\n\\nthe public disclosure of allegations or transactions . . . .” 31 U.S.C.\\n\\n§ 3730(e)(4)(A) (2008) (emphasis added). The amended provision reads:\\n\\n“The court shall dismiss an action . . . if substantially the same allegations .\\n\\n. . as alleged in the action or claim were publicly disclosed.” 31 U.S.C.\\n\\n§ 3730(e)(4)(A) (2010) (emphasis added).\\n\\n Our court has yet to opine on the degree of similarity necessary to\\n\\nsatisfy this new substantially-the-same standard. That said, even before\\n\\n2010, our circuit read the unamended provision’s “based upon” language to\\n\\nmean that the public disclosure bar applied when “the allegations in the\\n\\ncomplaint were substantially the same as allegations in the public\\n\\ndisclosures.” Fine, 70 F.3d at 572; see also Glaser v. Wound Care\\n\\nConsultants, Inc., 570 F.3d 907, 910 (7th Cir. 2009) (noting that “eight\\n\\nother circuits have read the phrase ‘based upon’” to encompass allegations\\n\\nthat are “substantially similar” to those publicly disclosed). That the\\n\\nsubstantially-the-same standard adopted in the 2010 amendment resembles\\n\\n\\n 20\\n\\fthe standard we already used is no accident; the amendment “expressly\\n\\nincorporates the ‘substantially similar’ standard in accordance with the\\n\\ninterpretation of this circuit and most other circuits.” Bellevue v. Universal\\n\\nHealth Servs. of Hartgrove, Inc., 867 F.3d 712, 718 (7th Cir. 2017), cert.\\n\\ndenied, 138 S. Ct. 1284 (2018). Thus, the 2010 amendment confirms the\\n\\nvitality of our pre-2010 standard. 6\\n\\n In her reply brief, Ms. Reed argues for the first time that the 2010\\n\\namendment nullifies our earlier cases. See Aplt.’s Reply Br. at 8. In her\\n\\nview, the amendment “made clear” Congress’s “desire to narrow the impact\\n\\nof the public disclosure bar.” Id. Indeed, Ms. Reed believes that Congress\\n\\nacted specifically to jettison the reasoning used in our pre-2010 cases. And\\n\\nso she warns us not to rely on those earlier cases in our substantially-the-\\n\\nsame inquiry.\\n\\n Ms. Reed’s argument is too little too late. For starters, by waiting\\n\\n\\n\\n 6\\n Accord United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d\\n201, 208 n.4 (1st Cir. 2016) (“The revised statutory langauge—‘substantially the\\nsame’—merely confirms our earlier understanding.”); United States ex rel. Mateski v.\\nRaytheon Co., 816 F.3d 565, 569 n.7 (9th Cir. 2016) (“[O]ur analysis of the issue of\\nsubstantial similarity would be the same under either version [of the public-disclosure-bar\\nprovision].”); Cause of Action v. Chi. Transit Auth., 815 F.3d 267, 281 n.20 (7th Cir.\\n2016) (“Our analysis [of substantial similarity] is therefore the same under either version\\nof the statute.”); see also United States ex rel. Armes v. Garman, 719 F. App’x 459, 463\\nn.2 (6th Cir. 2017) (unpublished) (“[T]he 2010 amendment does not affect our public-\\ndisclosure analysis . . . .”).\\n\\n 21\\n\\funtil her reply brief to argue that the 2010 amendment narrowed the public\\n\\ndisclosure bar’s sweep and undermined our earlier cases, Ms. Reed waived\\n\\nthat argument. See, e.g., White v. Chafin, 862 F.3d 1065, 1067 (10th Cir.\\n\\n2017) (“Mr. White waived this contention by waiting to present it for the\\n\\nfirst time in his reply brief.”). Furthermore, were we to overlook this\\n\\nwaiver, we nevertheless would decline Ms. Reed’s invitation to discard our\\n\\nearlier precedent because of Congress’s supposed “desire to narrow the\\n\\nimpact of the public disclosure bar.” Aplt.’s Reply Br. at 8.\\n\\n We ordinarily derive Congress’s intent “from the text, not from\\n\\nextrinsic sources.” Antonin Scalia & Bryan A. Garner, R E A D I N G L A W : T H E\\n\\nINTERPRETATION OF L E G A L T E X T S 56 (2012). The amended text says that\\n\\nthe public disclosure bar applies when substantially the same allegations\\n\\nhad been publicly disclosed; that is how our circuit (and most others)\\n\\napplied the public disclosure bar pre-amendment, see Fine, 70 F.3d at 572,\\n\\nand that is how we will continue to apply it until Congress or the Supreme\\n\\nCourt tells us otherwise. In any event, Congress’s supposed desire to\\n\\nnarrow the public disclosure bar presumably would relate to only those\\n\\ncircuits that had used a standard other than the substantially-the-same\\n\\nstandard adopted in the 2010 amendment. See, e.g., United States ex rel.\\n\\nMay v. Purdue Pharma L.P., 737 F.3d 908, 917 (4th Cir. 2013) (explaining\\n\\n\\n 22\\n\\fthat because the Fourth Circuit had not used the substantially-the-same\\n\\nstandard, the 2010 amendment “changed the required connection between\\n\\nthe plaintiff’s claims and the qualifying public disclosure” in that circuit).\\n\\nBut in this circuit—where we already used the substantially-the-same\\n\\nstandard—the 2010 amendment “merely confirms our earlier\\n\\nunderstanding.” United States ex rel. Winkelman v. CVS Caremark Corp.,\\n\\n827 F.3d 201, 208 n.4 (1st Cir. 2016). Thus, our pre-2010-amendment\\n\\ncases guide our substantially-the-same inquiry.\\n\\n Those cases teach that the operative question is whether the public\\n\\ndisclosures were sufficient to set the government “on the trail of the alleged\\n\\nfraud without [the relator’s] assistance.” 7 Fine, 70 F.3d at 571. And we\\n\\nmust recognize that the government’s nose for fraud may be sensitive\\n\\nenough to pick up the scent even if the public disclosures did not “identify\\n\\n\\n\\n\\n 7\\n We are aware of scholarly criticism of the on-the-trail-of-fraud standard.\\nSee Susan Schneider Thomas & Jonathan Z. DeSantis, Misguided Meanders: The “Trail\\nof Fraud” Under the Public Disclosure Bar of the False Claims Act, 43 UNIV. OF\\nDAYTON L. REV. 161, 182 (2018) (“[R]ather than using the innately ambiguous\\nassessment of whether the alleged public disclosures ‘might have’ ‘set’ the government\\non the ‘trail’ of fraud, it would be a far more meaningful analysis to examine, as the plain\\nlanguage of the statue commands, whether the potentially disabling public disclosures in\\nfact disclosed allegations or transactions of fraud, or made actual allegations of fraudulent\\nconduct.”). However, Fine and its progeny are binding precedent in this circuit.\\nMoreover, Ms. Reed does not challenge the propriety of this standard in her Opening\\nBrief.\\n\\n 23\\n\\fany specific compan[y].” 8 See In re Nat. Gas Royalties, 562 F.3d 1032,\\n\\n1039, 1042 (10th Cir. 2009). The need to identify the defendant by name is\\n\\nparticularly weak when “the government has already identified the problem\\n\\nand has an easily identifiable group of probable offenders.” 9 Fine, 70 F.3d\\n\\nat 572. Similarly, “[a] relator need not have learned of the basis for the qui\\n\\ntam action from the public disclosure” to trigger the public disclosure bar.\\n\\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1044 (10th Cir. 2004). Nor\\n\\nis “a complete identity of allegations, even as to time, place, and manner . .\\n\\n. required to implicate the public disclosure bar.” Boothe, 496 F.3d at\\n\\n1174. Rather, it is enough if “the essence of” the relator’s allegations was\\n\\n“‘derived from’ a prior public disclosure.” Id. In fact, the public\\n\\n 8\\n See also United States ex rel. Lager v. CSL Behring, L.L.C., 855 F.3d 935,\\n946 (8th Cir. 2017) (concluding that the disclosures “‘set the government squarely on the\\ntrail’ of the defendants’” fraud even though the disclosures did not name defendants\\n(quoting In re Nat. Gas Royalties, 562 F.3d at 1041)); United States ex rel. Zizic v.\\nQ2Administrators, LLC, 728 F.3d 228, 238 (3d Cir. 2013) (concluding allegations were\\nsubstantially similar even though defendants “were not actually identified” in the public\\ndisclosure).\\n 9\\n See also Lager, 855 F.3d at 946 (finding substantial similarity when\\ndisclosures gave enough information about an industry-scheme to “identify the\\ndefendants” without naming them); cf. United States ex rel. Jamison v. McKesson Corp.,\\n649 F.3d 322, 329, 330 (5th Cir. 2011) (observing that “the public disclosures need not\\nname particular defendants so long as they ‘alerted the government to the industry-wide\\nnature of the fraud and enabled the government to readily identify wrongdoers through an\\ninvestigation,” but reasoning that “the defendants’ documents, considered alone, likely\\nare not sufficient publically to disclose allegations specific to” them because their\\nindustries “are large” and “[t]he public disclosures do not indicate that fraud is universal\\nor even widespread within them” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)).\\n\\n 24\\n\\fdisclosures need not allege any False Claims Act violations or even “any\\n\\nwrongdoing”; they need only disclose “the material elements of the\\n\\nfraudulent transaction.” 10 Fine, 70 F.3d at 572.\\n\\n In summary, the public disclosure bar applies to qui tam claims “if\\n\\nsubstantially the same allegations . . . were publicly disclosed.” 31 U.S.C.\\n\\n§ 3730(e)(4)(A). Our pre-2010-amendment cases primarily guide our\\n\\nsubstantially-the-same inquiry. And those cases teach that the operative\\n\\nquestion is whether the public disclosures were sufficient to set the\\n\\ngovernment “on the trail of the alleged fraud without [the relator’s]\\n\\nassistance.” Fine, 70 F.3d at 571.\\n\\n 2\\n\\n Having settled on the proper standard governing the substantially-the-\\n\\nsame inquiry, we now must compare Ms. Reed’s allegations with those in\\n\\nthe public disclosures.\\n\\n Ms. Reed’s Allegations. At a high level of generality, Ms. Reed’s qui\\n\\ntam claims allege that KeyPoint “was engaging in systemic fraud.” Aplt.’s\\n\\n\\n\\n 10\\n See also Bellevue, 867 F.3d at 718–19 (noting that the substantially-the-\\nsame standard requires only “that the government had enough information” from the\\npublic disclosures to infer that the defendant knowingly violated the False Claims Act);\\nWinkelman, 827 F.3d at 208 (explaining that it is enough that the public disclosures “lead\\nto a plausible inference of fraud” (quoting United States ex rel. Ondis v. City of\\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); Osheroff, 776 F.3d at 814 (same).\\n\\n 25\\n\\fOpening Br. at 1. This fraud grew from KeyPoint’s “focus[] on meeting . .\\n\\n. deadlines” and winning bonuses “at the expense of the quality,\\n\\ncompleteness, and accuracy” of its investigations, Ms. Reed says. Aplt.’s\\n\\nApp. at 29, ¶ 38. For instance, Ms. Reed accuses KeyPoint of pressuring\\n\\ninvestigators to rush investigations to maximize revenue. This pressure led,\\n\\ngenerally, to rampant violations of KeyPoint’s contract with OPM and, in\\n\\nparticular, of the TTP. Notably, as to the TTP, the pressure led to the\\n\\nsubmission of knowingly false corrective action reports designed to hide the\\n\\nviolations. At bottom, Ms. Reed alleges that KeyPoint knowingly\\n\\ndefrauded the government to “enrich itself and its executives at the expense\\n\\nof national security.” Aplt.’s Opening Br. at 6.\\n\\n Zooming in on the details, Ms. Reed claims that KeyPoint’s fraud\\n\\nmanifested itself in three main ways. First, she says that KeyPoint falsely\\n\\ncertified to OPM that it had performed complete and accurate\\n\\ninvestigations. To support this charge, Ms. Reed points to specific\\n\\ninstances in which investigators failed to do mandatory interviews of\\n\\nsources. She also details how individual investigators uncovered\\n\\nderogatory information about subjects but failed to report that information\\n\\nin their reports to OPM. Piling on, Ms. Reed lists over 100 instances in\\n\\nwhich investigators cut interviews short and then lied about it to OPM. She\\n\\n\\n 26\\n\\fadds to this by exposing scores of violations of the TTP.\\n\\n Ms. Reed contends that the second manifestation of KeyPoint’s fraud\\n\\nentailed falsely representing to OPM that it had done proper case reviews\\n\\nand quality-control checks. For instance, she documents at least five times\\n\\nthat, “despite . . . readily apparent violations,” KeyPoint reviewers violated\\n\\nOPM requirements by failing to reopen cases. Aplt.’s App. at 88, ¶ 248.\\n\\nAnd to circumvent the TTP, “quality control staff failed to perform the\\n\\nproper number of re-interviews.” Id. at 89, ¶ 252.\\n\\n The third (related) strain of fraud Ms. Reed identifies is KeyPoint’s\\n\\nsubmission of falsified corrective action reports. Recall that these reports\\n\\n“are supposed to detail the specific actions taken by KeyPoint management\\n\\nto address” violations of OPM rules and programs—most notably, the TTP.\\n\\nId. at 89, ¶ 255. To hide its rampant violations and institutional\\n\\nacquiescence to those violations, Ms. Reed alleges that “KeyPoint falsified\\n\\ncorrective action reports to OPM” to give the appearance that it “was\\n\\nactively addressing [violations], when it was not.” Id. at 89, ¶ 256. To Ms.\\n\\nReed’s knowledge, KeyPoint falsified dozens of reports to hide malfeasance\\n\\nby at least four individual investigators.\\n\\n Publicly Disclosed Allegations. There are four categories of relevant\\n\\npublic disclosures: (1) criminal investigations of individual investigators,\\n\\n\\n 27\\n\\f(2) the news reports, (3) congressional hearings and OPM audits, and (4)\\n\\nthe previously mentioned USIS suit.\\n\\n Criminal Investigations. Between 2007 and 2013, the government\\n\\nprosecuted individual investigators for allegedly falsifying information in\\n\\ntheir reports. At least one of these “criminal cases involve[d] . . . a former\\n\\nKey[P]oint employee who ‘raced through investigations to get more work’\\n\\nand lied about conducting thorough background checks when they were\\n\\nincomplete and rushed.” Id. at 410.\\n\\n News Reports. In 2013, a slew of news reports chronicled the\\n\\nsuspected fraud and widespread sloppiness in the background-investigation\\n\\nindustry. One article in September 2013 reported that the government was\\n\\n“‘pursuing suspected fraud in the granting of security clearances,’ including\\n\\n‘19 private and government investigators for submitting fabricated\\n\\nreports.’” Id. (quoting id. at 307–09 (NBC Article, dated Sept. 18, 2013)).\\n\\nAnother article in June 2013 relayed that OPM had found problems “with\\n\\nprocedures and safeguards used by all three private contractors—USIS,\\n\\nKeyPoint . . . and CACI.” Id. at 303. This article added that “[a]ll three\\n\\ncompanies have had investigators who were found to have done substandard\\n\\nwork in background checks.” Id. Another June 2013 article reporting on\\n\\nallegations against USIS noted that “concerns about background checks\\n\\n\\n 28\\n\\f[were] not limited to USIS.” Id. at 159.\\n\\n Congressional Hearings & OPM Audits. In 2013, Congress twice\\n\\nheld hearings to investigate the background-investigation industry’s\\n\\npractice of using “false, incomplete, or rushed information gathering” in its\\n\\nbackground investigations. Id. at 411 & n.3. OPM reacted by\\n\\ncommissioning an audit of KeyPoint’s and its competitors’ practices. This\\n\\naudit determined that OPM “need[ed] to strengthen its controls over its\\n\\nContractors and the background investigation review process.” Id. at 164.\\n\\nBack in 2010, OPM had completed a report on another audit of the\\n\\nbackground-investigation industry. This earlier report concluded that\\n\\nKeyPoint’s and its competitors’ “quality assurance process” needed\\n\\nimprovement. Id. at 273. The 2010 report also revealed that KeyPoint\\n\\nsometimes “did not conduct the required amount of re-contacts” in its\\n\\ninvestigations, id. at 289, and that there were “falsification and[] integrity\\n\\nissues” with investigations done by USIS, KeyPoint, and CACI, id. at 261.\\n\\n The USIS Suit. In October 2013—a month before Ms. Reed conveyed\\n\\nher allegations to DOJ and two months before she filed her qui tam suit—a\\n\\nfederal court unsealed a complaint against USIS. The complaint included\\n\\nthree qui tam claims against USIS. First, it alleged that USIS had a\\n\\npractice of “dumping” cases. That is, USIS allegedly sent cases “to OPM\\n\\n\\n 29\\n\\fthat were represented as Field Finished” when, in truth, they were\\n\\nunreviewed or “had not been investigated at all.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 5. Second, the complaint claimed that USIS “failed to\\n\\nprovide accurate and complete investigations.” Id. at 10. Third, USIS\\n\\nsupposedly falsely represented to OPM the extent to which it used a\\n\\nsoftware program known as the “Blue Zone.” Id. at 12. But the suit neither\\n\\nmentioned KeyPoint nor implied that USIS’s fraud extended to its\\n\\ncompetitors or the industry as a whole.\\n\\n 3\\n\\n The question now is: Are the allegations in Ms. Reed’s qui tam\\n\\nclaims substantially the same as those in the publicly disclosed sources?\\n\\nWe agree with the district court that the answer to that question is “yes.”\\n\\nThat is, we conclude that the public disclosures were sufficient to set the\\n\\ngovernment on the trail of KeyPoint’s alleged fraud without Ms. Reed’s\\n\\nassistance. 11\\n\\n\\n 11\\n Ms. Reed alleges on appeal that the district court “fail[ed] to do a diligent\\ncomparison of the putative public disclosures with [her] allegations.” Aplt.’s Opening Br.\\nat 3. Not so. Beyond incorporating the magistrate judge’s discussion of the relevant\\nallegations, see Aplt.’s App. at 409, the district court dutifully recounted Ms. Reed’s\\nallegations and the publicly disclosed allegations in turn, see id. at 408–12. From this\\ncomparison, the court then concluded that Ms. Reed’s allegations were substantially\\nsimilar to the publicly disclosed allegations. The sufficiency of this analysis cannot be\\nquestioned. In any event, our review is de novo, and we have thoroughly compared the\\n (continued...)\\n\\n 30\\n\\f At their most general, Ms. Reed’s qui tam claims allege systemic\\n\\nsloppiness and fraud in the background-investigation industry. 12 But the\\n\\ngovernment and the public knew that much already from the news reports.\\n\\nThose news articles painted a picture of widespread problems with the\\n\\nthoroughness and accuracy of the private contractors’ background\\n\\n\\n 11\\n (...continued)\\naverments of Ms. Reed’s operative complaint to the identified public disclosures.\\nAccordingly, Ms. Reed’s assertion that the district court conducted a faulty analysis of the\\nsummary judgment record is ultimately of no moment. Cf. Rivera v. City & County of\\nDenver, 365 F.3d 912, 920 (10th Cir. 2004) (“Because our review is de novo, we need not\\nseparately address Plaintiff’s argument that the district court erred by viewing evidence in\\nthe light most favorable to the City and by treating disputed issues of fact as\\nundisputed.”).\\n 12\\n We, like other circuits, would have reservations about keeping our analysis\\nof Ms. Reed’s allegations solely at such a high level of generality. See Mateski, 816 F.3d\\nat 578 (agreeing with the “Seventh Circuit’s warning against reading qui tam complaints\\nat only the ‘highest level of generality’” (quoting Leveski v. ITT Educ. Servs., Inc., 719\\nF.3d 818, 831 (7th Cir. 2013))). But at what precise level of generality we should\\ncompare a relator’s claims with allegations in public disclosures is a difficult question.\\nThe Act tells us to ask if the relator’s claims are “substantially the same.” 31 U.S.C.\\n§ 3730(e)(4)(A). The ordinary meaning of “substantial” is: “concerning the essentials of\\nsomething.” THE NEW OXFORD AMERICAN DICTIONARY 1687 (2d ed. 2005). And the\\nordinary meaning of “same” is: “identical; not different; unchanged” or “of an identical\\ntype.” Id. at 1498. “Substantially the same,” then, connotes a standard that requires only\\nthe essentials of the relator’s allegations to be identical to or of an identical type as those\\ndisclosed publicly. This plain-meaning analysis comports with our precedent. See\\nBoothe, 496 F.3d at 1174 (noting that “a complete identity of allegations” is unnecessary;\\nit is enough for “the essence of” the relator’s allegations to be “‘derived from’ a prior\\npublic disclosure”). We need not put a finer point on this issue in this case. That is\\nbecause it is clear to us that only if we accept Ms. Reed’s hyper-specific reading that\\nrequires near-complete identity of allegations could we conclude that her allegations are\\nnot substantially similar to those in the public disclosures. And our precedent forecloses\\nsuch a hyper-specific reading. See id.\\n\\n 31\\n\\finvestigations. And that Congress held hearings to probe the background-\\n\\ninvestigation industry’s alleged practice of using “false, incomplete, or\\n\\nrushed information gathering” underscored the pre-existing public\\n\\nawareness of a strong probability of fraud in the industry. Aplt.’s App. at\\n\\n411 & n.3. What is more, the criminal prosecutions of individual\\n\\ninvestigators confirmed that the government knew that investigators in the\\n\\nindustry were falsifying information in their reports.\\n\\n Moving down a rung on the generality ladder to more specific footing,\\n\\nMs. Reed’s claims allege fraud not only in the background-investigation\\n\\nindustry generally, but also in KeyPoint’s specific background-investigative\\n\\npractices. That information, too, was old news to the government. After\\n\\nall, the government prosecuted a former KeyPoint employee for “rac[ing]\\n\\nthrough investigations” and lying “about conducting thorough background\\n\\nchecks when they were incomplete and rushed.” Id. at 410. News reports\\n\\nfrom 2013 added to this knowledge by reporting that OPM had found\\n\\nproblems “with procedures and safeguards used by all three private\\n\\ncontractors—USIS, KeyPoint . . . and CACI.” Id. at 303. To be sure, the\\n\\nnews reports avoided explicitly accusing KeyPoint of defrauding the\\n\\ngovernment. But direct allegations of fraud were unnecessary to put the\\n\\ngovernment on the trail of KeyPoint’s fraud. Cf. Winkelman, 827 F.3d at\\n\\n\\n 32\\n\\f208 (explaining that it is enough that the disclosures “lead to a plausible\\n\\ninference of fraud” (quoting United States ex rel. Ondis v. City of\\n\\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); United States ex rel.\\n\\nOsheroff v. Humana Inc., 776 F.3d 805, 814 (11th Cir. 2015) (same);\\n\\nBoothe, 496 F.3d at 1174 (“[A] complete identity of allegations, even as to\\n\\ntime, place, and manner [is unnecessary].”); Fine, 70 F.3d at 572 (noting\\n\\nthat public disclosures need not allege “any wrongdoing”). Moreover, a\\n\\n2010 OPM audit report revealed both that KeyPoint sometimes “did not\\n\\nconduct the required amount of re-contacts” in its investigations, Aplt.’s\\n\\nApp. at 289, and that there were “falsification and[] integrity issues” with\\n\\ninvestigations done by USIS, KeyPoint, and CACI, id. at 261. The\\n\\ngovernment, then, did not need Ms. Reed’s allegations to pick up the scent\\n\\nof fraud at KeyPoint.\\n\\n At their most specific, Ms. Reed’s claims allege that KeyPoint\\n\\nknowingly defrauded the government by submitting fraudulent reports about\\n\\nthe completeness and accuracy of its investigations. The government could\\n\\nhave inferred as much from the public disclosures. Consider the USIS\\n\\nlawsuit. That suit alleged that USIS failed to review investigations, failed\\n\\nto do adequate investigations, and sent false reports to OPM. Those are the\\n\\nsame basic failings Ms. Reed accuses KeyPoint of. Furthermore, the USIS\\n\\n\\n 33\\n\\fsuit alleged that investigators sent cases “to OPM that were represented as\\n\\nField Finished” when, in truth, they were unreviewed or “had not been\\n\\ninvestigated at all.” Aplt.’s Reply Br., Addendum A, at 5. Ms. Reed’s suit\\n\\nsimilarly asserts that KeyPoint sent OPM false claims “certifying that [its]\\n\\ninvestigators conducted complete, accurate, and proper investigations.”\\n\\nAplt.’s App. at 104, ¶ 359.\\n\\n Considering this information from the USIS lawsuit and the other\\n\\npublicly disclosed matters discussed above, we conclude that the public\\n\\ndisclosures were sufficient to set the government on the trail of KeyPoint’s\\n\\nalleged fraud without Ms. Reed’s assistance. Our cases reinforce this\\n\\nconclusion. Take Fine, for example. The relator there accused Sandia\\n\\nCorporation of misappropriating nuclear waste funds. 70 F.3d at 569. At\\n\\nthe time, Sandia was one of only nine laboratories receiving federal funds\\n\\nfrom the Department of Energy. Before the relator’s suit, a government\\n\\nreport documented how three such laboratories, including Sandia, funded\\n\\ntheir discretionary research. The report concluded that the two other\\n\\nlaboratories—but, notably, not Sandia—were fraudulently “taxing” nuclear\\n\\nwaste funds in order to bolster their research programs, possibly in\\n\\nviolation of federal law. Id. Again without implicating Sandia, a later\\n\\ncongressional hearing further probed the Department of Energy’s\\n\\n\\n 34\\n\\facquiescence to such behavior from its laboratories. As we saw it, that\\n\\nneither the report nor the congressional hearing named Sandia as a\\n\\nwrongdoer was not determinative. Id. at 572. We reasoned that because the\\n\\npublic disclosures had “identified the problem and [there was] an easily\\n\\nidentifiable group of probable offenders,” the disclosures “were sufficient\\n\\nto put the government on notice as to Sandia’s potential for\\n\\nmisappropriating nuclear waste funds.” Id. Thus, we held that the relator’s\\n\\nallegations were substantially the same to those in the report and the\\n\\ncongressional hearing. Id.\\n\\n The same reasoning applies here. As in Fine, the public disclosures\\n\\nhere identified the problem—fraud in background investigations—and\\n\\ntraced that problem to an easily identifiable group of probable offenders\\n\\n(USIS, KeyPoint, and CACI). As in Fine, Congress held hearings to probe\\n\\nthe suspected fraud in this limited industry. Moreover, akin to Fine, a\\n\\ngovernment report (here, the 2010 OPM audit report) laid bare the heart of\\n\\nthe matter—i.e., the falsification and integrity issues that plagued the\\n\\nbackground-investigation industry.\\n\\n But unlike in Fine, some of the public disclosures explicitly linked\\n\\nKeyPoint to the suspected fraud. The OPM audit said that “Contractors”\\n\\nhad falsification issues; that defined term meant USIS, KeyPoint, and\\n\\n\\n 35\\n\\fCACI. And the news reports publicized that OPM had “found problems\\n\\nwith procedures and safeguards used by all three private contractors—USIS,\\n\\nKeyPoint . . . and CACI.” Aplt.’s App. at 303. Thus, although the public\\n\\ndisclosures did not say the words “KeyPoint defrauded the government,” the\\n\\nlink that the disclosures forged between KeyPoint and the fraud was even\\n\\nstronger than the one in Fine, where we held that the substantially-the-same\\n\\nstandard was satisfied. It ineluctably follows that this link was sufficient\\n\\nhere to satisfy that standard—that is, to have set the government on the trail\\n\\nof KeyPoint’s alleged fraud without Ms. Reed’s help.\\n\\n Ms. Reed’s attempts to distinguish Fine fall short. For starters, Ms.\\n\\nReed is mistaken in asserting that “no publicly disclosed information prior\\n\\nto [her] lawsuit indicated that KeyPoint was a wrongdoer.” Aplt.’s Reply\\n\\nBr. at 10. The news reports linked KeyPoint to the fraud allegations roiling\\n\\nthe industry. Even Ms. Reed’s statement that “KeyPoint was not\\n\\ninvestigated for any suspected wrongdoing,” id., rings somewhat hollow.\\n\\nAfter all, the government prosecuted a former KeyPoint employee for lying\\n\\n“about conducting thorough background checks when they were incomplete\\n\\nand rushed.” Aplt.’s App. at 410. Even if Ms. Reed’s characterization of\\n\\nthe absence of a KeyPoint-specific investigation were correct, the fact that\\n\\nKeyPoint was not named as a wrongdoer would not distinguish Fine;\\n\\n\\n 36\\n\\finstead, it would reinforce the parallels with it. And those parallels persist\\n\\neven though—as Ms. Reed points out—unlike the Department of Energy,\\n\\nOPM never “acquiesced to or implicitly approved any fraudulent schemes.”\\n\\nAplt.’s Reply Br. at 10. Ms. Reed overstates the significance of the\\n\\nDepartment of Energy’s acquiescence in Fine. We noted this agency\\n\\nconduct there to emphasize that the government knew of the underlying\\n\\nproblem at issue in a limited industry; our point was not that the\\n\\nacquiescence itself was independently important. See Fine, 70 F.3d at 571.\\n\\nIn sum, Ms. Reed errs in suggesting that Fine is materially distinguishable.\\n\\nIt is not. To the contrary, it bolsters our conclusion that Ms. Reed’s\\n\\nallegations are substantially the same as the publicly disclosed allegations.\\n\\n In re Natural Gas Royalties further supports our view on the\\n\\nsubstantially-the-same question. The relator there alleged that certain\\n\\nnatural gas companies used fraudulent measurement techniques to underpay\\n\\nfederal royalties. The relevant public disclosures included (1)\\n\\ncongressional documents revealing problems with measurement techniques\\n\\nin the natural-gas industry, (2) an earlier qui tam suit against different gas\\n\\ncompanies for the same fraudulent practices, and (3) press accounts\\n\\nreporting on the earlier suit and “disclos[ing] the industrywide nature of\\n\\n[the suit’s] broad allegations.” 562 F.3d at 1042. On appeal, the relator\\n\\n\\n 37\\n\\fargued that these disclosures were not substantially the same as his\\n\\nallegations because the specific “Defendants and techniques were not\\n\\nidentified in any public disclosed allegation.” Id. at 1040. This court\\n\\ndisagreed.\\n\\n Citing Fine, we explained in In re Natural Gas Royalties that “the\\n\\npublic disclosures at issue named a significant percentage of industry\\n\\nparticipants as wrongdoers and indicated that others in the industry were\\n\\nvery likely engaged in the same practices.” Id. at 1042. These revelations\\n\\nalleviated the burden for the government “to comb through myriad\\n\\ntransactions performed by various types of entities in search of potential\\n\\nfraud.” Id. Rather, the government needed only to investigate the\\n\\nmeasurement techniques used by a small pool of actors to ferret out the\\n\\nfraud. For those reasons, we held that, even without naming the specific\\n\\ndefendants and techniques identified by the relator, “the allegations of\\n\\nindustrywide gas mismeasurment disclosed” in the public documents “were\\n\\nsufficient to set the government on the trail of the fraud as to all\\n\\nDefendants.” Id. at 1043.\\n\\n So too here. The allegations in the public disclosures identified\\n\\npervasive fraud in the background-investigation industry. Recall that in the\\n\\nyears before Ms. Reed’s suit, the government prosecuted individual\\n\\n\\n 38\\n\\finvestigators for allegedly falsifying information in their reports.\\n\\nFurthermore, a 2013 news article reported that the government was\\n\\n“pursuing suspected fraud in the granting of security clearances” by\\n\\ncontractors. Aplt.’s App. at 308. And the USIS suit alleged that one of\\n\\nKeyPoint’s two main competitors (i.e., USIS) falsely told OPM that it had\\n\\nprovided “accurate and complete investigations.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 10.\\n\\n As in In re Natural Gas Royalties, the public disclosures here\\n\\nobviated the need for the government “to comb through myriad transactions\\n\\nperformed by various types of entities in search of potential fraud.” 562\\n\\nF.3d at 1042. The disclosures identified three main players (including\\n\\nKeyPoint), and generally unearthed the type of fraud—false certifications\\n\\nof accurate and complete investigations—that the government needed to\\n\\nlook for. Guided by In re Natural Gas Royalties, we conclude that the\\n\\npublicly available information here was more than enough to set the\\n\\ngovernment on the trail of KeyPoint’s fraud without Ms. Reed’s allegations.\\n\\n Ms. Reed rejects such a conclusion. She first argues that her\\n\\nallegations “relate to a different entity” than the entities—notably,\\n\\nUSIS—accused of wrongdoing in the public disclosures. Aplt.’s Opening\\n\\nBr. at 12. Ms. Reed is quick to point out that the USIS suit made “no\\n\\n\\n 39\\n\\fallegations against KeyPoint” and that none of the public disclosures\\n\\nexpressly accused KeyPoint of defrauding the government. Id. at 18.\\n\\nMaybe so. But the substantially-the-same standard does not demand that\\n\\nthe disclosures identify the defendant by name as the wrongdoer. See In re\\n\\nNat. Gas Royalties, 562 F.3d at 1039. To the contrary, it is enough that the\\n\\n“public disclosures alleged industry-wide fraud” and “provide[d] enough\\n\\ninformation” to link the defendant to the scheme. 13 United States ex rel.\\n\\nLager v. CSL Behring, L.L.C., 855 F.3d 935, 946 (8th Cir. 2017). In a\\n\\nsimilar way, “the public disclosure bar contains no requirement that a\\n\\npublic disclosure use magic words.” Winkelman, 827 F.3d at 209. Thus,\\n\\nalthough the public disclosures did not say the magic words “KeyPoint\\n\\ndefrauded the government,” the disclosures were sufficient to link KeyPoint\\n\\nto fraud in an industry with only three players. No more is required.\\n\\n Ms. Reed next argues that her allegations substantially differ from the\\n\\n\\n\\n 13\\n See also Bellevue, 867 F.3d at 719 (noting that the substantially-the-same\\nstandard requires only “that the government had enough information” from the public\\ndisclosures to infer that the defendant knowingly violated the Act); Osheroff, 776 F.3d at\\n814 (same); Jamison, 649 F.3d at 329 (“[T]he public disclosures need not name particular\\ndefendants so long as they ‘alerted the government to the industry-wide nature of the\\nfraud and enabled the government to readily identify wrongdoers through an\\ninvestigation.’” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)); United States ex\\nrel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 729 (7th Cir. 2006)\\n(rejecting “argument that for there to be public disclosure, the specific defendants named\\nin the lawsuit must have been identified in the public records”).\\n\\n 40\\n\\fpublicly disclosed allegations because she exposed different schemes. For\\n\\ninstance, she maintains that “USIS had a very specific fraudulent scheme\\n\\nthat it used to facilitate ‘dumping’ cases.” Aplt.’s Reply Br. at 5. That\\n\\nscheme, Ms. Reed explains, involved representing to OPM that cases were\\n\\ncomplete when they actually were unfinished or “had not been investigated\\n\\nat all.” Id. Her complaint, by contrast, describes “several types of\\n\\nfraudulent schemes specific to KeyPoint that are entirely unrelated to the\\n\\nUSIS case or any of the other publicly disclosed information.” Id. at 6.\\n\\n Ms. Reed is right that some of the schemes she exposed—especially,\\n\\nthe scheme involving the TTP—added to the government’s knowledge\\n\\n(more on this subject later), but these additions do not alter our\\n\\nsubstantially-the-same assessment. For now, the relevant question is only\\n\\nwhether the public disclosures set the government on the trail of KeyPoint’s\\n\\nfraud. As we have explained, this does not require “complete identity of\\n\\nallegations.” Boothe, 496 F.3d at 1174. Rather, it is enough if the relator’s\\n\\ncomplaint is “at least ‘in . . . part’” substantially the same as “the publicly\\n\\ndisclosed information.” Osheroff, 776 F.3d at 814 (alteration in original)\\n\\n(quoting Battle v. Bd. of Regents, 468 F.3d 755, 762 (11th Cir. 2006) (per\\n\\ncuriam)).\\n\\n Moreover, it cannot be gainsaid that in significant, material respects\\n\\n\\n 41\\n\\fMs. Reed’s complaint averments are substantially the same as the complaint\\n\\naverments in the USIS suit. For instance, Ms. Reed’s complaint alleges that\\n\\nKeyPoint conducted “improper, incomplete, and inaccurate investigations.”\\n\\nAplt.’s App. at 33, ¶ 74. The USIS complaint likewise alleges that USIS\\n\\n“failed to provide accurate and complete investigations.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 10. 14 And there are other substantial similarities between\\n\\nthe complaints. Compare Aplt.’s App. at 32, ¶ 64 (alleging that KeyPoint\\n\\n“transformed almost every aspect of its investigative processes to maximize\\n\\nprofits by hitting deadlines and taking on as much work as possible, without\\n\\nconcern for the quality, accuracy, or completeness of its investigations”),\\n\\nwith Aplt.’s Reply Br., Addendum A, at 5 (alleging that USIS pressured\\n\\n“Field Investigators to submit a large number of [reports of investigations]\\n\\nin a short amount of time in order to meet the revenue goals”). Therefore,\\n\\ngiven these substantial similarities, that Ms. Reed’s complaint revealed one\\n\\nor more KeyPoint fraudulent schemes that are distinct from those alleged in\\n\\nthe USIS lawsuit does not dissuade us from the view that the USIS suit\\n\\nhelped put the government on the trail of KeyPoint’s alleged fraud.\\n\\n\\n\\n 14\\n Compare also Aplt.’s App. at 88, ¶ 244 (“Each case was submitted as\\nthough it had been properly completed, reviewed, and checked when none had received\\nthe required oversight.”), with Aplt.’s Reply Br., Addendum A, at 6 (“USIS knowingly\\nsubmitted Cases to OPM for payment that they knew had not been reviewed . . . .”).\\n\\n 42\\n\\f Finally, Ms. Reed argues that the district court erred by not\\n\\nconsidering 2014 congressional testimony from a KeyPoint executive, Ms.\\n\\nOrdakowski, in its substantially-the-same analysis. In that testimony, Ms.\\n\\nOrdakowski told Congress that KeyPoint met or exceeded OPM standards\\n\\nand had “never wavered from its focus on quality.” Aplt.’s Opening Br. at\\n\\n21. Ms. Reed reasons that “if the government had some suspicions about\\n\\nthe quality of KeyPoint’s work,” this testimony would have “throw[n] the\\n\\ngovernment off the trail of the type of fraud [that Ms. Reed] alleges.” Id.\\n\\n This argument crumbles upon even brief reflection. First of all, Ms.\\n\\nOrdakowski testified months after Ms. Reed communicated her allegations\\n\\nto DOJ and after she sued KeyPoint. So the substance of Ms. Ordakowski’s\\n\\ntestimony tells us nothing about whether the government would have picked\\n\\nup the trail of fraud at KeyPoint based on the information it already had\\n\\nwhen Ms. Reed sued KeyPoint. Leaving aside this space-time-continuum\\n\\nproblem, Ms. Reed’s argument defies common sense. That Congress called\\n\\na KeyPoint executive to testify about problems with background\\n\\ninvestigations strongly suggests that Congress thought there was a problem\\n\\nand that KeyPoint potentially was among the culprits. Cf. Fine, 70 F.3d at\\n\\n572 (“[T]he public disclosures here were sufficient to put the government\\n\\non notice as to Sandia’s potential for misappropriating nuclear waste funds\\n\\n\\n 43\\n\\f. . . .”). Simply put, Ms. Ordakowski’s testimony supports the district\\n\\ncourt’s (and our) conclusion that the public disclosures were sufficient to\\n\\nhave alerted the government to KeyPoint’s potential for fraud.\\n\\n In summary, we agree with the district court that the allegations in\\n\\nMs. Reed’s qui tam claims are substantially the same as those in the public\\n\\ndisclosures. Thus, unless Ms. Reed is an “original source” of the\\n\\ninformation in her claims, the public disclosure bar prevents those claims\\n\\nfrom proceeding.\\n\\n B\\n\\n We now take up the question of whether Ms. Reed is an original\\n\\nsource. Recall that the district court concluded that Ms. Reed was not an\\n\\noriginal source and therefore dismissed her qui tam claims under the public\\n\\ndisclosure bar. Ms. Reed argues that in doing so the district court made\\n\\nboth a procedural and a substantive error. The court’s procedural error, she\\n\\nsays, was excluding some of the evidence that she submitted to the court\\n\\nafter it converted KeyPoint’s motion to dismiss to a summary-judgment\\n\\nmotion. As for the alleged substantive error, Ms. Reed contends that the\\n\\ndistrict court erred in concluding that she was not an original source, in\\n\\nparticular, because her complaint averments did not materially add to the\\n\\ninformation in the public disclosures.\\n\\n\\n 44\\n\\f As we explain below, Ms. Reed loses the procedural battle but wins\\n\\nthe substantive war. That is, we hold that the district court did not err in\\n\\nexcluding certain proffered evidence at summary judgment, but we hold that\\n\\nthe court did err in concluding that Ms. Reed was not an original source\\n\\nbecause her complaint averments did not satisfy the materially-adds\\n\\nstandard.\\n\\n 1\\n\\n When a district court relies on material outside the complaint to\\n\\nresolve a Rule 12(b)(6) motion, it ordinarily must convert that motion “into\\n\\na motion for summary judgment.” Burnham v. Humphrey Hosp. REIT Tr.,\\n\\nInc., 403 F.3d 709, 713 (10th Cir. 2005); see F E D . R. C I V . P. 12(d). If a\\n\\ndistrict court intends to convert a motion, it should inform the parties of\\n\\nthis intention and give them “the opportunity to present to the court all\\n\\nmaterial made pertinent to such motion by Rule 56.” Nichols v. United\\n\\nStates, 796 F.2d 361, 364 (10th Cir. 1986) (quoting Ohio v. Peterson,\\n\\nLowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir. 1978)).\\n\\nConverting a motion “without giving the adverse party an opportunity to\\n\\npresent pertinent material is error.” Adams v. Campbell Cty. Sch. Dist., 483\\n\\nF.2d 1351, 1353 (10th Cir. 1973).\\n\\n We review a district court’s choice to exclude evidence at the\\n\\n\\n 45\\n\\fsummary-judgment stage, however, “only for an abuse of discretion.”\\n\\nLifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).\\n\\nWithout “a definite and firm conviction that the [district] court made a\\n\\nclear error of judgment or exceeded the bounds of permissible choice,” we\\n\\ncannot say that the court abused its discretion. Id. (quoting Lantec, Inc. v.\\n\\nNovell, Inc., 306 F.3d 1003, 1016 (10th Cir. 2002)).\\n\\n The district court converted KeyPoint’s Rule 12(b)(6) motion into a\\n\\nsummary-judgment motion. Before doing so, it allowed the parties to\\n\\npresent relevant material. Ms. Reed asked to present three sets of\\n\\nmaterials: (1) documents that she had given the government both before and\\n\\nafter she filed her qui tam suit, (2) a declaration in which she attested “to\\n\\nthe source of her allegations,” and (3) more “briefing on the public\\n\\ndisclosure and original source issues.” Aplt.’s Opening Br. at 30.\\n\\n After considering Ms. Reed’s proffered materials, the district court\\n\\nallowed her to submit only the documents she gave the government in her\\n\\npre-filing disclosures: specifically, the court excluded any post-filing\\n\\ndisclosures to the government, Ms. Reed’s declaration, and the additional\\n\\nbriefing. Those other materials, the court reasoned, would not add “any\\n\\nmaterial information” helpful to the public-disclosure-bar inquiry because\\n\\nMs. Reed’s complaint made “clear what the source of [her] knowledge was”\\n\\n\\n 46\\n\\fand because the parties had fully briefed the applicable legal standards.\\n\\nAplt.’s App. at 404. Thus, under the court’s view, the post-filing\\n\\ndocuments, declaration, and additional briefing “were not ‘made pertinent’\\n\\nby the conversion.” Id. (quoting Nichols, 796 F.2d at 364).\\n\\n To the extent that Ms. Reed argues that the district court erred by\\n\\nrefusing “to allow [her] the opportunity to provide all material evidence,”\\n\\nAplt.’s Opening Br. at 30 (emphasis added), the record proves otherwise.\\n\\nThe court notified the parties of its intention to convert the motion to a\\n\\nsummary-judgment motion, and it gave them time to provide pertinent\\n\\nmaterial. Unlike the parties in the cases she cites, 15 Ms. Reed had ample\\n\\nopportunity to provide the court with “material made pertinent by Rule 56.”\\n\\nNichols, 796 F.2d at 364 (quoting Peterson, 585 F.2d at 457). Indeed, the\\n\\ncourt twice permitted Ms. Reed to amend her complaint to include the post-\\n\\nfiling information she now complains the court excluded. In the end, the\\n\\ncourt gave Ms. Reed notice of the conversion, considered her proffered\\n\\nmaterial, and even accepted some of that evidence.\\n\\n And the district court’s exclusion of the post-filing disclosures, Ms.\\n\\nReed’s declaration, and the added briefing was well within “the bounds of\\n\\n\\n\\n 15\\n See Peterson, 585 F.2d at 457 (reversing because district court gave party\\nno chance to present material); Adams, 483 F.2d at 1353 (same).\\n\\n 47\\n\\fpermissible choice.” LifeWise Master Funding, 374 F.3d at 927 (quoting\\n\\nLantec, 306 F.3d at 1016). Simply put, the court reasonably concluded that\\n\\nnone of those items contained material and relevant information that the\\n\\ncourt did not already possess. Therefore, the excluded materials were not\\n\\n“made pertinent” by the conversion. Nichols, 796 F.2d at 364 (quoting\\n\\nPeterson, 585 F.2d at 457).\\n\\n Ms. Reed, however, begs to differ. She says the excluded post-filing\\n\\ndisclosure statement and personal declaration were “pertinent” to\\n\\n“establish[ing] her status as an original source.” Aplt.’s Opening Br. at 30.\\n\\nThese materials, Ms. Reed contends, would have shown “the extent to\\n\\nwhich [her] allegations materially added to those allegations that had\\n\\npurportedly been publicly disclosed.” Id. at 33. The problem for Ms. Reed\\n\\nis that—as she admitted—the allegations in her complaint were “based\\n\\nalmost entirely upon the documents that were discussed during the\\n\\npre-filing meeting with [DOJ].” Aplee.’s Suppl. App., Vol. VII, at 1419\\n\\n(Ms. Reed’s Objs. to R. & R., filed Sept. 12, 2017). And Ms. Reed twice\\n\\namended her complaint to include the crux of the information from her\\n\\npost-filing disclosures to the government. Ms. Reed’s proffered materials,\\n\\nthen, would have merely duplicated that existing information in the twice-\\n\\namended complaint.\\n\\n\\n 48\\n\\f In the end, we cannot say that the district court abused its discretion\\n\\nas to this procedural matter. Thus, we leave undisturbed the district court’s\\n\\nruling excluding the post-filing disclosures, Ms. Reed’s declaration, and the\\n\\nadditional briefing.\\n\\n 2\\n\\n a\\n\\n Having resolved the procedural issue, we turn to the substance of the\\n\\noriginal-source question. The False Claims Act instructs courts to dismiss\\n\\nqui tam claims under the public disclosure bar “if substantially the same\\n\\nallegations . . . were publicly disclosed”—unless the relator is “an original\\n\\nsource of the information.” 31 U.S.C. § 3730(e)(4)(A). We have already\\n\\nresolved the substantially-the-same question in KeyPoint’s favor. We now\\n\\nmust decide whether the district court erred in determining that Ms. Reed’s\\n\\nqui tam claims cannot escape the public disclosure bar through the original-\\n\\nsource exception.\\n\\n Two types of relators qualify as “original sources.” The first type is a\\n\\nrelator who, “prior to a public disclosure [within the meaning of the Act] . .\\n\\n. , has voluntarily disclosed to the Government the information on which\\n\\nallegations or transactions in a claim are based.” Id. § 3730(e)(4)(B). The\\n\\nsecond type is a relator with “knowledge that is independent of and\\n\\n\\n 49\\n\\fmaterially adds to the publicly disclosed allegations” and who gave the\\n\\ngovernment this information before filing her qui tam claims. Id.\\n\\n Before the district court, Ms. Reed argued that she was an original\\n\\nsource of the second type. The district court agreed that Ms. Reed had in\\n\\nfact given the government her information before she sued KeyPoint. But\\n\\nthe court ruled that Ms. Reed’s allegations did not “materially add” to the\\n\\npublic disclosures. And so, without addressing whether Ms. Reed’s\\n\\nknowledge was “independent of” the public disclosures, the district court\\n\\nconcluded that Ms. Reed was not an original source.\\n\\n On appeal, Ms. Reed argues that the district court erred in concluding\\n\\nthat her allegations did not “materially add” to the public disclosures. As\\n\\nfor the “independent of” portion of the original-source inquiry, Ms. Reed\\n\\nsays in a short footnote that she satisfies that criterion, too. See Aplt.’s\\n\\nOpening Br. at 29 n.8. For its part, KeyPoint posits that “regardless of\\n\\nwhether her knowledge was ‘independent of’ the public disclosures,” Ms.\\n\\nReed is not an original source because her allegations “did not materially\\n\\nadd to the public disclosures.” Aplee.’s Resp. Br. at 34.\\n\\n Our circuit has yet to expound on the meaning of the “materially\\n\\nadds” language in the original-source exception. Congress added this\\n\\nlanguage in the same 2010 amendment discussed earlier but did not define\\n\\n\\n 50\\n\\fthe term. Since then, however, several other courts of appeals have\\n\\ninterpreted the “materially adds” requirement. 16\\n\\n We are particularly persuaded by the First Circuit’s analysis in\\n\\nWinkelman. There, the court framed the relevant question for the\\n\\nmaterially-adds inquiry as “whether the relators’ allegedly new information\\n\\nis sufficiently significant or essential so as to fall into the narrow category\\n\\nof information that materially adds to what has already been revealed\\n\\nthrough public disclosures.” 827 F.3d at 211. To determine what\\n\\ninformation falls into the materially-adds bucket, the First Circuit looked to\\n\\nthe ordinary legal meaning of “material”—i.e., an addition that “is ‘[o]f\\n\\nsuch a nature that knowledge of the item would affect a person’s decision-\\n\\nmaking,’ or if it is ‘significant,’ or if it is ‘essential.’” Id. (quoting\\n\\nB LA C K ’ S L A W D I C T I O N A R Y 1124 (10th ed. 2014) [hereinafter B LA C K ’ S ]). In\\n\\nother words, Winkelman teaches that a relator “materially adds” to public\\n\\n\\n 16\\n Although KeyPoint concedes that the meaning of “materially adds” “is a\\nmatter of first impression for the Tenth Circuit,” Aplee.’s Resp. Br. at 34, it nonetheless\\nrelies on pre-2010-amendment cases to argue that Ms. Reed’s allegations do not\\nmaterially add to the public disclosures, see id. at 36–37. Although the 2010 amendment\\nratified our prior cases by adopting the “substantially the same” language that we already\\nused, the amendment added a new component to the original-source analysis—namely,\\nthe materially-adds inquiry. Before the 2010 amendment, our original-source analysis\\nasked whether the relator “had direct and independent knowledge of the information\\nunderlying his allegations.” In re Nat. Gas Royalties, 562 F.3d at 1043. We did not ask\\nwhether the relator’s knowledge materially added to the public disclosures. Thus, our\\npre-2010-amendment cases are not germane to the materially-adds inquiry.\\n\\n 51\\n\\fdisclosures if her information “is sufficiently important to influence the\\n\\nbehavior of the recipient.” Id.\\n\\n The Winkelman definition of “materially adds” finds support in the\\n\\nAct’s provisions defining the scope of liability, which state that “the term\\n\\n‘material’ means having a natural tendency to influence, or be capable of\\n\\ninfluencing, the payment or receipt of money or property.” 31 U.S.C.\\n\\n§ 3729(b)(4); see also Joel D. Hesch, Restating the “Original Source\\n\\nException” to the False Claims Act’s “Public Disclosure Bar” in Light of\\n\\nthe 2010 Amendments, 51 U. OF R I C H . L. R E V . 991, 1019 (2017) (looking to\\n\\n§ 3729(b)(4) in attempting to discern the meaning of “materially adds” and\\n\\nultimately concluding that it means that “a reasonable person would attach\\n\\nimportance to the information”). Furthermore, though they have applied the\\n\\ndefinition in different ways, a few federal circuit courts have expressly\\n\\nadopted a like definition of “materially adds.” See United States ex rel.\\n\\nAdvocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 816 F.3d 428,\\n\\n431 (6th Cir. 2016) (“Materiality in this setting requires the claimant to\\n\\nshow it had information ‘[o]f such a nature that knowledge of the item\\n\\nwould affect a person’s decision-making,’ is ‘significant,’ or is ‘essential.’”\\n\\n(quoting B LA C K ’ S , supra, at 1124)); United States ex rel. Moore & Co. v.\\n\\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir. 2016) (concluding\\n\\n\\n 52\\n\\fbased on dictionary definitions of the separate words “materially” and\\n\\n“add” that to “‘materially add[]’ to “the publicly disclosed allegation or\\n\\ntransaction of fraud, a relator must contribute significant additional\\n\\ninformation to that which has been publicly disclosed so as to improve its\\n\\nquality”); see also United States ex rel. Paulos v. Stryker Corp., 762 F.3d\\n\\n688, 694–95 (8th Cir. 2014) (relying on dictionary definitions of the\\n\\nseparate words “material” and “add” and suggesting that information\\n\\n“materially adds” to something when it “substantially” or “considerably”\\n\\n“improve[s] or alter[s] its quality or nature” (quoting T H E N E W O X F O R D\\n\\nA M E R I C A N D I C T I O N A R Y 18, 1079 (3d ed. 2010))).\\n\\n Winkelman also offered several helpful guideposts for how to\\n\\ndistinguish between new but immaterial information and material additions.\\n\\nIt noted that what is “significant” or “essential” depends in part on “the\\n\\nlevel of detail in [the] public disclosures.” 827 F.3d at 211. That is, the\\n\\nfewer questions the public disclosures answer, the more room there is for a\\n\\nrelator’s allegations to add material information. However, the court\\n\\npointed out that “a relator who merely adds detail or color to previously\\n\\ndisclosed elements of an alleged scheme is not materially adding to the\\n\\npublic disclosures.” Id. at 213. Winkelman also recognized the potential\\n\\noverlap between the materially-adds inquiry and the inquiry into “whether\\n\\n\\n\\n 53\\n\\fthe relator’s allegations are substantially the same as th[e] prior\\n\\nrevelations.” Id. at 211. “Despite this potential for overlap,” the First\\n\\nCircuit explained, “the ‘materially adds’ inquiry must remain conceptually\\n\\ndistinct; otherwise, the original source exception would be rendered\\n\\nnugatory.” Id. at 211–12.\\n\\n In sum, we find persuasive the materially-adds standard that the First\\n\\nCircuit articulated in Winkelman. Under that standard, a relator who\\n\\ndiscloses new information that is sufficiently significant or important that it\\n\\nwould be capable of “influenc[ing] the behavior of the recipient”—i.e., the\\n\\ngovernment—ordinarily will satisfy the materially-adds standard. Id. at\\n\\n211. On the other hand, a relator who merely adds background information\\n\\nor details about a known fraudulent scheme typically will be found not to\\n\\nhave materially added to the publicly disclosed information. See id. at 213.\\n\\n We recognize that the Seventh Circuit has taken a different path. For\\n\\nexample, in Cause of Action v. Chicago Transit Authority, 815 F.3d 267\\n\\n(7th Cir. 2016), the court held that if a relator’s “allegations are\\n\\nsubstantially similar to those contained in the” public disclosures, her\\n\\nallegations cannot “‘materially add[]’ to the public disclosure[s].” Id. at\\n\\n283. This standard, however, has the effect of collapsing the materially-\\n\\nadds inquiry into the substantially-the-same inquiry. As such, we cannot\\n\\n\\n\\n 54\\n\\fembrace it.\\n\\n The plain terms of the original-source exception contemplate that\\n\\nsome qui tam claims involving allegations that are substantially the same as\\n\\npublicly disclosed allegations nevertheless will survive the public\\n\\ndisclosure bar because they materially add to the publicly disclosed\\n\\ninformation. Yet, the Seventh Circuit’s view runs counter to this idea. And\\n\\nas a logical matter, its view is simply unpersuasive. After all, what good is\\n\\nan exception (i.e., the original-source exception) that does not actually\\n\\nexcept anything? See Hesch, supra, at 1016 (noting that because the\\n\\nmaterially-adds condition “is designed to be an exception to the public\\n\\ndisclosure bar,” it “is not meant to block out relators simply because there\\n\\nhad been a qualifying public disclosure that contains similar allegations”).\\n\\n Reflecting this sort of reasoning, one commentator observed:\\n\\n The addition of the new requirement that the information\\n “materially add” to the publicly disclosed information has\\n caused some confusion. Some courts have required the\\n information to be “qualitatively different” from the publicly\\n disclosed information or not substantially the same as the\\n public disclosure. That approach renders the [materially-\\n adds] requirement the same as the public disclosure\\n question rather than part of an exception to the public\\n disclosure bar. Materially adds connotes the addition of\\n something of significance or import and whether it is\\n substantially the same as the type of information already\\n publicly disclosed should not matter.\\n\\nClaire M. Sylvia, T H E F A LS E C LA I M S A C T : F R A U D A G A I N S T THE\\n\\n\\n 55\\n\\fG O V E R N M E N T § 11:68, Westlaw (database updated June 2018) (emphasis\\n\\nadded) (footnote omitted); see also Hesch, supra, at 1017 (“[M]erely\\n\\nbecause the allegations are substantially the same as a qualifying public\\n\\ndisclosure, a relator still qualifies as an original source if she brings\\n\\nsomething to the table that adds value.”). In sum, we agree with the First\\n\\nCircuit’s assessment in Winkelman: “[T]he ‘materially adds’ inquiry must\\n\\nremain conceptually distinct; otherwise, the original source exception\\n\\nwould be rendered nugatory.” 827 F.3d at 211–12.\\n\\n The path plotted by the Third Circuit in its noteworthy decision,\\n\\nMoore, is less clearly defined. However, in fleshing out our approach, we\\n\\nhighlight a possible point of distinction with it. In Moore, the Third Circuit\\n\\nlooked to “Rule 9(b)’s pleading requirement,” 812 F.3d at 306, as “a\\n\\nhelpful benchmark for measuring ‘materially adds,’” id. at 307. Relying on\\n\\nthis “standard” from Rule 9(b), the court took the position that “a relator\\n\\nmaterially adds to the publicly disclosed allegation or transaction of fraud\\n\\nwhen it contributes information—distinct from what was publicly\\n\\ndisclosed—that adds in a significant way to the essential factual\\n\\nbackground: ‘the who, what, when, where and how of the events at issue.’”\\n\\nId. (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198,\\n\\n217 (3d Cir. 2002)).\\n\\n\\n\\n 56\\n\\f Perhaps Moore is amenable to a narrow interpretation. Cf. id. at 307\\n\\n(noting that the materially-adds standard is not met unless the relator’s\\n\\ninformation “adds in a significant way to the essential factual background”\\n\\nand describing the Rule 9(b) factors as only “a helpful benchmark,” without\\n\\nexpressly saying that the presence of one or more of the factors is always\\n\\ndispositive) (emphasis added)). But see United States v. Medtronic, Inc.,\\n\\n327 F. Supp. 3d 831, 851 (E.D. Pa. 2018) (contrasting Moore’s “relatively\\n\\nbroad definition of materiality” with “Winkelman[’s] . . . narrower\\n\\ndefinition”). However, insofar as Moore is (reasonably) interpreted as\\n\\nholding that a relator’s averments that add a not-insignificant who, what,\\n\\nwhen, where, or how to a publicly disclosed fraudulent scheme should be\\n\\nuniformly deemed to meet the materially-adds standard, we must disagree.\\n\\n In our view, the materially-adds analysis must be firmly grounded in\\n\\nthe facts and circumstances of a particular case. And those facts and\\n\\ncircumstances will guide our determination of whether the who, what,\\n\\nwhen, where, or how actually should be considered sufficiently significant\\n\\nor important to affect the government’s actions regarding the fraudulent\\n\\nscheme. For example, as discussed further below, when, as here, the\\n\\npublicly disclosed fraud exists within an industry with only a few players, a\\n\\nrelator who identifies a particular industry actor engaged in the fraud (i.e.,\\n\\n\\n\\n 57\\n\\fthe “who”) is unlikely to materially add to the information that the public\\n\\ndisclosures had already given the government.\\n\\n We are concerned that Moore (as interpreted above) could allow the\\n\\noriginal-source exception to swallow the public disclosure bar.\\n\\nSpecifically, one might read the Third Circuit’s approach in that case to\\n\\npermit “a relator who merely adds detail or color to previously disclosed\\n\\nelements of an alleged scheme” to qualify as an original source.\\n\\nWinkelman, 827 F.3d at 213; see Medtronic, 327 F. Supp. 3d at 851\\n\\n(“Moore and Winkelman apply two different standards: Moore adopted a\\n\\nrelatively broad definition of materiality while Winkelman adopted the\\n\\nnarrower definition from Universal Health [Services, Inc. v. United States\\n\\nex rel. Escobar, 579 U.S. ----, 136 S. Ct. 1989 (2016)].” (citation omitted)).\\n\\nLike the First Circuit, we do not think that adding detail or color is enough.\\n\\nSee also United States ex rel. Hastings v. Wells Fargo Bank, NA, Inc., 656\\n\\nF. App’x 328, 331–32 (9th Cir. 2016) (unpublished) (Mem. Op.)\\n\\n(“Allegations do not materially add to public disclosures when they provide\\n\\nonly background information and details relating to the alleged fraud—they\\n\\nmust add value to what the government already knew.”).\\n\\n Thus, we are guided here by materially-adds principles that are\\n\\ngenerally consistent with those the First Circuit articulated in Winkelman.\\n\\n\\n\\n 58\\n\\fWe believe that these principles are faithful to the balance struck by\\n\\nCongress, in amending the original-source exception in 2010, between\\n\\n“attracting whistleblowers and not paying rewards” to relators who fail to\\n\\nprovide information that “materially adds value.” Hesch, supra, 1026,\\n\\n1040.\\n\\n b\\n\\n We now turn to the question of whether Ms. Reed satisfies this\\n\\nstandard. Although we conclude that most of Ms. Reed’s arguments\\n\\nrelative to this standard fall short, we are persuaded that her complaint\\n\\naverments regarding the TTP program materially add to the information in\\n\\nthe public disclosures. Therefore, she prevails on this component of the\\n\\noriginal-source inquiry.\\n\\n Ms. Reed argues that her allegations materially add to the public\\n\\ndisclosures in several ways. First, Ms. Reed points out that her complaint\\n\\nidentifies “a new defendant” (KeyPoint). Aplt.’s Opening Br. at 25.\\n\\nSecond, she reasons that naming individual “investigators who violated\\n\\nOPM requirements” adds to the disclosures. Id. Third, Ms. Reed posits\\n\\nthat she materially adds to the disclosures because she did her own\\n\\ninvestigation into KeyPoint. Fourth, she says that her allegations\\n\\nuncovered “new schemes to defraud the government (e.g., the telephone\\n\\n\\n\\n 59\\n\\ftestimony violations).” Id.\\n\\n To begin, we disagree that naming KeyPoint as a wrongdoer\\n\\nmaterially adds to the public disclosures. After all, the news reports linked\\n\\nKeyPoint to the suspected fraud in the background-investigation industry.\\n\\nAnd the 2010 OPM audit report revealed that there were “falsification and[]\\n\\nintegrity issues” with investigations done by USIS, KeyPoint, and CACI.\\n\\nAplt.’s App. at 261. Consequently, Ms. Reed is mistaken in suggesting that\\n\\nthere was “no information concerning KeyPoint specifically in the public\\n\\ndomain.” Aplt.’s Opening Br. at 28. To be sure, the disclosures did not\\n\\n“use the word ‘fraud’” when discussing KeyPoint. Advocates for Basic\\n\\nLegal Equal., 816 F.3d at 432. But that omission is irrelevant because the\\n\\ndisclosures “presented enough facts to create an inference of wrongdoing”\\n\\nby KeyPoint. Id. at 433 (quoting United States ex rel. Jones v. Horizon\\n\\nHealthcare Corp., 160 F.3d 326, 332 (6th Cir. 1998)).\\n\\n At bottom, the government already suspected fraud in the background-\\n\\ninvestigation industry. Counting KeyPoint, that industry only has three\\n\\nmain players; and the disclosures linked KeyPoint to the suspected fraud.\\n\\nWe cannot see how naming KeyPoint adds information of sufficient\\n\\nsignificance or importance “to influence the [government’s] behavior.”\\n\\nWinkelman, 827 F.3d at 211. Put another way, this is an instance in which\\n\\n\\n\\n 60\\n\\faverments regarding the “who” of a publicly disclosed fraudulent scheme\\n\\nare not a material addition within the meaning of the original-source\\n\\nexception. Cf. Moore, 812 F.3d at 307.\\n\\n Similarly, identifying individual investigators as wrongdoers “merely\\n\\nadds detail or color to previously disclosed elements of an alleged scheme.”\\n\\nWinkelman, 827 F.3d at 213. The government knew that individual\\n\\ninvestigators (including a former KeyPoint employee) “lied about\\n\\nconducting thorough background checks when they were incomplete and\\n\\nrushed.” Aplt.’s App. at 410. And a September 2013 article reported that\\n\\nthe government was “pursuing suspected fraud in granting of security\\n\\nclearances” and had already convicted at least “19 private and government\\n\\ninvestigators for submitting fabricated reports.” Id. at 308. True, Ms.\\n\\nReed’s allegations suggested that the problem was more pervasive at\\n\\nKeyPoint than the public disclosures hinted. But if identifying new\\n\\nemployees engaged in fraud were enough, the original-source exception\\n\\nwould burst from overbreadth. Cf. Winkelman, 827 F.3d at 212 (explaining\\n\\nthat giving “specific examples of” publicly known fraud “does not provide\\n\\nany significant new information”).\\n\\n Ms. Reed also is mistaken that her allegations materially add to the\\n\\npublic disclosures because she did her own investigation into KeyPoint.\\n\\n\\n\\n 61\\n\\fFor starters, as KeyPoint rightly points out, “the ‘materially adds’\\n\\nrequirement . . . focuses on the substance of the allegations, not the\\n\\nsource.” Aplee.’s Resp. Br. at 37. That Ms. Reed’s independent\\n\\ninvestigation confirmed, as to KeyPoint, some of the allegations floating\\n\\naround the public sphere is arguably relevant to the question of whether her\\n\\nknowledge is independent of the public disclosures, but that question is not\\n\\npresently before us. See Kennard, 363 F.3d at 1046–47 (explaining that\\n\\nrelators had “direct and independent knowledge” because they did “their\\n\\nown investigation”). In sum, in our view, Ms. Reed’s separate investigation\\n\\nis irrelevant to the materially-adds question. See Winkelman, 827 F.3d at\\n\\n212 (rejecting argument that relators materially added to the public\\n\\ndisclosures by “trumpet[ing] their personal knowledge of specific instances\\n\\nof alleged [fraud]”). As the Eighth Circuit remarked, “A relator is not an\\n\\noriginal source of information . . . simply because he discovered or\\n\\nsuspected it first” through his own investigation if that investigation only\\n\\nconfirms what was “already thoroughly revealed.” Paulos, 762 F.3d at 694.\\n\\n All that said, we ultimately conclude that Ms. Reed does satisfy the\\n\\nmaterially-adds standard. We reach that conclusion because we determine\\n\\nthat Ms. Reed’s allegations regarding the TTP materially add to the\\n\\ninformation available in the public disclosures for two related and\\n\\n\\n\\n 62\\n\\fintertwined reasons. First, Ms. Reed makes specific allegations of both\\n\\ninvestigator- and management-level fraud in the distinct context of the TTP.\\n\\nSecond, many of Ms. Reed’s allegations concerning KeyPoint’s responses to\\n\\nher reports of possible fraud in the TTP provide direct evidence of\\n\\nKeyPoint’s scienter. Neither the allegations of investigator- and\\n\\nmanagement-level fraud in the TTP context nor the allegations of\\n\\nKeyPoint’s scienter were available via the public disclosures. Considered\\n\\ntogether, these allegations reveal a “new scheme[] to defraud the\\n\\ngovernment” involving repeated violations of the TTP by KeyPoint\\n\\ninvestigators and management. Aplt.’s Opening Br. at 25. And they offer\\n\\n“[t]rue evidence of intent or guilty knowledge” by KeyPoint, Hesch, supra,\\n\\nat 1026, insofar as they aver Ms. Reed’s specific knowledge of KeyPoint\\n\\nmanagers’ efforts to knowingly cover up the TTP violations. Cf. United\\n\\nStates ex rel. Ambrosecchia v. Paddock Labs., LLC, 855 F.3d 949, 955 (8th\\n\\nCir. 2017) (“[Relator] claims that her information materially adds to the\\n\\nexisting information by demonstrating scienter. However, the complaint\\n\\nprovides no more than the simple, conclusory allegation that Defendants’\\n\\nactions were knowing . . . . Accordingly, [relator’s] complaint is\\n\\ninsufficient to plausibly state that she qualifies as an original source.”\\n\\n(citation omitted)).\\n\\n\\n\\n 63\\n\\f Ms. Reed’s allegations of scienter make us especially confident that\\n\\nher allegations regarding KeyPoint’s fraudulent TTP practices satisfy the\\n\\nmaterially-adds standard. False Claims Act “cases often turn on the issue\\n\\nof scienter.” Hesch, supra, at 1024. Yet, “the government is never in a\\n\\ngood position to have direct evidence of guilty knowledge.” Id. Thus, Ms.\\n\\nReed’s allegations that KeyPoint’s investigators and managers tried to\\n\\nknowingly cover up the TTP violations amplify the materiality of the\\n\\nunderlying allegations of TTP fraud. Cf. Winkelman, 827 F.3d at 213 (“We\\n\\ndo not rule out the possibility that furnishing information that a particular\\n\\ndefendant is acting ‘knowingly’ (as opposed to negligently) sometimes may\\n\\nsuffice as a material addition to information already publicly disclosed.”);\\n\\nHesch, supra, at 1027 (“[R]egardless of how well defined the fraud\\n\\nallegations are in a qualifying public disclosure, when a relator brings forth\\n\\nknowledge of scienter that is not specifically contained in a qualifying\\n\\npublic disclosure it should be presumed to materially add value.”).\\n\\n Now consider those underlying allegations. Recall that investigators\\n\\nwere generally required to conduct in-person interviews, but the TTP\\n\\npermitted them to do telephone interviews under some circumstances so\\n\\nlong as they kept their total number of telephone interviews below a certain\\n\\npercentage threshold. Each month, OPM would send KeyPoint a list of\\n\\n\\n\\n 64\\n\\finvestigators who exceeded their allotted number of telephone interviews\\n\\nduring the last month. KeyPoint then would be obliged to send OPM\\n\\n“corrective action report[s]” explaining each infraction and what it was\\n\\ndoing to remedy the problem. Aplt.’s App. at 31, ¶ 54.\\n\\n Ms. Reed avers that KeyPoint investigators repeatedly violated the\\n\\nTTP and KeyPoint management regularly falsified corrective action reports\\n\\nto cover up the violations. For instance, one corrective action report by a\\n\\nKeyPoint Field Manager justified an investigator’s violations by claiming\\n\\nthat telephone interviews were “justified due to weather and due ‘to the\\n\\nremote and large geographical area [the investigator] work[ed].’” Id. at 90,\\n\\n¶ 262. When Ms. Reed looked into the matter, she discovered that the\\n\\nreport was false; the investigator’s sources were actually “located in nearby\\n\\nColorado, well within the territory he was required to cover in person” Id.\\n\\nat 90, ¶ 264. When Ms. Reed recommended that the investigator be\\n\\ndisciplined for violating the TTP, rather than do so and correct the false\\n\\ncorrective action report, a KeyPoint Regional Manager “tried to persuade\\n\\n[Ms.] Reed that [the investigator] was covering remote territory in\\n\\nWyoming.” Id. at 90, ¶¶ 265–267.\\n\\n Similarly, Ms. Reed determined that another investigator was\\n\\nviolating the TTP by “not giv[ing] many sources the opportunity for in-\\n\\n\\n\\n 65\\n\\fperson interviews,” id. at 95 ¶ 298, and that KeyPoint management had\\n\\nfalsely “certified that [the investigator] had not conducted the telephonic\\n\\ntestimonies that OPM had indicated,” id. at 96, ¶ 300. Ms. Reed\\n\\nspecifically informed identified members of KeyPoint management that the\\n\\ninvestigator was violating the TTP—which meant that KeyPoint’s prior\\n\\ncertifications to OPM to the contrary were false. See id. But rather than\\n\\ndiscipline the investigator and correct the false certifications, the\\n\\ninvestigator’s “Field Manager continued to issue Corrective Action Reports\\n\\nto OPM about [the investigator] that claimed geographic distance and\\n\\nsource request, when Reed had already shown KeyPoint’s management that\\n\\n[the investigator] had conducted phone interviews without attempting to\\n\\nconduct in-person interviews.” Id. at 96, ¶ 310.\\n\\n Furthermore, on more than one occasion, in response to Ms. Reed’s\\n\\nefforts to correct problems in the TTP, “KeyPoint management told [her] to\\n\\nstop interfering.” Id. at 95, ¶ 292; see also id. at 96, ¶ 308 (“[Ms.] Reed\\n\\nwas later told to ‘stop interfering.’”). In short, Ms. Reed’s complaint offers\\n\\npages of details describing how KeyPoint managers knowingly schemed to\\n\\ndefraud the government by covering up systemic violations of the TTP.\\n\\n None of the public disclosures accused KeyPoint—or the industry\\n\\ngenerally—of fraud relating to a TTP. The news reports, for instance,\\n\\n\\n\\n 66\\n\\ffocused generally on problems in the industry with “investigators who were\\n\\nfound to have done substandard work in background checks.” Id. at 303.\\n\\nThe articles do not hint at systemic investigator fraud designed to evade the\\n\\nrequirements of a TTP (e.g., its percentage ceiling for conducting telephone\\n\\ninterviews), let alone discuss knowing efforts of management personnel to\\n\\ncover up that fraud. Likewise, Congress suspected KeyPoint and its\\n\\ncompetitors only of using “false, incomplete, or rushed information\\n\\ngathering” in its background investigations but unearthed no evidence that\\n\\nindustry management knowingly lied about the circumstances in which they\\n\\ngathered information by telephone. Id. at 411 & n.3. The two OPM audits\\n\\ndo not even reference a TTP or fraudulent corrective action reports\\n\\ncovering up violations of such a program. And the USIS suit alleged that\\n\\nUSIS investigators “dumped” incomplete and unreviewed cases to OPM and\\n\\nabused OPM’s “Blue Zone software.” Aplt.’s Reply Br., Addendum A, at\\n\\n6–12. But this suit makes no mention of a TTP, corrective action reports,\\n\\nor a scheme by management to cover up deficiencies under that program.\\n\\n In short, Ms. Reed’s allegations regarding KeyPoint’s fraudulent\\n\\npractices related to its TTP added material information to the public\\n\\ndisclosures that satisfied the Act’s materially-adds standard. These\\n\\nallegations had the effect of “expanding the scope of the fraud” revealed in\\n\\n\\n\\n 67\\n\\fthe public disclosures and introducing “knowledge of scienter that is not\\n\\nspecifically contained in a qualifying public disclosure.” Hesch, supra, at\\n\\n1023, 1027. This is not a case where the relator’s allegations contributed\\n\\nnothing more than personal “knowledge (even if gained early and\\n\\nindependently).” Paulos, 762 F.3d at 694. Nor is it a situation where the\\n\\nallegations of fraud in the public disclosures were so detailed that there was\\n\\nno room for Ms. Reed to materially add to them with her allegations of\\n\\nKeyPoint’s fraudulent TTP practices. Winkelman, 827 F.3d at 211 (“As the\\n\\nlevel of detail in public disclosures increases, the universe of potentially\\n\\nmaterial additions shrinks.”). Indeed, her allegations about KeyPoint’s\\n\\nscheme to evade the TTP did more than “add[] detail or color to previously\\n\\ndisclosed elements of an alleged scheme.” Id. at 213; see also Hastings,\\n\\n656 F. App’x at 331–32 (“Allegations do not materially add to public\\n\\ndisclosures when they provide only background information and details\\n\\nrelating to the alleged fraud—they must add value to what the government\\n\\nalready knew.”). Hence, we conclude that Ms. Reed’s complaint averments\\n\\nrelating to KeyPoint’s fraudulent TTP practices reveal information “[o]f\\n\\nsuch a nature that knowledge of the item would affect [the government’s]\\n\\ndecision-making.” Winkelman, 827 F.3d at 211 (first alteration in original)\\n\\n(quoting B LA C K ’ S , supra, at 1124). In other words, her allegations\\n\\n\\n\\n 68\\n\\fmaterially add to the public disclosures.\\n\\n The soundness of this conclusion is highlighted when one contrasts\\n\\nthe materiality of the new fraudulent scheme that Ms. Reed alleges\\n\\nregarding the TTP with the immateriality of the added information at issue\\n\\nin Osheroff. The relator in Osheroff alleged that certain medical clinics\\n\\nwere violating the federal anti-kickback law and related government\\n\\ncontracts by providing “a variety of free services for patients . . . ,\\n\\nincluding transportation, meals, spa and salon services, and entertainment.”\\n\\n776 F.3d at 808. An earlier lawsuit had disclosed a different clinic’s\\n\\nsimilar practices. And news reports publicized that the defendant-clinics\\n\\nprovided “‘free lunch’ . . . and free transportation.” Id. at 813. In arguing\\n\\nthat he was an original source, the relator emphasized that his complaint\\n\\nadded to the public disclosures by revealing “the type of food the clinics\\n\\nserved . . . , the destinations of some of the free transportation, the\\n\\nfrequency of salon services, and the price of the substitute services or\\n\\ngoods.” Id. at 815. The Eleventh Circuit, however, was “not persuaded.”\\n\\nId. At best, the court explained, the relator’s “complaint add[ed]\\n\\nbackground information and details relating to the value of the services\\n\\noffered, making it somewhat more plain that the clinics’ programs could\\n\\nviolate the [statute].” Id. That was not enough. The court held that under\\n\\n\\n\\n 69\\n\\fthe 2010 version of the False Claims Act, the relator’s “information d[id]\\n\\nnot materially add to the public disclosures, which were already sufficient\\n\\nto give rise to an inference that the clinics were providing illegal\\n\\nremuneration to patients.” Id.\\n\\n Ms. Reed’s complaint averments relating to KeyPoint’s distinct TTP\\n\\nfraud stand in stark contrast to the general background information\\n\\nregarding an existing fraudulent scheme that the relator delivered in\\n\\nOsheroff. Unlike in Osheroff, Ms. Reed’s allegations do not add a few\\n\\nmore breadcrumbs on an existing trail; they blaze a new trail.\\n\\n We underscore that we do not rest our holding that Ms. Reed has\\n\\nsatisfied the materially-adds standard based solely on either her allegations\\n\\nconcerning specific instances of investigator- and management-level fraud\\n\\nin the TTP or her allegations concerning KeyPoint’s responses to her\\n\\nreports of possible TTP fraud—notably, to cover up fraud—that evinced\\n\\nKeyPoint’s scienter. Instead, we base our holding on the combined,\\n\\nsynergistic effect of the allegations of distinct misconduct in the TTP and\\n\\nthe related and intertwined allegations detailing KeyPoint’s knowing efforts\\n\\nto cover up TTP violations. The combination of these allegations clearly\\n\\npermit Ms. Reed to satisfy the materially-adds standard. We need not—and\\n\\nthus do not—opine on whether either of the two related and intertwined\\n\\n\\n\\n 70\\n\\ffeatures of Ms. Reed’s TTP allegations, standing alone, would be sufficient\\n\\nto satisfy the materially-adds standard.\\n\\n * * *\\n\\n In sum, we agree with the district court that the allegations in Ms.\\n\\nReed’s qui tam claims are substantially the same as those in the public\\n\\ndisclosures. But we disagree with the court’s conclusion that Ms. Reed’s\\n\\nallegations do not materially add to the public disclosures, such that she did\\n\\nnot qualify as an original source. As a consequence, we vacate the district\\n\\ncourt’s summary-judgment order that dismissed Ms. Reed’s qui tam claims.\\n\\nHowever, because the district court did not reach the second part of the\\n\\noriginal-source standard—i.e., whether Ms. Reed’s allegations are\\n\\n“independent of” the public disclosures—we remand the case for the\\n\\ndistrict court to resolve that question in the first instance. 17 See Tabor v.\\n\\n 17\\n We likewise decline KeyPoint’s invitation to affirm the district court’s\\njudgment on alternative bases not ruled on by the district court. See Aplee.’s Resp. Br. at\\n58–60 (arguing that Ms. Reed’s FCA claims fail for want of (1) particularity under Rule\\n9(b), (2) falsity, (3) materiality, and (4) scienter). Although it is true that we may affirm\\non any basis finding support in the record, see Richison v. Ernest Grp., Inc., 634 F.3d\\n1123, 1130 (10th Cir. 2011), we are often “reluctant” to do so when “we are deprived of\\nthe benefit of vigorous adversarial testing of the issue, not to mention a reasoned district\\ncourt decision on the subject.” Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013);\\naccord Sylvia v. Wisler, 875 F.3d 1307, 1325 (10th Cir. 2017). KeyPoint offers only brief\\narguments in support of the alternative bases for affirmance. In these circumstances, the\\nsuperior course of action is to remand so that district court may decide the issues in the\\nfirst instance. See United States v. McLinn, 896 F.3d 1152, 1157 (10th Cir. 2018)\\n(declining to rule on inadequately briefed issues “not fully addressed by the district\\n (continued...)\\n\\n 71\\n\\fHilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not\\n\\nbeen ruled on by the court below, we generally favor remand for the district\\n\\ncourt to examine the issue.”); see also Singleton v. Wulff, 428 U.S. 106, 120\\n\\n(1976) (“It is the general rule, of course, that a federal appellate court does\\n\\nnot consider an issue not passed upon below.”).\\n\\n III\\n\\n We now turn to Ms. Reed’s retaliation claim. The False Claims Act\\n\\nprotects whistleblowers from retaliation by their employers. See Potts, 908\\n\\nF.3d at 613–14 (discussing 31 U.S.C. § 3730(h)). To state a claim of\\n\\nretaliation, a plaintiff must meet her “burden of pleading facts” that prove\\n\\n(1) she engaged in protected activity, (2) the defendant “had been put on\\n\\nnotice” of that protected activity, and (3) the defendant retaliated against\\n\\nthe plaintiff “because of” that activity. McBride v. Peak Wellness Ctr.,\\n\\nInc., 688 F.3d 698, 704 (10th Cir. 2012); see also 31 U.S.C. § 3730(h).\\n\\n Ms. Reed alleges that KeyPoint retaliated against her by firing her for\\n\\ntrying to stop it from violating the False Claims Act. The district court\\n\\ngranted KeyPoint’s Rule 12(b)(6) motion to dismiss this retaliation claim\\n\\nbecause Ms. Reed had, in the district court’s view, inadequately pleaded\\n\\nthat KeyPoint was on notice that she was engaging in protected activity.\\n\\n 17\\n (...continued)\\ncourt”).\\n\\n 72\\n\\f We review de novo “the district court’s dismissal under Rule\\n\\n12(b)(6).” United States ex rel. Polukoff v. St. Mark’s Hosp., 895 F.3d 730,\\n\\n740 (10th Cir. 2018) (quoting United States ex rel. Lemmon v. Envirocare\\n\\nof Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010)). Dismissal under Rule\\n\\n12(b)(6) “is appropriate only if the complaint, viewed in the light most\\n\\nfavorable to plaintiff, ‘lacks “enough facts to state a claim to relief that is\\n\\nplausible on its face.”’” Conner, 543 F.3d at 1217 (quoting Trentadue v.\\n\\nIntegrity Comm., 501 F.3d 1215, 1236 (10th Cir. 2007)).\\n\\n Applying these standards, we affirm the district court’s dismissal of\\n\\nMs. Reed’s retaliation claim. At the outset, we are constrained to point out\\n\\nthat the district court relied on a legally erroneous view of what constitutes\\n\\nprotected activity. But we “can affirm the district court’s dismissal on any\\n\\nground sufficiently supported by the record.” GF Gaming Corp. v. City of\\n\\nBlack Hawk, 405 F.3d 876, 882 (10th Cir. 2005); accord George v. Urban\\n\\nSettlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016). And we determine\\n\\nthat, under the correct legal understanding of protected activity, Ms. Reed\\n\\nhas failed to plead sufficient facts to show that KeyPoint was on notice of\\n\\nher purported protected activity. For that reason, we affirm the district\\n\\ncourt’s order dismissing Ms. Reed’s retaliation claim.\\n\\n A\\n\\n\\n\\n 73\\n\\f The False Claims Act protects whistleblowers who engage in\\n\\n“protected activity.” Armstrong, 897 F.3d at 1286. Until 2009, protected\\n\\nactivity included only “lawful acts done by the employee . . . in furtherance\\n\\nof an action under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h)\\n\\n(2008). The circuit courts split over what conduct qualified as “in\\n\\nfurtherance of” a qui tam action. Our circuit and several others interpreted\\n\\nthat language to mean that protected activity encompassed conduct\\n\\npreparing for “a private qui tam action or assisting in an . . . action brought\\n\\nby the government.” United States ex rel. Ramseyer v. Century Healthcare\\n\\nCorp., 90 F.3d 1514, 1522 (10th Cir. 1996); accord Robertson v. Bell\\n\\nHelicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). In these\\n\\ncircuits, an employee who, for example, reported a False Claims Act\\n\\nviolation to her supervisor but did not pursue a qui tam action had not\\n\\nengaged in protected activity. See, e.g., Zahodnick v. Int’l Bus. Machs.\\n\\nCorp., 135 F.3d 911, 914 (4th Cir. 1997). Other circuits, by contrast, read\\n\\n“in furtherance of” more broadly to include protection against “retaliation\\n\\nfor filing an internal complaint.” United States ex rel. Grenadyor v.\\n\\nUkrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1108–09 (7th Cir. 2014)\\n\\n(describing the Seventh Circuit’s pre-2009 precedent).\\n\\n Congress resolved this circuit split in 2009. That year, it amended\\n\\n\\n\\n 74\\n\\fthe False Claims Act’s whistleblower protections to protect employees who\\n\\ntake “lawful” actions “in furtherance of other efforts to stop 1 or more\\n\\nviolations” of the False Claims Act. 31 U.S.C. § 3730(h)(1) (2009)\\n\\n(emphasis added). With this amendment, Congress thereby expanded “the\\n\\nuniverse of protected conduct.” 18 United States ex rel. Chorches v. Am.\\n\\nMed. Response, Inc., 865 F.3d 71, 97 (2d Cir. 2017). In this expanded\\n\\nuniverse, whistleblowers who lawfully try to stop one or more violations of\\n\\nthe Act are protected, without regard to whether their conduct advances a\\n\\nprivate or government lawsuit under the Act.\\n\\n Congress did amend the whistleblower protections again in 2010. As\\n\\na consequence, the now-effective protections expressly apply to an\\n\\nemployee’s “lawful” acts “in furtherance of” either “an action” under the\\n\\nAct “or other efforts to stop 1 or more violations of” the Act. 31 U.S.C.\\n\\n§ 3730(h)(1); see also United Stated ex rel. Grant v. United Airlines Inc.,\\n\\n912 F.3d 190, 201 & n.3 (4th Cir. 2018) (noting these two amendments to\\n\\nthe Act). But as is evident, the 2010 amendment left intact the 2009\\n\\namendment’s broad “other efforts to stop” language, which is our focus in\\n\\n\\n 18\\n See also United States ex rel. Grant v. United Airlines Inc., 912 F.3d 190,\\n201 (4th Cir. 2018) (“[W]e and other circuits have recognized that the amended language\\nbroadens the scope of protected activity.”); Halasa v. ITT Educ. Servs., Inc., 690 F.3d\\n844, 847–48 (7th Cir. 2012) (noting the broader scope of protected activity under the\\namended provision).\\n\\n 75\\n\\fthis appeal. Thus, Ms. Reed could avail herself of this “other efforts to\\n\\nstop” language in this action.\\n\\n The district court, however, failed to acknowledge the expanded\\n\\nuniverse that the 2009 amendment defined. Instead, it assessed the\\n\\nsufficiency of Ms. Reed’s averments under the pre-2009 rubric. In this\\n\\nregard, the court wrongly declared that under the False Claims Act “the\\n\\nactivity prompting plaintiff’s discharge must have been taken ‘in\\n\\nfurtherance of’ a[] [qui tam] action.” Aplt.’s App. at 417 (quoting\\n\\nMcBride, 688 F.3d at 703–04). 19 The plain text of the amended\\n\\nwhistleblower provisions does not support such a narrow view. Congress\\n\\nadded the “other efforts to stop” language for a reason—namely, to stretch\\n\\n\\n 19\\n Although we decided McBride in 2012, the conduct at issue there occurred\\nin January 2009—before the 2009 amendment took effect in May of that year. See Fraud\\nEnforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(f), 123 Stat. 1617\\n(2009) (effective date May 20, 2009). McBride, then, had no reason to consider or apply\\nthe amended whistleblower provision. Hence, its analysis is inapposite to post-2009\\nprotected conduct. That said, in a 2017 unpublished opinion, a panel of our court quoted\\nMcBride for the proposition that “without evidence that [plaintiff] was planning to report\\n[defendant] to the government or file a qui tam suit, [plaintiff’s] retaliation claim cannot\\nsurvive summary judgment.” Cash v. Lockheed Martin Corp., 684 F. App’x 755, 764\\n(10th Cir. 2017) (unpublished) (quoting McBride, 688 F.3d at 704). That seeming\\ndeclaration of post-2009-amendment law (embodied in a 2017 decision) is of course not\\nbinding on us; Cash is not precedential. See 10TH CIR. R. 32.1(A). More fundamentally,\\nCash is problematic because (1) it is contrary to the plain text of the current (i.e., post-\\namendment) whistleblower provisions, (2) contains no analysis of the change in statutory\\nlanguage, and (3) conflicts with the decisions of our sister circuits that have construed the\\ncurrent provisions, see, e.g., Grant, 912 F.3d at 201. Accordingly, we decline to follow\\nCash’s lead, and KeyPoint’s reliance on Cash is unavailing.\\n\\n 76\\n\\fthe “protected activity” umbrella to cover additional conduct. When\\n\\n“Congress expands the scope of activity protected by a statute, we cannot\\n\\nrestrict ourselves to applying a narrower old standard that the expansion . .\\n\\n. eschew[ed].” Grant, 912 F.3d at 201. The district court mistakenly did\\n\\njust that. Tellingly, the phrase “other efforts to stop” does not appear in\\n\\nthe district court’s order, and the court fails to cite a single case applying\\n\\nthe amended provision. Simply put, the district court applied the wrong\\n\\nversion of the statute.\\n\\n This error necessarily affected the district court’s consideration of\\n\\nwhether Ms. Reed adequately pleaded notice. To adequately plead a\\n\\nretaliation claim, a plaintiff must aver that the defendant was on notice of\\n\\nher protected activity. See Armstrong, 897 F.3d at 1286. Once Congress\\n\\nexpanded the scope of protected activity, the universe of conduct that a\\n\\nplaintiff could allege to show notice also necessarily expanded. See United\\n\\nStates ex rel. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 434 & n.6 (4th\\n\\nCir. 2015) (explaining that the amendment expanded the boundaries of what\\n\\nconstitutes notice of protected activity). But because the district court\\n\\nthought that only conduct in furtherance of a qui tam lawsuit was properly\\n\\nclassified as “protected activity,” the court asked the wrong question—an\\n\\nimproperly narrow one. It asked only whether Ms. Reed pleaded facts\\n\\n\\n\\n 77\\n\\fsufficient to show that KeyPoint was on notice that she was “taking action\\n\\nin furtherance of a private qui tam action or assisting in an . . . action\\n\\nbrought by the government.” Aplt.’s App. at 417 (quoting Ramseyer, 90\\n\\nF.3d at 1522). And the court answered that question in the negative and,\\n\\naccordingly, dismissed Ms. Reed’s claim.\\n\\n But as framed by Ms. Reed’s arguments, the right question regarding\\n\\nthe notice element of the retaliation claim centers on the language Congress\\n\\nadded to the Act in 2009. The district court should have gone beyond its\\n\\nprevious inquiry and asked whether Ms. Reed pleaded facts that plausibly\\n\\nshow that KeyPoint was on notice that she had tried to stop its alleged False\\n\\nClaims Act violations. The answer to that question determines whether Ms.\\n\\nReed’s retaliation claim stands or falls. Reviewing her complaint de novo,\\n\\nwe answer that question in the negative.\\n\\n B\\n\\n Specifically, we hold that Ms. Reed has not pleaded sufficient facts to\\n\\nstate a claim of retaliation because she has failed to establish the notice\\n\\nelement of that claim. We explain that conclusion in two parts. First, we\\n\\nclarify what kind of facts Ms. Reed must plead to show that KeyPoint knew\\n\\nshe was trying to stop its violations of the False Claims Act. Second, we\\n\\ndetermine that Ms. Reed’s complaint averments come up short.\\n\\n\\n\\n 78\\n\\f 1\\n\\n Our circuit has yet to begin the work of defining the boundaries of\\n\\nwhat constitutes protected efforts to stop a violation of the False Claims\\n\\nAct. Naturally, we cannot narrow our consideration to our pre-2009 view\\n\\nthat an employee must prove in every instance that the employer knew that\\n\\nshe was acting “in furtherance of” a qui tam action. Ramseyer, 90 F.3d at\\n\\n1522. Beginning the outline of those boundaries, we state our agreement\\n\\nwith KeyPoint “that a relator’s actions still must convey a connection to the\\n\\n[False Claims Act].” Aplee.’s Resp. Br. at 52; see Grant, 912 F.3d at 202\\n\\n(noting that “plaintiff’s actions need not lead to a viable” qui tam action,\\n\\nbut “they must still have a nexus to a[] [False Claims Act] violation”);\\n\\nUnited States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 59 n.8 (1st Cir.\\n\\n2017) (explaining that relator’s “activities must pertain to violations” of the\\n\\nAct). After all, the text of the amendment says the “other efforts” must be\\n\\n“to stop 1 or more violations of [the False Claims Act].” 31 U.S.C.\\n\\n§ 3730(h)(1).\\n\\n We also agree with KeyPoint that compliance employees typically\\n\\nmust do more than other employees to show that their employer knew of the\\n\\nprotected activity. Our cases applying the pre-2009 whistleblower\\n\\nprovisions explained that an employee “whose job entails the investigation\\n\\n\\n\\n 79\\n\\fof fraud . . . . must make clear” that she engaged in protected activity “to\\n\\novercome the presumption that [she was] merely acting in accordance with\\n\\n[her] employment obligations.” Ramseyer, 90 F.3d at 1523 n.7; accord\\n\\nUnited States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472\\n\\nF.3d 702, 729 (10th Cir. 2006). In other words, in these decisions, we\\n\\nrecognized that an employer might reasonably presume that when a\\n\\ncompliance employee reports incidents of fraud she is just doing her job.\\n\\nSo to hold an employer liable under the Act’s whistleblower provisions, our\\n\\npre-2009 precedent required a compliance employee to overcome that\\n\\npresumption by showing that she was engaging in protected activity, not\\n\\njust doing her job.\\n\\n We think this reasoning has survived the 2009 amendment. True, as\\n\\nwe have explained above, that amendment expanded the scope of protected\\n\\nactivity and thus expanded the universe of conduct that a relator may plead\\n\\nin giving the employer notice of the protected activity. But nothing about\\n\\nthe 2009 amendment undercuts the rationale of our precedent addressing\\n\\ncompliance officers who are charged by their employer with investigating\\n\\nfraud. See United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890,\\n\\n908 (9th Cir. 2017) (deeming our pre-2009 Ramseyer decision “instructive,”\\n\\nin a post-amendment context, on the point that compliance employees must\\n\\n\\n\\n 80\\n\\fdo more to show an employer’s knowledge), cert. denied, 139 S. Ct. 783\\n\\n(2019).\\n\\n In sum, to state a retaliation claim, as relevant here, an employee’s\\n\\ncomplaint must allege facts that show her employer knew of her efforts to\\n\\nstop a False Claims Act violation. The 2009 amendment left intact our\\n\\nprecedent requiring compliance employees to do more than other employees\\n\\nto meet the notice element. And so, to adequately plead notice, a\\n\\ncompliance employee must allege facts that, viewed in her favor, make\\n\\nclear that her employer had been put on notice that she was trying to stop it\\n\\nfrom violating the False Claims Act and not merely doing her job.\\n\\n 2\\n\\n We conclude that Ms. Reed’s complaint averments come up short of\\n\\nthis standard. To be sure, Ms. Reed is correct that her complaint shows that\\n\\nshe voiced objections regarding the alleged fraud “to everyone at KeyPoint\\n\\nwho would listen.” Aplt.’s Opening Br. at 41. For instance, the complaint\\n\\nalleges that “she approached KeyPoint’s Director of Training” and “raised\\n\\nconcerns to her supervisor,” the “OPM Contract Director,” and “the\\n\\nRegional Managers and certain Field Managers.” Aplt.’s App. at 31–32, ¶¶\\n\\n59, 65. Indeed, the complaint notes that Ms. Reed brought some of “the\\n\\nmost egregious instances” of fraud at the investigator level to the attention\\n\\n\\n\\n 81\\n\\fof “field managers and . . . regional managers.” Id. at 62, ¶ 172. Likewise,\\n\\nMs. Reed allegedly told “her supervisor . . . on numerous occasions” about\\n\\nviolations of the TTP. Id. at 89, ¶ 253.\\n\\n However, Ms. Reed was a “Senior Quality Control Analyst”—that is,\\n\\na compliance officer. Id. at 24, ¶ 3. Thus, under our precedent, we may\\n\\npresume that Ms. Reed—as a compliance officer—was just doing her job in\\n\\nrepeatedly reporting fraud internally to employees at KeyPoint. And Ms.\\n\\nReed’s complaint averments do not overcome that presumption—indeed,\\n\\nthey tend to underscore the soundness of it. In this regard, Ms. Reed\\n\\nherself links her knowledge of, and efforts to report, the alleged fraud at\\n\\nKeyPoint to her role “as a Senior Quality Control Analyst.” 20 Id. at 25, ¶ 4.\\n\\nFor instance, the complaint notes that Ms. “Reed and her staff\\n\\ndiscover[ed]” fraud. Id. at 75, ¶ 201 (emphasis added). And at points, the\\n\\n\\n 20\\n See also Aplt.’s App. at 28–29, ¶¶ 29, 33 (noting that KeyPoint put Ms.\\n“Reed in charge of the [TTP],” and through these duties, she “uncovered systemic\\nviolations” of the OPM contract); id. at 31, ¶¶ 52, 55 (noting that Ms. “Reed developed\\nand ran” the TTP, and in that role, she “discovered that KeyPoint management repeatedly\\nfalsified corrective action reports by fabricating justifications for the violations”); id. at\\n33, ¶ 78 (explaining that Ms. Reed’s job “allowed her to review investigators’ work” and\\n“compile[] extensive records of [improper] investigations”); id. at 61, ¶ 165 (alleging that\\nwhen extra compliance work was needed, KeyPoint “occasionally tasked [Ms. Reed] with\\nextra audits of investigators”); id. at 84, ¶ 228 (“Reed was assigned to determine the\\nnature of the chronic infractions.”); id. at 86, ¶¶ 231–232 (pointing out that “[i]n the\\ncourse of her duties, Reed discovered that certain investigators were” circumventing\\nOPM requirements); id. at 90, ¶ 260 (“Reed was tasked with investigating . . . each\\ninvestigator’s high frequency of telephone testimonies.”).\\n\\n 82\\n\\fcomplaint specifies that Ms. “Reed and her staff reported [certain]\\n\\nviolations.” Id. at 78, ¶ 207 (emphasis added); see also id. at 76, 80, ¶¶\\n\\n203, 210. That her staff was assisting Ms. Reed in fraud detection and\\n\\nreporting activities suggests that such activities fell within the ambit of Ms.\\n\\nReed’s responsibilities as a Senior Quality Control Analyst because one\\n\\nmight reasonably infer that Ms. Reed’s staff would not be assisting her in\\n\\noff-book operations or matters of personal preference, rather than duty.\\n\\nEven when Ms. Reed acted alone, the complaint suggests that she reported\\n\\nmisconduct on a regularized schedule as part of her job—averring that she\\n\\n“regularly reported [certain] infractions to her supervisor . . . by submitting\\n\\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171 (emphasis added);\\n\\nsee also id. at 86, ¶ 230. And for investigators who persistently violated\\n\\npolicies, Ms. Reed reported them “for disciplinary action by\\n\\nKeyPoint”—which strongly suggests that she had some job-related mandate\\n\\nto do so. Id. at 90, ¶ 265; see also id. at 36, ¶ 99.\\n\\n In sum, as the district court correctly observed, “[T]he monitoring and\\n\\nreporting activities described in her Complaint were exactly those activities\\n\\nMs. Reed was required to undertake . . . as a Senior Quality Control\\n\\nAnalyst.” Id. at 418–19. In other words, Ms. Reed’s complaint averments\\n\\ndo not rebut—and, indeed, tend to highlight the soundness of—the\\n\\n\\n\\n 83\\n\\fpresumption that her conduct was just part of her job.\\n\\n Ms. Reed tries to rebut this presumption by showing that she went\\n\\n“outside [her] normal chain of command to report fraudulent conduct.”\\n\\nAplt.’s Opening Br. at 37. In this regard, Ms. Reed conclusorily asserts\\n\\nthat she complained about the fraud to “people well outside her chain of\\n\\ncommand.” Id. at 41. In particular, Ms. Reed avers that she reported the\\n\\nfraud to “the OPM Contract Director . . . , the Regional Managers[,] and\\n\\ncertain Field Managers.” Aplt.’s App. at 32, ¶ 65. Her complaint also\\n\\nrefers to a conversation with “KeyPoint’s Director of Training.” Id. at\\n\\n31–32, ¶ 59. By reporting fraud to these individuals, Ms. Reed argues that\\n\\nshe “acted beyond the scope of her ordinary duties in attempting to stop\\n\\nKeyPoint’s false statements” and that “[t]he KeyPoint employees who\\n\\ndecided to fire [her] knew” as much. Id. at 108, ¶¶ 389, 396. Hence, Ms.\\n\\nReed reasons, KeyPoint knew that her reports of fraud were not part of her\\n\\njob but, instead, efforts to stop False Claims Act violations.\\n\\n KeyPoint disagrees. It says that Ms. Reed’s actions were exactly\\n\\nwhat she “was required to undertake in fulfillment of her job duties” as a\\n\\nSenior Quality Control Analyst. Aplee.’s Resp. Br. at 53 (quoting\\n\\nRamseyer, 90 F.3d at 1523). KeyPoint also denies that it was properly put\\n\\non notice of Ms. Reed’s protected activity because she ostensibly “went\\n\\n\\n\\n 84\\n\\foutside of her usual chain of command.” Id. at 55. Indeed, KeyPoint notes\\n\\nthat Ms. Reed “does not cite any binding authority for the proposition that\\n\\nalleged discussions with individuals inside the company but outside of her\\n\\nnormal reporting structure would suffice to overcome the presumption that\\n\\nshe was acting within the scope of her ordinary duties.” Id. at 56. Hence,\\n\\nKeyPoint argues that it “could not have been on notice of [Ms. Reed’s]\\n\\nallegedly protected actions.” Id. at 53.\\n\\n KeyPoint is correct that our court has never expressly held that a\\n\\ncompliance employee may put her employer on notice of her efforts to stop\\n\\nFalse Claims Act violations by reporting fraud internally but outside her\\n\\nchain of command. But other circuits have. The Ninth and D.C. Circuits,\\n\\nfor example, each have held that, under certain circumstances, a compliance\\n\\nemployee may meet the notice element of retaliation by pleading that her\\n\\nemployer knew that she had reported fraud within the company in a manner\\n\\nthat violated or went outside the established chain of command. See, e.g.,\\n\\nCampie, 862 F.3d at 897, 908 (holding that retaliation complaint by a\\n\\n“Senior Director of Global Quality Assurance” adequately pleaded notice\\n\\nbecause, inter alia, the employer knew the employee had “conversations\\n\\noutside of his chain of command regarding his concerns”); United States ex\\n\\nrel. Schweizer v. Oce N.V., 677 F.3d 1228, 1239–40 (D.C. Cir. 2012)\\n\\n\\n\\n 85\\n\\f(holding that a compliance employee’s retaliation claim survived summary\\n\\njudgment because employer knew she had “ignor[ed] ‘the chain of\\n\\ncommand’” by reporting fraud to her boss’s boss); cf. United States ex rel.\\n\\nWilliams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C. Cir.\\n\\n2004) (stating the general proposition that “when an employee acts outside\\n\\nhis normal job responsibilities or alerts a party outside the usual chain of\\n\\ncommand, such action may suffice to notify the employer that the employee\\n\\nis engaging in protected activity,” in a case in which the employee “went\\n\\noutside the company and alerted the government”).\\n\\n We need not definitively opine here, however, on the cogency of this\\n\\nprecedent. Even if Ms. Reed could legally overcome the compliance-\\n\\nemployee presumption by showing that she went outside of the chain of\\n\\ncommand to report fraud, her complaint averments do not plausibly\\n\\nestablish, as a factual matter, that she did so. That is, she has not pleaded\\n\\nfacts showing that she indeed went outside her ordinary reporting structure\\n\\nas a compliance officer. To be sure, we must “assume the truth of all well-\\n\\npleaded facts in the complaint[] and draw all reasonable inferences” in Ms.\\n\\nReed’s favor. Leverington v. City of Colorado Springs, 643 F.3d 719, 723\\n\\n(10th Cir. 2011) (quoting Dias v. City & County of Denver, 567 F.3d 1169,\\n\\n1178 (10th Cir. 2009)). And Ms. Reed avers that she reported fraud to\\n\\n\\n\\n 86\\n\\fpersons other than her direct supervisor—namely, “the OPM Contract\\n\\nDirector. . . , Regional Managers[,] and certain Field Managers,” as well as\\n\\nthe “Director of Training.” Aplt.’s App. at 31–32, ¶¶ 59, 65. But Ms. Reed\\n\\nnever pleaded facts delineating her specific job description or defining the\\n\\nscope of her duties such that we could discern with some specificity the\\n\\ncontours of Ms. Reed’s chain of command or ordinary reporting structure\\n\\nrelated to fraud matters. Without that information, we cannot say, or\\n\\nreasonably infer, that Ms. Reed broke the chain of command or ordinary\\n\\ncommunication protocol by speaking with the Director of Training, OPM\\n\\nContract Director, Regional Managers, or Field Managers.\\n\\n For example, as a compliance officer, Ms. Reed may have been\\n\\nobliged as part of her job duties to communicate with, and seek remedial\\n\\naction from, those at KeyPoint other than her direct supervisor regarding\\n\\ninstances of employee fraud—especially if her supervisor did not\\n\\nadequately respond to her concerns. If so, that Ms. Reed turned to, for\\n\\nexample, the Regional Managers or Field Managers to address her fraud\\n\\nconcerns could not properly be viewed as an instance of Ms. Reed violating\\n\\nthe established communication protocol or chain of command. Ms. Reed’s\\n\\ncomplaint averments shed no appreciable light on whether her job\\n\\ndescription did in fact contemplate such communications beyond her direct\\n\\n\\n\\n 87\\n\\fsupervisor—much less negate this possibility.\\n\\n Tellingly, in responding to KeyPoint’s similar comments regarding\\n\\nfactual gaps in her complaint, the best that Ms. Reed seemingly could\\n\\nmuster in her Reply Brief was a plea for merciful forbearance: “With\\n\\nrespect to her retaliation claim, [Ms. Reed] is arguing that, at the motion to\\n\\ndismiss stage, she gets the benefit of the doubt.” Aplt.’s Reply Br. at 22\\n\\n(emphasis added). But the one case that she cites for support—Gee v.\\n\\nPacheco, 627 F.3d 1178 (10th Cir. 2010)—says no such thing. That case\\n\\nand other controlling decisions make quite clear that, “[t]o survive a motion\\n\\nto dismiss,” a plaintiff’s complaint averments must be factually plausible.\\n\\nId. at 1184 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And that\\n\\nplausibility standard is satisfied “when the plaintiff pleads factual content\\n\\nthat allows the court to draw the reasonable inference that the defendant is\\n\\nliable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). As\\n\\nrelevant here, Ms. Reed had to plead facts from which we could reasonably\\n\\ninfer that she put KeyPoint on notice of her protected activity by going\\n\\noutside the established communication protocol or chain of command. But\\n\\nshe has failed to plead such facts. 21\\n\\n 21\\n Putting aside Ms. Reed’s failure to demonstrate KeyPoint’s notice through a\\nchain-of-command theory, Ms. Reed’s complaint averments do not provide sufficient\\nfacts from which we could conclude that the content of her communications with the\\n (continued...)\\n\\n 88\\n\\f The D.C. Circuit’s analysis in Schweizer offers a useful contrast.\\n\\nLike Ms. Reed, the relator there was responsible for ensuring “compliance\\n\\nwith government contracts.” 677 F.3d at 1239. Upon uncovering fraud, the\\n\\nrelator voiced concerns to her supervisor and then “repeatedly disobeyed\\n\\nthe orders of . . . her supervisor[] to stop investigating” the alleged fraud.\\n\\nId. In fact, the relator went over her boss’s head to his supervisor “on two\\n\\nseparate occasions.” Id. In those conversations, “she alleged a variety of\\n\\nspecific False Claims Act violations” and “made an emotional plea to\\n\\n‘sav[e] the company’ from ‘legal trouble.’” Id. at 1239–40 (alteration in\\n\\n 21\\n (...continued)\\nidentified KeyPoint officials would have put KeyPoint on notice that she was doing\\nsomething more than her job. For example, regarding Ms. Reed’s conversation with the\\n“OPM Contract Director,” we do not know which “concerns” she voiced or whether\\nvoicing those unspecified concerns was inconsistent with her job duties. Aplt.’s App. at\\n32, ¶ 65. It is the same story with Ms. Reed’s discussions with “the Regional Managers\\nand certain Field Managers.” Id. And, as to the Director of Training, we are especially\\nhard-pressed to see how Ms. Reed’s communications with that official would have alerted\\nKeyPoint to the fact that she was seeking to prevent the company from committing a\\nviolation the False Claims Act. Specifically, Ms. Reed’s complaint speaks of the\\nproblems that the Director of Training brought to Ms. Reed’s attention—not\\nthe other way around. See id. at 32, ¶¶ 60–63. That the Director of Training reported\\nproblems to Ms. Reed tells us nothing about whether KeyPoint knew of Ms. Reed’s\\nefforts to stop a False Claims Act violation. Therefore, her complaint averments\\nregarding the content of her communications with the identified KeyPoint officials do not\\naid her argument that KeyPoint was on notice of her protected activity. Moreover, lest\\nthere be any doubt, Ms. Reed’s averments also cannot support a reasonable inference that\\nher reports of fraud to her direct supervisor were outside her ordinary job duties. In fact,\\nthe complaint suggests otherwise. Recall that Ms. Reed often reported violations “to her\\nsupervisor . . . by submitting and discussing a monthly spreadsheet.” Id. at 62, ¶ 171.\\nMs. Reed’s descriptions of these meetings with her direct supervisor strongly suggest that\\nshe was just doing her “regular monthly duties.” Id. at 38, ¶ 127.\\n\\n 89\\n\\foriginal). Some weeks later, “[t]he company fired” the relator. Id. at 1240.\\n\\nHer termination letter specified that she was fired for “‘refusing to follow\\n\\norders’ and ignoring ‘the chain of command.’” Id. From this evidence, the\\n\\nD.C. Circuit held that the relator’s “factual allegations [were] sufficient to\\n\\novercome ‘the presumption that [she was] merely acting in accordance with\\n\\n[her] employment obligations.’” Id. (second and third alterations in\\n\\noriginal) (quoting Williams, 389 F.3d at 1261).\\n\\n Measured against the allegations in Schweizer, the paucity of the\\n\\nfactual content in Ms. Reed’s complaint averments is patent. Unlike in\\n\\nSchweizer, we have no specifically pleaded facts here indicating that Ms.\\n\\nReed violated the chain of command in reporting suspected fraud to\\n\\nKeyPoint officials other than her direct supervisor. Whereas the relator in\\n\\nSchweizer was ordered to stop investigating the fraud, Ms. Reed was\\n\\n“tasked with extra audits of investigators.” Aplt.’s App. at 61, ¶ 165. And\\n\\nwhile the employer in Schweizer fired the relator for “failing to follow\\n\\norders and the chain of command,” 677 F.3d at 1240, we lack any\\n\\nspecific—much less express—basis in Ms. Reed’s complaint from which to\\n\\ninfer that Ms. Reed’s activities in reporting suspected fraud, in her capacity\\n\\nas a compliance officer, violated KeyPoint’s established communication\\n\\nprotocols or broke her chain of command. Simply put, Ms. Reed’s\\n\\n\\n\\n 90\\n\\fcomplaint averments fail to rebut the presumption that her actions were just\\n\\ndoing her job.\\n\\n * * *\\n\\n In summary, Ms. Reed has the burden of pleading sufficient facts to\\n\\nshow that KeyPoint knew of her protected activity. See McBride, 688 F.3d\\n\\nat 704. To do so, she must overcome the presumption that her internal\\n\\nreports of fraud were part of her job as a Senior Quality Control Analyst.\\n\\nThis she cannot do. Accordingly, we hold that Ms. Reed has failed to\\n\\nadequately allege that KeyPoint was on notice of her efforts to stop its\\n\\nalleged False Claims Act violations. Consequently, her retaliation claim\\n\\nfails.\\n\\n IV\\n\\n For the reasons stated above, we VACATE the district court’s\\n\\njudgment and order insofar as it granted summary judgment on Ms. Reed’s\\n\\nqui tam claims. We AFFIRM the district court’s order insofar as it\\n\\n\\n\\n\\n 91\\n\\fdismissed Ms. Reed’s retaliation claim. And we REMAND for further\\n\\nproceedings consistent with this opinion. 22\\n\\n\\n\\n\\n 22\\n We also GRANT KeyPoint’s unopposed motion to seal Volumes II\\nthrough VI of its unredacted supplemental appendix. KeyPoint filed two versions\\nof its seven-volume supplemental appendix, one redacted and one unredacted.\\nKeyPoint moves to seal Volumes II through VI of the unredacted materials, which\\ninclude OPM’s contract with KeyPoint and OPM’s Investigator’s Handbook. The\\npublic has a “right of access to judicial records.” Eugene S. v. Horizon Blue\\nCross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011); 10 TH C IR . R.\\n30.1(D). To seal court records and thus impair that right, a party “must articulate\\na real and substantial interest that justifies depriving the public of access to the\\nrecords that inform our decision-making process.” Helm v. Kansas, 656 F.3d\\n1277, 1292 (10th Cir. 2011). Three considerations lead us to conclude that\\nsealing is appropriate here. First, KeyPoint has articulated a strong\\nnational-security interest in sealing. The OPM contract and handbook contain\\nsensitive materials regarding the techniques used in performing background\\nchecks; revealing this information could compromise future background\\ninvestigations. Second, KeyPoint has preserved the public’s right to view judicial\\nrecords by publicly filing a redacted version of the appendices proffered under\\nseal. This publicly available—albeit redacted— version of the appendices leaves\\nthe content of the appendices visible in significant measure. Finally, sealing is\\nappropriate because the documents at issue “play[ed] no role in our resolution of\\nthis appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,\\n1246 n.14 (10th Cir. 2017). Although KeyPoint’s Response Brief references the\\nunredacted materials, we did not rely on the underlying unredacted documents in\\ndeciding this appeal.\\n\\n 92\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4392144/\", \"author_raw\": \"HOLMES, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"BRISCOE"},"judge2":{"kind":"string","value":"SEYMOUR"},"judge3":{"kind":"string","value":"HOLMES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614891/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America EX REL., Julie REED, Plaintiff - Appellant, v. KEYPOINT GOVERNMENT SOLUTIONS, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-04-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n Tenth Circuit\n\n PUBLISH April 30, 2019\n Elisabeth A. Shumaker\n UNITED STATES COURT OF APPEALS Clerk of Court\n\n TENTH CIRCUIT\n\n\n\nUNITED STATES OF AMERICA\nEX REL., JULIE REED,\n\n Plaintiff - Appellant,\n\nv. No. 17-1379\n\nKEYPOINT GOVERNMENT\nSOLUTIONS,\n\n Defendant - Appellee.\n\n\n\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:14-CV-00004-CMA-MJW)\n\n\nRichard E. Condit, Mehri & Skalet PLLC, Washington, District of Columbia\n(Steven A. Skalet and Brett D. Watson, Mehri & Skalet PLLC, Washington,\nDistrict of Columbia, and John T. Harrington and Robert S. Oswald, The\nEmployment Law Group, Washington, District of Columbia, with him on the\nbriefs), for Plaintiff-Appellant.\n\nRobert C. Blume, Gibson, Dunn & Crutcher LLP, Denver, Colorado (Ryan\nT. Bergsieker and Allison Chapin, Gibson, Dunn & Crutcher LLP, Denver,\nColorado, with him on the brief), for Defendant-Appellee.\n\n\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\n\fHOLMES, Circuit Judge.\n\n\n The False Claims Act (or the “Act”) allows for the recovery of civil\n\npenalties and treble damages from anyone who defrauds the government by\n\nsubmitting fraudulent claims for payment. 31 U.S.C. §§ 3729–3733. To\n\nenforce its provisions, the Act empowers individuals to file suits on behalf\n\nof the government alleging that a third party made a fraudulent claim for\n\npayment to the government. Id. § 3730(b)(1). These suits are known as\n\n“qui tam” suits, and the individual plaintiffs are called “relators.”\n\nRecognizing the risks relators face as prospective whistleblowers, the Act\n\nprohibits employers from retaliating against employees who try to stop\n\nviolations of the Act. Id. § 3730(h).\n\n Julie Reed sued her former employer, KeyPoint Government\n\nSolutions, LLC (“KeyPoint”), for violating the False Claims Act. Her qui\n\ntam claims alleged that KeyPoint violated the Act by knowingly and\n\nfraudulently billing the government for work that was inadequately or\n\nimproperly completed. Ms. Reed also claimed that KeyPoint fired her in\n\nretaliation for her efforts to stop KeyPoint’s fraud.\n\n This case presents two overarching questions. First, did the district\n\ncourt err in granting summary judgment in KeyPoint’s favor on Ms. Reed’s\n\nqui tam claims? Second, did the district court err in dismissing Ms. Reed’s\n\n 2\n\fretaliation claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)?\n\n Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the\n\ndistrict court erred in the first respect but not in the second. We therefore\n\nvacate the district court’s order insofar as it granted summary judgment on\n\nMs. Reed’s qui tam claims and remand for further proceedings. We affirm\n\nthe district court’s order insofar as it dismissed Ms. Reed’s retaliation\n\nclaim.\n\n I\n\n This is a whistleblower case. The relevant background has three\n\nparts: (1) the statutory background, (2) the underlying (alleged) bad acts,\n\nand (3) the whistleblowing and ensuing procedural history. We recount\n\neach part below.\n\n A\n\n The False Claims Act “covers all fraudulent attempts to cause the\n\ngovernment to pay out sums of money.” United States ex rel. Conner v.\n\nSalina Reg’l Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir. 2008)\n\n(quoting United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d\n\n1169, 1172 (10th Cir. 2007)). It does so by permitting the recovery of civil\n\npenalties and treble damages from anyone who “knowingly presents . . . a\n\nfalse or fraudulent claim for payment or approval.” 31 U.S.C.\n\n\n 3\n\f§ 3729(a)(1)(A). Liability also attaches to anyone who “knowingly makes,\n\nuses, or causes to be made or used, a false record or statement material to a\n\nfalse or fraudulent claim.” Id. § 3729(a)(1)(B).\n\n The Act’s proscriptions may be effectuated in two ways. “First, the\n\nGovernment itself may” sue “the alleged false claimant” to remedy the\n\nfraud. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.\n\n765, 769 (2000). Second, “a private person (the relator) may bring a qui\n\ntam” suit on behalf of the government and also for herself alleging that a\n\nthird party made fraudulent claims for payment to the government. Id. “As\n\na bounty for identifying and prosecuting fraud,” relators get to keep a\n\nportion “of any recovery they obtain.” Boothe, 496 F.3d at 1172 (citing 31\n\nU.S.C. § 3730(d)).\n\n But there are limits to a relator’s right to bring a qui tam suit. One\n\nsuch limit is “known as the public disclosure bar.” Id.; see State Farm Fire\n\n& Cas. Co. v. United States ex rel. Rigsby, 580 U.S. ----, 137 S. Ct. 436,\n\n440 (2016) (describing the public disclosure bar as a threshold relators must\n\npass for their qui tam suits to proceed). That bar compels courts to dismiss\n\nqui tam claims “if substantially the same allegations . . . as alleged in the\n\naction or claim were publicly disclosed,” unless the relator “is an original\n\n\n\n\n 4\n\fsource of the information.” 1 31 U.S.C. § 3730(e)(4)(A). The public\n\n\n 1\n Before Congress amended the False Claims Act in 2010, the public\ndisclosure bar was jurisdictional—that is, if the bar applied, courts lacked subject-matter\njurisdiction. See Boothe, 496 F.3d at 1177 (explaining that, as of 2007, the public\ndisclosure bar was jurisdictional). The pre-2010 provision read: “No court shall have\njurisdiction over” a qui tam action “based upon the public disclosure of allegations.” 31\nU.S.C. § 3730(e)(4)(A) (2006). The 2010 amendments removed the reference to\njurisdiction, counseling district courts instead to “dismiss an action” if the public\ndisclosure bar applies. 31 U.S.C. § 3730(e)(4)(A) (2010). The federal courts of appeals\nthat have confronted the issue have unanimously held that the 2010 “amendments\ntransformed the public disclosure bar from a jurisdictional bar to an affirmative defense.”\nUnited States ex rel. Prather v. AT&T, Inc., 847 F.3d 1097, 1102 (9th Cir.), cert denied,\n137 S. Ct. 2309 (2017); see also United States ex rel. Beauchamp v. Academi Training\nCtr., 816 F.3d 37, 40 (4th Cir. 2016) (holding the amended “public-disclosure bar is . . .\nan affirmative defense,” not “a jurisdictional bar”); United States ex rel. Moore & Co. v.\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) (same); United States ex\nrel. Osheroff v. Humana Inc., 776 F.3d 805, 810 (11th Cir. 2015) (same).\n Our circuit has yet to opine on this issue. And we need not do so today. Let us\nbriefly explain the most salient reasons. KeyPoint properly raised the public disclosure\nbar as a defense in its motion to dismiss before the district court. As a result, we need not\ndetermine the jurisdictional status of the public disclosure bar here. If KeyPoint had\nfailed to raise the bar before the district court and had asserted it for the first time on\nappeal, we would have been obliged to consider the issue only if it was\njurisdictional—that is, if it implicated our jurisdiction to hear the merits of Ms. Reed’s qui\ntam claims—not if it was merely an affirmative defense. Therefore, under such\nhypothetical circumstances, the jurisdictional status of the issue would have been an\nimportant question that we needed to resolve. See Smith v. Cheyenne Ret. Inv’rs L.P.,\n904 F.3d 1159, 1164 (10th Cir. 2018) (noting that “[i]n most cases, including this one,\nthis distinction between a jurisdictional requirement and an affirmative defense is\nimmaterial” because the party has “pled failure to exhaust as an affirmative defense”);\nMcQueen ex rel. McQueen v. Colo. Springs Sch. Dist., 488 F.3d 868, 873 (10th Cir. 2007)\n(explaining that the distinction between an affirmative defense and a jurisdictional\nprerequisite “is important . . . only when the defendant has waived or forfeited the issue”\nbut because “there is no question of waiver or forfeiture” the court “need not decide\nwhether exhaustion is jurisdictional”); accord Coleman v. Newburgh Enlarged City Sch.\nDist., 503 F.3d 198, 204 (2d Cir. 2007) (“[W]e are not forced to decide whether our\nprecedent, which labels the IDEA’s exhaustion requirement as a rule affecting subject\n (continued...)\n\n 5\n\fdisclosure bar aims to strike “the golden mean between” encouraging\n\n“whistle-blowing insiders with genuinely valuable information” to come\n\nforward while discouraging “opportunistic plaintiffs who have no\n\nsignificant information to contribute of their own.” United States ex rel.\n\nFine v. Sandia Corp., 70 F.3d 568, 571 (10th Cir. 1995) (quoting United\n\nStates ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C.\n\nCir. 1994)).\n\n\n\n\n 1\n (...continued)\nmatter jurisdiction rather than an ‘inflexible claim-processing’ rule that may be waived or\nforfeited, remains good law . . . because there can be no claim of waiver or forfeiture\nhere.”); see also Davoll v. Webb, 194 F.3d 1116, 1128 (10th Cir. 1999) (“If [an] issue\nimplicates subject matter jurisdiction, we have an obligation to address it ‘regardless of\nnormal rules governing the presentation of issues.’” (quoting Int’l Union of Operating\nEng’rs, Local 150 v. Rabine, 161 F.3d 427, 429 (7th Cir. 1998))). But those hypothetical\ncircumstances are not present here; therefore, we need not consider the jurisdictional\nstatus of the public disclosure bar. Furthermore, as we explain later, we conclude that the\noriginal-source analysis that the district court used in concluding that the public\ndisclosure bar precludes Ms. Reed’s qui tam claims is legally flawed. Accordingly, we\nvacate its judgment and remand for further proceedings. As a product of that disposition,\nMs. Reed’s qui tam claims are not (at least for the time being) subject to the public\ndisclosure bar. Thus, also for this reason, whether that bar is jurisdictional or not is\nimmaterial. Finally, we observe that the parties did not meaningfully address the public\ndisclosure bar’s proper characterization—i.e., jurisdictional or an affirmative defense.\nAlthough this failure would not obviate the need for us to independently consider that\nquestion if our jurisdiction over the merits depended on the answer, the parties’\nunderdeveloped arguments on this score further militate against us trying to answer the\nquestion when the answer is not material here, let alone determinative of our jurisdiction.\nCf. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007) (“Our system of justice, after all,\nis not a self-directed inquisitorial one; to avoid error, we are dependent on the full\ndevelopment of issues through the adversarial process . . . .”).\n\n 6\n\f And because insiders might be reluctant to use these qui tam\n\nprovisions due to fear of employer backlash, the False Claims Act protects\n\nwhistleblowers from employer retaliation. See Potts v. Ctr. for Excellence\n\nin Higher Educ., Inc., 908 F.3d 610, 613–14 (10th Cir. 2018) (discussing 31\n\nU.S.C. § 3730(h)). To qualify for whistleblower protection, an employee\n\nmust engage in “protected activity.” Armstrong v. Arcanum Grp., Inc., 897\n\nF.3d 1283, 1286 (10th Cir. 2018). Until 2009, protected activity included\n\nonly “lawful acts done by the employee . . . in furtherance of an action\n\nunder this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h) (2008). But\n\nCongress amended the anti-retaliation provision in 2009 and 2010, and it\n\nnow protects employees who take steps “in furtherance of” either a qui tam\n\nclaim or “other efforts to stop 1 or more violations” of the Act. 31 U.S.C.\n\n§ 3730(h)(1). A whistleblower who prevails on her retaliation claim is\n\nentitled to reinstatement, double back pay, litigation costs, and attorneys’\n\nfees. Id. § 3730(h)(2). The events giving rise to this litigation took place\n\nagainst this statutory backdrop.\n\n B\n\n 1\n\n KeyPoint is a private company that conducts background\n\ninvestigations for the federal government—specifically, the Office of\n\n\n 7\n\fPersonnel Management (“OPM”). OPM uses KeyPoint to investigate\n\nprospective federal employees. The depth of KeyPoint’s investigations\n\nvaries according to the level of security clearance involved. Most\n\ninvestigations, though, entail running background checks, interviewing the\n\nsubject of the investigation, gathering testimony from the subject’s\n\nneighbors and coworkers, and then compiling the information in a report.\n\nGovernment agencies rely on these reports in making employment decisions\n\nand deciding whether to issue (or reject) security clearances.\n\n OPM’s contract with KeyPoint rewards timeliness. If KeyPoint\n\nfinishes its investigations on time, OPM pays KeyPoint a premium. But\n\nKeyPoint’s pay decreases for each day an investigation runs past the\n\ndeadline.\n\n The contract also includes safeguards to ensure that KeyPoint’s\n\ninvestigations are complete and accurate. For example, KeyPoint must do\n\nthorough case reviews of each investigation and reinterview a percentage of\n\nall sources. Another safeguard is the Telephone Testimony Program\n\n(“TTP”); KeyPoint developed such a program at OPM’s request, and OPM\n\nendorsed KeyPoint’s program. Ordinarily, investigators must conduct in-\n\nperson interviews. But they may do telephone interviews under some\n\ncircumstances, so long as they keep their total number of telephone\n\n\n 8\n\finterviews below a certain percentage threshold. Under the TTP, each\n\nmonth OPM sends KeyPoint a list of investigators who exceeded their\n\nallotted number of telephone interviews during the last month. KeyPoint\n\nthen must send OPM “corrective action report[s]” explaining each\n\ninfraction and what it is doing to remedy the problem. Aplt.’s App. at 31, ¶\n\n54 (Second Am. Compl., filed Dec. 5, 2016). The contract and OPM’s\n\nInvestigator’s Handbook, which the contract incorporates, spell out these\n\nand other quality-control measures.\n\n 2\n\n Along with KeyPoint, the background-investigation industry has two\n\nother main players—U.S. Investigations Services (“USIS”) and CACI\n\nInternational, Inc. (“CACI”). This insular industry has had its share of\n\ntroubles. From 2008 to 2010, the government prosecuted several individual\n\ninvestigators, including a former KeyPoint employee, for rushing\n\ninvestigations and falsifying information in reports to OPM. And a 2010\n\nreport summarizing an OPM audit concluded that KeyPoint’s and its\n\ncompetitors’ “quality assurance process” needed improvement. Id. at 273\n\n(Final Audit Report, dated June 22, 2010).\n\n The year 2013 was a particularly turbulent one for the industry. That\n\nyear two federal government contractors—Edward Snowden and Aaron\n\n\n 9\n\fAlexis—committed high-profile crimes after having received security\n\nclearances. These embarrassing episodes put the industry under intense\n\nscrutiny.\n\n With scrutiny came unflattering news reports. A June 2013 article\n\nreporting on allegations against USIS noted that the “concerns about\n\nbackground checks [were] not limited to USIS” and later named KeyPoint\n\nand CACI as USIS’s “two main competitors.” Id. at 159, 160 (Wash. Post\n\nArticle, dated June 27, 2013). Another article that month reported that “a\n\nselect group of private contractors conducting background checks for high-\n\nsecurity jobs were not doing enough to ensure the quality of their\n\ninvestigations.” Id. at 302 (Reuters Article, dated June 26, 2013). The\n\narticle noted “problems with procedures and safeguards used by all three\n\nprivate contractors—USIS, KeyPoint . . . and CACI.” Id. at 303. A slew of\n\nother news reports covered such allegations roiling the background-\n\ninvestigation industry.\n\n The allegations in the press worried Congress and OPM. Those\n\nworries led to several congressional hearings to probe the industry’s alleged\n\npractice of using “false, incomplete, or rushed information gathering” in its\n\nbackground investigations. Id. at 411 & n.3 (Order, entered Sept. 28,\n\n2017). And the bad press of its contractors prompted OPM to commission\n\n\n 10\n\fan audit of KeyPoint’s and its competitors’ practices. The audit concluded\n\nthat “OPM need[ed] to strengthen its controls over its Contractors and the\n\nbackground investigation review process.” Id. at 164 (Audit Report, dated\n\nJune 4, 2014). 2\n\n Exacerbating the industry’s woes, a federal court unsealed a\n\ncomplaint against USIS in October 2013. See United States ex rel. Percival\n\nv. U.S. Investigations Servs., LLC, No. 2:11-cv-00527-WKW-WC (M.D.\n\nAla. July 1, 2011) (complaint reproduced in Aplt.’s Reply Br., Addendum\n\nA). That complaint leveled three accusations against USIS: first, that USIS\n\n“failed to provide accurate and complete investigations prior to Cases being\n\nsubmitted to the government,” Aplt.’s Reply Br., Addendum A, at 10;\n\nsecond, that USIS “knowingly submitted Cases to OPM for payment that [it]\n\nknew had not been reviewed,” id. at 6; and third, that USIS exploited “the\n\nBlue Zone software . . . . to submit Cases to OPM under the false pretense\n\nthat the Cases had been complete[d] and accurately and properly reviewed,”\n\nid. at 12. This USIS suit and the government’s intervention into it incited\n\n\n 2\n The copy of the audit report included in the record is undated. But a copy\nof the report that is publicly available via the Internet lists the date the report was\npublished as June 4, 2014. See OFFICE OF PERS. MGMT., AUDIT OF THE FEDERAL\nINVESTIGATIVE SERVICES’ CASE REVIEW PROCESS OVER BACKGROUND INVESTIGATIONS\n(2014), https://www.opm.gov/our-inspector-general/publications/reports/2014/audit-of-\nthe-federal-investigative-services-case-review-process-over-background-\ninvestigations.pdf.\n\n 11\n\fmore press accounts of the industry’s shoddy investigations.\n\n 3\n\n Ms. Reed worked for KeyPoint during this turbulent period. As a\n\nSenior Quality Control Analyst, she reviewed investigators’ work and\n\ndocumented incomplete investigations in monthly reports. Ms. Reed also\n\nran KeyPoint’s TTP by performing a “regular monthly audit of KeyPoint\n\ninvestigators who violated” the program. Aplt.’s App. at 34, ¶ 81. Along\n\nwith her “regular duties,” Ms. Reed “was occasionally tasked with extra\n\naudits of investigators,” id. at 61, ¶ 165, or assigned “to determine the\n\nnature of . . . chronic infractions,” id. at 84, ¶ 228. The precise scope of\n\nMs. Reed’s responsibilities as a Senior Quality Control Analyst and where\n\nshe fell in the KeyPoint hierarchy, however, are not specified in the\n\noperative complaint.\n\n Nevertheless, that complaint does clearly aver that, in discharging her\n\nduties, Ms. Reed observed what she described as “KeyPoint’s systemic\n\nviolations” of its contract with OPM and persistent submission of\n\nfraudulent claims for payment to the government based on incomplete or\n\nimproperly completed investigations. Id. at 29, ¶ 34. Ms. Reed’s position\n\nallowed her to see investigators falsely reporting applicants’ backgrounds\n\nas “clean” and omitting information showing otherwise, completing fewer\n\n\n 12\n\fthan the required number of interviews, and generally cutting corners. Ms.\n\nReed also believed that she witnessed rampant violations of the TTP and a\n\nscheme by KeyPoint management to hide the violations by submitting\n\nknowingly false corrective action reports to OPM.\n\n According to Ms. Reed, KeyPoint’s management not only knew of the\n\nforegoing systemic violations but also encouraged them by pressuring\n\ninvestigators to rush investigations to maximize revenue. Alarmed by the\n\nabuses, Ms. Reed voiced her concerns within the company. Periodically,\n\nMs. Reed and her staff uncovered and reported violations. Ms. Reed also\n\n“regularly reported [certain] infractions to her supervisor . . . by submitting\n\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171. Along with these\n\nmonthly reports, Ms. Reed repeatedly shared her concerns with her\n\nsupervisor. She also discussed the problems with other individuals at\n\nKeyPoint, such as the Director of Training, the OPM Contract Director,\n\nRegional Managers, and certain Field Managers. But Ms. Reed’s efforts to\n\ncurb the violations failed. In fact, she alleges that the problems multiplied\n\nover time.\n\n Eventually, KeyPoint fired Ms. Reed in October 2013. About a month\n\nlater, Ms. Reed and her counsel contacted the Department of Justice\n\n(“DOJ”). She told DOJ about the abuses she claimed to have witnessed\n\n\n 13\n\fwhile at KeyPoint. To back up her allegations, Ms. Reed provided a pre-\n\ndisclosure statement and a presentation detailing KeyPoint’s alleged\n\nviolations.\n\n C\n\n At the government’s urging, Ms. Reed sued KeyPoint in January 2014.\n\nHer operative complaint raised three qui tam claims and a retaliation\n\nclaim. 3 The qui tam claims alleged that KeyPoint violated the False Claims\n\nAct by: (1) falsely certifying that it performed complete and accurate\n\ninvestigations, (2) falsely certifying that it did proper case reviews and\n\nquality-control checks, and (3) falsifying corrective action reports. Ms.\n\nReed’s retaliation claim alleged that KeyPoint fired her for trying to stop it\n\nfrom violating the False Claims Act.\n\n After the government declined to intervene in the case, KeyPoint\n\nmoved to dismiss the suit. The district court then informed the parties that\n\nit intended to convert the portion of KeyPoint’s motion concerning the qui\n\ntam claims into a summary-judgment motion; the court did not perform a\n\nsimilar conversion on KeyPoint’s motion to dismiss the retaliation claim.\n\n\n\n 3\n Ms. Reed also alleged that KeyPoint violated the Americans with\nDisabilities Act by retaliating against her because of her disability. The district court\ngranted KeyPoint’s motion to dismiss that claim. Ms. Reed does not challenge that ruling\non appeal.\n\n 14\n\fAt the court’s invitation, Ms. Reed filed additional evidence to defend her\n\nqui tam claims from summary judgment.\n\n In September 2017, the district court entered judgment for KeyPoint\n\non all counts. Regarding the qui tam claims, the court declined to consider\n\nsome of the supplemental materials that Ms. Reed had proffered to oppose\n\nKeyPoint’s summary-judgment motion. And, on the merits, the court\n\ndetermined that the allegations in Ms. Reed’s qui tam claims were\n\n“substantially the same” as those that had been publicly disclosed in (1) the\n\ncriminal investigations of individual investigators, (2) the unflattering news\n\nreports about the background-investigation industry, (3) the congressional\n\nhearings and OPM audits, and (4) the USIS suit. Id. at 411. And, because\n\nthe court also concluded that Ms. Reed did not qualify as “an ‘original\n\nsource,’” it dismissed her qui tam claims under the public disclosure bar.\n\nId. at 414. As for Ms. Reed’s retaliation claim, the district court granted\n\nKeyPoint’s Rule 12(b)(6) motion to dismiss after determining that she had\n\ninadequately pleaded that KeyPoint was on notice that she was engaging in\n\nprotected activity.\n\n Ms. Reed now appeals from the district court’s order entering\n\njudgment for KeyPoint. Her appeal presents two questions. First, did the\n\ndistrict court err in granting KeyPoint summary judgment on the qui tam\n\n\n 15\n\fclaims under the public disclosure bar? And second, did the district court\n\nerr in granting KeyPoint’s Rule 12(b)(6) motion to dismiss the retaliation\n\nclaim? For the reasons explicated below, we answer the first question in\n\nthe affirmative and the second in the negative.\n\n II\n\n We start with the first question. The public disclosure bar compels\n\ncourts to dismiss qui tam claims if (1) “substantially the same allegations . .\n\n. were publicly disclosed,” unless (2) the relator is “an original source of\n\nthe information.” 31 U.S.C. § 3730(e)(4)(A). The district court thought\n\nthe allegations in Ms. Reed’s qui tam claims were substantially the same as\n\nthose that had been publicly disclosed. And it further reasoned that Ms.\n\nReed was not an original source of that information. Thus, the district\n\ncourt granted KeyPoint summary judgment on Ms. Reed’s qui tam claims.\n\n We review that conclusion de novo and apply the same legal standard\n\nthat the district court used. See United States ex rel. Smith v. Boeing Co.,\n\n825 F.3d 1138, 1145 (10th Cir. 2016). “Summary judgment is appropriate\n\n‘if the movant shows that there is no genuine dispute as to any material fact\n\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting\n\nF E D . R. C I V . P. 56(a)). When, as here, the district court granted the\n\ndefendant’s motion for summary judgment, “we accept as true the\n\n\n 16\n\frelator[’s] evidence and draw all reasonable inferences in [her] favor.” Id.\n\n Ms. Reed argues that the district court erred twice en route to\n\ndismissing her qui tam claims under the public disclosure bar. 4 Its first\n\nerror, she says, was concluding that the allegations in her complaint were\n\nsubstantially the same as those aired in earlier public disclosures.\n\nCompounding that error, in her view, the district court then wrongly\n\ndetermined that she did not fall under the “original source” exception to the\n\npublic disclosure bar.\n\n Put differently, the fate of Ms. Reed’s qui tam claims hangs on two\n\nquestions. First, are the allegations in those claims substantially the same\n\nas those in earlier public disclosures? And second, if so, is Ms. Reed an\n\n“original source” of the information in her claims? Our answer to the first\n\nquestion does not favor Ms. Reed, but our answer to the second one does. 5\n\n 4\n For the public disclosure bar to apply, two other conditions must be met.\nFirst, “the alleged ‘public disclosure’” must “contain[] allegations . . . from one of the\nlisted sources” in the Act. In re Nat. Gas Royalties, 562 F.3d 1032, 1039 (10th Cir. 2009)\n(quoting United States ex rel. Holmes v. Consumer Ins. Grp., 318 F.3d 1199, 1203 (10th\nCir. 2003)); see 31 U.S.C. § 3730(e)(4)(A)(i)–(iii) (listing, among other things, news\nreports, congressional hearings, prior lawsuits, and federal audits as “sources”). Second,\nthe disclosure must be “public.” See In re Nat. Gas Royalties, 562 F.3d at 1039. Because\nthe parties agree that these conditions are met, we need not (and do not) consider them.\n 5\n We typically answer “only the questions we must, not those we can.”\nValley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th\nCir. 2010). Thus, we pause to explain our rationale for resolving the substantially-the-\nsame question even though we ultimately vacate the district court’s judgment regarding\n (continued...)\n\n 17\n\f 5\n (...continued)\nthe qui tam claims because of its error in resolving the original-source question. In other\nwords, because the original-source error is ultimately determinative here in our resolution\nof the public-disclosure-bar issue, some might question the need to first rule on the\nsubstantially-the-same component of the public-disclosure-bar issue. But our precedent\nteaches that application of the public disclosure bar “requires a four-step inquiry.”\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1042 (10th Cir. 2004). The first two\nsteps—which are not at issue here—relate to whether the information in question\nqualifies under the Act as a public disclosure. See id. The third step is the substantially-\nthe-same inquiry. These first three steps determine whether, absent an exception, the\npublic disclosure bar applies at all. See id. And so our circuit has counseled courts to\n“address the first three public disclosure issues first.” Id. (quoting United States ex rel.\nHafter v. Spectrum Emergency Care, 190 F.3d 1156, 1161 (10th Cir. 1999)). Reaching\n“the fourth, ‘original source’ issue is necessary only if the court answers the first three\nquestions in the affirmative.” Id. (emphasis added) (quoting Hafter, 190 F.3d at 1161).\nIn Kennard, for example, we first concluded that the public disclosure bar’s three\nprerequisites applied. Id. Then we held that the relators “qualif[ied] as an original\nsource,” thus reversing the district court’s order. Id. at 1046.\n Admittedly, this precedent instructing courts to reach the original-source question\nonly after answering in the affirmative the substantially-the-same question interpreted the\npre-2010 version of the public disclosure bar, which was jurisdictional. That said, we see\nno reason why the 2010 amendment—irrespective of its jurisdictional import—should\nchange our view that the substantially-the-same “analysis is a threshold inquiry” that we\nshould resolve before “reach[ing] the ‘original source’ analysis.” United States ex rel.\nFine v. MK-Ferguson Co., 99 F.3d 1538, 1545 (10th Cir. 1996) (quoting United States ex\nrel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 552 (10th Cir. 1992)). After all, as\nwe explain below, the 2010 amendment establishes an analytical rubric consistent with\nour pre-2010 precedent. Moreover, the structure of the amended provision—like the\nunamended version—supports the proposition that the substantially-the-same inquiry is a\nthreshold one. That provision instructs courts to dismiss a qui tam claim “if substantially\nthe same allegations . . . were publicly disclosed . . . . unless . . . the person bringing the\naction is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (2010)\n(emphasis added); see Moore, 812 F.3d at 297–98 (quoting this amended language and\nconcluding that a relator’s allegations were substantially the same as those in the public\nsphere, “but that [the relator] was nevertheless an original source”). Thus, we adhere to\nour pre-2010-amendment view that courts should resolve the substantially-the-same\nquestion before considering whether a relator’s qui tam claims may proceed under the\n (continued...)\n\n 18\n\fSpecifically, we hold that Ms. Reed’s complaint averments are substantially\n\nthe same as the allegations in the available public disclosures, but the\n\ndistrict court erred in finding that Ms. Reed’s averments do not materially\n\nadd to those disclosures’ allegations, such that she does not qualify as an\n\noriginal source. But this holding does not fully resolve the original-source\n\nquestion. Consequently, we vacate the district court’s summary-judgment\n\norder and remand for further proceedings regarding whether Ms. Reed\n\nqualifies as an original source.\n\n A\n\n We agree with the district court that Ms. Reed’s allegations\n\nundergirding her qui tam claims are “substantially the same” as the\n\nallegations in the public disclosures. We explain this conclusion in three\n\nsteps. First, we discuss the applicable legal standard that guides our\n\nsubstantially-the-same inquiry. Second, we compare the allegations in Ms.\n\nReed’s qui tam claims with those in the public disclosures. And third, we\n\nclose by concluding that the allegations in the qui tam claims are\n\n“substantially the same” as the publicly disclosed allegations.\n\n\n\n\n 5\n (...continued)\noriginal-source exception.\n\n 19\n\f 1\n\n Congress amended the False Claims Act in 2010. See Pub. L. No.\n\n111-148, § 10104(j)(2), 124 Stat. 119, 901–02 (“2010 amendment”). Before\n\nthat year, the provision setting out the public disclosure bar read: “No\n\ncourt shall have jurisdiction over an action under this section based upon\n\nthe public disclosure of allegations or transactions . . . .” 31 U.S.C.\n\n§ 3730(e)(4)(A) (2008) (emphasis added). The amended provision reads:\n\n“The court shall dismiss an action . . . if substantially the same allegations .\n\n. . as alleged in the action or claim were publicly disclosed.” 31 U.S.C.\n\n§ 3730(e)(4)(A) (2010) (emphasis added).\n\n Our court has yet to opine on the degree of similarity necessary to\n\nsatisfy this new substantially-the-same standard. That said, even before\n\n2010, our circuit read the unamended provision’s “based upon” language to\n\nmean that the public disclosure bar applied when “the allegations in the\n\ncomplaint were substantially the same as allegations in the public\n\ndisclosures.” Fine, 70 F.3d at 572; see also Glaser v. Wound Care\n\nConsultants, Inc., 570 F.3d 907, 910 (7th Cir. 2009) (noting that “eight\n\nother circuits have read the phrase ‘based upon’” to encompass allegations\n\nthat are “substantially similar” to those publicly disclosed). That the\n\nsubstantially-the-same standard adopted in the 2010 amendment resembles\n\n\n 20\n\fthe standard we already used is no accident; the amendment “expressly\n\nincorporates the ‘substantially similar’ standard in accordance with the\n\ninterpretation of this circuit and most other circuits.” Bellevue v. Universal\n\nHealth Servs. of Hartgrove, Inc., 867 F.3d 712, 718 (7th Cir. 2017), cert.\n\ndenied, 138 S. Ct. 1284 (2018). Thus, the 2010 amendment confirms the\n\nvitality of our pre-2010 standard. 6\n\n In her reply brief, Ms. Reed argues for the first time that the 2010\n\namendment nullifies our earlier cases. See Aplt.’s Reply Br. at 8. In her\n\nview, the amendment “made clear” Congress’s “desire to narrow the impact\n\nof the public disclosure bar.” Id. Indeed, Ms. Reed believes that Congress\n\nacted specifically to jettison the reasoning used in our pre-2010 cases. And\n\nso she warns us not to rely on those earlier cases in our substantially-the-\n\nsame inquiry.\n\n Ms. Reed’s argument is too little too late. For starters, by waiting\n\n\n\n 6\n Accord United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d\n201, 208 n.4 (1st Cir. 2016) (“The revised statutory langauge—‘substantially the\nsame’—merely confirms our earlier understanding.”); United States ex rel. Mateski v.\nRaytheon Co., 816 F.3d 565, 569 n.7 (9th Cir. 2016) (“[O]ur analysis of the issue of\nsubstantial similarity would be the same under either version [of the public-disclosure-bar\nprovision].”); Cause of Action v. Chi. Transit Auth., 815 F.3d 267, 281 n.20 (7th Cir.\n2016) (“Our analysis [of substantial similarity] is therefore the same under either version\nof the statute.”); see also United States ex rel. Armes v. Garman, 719 F. App’x 459, 463\nn.2 (6th Cir. 2017) (unpublished) (“[T]he 2010 amendment does not affect our public-\ndisclosure analysis . . . .”).\n\n 21\n\funtil her reply brief to argue that the 2010 amendment narrowed the public\n\ndisclosure bar’s sweep and undermined our earlier cases, Ms. Reed waived\n\nthat argument. See, e.g., White v. Chafin, 862 F.3d 1065, 1067 (10th Cir.\n\n2017) (“Mr. White waived this contention by waiting to present it for the\n\nfirst time in his reply brief.”). Furthermore, were we to overlook this\n\nwaiver, we nevertheless would decline Ms. Reed’s invitation to discard our\n\nearlier precedent because of Congress’s supposed “desire to narrow the\n\nimpact of the public disclosure bar.” Aplt.’s Reply Br. at 8.\n\n We ordinarily derive Congress’s intent “from the text, not from\n\nextrinsic sources.” Antonin Scalia & Bryan A. Garner, R E A D I N G L A W : T H E\n\nINTERPRETATION OF L E G A L T E X T S 56 (2012). The amended text says that\n\nthe public disclosure bar applies when substantially the same allegations\n\nhad been publicly disclosed; that is how our circuit (and most others)\n\napplied the public disclosure bar pre-amendment, see Fine, 70 F.3d at 572,\n\nand that is how we will continue to apply it until Congress or the Supreme\n\nCourt tells us otherwise. In any event, Congress’s supposed desire to\n\nnarrow the public disclosure bar presumably would relate to only those\n\ncircuits that had used a standard other than the substantially-the-same\n\nstandard adopted in the 2010 amendment. See, e.g., United States ex rel.\n\nMay v. Purdue Pharma L.P., 737 F.3d 908, 917 (4th Cir. 2013) (explaining\n\n\n 22\n\fthat because the Fourth Circuit had not used the substantially-the-same\n\nstandard, the 2010 amendment “changed the required connection between\n\nthe plaintiff’s claims and the qualifying public disclosure” in that circuit).\n\nBut in this circuit—where we already used the substantially-the-same\n\nstandard—the 2010 amendment “merely confirms our earlier\n\nunderstanding.” United States ex rel. Winkelman v. CVS Caremark Corp.,\n\n827 F.3d 201, 208 n.4 (1st Cir. 2016). Thus, our pre-2010-amendment\n\ncases guide our substantially-the-same inquiry.\n\n Those cases teach that the operative question is whether the public\n\ndisclosures were sufficient to set the government “on the trail of the alleged\n\nfraud without [the relator’s] assistance.” 7 Fine, 70 F.3d at 571. And we\n\nmust recognize that the government’s nose for fraud may be sensitive\n\nenough to pick up the scent even if the public disclosures did not “identify\n\n\n\n\n 7\n We are aware of scholarly criticism of the on-the-trail-of-fraud standard.\nSee Susan Schneider Thomas & Jonathan Z. DeSantis, Misguided Meanders: The “Trail\nof Fraud” Under the Public Disclosure Bar of the False Claims Act, 43 UNIV. OF\nDAYTON L. REV. 161, 182 (2018) (“[R]ather than using the innately ambiguous\nassessment of whether the alleged public disclosures ‘might have’ ‘set’ the government\non the ‘trail’ of fraud, it would be a far more meaningful analysis to examine, as the plain\nlanguage of the statue commands, whether the potentially disabling public disclosures in\nfact disclosed allegations or transactions of fraud, or made actual allegations of fraudulent\nconduct.”). However, Fine and its progeny are binding precedent in this circuit.\nMoreover, Ms. Reed does not challenge the propriety of this standard in her Opening\nBrief.\n\n 23\n\fany specific compan[y].” 8 See In re Nat. Gas Royalties, 562 F.3d 1032,\n\n1039, 1042 (10th Cir. 2009). The need to identify the defendant by name is\n\nparticularly weak when “the government has already identified the problem\n\nand has an easily identifiable group of probable offenders.” 9 Fine, 70 F.3d\n\nat 572. Similarly, “[a] relator need not have learned of the basis for the qui\n\ntam action from the public disclosure” to trigger the public disclosure bar.\n\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1044 (10th Cir. 2004). Nor\n\nis “a complete identity of allegations, even as to time, place, and manner . .\n\n. required to implicate the public disclosure bar.” Boothe, 496 F.3d at\n\n1174. Rather, it is enough if “the essence of” the relator’s allegations was\n\n“‘derived from’ a prior public disclosure.” Id. In fact, the public\n\n 8\n See also United States ex rel. Lager v. CSL Behring, L.L.C., 855 F.3d 935,\n946 (8th Cir. 2017) (concluding that the disclosures “‘set the government squarely on the\ntrail’ of the defendants’” fraud even though the disclosures did not name defendants\n(quoting In re Nat. Gas Royalties, 562 F.3d at 1041)); United States ex rel. Zizic v.\nQ2Administrators, LLC, 728 F.3d 228, 238 (3d Cir. 2013) (concluding allegations were\nsubstantially similar even though defendants “were not actually identified” in the public\ndisclosure).\n 9\n See also Lager, 855 F.3d at 946 (finding substantial similarity when\ndisclosures gave enough information about an industry-scheme to “identify the\ndefendants” without naming them); cf. United States ex rel. Jamison v. McKesson Corp.,\n649 F.3d 322, 329, 330 (5th Cir. 2011) (observing that “the public disclosures need not\nname particular defendants so long as they ‘alerted the government to the industry-wide\nnature of the fraud and enabled the government to readily identify wrongdoers through an\ninvestigation,” but reasoning that “the defendants’ documents, considered alone, likely\nare not sufficient publically to disclose allegations specific to” them because their\nindustries “are large” and “[t]he public disclosures do not indicate that fraud is universal\nor even widespread within them” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)).\n\n 24\n\fdisclosures need not allege any False Claims Act violations or even “any\n\nwrongdoing”; they need only disclose “the material elements of the\n\nfraudulent transaction.” 10 Fine, 70 F.3d at 572.\n\n In summary, the public disclosure bar applies to qui tam claims “if\n\nsubstantially the same allegations . . . were publicly disclosed.” 31 U.S.C.\n\n§ 3730(e)(4)(A). Our pre-2010-amendment cases primarily guide our\n\nsubstantially-the-same inquiry. And those cases teach that the operative\n\nquestion is whether the public disclosures were sufficient to set the\n\ngovernment “on the trail of the alleged fraud without [the relator’s]\n\nassistance.” Fine, 70 F.3d at 571.\n\n 2\n\n Having settled on the proper standard governing the substantially-the-\n\nsame inquiry, we now must compare Ms. Reed’s allegations with those in\n\nthe public disclosures.\n\n Ms. Reed’s Allegations. At a high level of generality, Ms. Reed’s qui\n\ntam claims allege that KeyPoint “was engaging in systemic fraud.” Aplt.’s\n\n\n\n 10\n See also Bellevue, 867 F.3d at 718–19 (noting that the substantially-the-\nsame standard requires only “that the government had enough information” from the\npublic disclosures to infer that the defendant knowingly violated the False Claims Act);\nWinkelman, 827 F.3d at 208 (explaining that it is enough that the public disclosures “lead\nto a plausible inference of fraud” (quoting United States ex rel. Ondis v. City of\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); Osheroff, 776 F.3d at 814 (same).\n\n 25\n\fOpening Br. at 1. This fraud grew from KeyPoint’s “focus[] on meeting . .\n\n. deadlines” and winning bonuses “at the expense of the quality,\n\ncompleteness, and accuracy” of its investigations, Ms. Reed says. Aplt.’s\n\nApp. at 29, ¶ 38. For instance, Ms. Reed accuses KeyPoint of pressuring\n\ninvestigators to rush investigations to maximize revenue. This pressure led,\n\ngenerally, to rampant violations of KeyPoint’s contract with OPM and, in\n\nparticular, of the TTP. Notably, as to the TTP, the pressure led to the\n\nsubmission of knowingly false corrective action reports designed to hide the\n\nviolations. At bottom, Ms. Reed alleges that KeyPoint knowingly\n\ndefrauded the government to “enrich itself and its executives at the expense\n\nof national security.” Aplt.’s Opening Br. at 6.\n\n Zooming in on the details, Ms. Reed claims that KeyPoint’s fraud\n\nmanifested itself in three main ways. First, she says that KeyPoint falsely\n\ncertified to OPM that it had performed complete and accurate\n\ninvestigations. To support this charge, Ms. Reed points to specific\n\ninstances in which investigators failed to do mandatory interviews of\n\nsources. She also details how individual investigators uncovered\n\nderogatory information about subjects but failed to report that information\n\nin their reports to OPM. Piling on, Ms. Reed lists over 100 instances in\n\nwhich investigators cut interviews short and then lied about it to OPM. She\n\n\n 26\n\fadds to this by exposing scores of violations of the TTP.\n\n Ms. Reed contends that the second manifestation of KeyPoint’s fraud\n\nentailed falsely representing to OPM that it had done proper case reviews\n\nand quality-control checks. For instance, she documents at least five times\n\nthat, “despite . . . readily apparent violations,” KeyPoint reviewers violated\n\nOPM requirements by failing to reopen cases. Aplt.’s App. at 88, ¶ 248.\n\nAnd to circumvent the TTP, “quality control staff failed to perform the\n\nproper number of re-interviews.” Id. at 89, ¶ 252.\n\n The third (related) strain of fraud Ms. Reed identifies is KeyPoint’s\n\nsubmission of falsified corrective action reports. Recall that these reports\n\n“are supposed to detail the specific actions taken by KeyPoint management\n\nto address” violations of OPM rules and programs—most notably, the TTP.\n\nId. at 89, ¶ 255. To hide its rampant violations and institutional\n\nacquiescence to those violations, Ms. Reed alleges that “KeyPoint falsified\n\ncorrective action reports to OPM” to give the appearance that it “was\n\nactively addressing [violations], when it was not.” Id. at 89, ¶ 256. To Ms.\n\nReed’s knowledge, KeyPoint falsified dozens of reports to hide malfeasance\n\nby at least four individual investigators.\n\n Publicly Disclosed Allegations. There are four categories of relevant\n\npublic disclosures: (1) criminal investigations of individual investigators,\n\n\n 27\n\f(2) the news reports, (3) congressional hearings and OPM audits, and (4)\n\nthe previously mentioned USIS suit.\n\n Criminal Investigations. Between 2007 and 2013, the government\n\nprosecuted individual investigators for allegedly falsifying information in\n\ntheir reports. At least one of these “criminal cases involve[d] . . . a former\n\nKey[P]oint employee who ‘raced through investigations to get more work’\n\nand lied about conducting thorough background checks when they were\n\nincomplete and rushed.” Id. at 410.\n\n News Reports. In 2013, a slew of news reports chronicled the\n\nsuspected fraud and widespread sloppiness in the background-investigation\n\nindustry. One article in September 2013 reported that the government was\n\n“‘pursuing suspected fraud in the granting of security clearances,’ including\n\n‘19 private and government investigators for submitting fabricated\n\nreports.’” Id. (quoting id. at 307–09 (NBC Article, dated Sept. 18, 2013)).\n\nAnother article in June 2013 relayed that OPM had found problems “with\n\nprocedures and safeguards used by all three private contractors—USIS,\n\nKeyPoint . . . and CACI.” Id. at 303. This article added that “[a]ll three\n\ncompanies have had investigators who were found to have done substandard\n\nwork in background checks.” Id. Another June 2013 article reporting on\n\nallegations against USIS noted that “concerns about background checks\n\n\n 28\n\f[were] not limited to USIS.” Id. at 159.\n\n Congressional Hearings & OPM Audits. In 2013, Congress twice\n\nheld hearings to investigate the background-investigation industry’s\n\npractice of using “false, incomplete, or rushed information gathering” in its\n\nbackground investigations. Id. at 411 & n.3. OPM reacted by\n\ncommissioning an audit of KeyPoint’s and its competitors’ practices. This\n\naudit determined that OPM “need[ed] to strengthen its controls over its\n\nContractors and the background investigation review process.” Id. at 164.\n\nBack in 2010, OPM had completed a report on another audit of the\n\nbackground-investigation industry. This earlier report concluded that\n\nKeyPoint’s and its competitors’ “quality assurance process” needed\n\nimprovement. Id. at 273. The 2010 report also revealed that KeyPoint\n\nsometimes “did not conduct the required amount of re-contacts” in its\n\ninvestigations, id. at 289, and that there were “falsification and[] integrity\n\nissues” with investigations done by USIS, KeyPoint, and CACI, id. at 261.\n\n The USIS Suit. In October 2013—a month before Ms. Reed conveyed\n\nher allegations to DOJ and two months before she filed her qui tam suit—a\n\nfederal court unsealed a complaint against USIS. The complaint included\n\nthree qui tam claims against USIS. First, it alleged that USIS had a\n\npractice of “dumping” cases. That is, USIS allegedly sent cases “to OPM\n\n\n 29\n\fthat were represented as Field Finished” when, in truth, they were\n\nunreviewed or “had not been investigated at all.” Aplt.’s Reply Br.,\n\nAddendum A, at 5. Second, the complaint claimed that USIS “failed to\n\nprovide accurate and complete investigations.” Id. at 10. Third, USIS\n\nsupposedly falsely represented to OPM the extent to which it used a\n\nsoftware program known as the “Blue Zone.” Id. at 12. But the suit neither\n\nmentioned KeyPoint nor implied that USIS’s fraud extended to its\n\ncompetitors or the industry as a whole.\n\n 3\n\n The question now is: Are the allegations in Ms. Reed’s qui tam\n\nclaims substantially the same as those in the publicly disclosed sources?\n\nWe agree with the district court that the answer to that question is “yes.”\n\nThat is, we conclude that the public disclosures were sufficient to set the\n\ngovernment on the trail of KeyPoint’s alleged fraud without Ms. Reed’s\n\nassistance. 11\n\n\n 11\n Ms. Reed alleges on appeal that the district court “fail[ed] to do a diligent\ncomparison of the putative public disclosures with [her] allegations.” Aplt.’s Opening Br.\nat 3. Not so. Beyond incorporating the magistrate judge’s discussion of the relevant\nallegations, see Aplt.’s App. at 409, the district court dutifully recounted Ms. Reed’s\nallegations and the publicly disclosed allegations in turn, see id. at 408–12. From this\ncomparison, the court then concluded that Ms. Reed’s allegations were substantially\nsimilar to the publicly disclosed allegations. The sufficiency of this analysis cannot be\nquestioned. In any event, our review is de novo, and we have thoroughly compared the\n (continued...)\n\n 30\n\f At their most general, Ms. Reed’s qui tam claims allege systemic\n\nsloppiness and fraud in the background-investigation industry. 12 But the\n\ngovernment and the public knew that much already from the news reports.\n\nThose news articles painted a picture of widespread problems with the\n\nthoroughness and accuracy of the private contractors’ background\n\n\n 11\n (...continued)\naverments of Ms. Reed’s operative complaint to the identified public disclosures.\nAccordingly, Ms. Reed’s assertion that the district court conducted a faulty analysis of the\nsummary judgment record is ultimately of no moment. Cf. Rivera v. City & County of\nDenver, 365 F.3d 912, 920 (10th Cir. 2004) (“Because our review is de novo, we need not\nseparately address Plaintiff’s argument that the district court erred by viewing evidence in\nthe light most favorable to the City and by treating disputed issues of fact as\nundisputed.”).\n 12\n We, like other circuits, would have reservations about keeping our analysis\nof Ms. Reed’s allegations solely at such a high level of generality. See Mateski, 816 F.3d\nat 578 (agreeing with the “Seventh Circuit’s warning against reading qui tam complaints\nat only the ‘highest level of generality’” (quoting Leveski v. ITT Educ. Servs., Inc., 719\nF.3d 818, 831 (7th Cir. 2013))). But at what precise level of generality we should\ncompare a relator’s claims with allegations in public disclosures is a difficult question.\nThe Act tells us to ask if the relator’s claims are “substantially the same.” 31 U.S.C.\n§ 3730(e)(4)(A). The ordinary meaning of “substantial” is: “concerning the essentials of\nsomething.” THE NEW OXFORD AMERICAN DICTIONARY 1687 (2d ed. 2005). And the\nordinary meaning of “same” is: “identical; not different; unchanged” or “of an identical\ntype.” Id. at 1498. “Substantially the same,” then, connotes a standard that requires only\nthe essentials of the relator’s allegations to be identical to or of an identical type as those\ndisclosed publicly. This plain-meaning analysis comports with our precedent. See\nBoothe, 496 F.3d at 1174 (noting that “a complete identity of allegations” is unnecessary;\nit is enough for “the essence of” the relator’s allegations to be “‘derived from’ a prior\npublic disclosure”). We need not put a finer point on this issue in this case. That is\nbecause it is clear to us that only if we accept Ms. Reed’s hyper-specific reading that\nrequires near-complete identity of allegations could we conclude that her allegations are\nnot substantially similar to those in the public disclosures. And our precedent forecloses\nsuch a hyper-specific reading. See id.\n\n 31\n\finvestigations. And that Congress held hearings to probe the background-\n\ninvestigation industry’s alleged practice of using “false, incomplete, or\n\nrushed information gathering” underscored the pre-existing public\n\nawareness of a strong probability of fraud in the industry. Aplt.’s App. at\n\n411 & n.3. What is more, the criminal prosecutions of individual\n\ninvestigators confirmed that the government knew that investigators in the\n\nindustry were falsifying information in their reports.\n\n Moving down a rung on the generality ladder to more specific footing,\n\nMs. Reed’s claims allege fraud not only in the background-investigation\n\nindustry generally, but also in KeyPoint’s specific background-investigative\n\npractices. That information, too, was old news to the government. After\n\nall, the government prosecuted a former KeyPoint employee for “rac[ing]\n\nthrough investigations” and lying “about conducting thorough background\n\nchecks when they were incomplete and rushed.” Id. at 410. News reports\n\nfrom 2013 added to this knowledge by reporting that OPM had found\n\nproblems “with procedures and safeguards used by all three private\n\ncontractors—USIS, KeyPoint . . . and CACI.” Id. at 303. To be sure, the\n\nnews reports avoided explicitly accusing KeyPoint of defrauding the\n\ngovernment. But direct allegations of fraud were unnecessary to put the\n\ngovernment on the trail of KeyPoint’s fraud. Cf. Winkelman, 827 F.3d at\n\n\n 32\n\f208 (explaining that it is enough that the disclosures “lead to a plausible\n\ninference of fraud” (quoting United States ex rel. Ondis v. City of\n\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); United States ex rel.\n\nOsheroff v. Humana Inc., 776 F.3d 805, 814 (11th Cir. 2015) (same);\n\nBoothe, 496 F.3d at 1174 (“[A] complete identity of allegations, even as to\n\ntime, place, and manner [is unnecessary].”); Fine, 70 F.3d at 572 (noting\n\nthat public disclosures need not allege “any wrongdoing”). Moreover, a\n\n2010 OPM audit report revealed both that KeyPoint sometimes “did not\n\nconduct the required amount of re-contacts” in its investigations, Aplt.’s\n\nApp. at 289, and that there were “falsification and[] integrity issues” with\n\ninvestigations done by USIS, KeyPoint, and CACI, id. at 261. The\n\ngovernment, then, did not need Ms. Reed’s allegations to pick up the scent\n\nof fraud at KeyPoint.\n\n At their most specific, Ms. Reed’s claims allege that KeyPoint\n\nknowingly defrauded the government by submitting fraudulent reports about\n\nthe completeness and accuracy of its investigations. The government could\n\nhave inferred as much from the public disclosures. Consider the USIS\n\nlawsuit. That suit alleged that USIS failed to review investigations, failed\n\nto do adequate investigations, and sent false reports to OPM. Those are the\n\nsame basic failings Ms. Reed accuses KeyPoint of. Furthermore, the USIS\n\n\n 33\n\fsuit alleged that investigators sent cases “to OPM that were represented as\n\nField Finished” when, in truth, they were unreviewed or “had not been\n\ninvestigated at all.” Aplt.’s Reply Br., Addendum A, at 5. Ms. Reed’s suit\n\nsimilarly asserts that KeyPoint sent OPM false claims “certifying that [its]\n\ninvestigators conducted complete, accurate, and proper investigations.”\n\nAplt.’s App. at 104, ¶ 359.\n\n Considering this information from the USIS lawsuit and the other\n\npublicly disclosed matters discussed above, we conclude that the public\n\ndisclosures were sufficient to set the government on the trail of KeyPoint’s\n\nalleged fraud without Ms. Reed’s assistance. Our cases reinforce this\n\nconclusion. Take Fine, for example. The relator there accused Sandia\n\nCorporation of misappropriating nuclear waste funds. 70 F.3d at 569. At\n\nthe time, Sandia was one of only nine laboratories receiving federal funds\n\nfrom the Department of Energy. Before the relator’s suit, a government\n\nreport documented how three such laboratories, including Sandia, funded\n\ntheir discretionary research. The report concluded that the two other\n\nlaboratories—but, notably, not Sandia—were fraudulently “taxing” nuclear\n\nwaste funds in order to bolster their research programs, possibly in\n\nviolation of federal law. Id. Again without implicating Sandia, a later\n\ncongressional hearing further probed the Department of Energy’s\n\n\n 34\n\facquiescence to such behavior from its laboratories. As we saw it, that\n\nneither the report nor the congressional hearing named Sandia as a\n\nwrongdoer was not determinative. Id. at 572. We reasoned that because the\n\npublic disclosures had “identified the problem and [there was] an easily\n\nidentifiable group of probable offenders,” the disclosures “were sufficient\n\nto put the government on notice as to Sandia’s potential for\n\nmisappropriating nuclear waste funds.” Id. Thus, we held that the relator’s\n\nallegations were substantially the same to those in the report and the\n\ncongressional hearing. Id.\n\n The same reasoning applies here. As in Fine, the public disclosures\n\nhere identified the problem—fraud in background investigations—and\n\ntraced that problem to an easily identifiable group of probable offenders\n\n(USIS, KeyPoint, and CACI). As in Fine, Congress held hearings to probe\n\nthe suspected fraud in this limited industry. Moreover, akin to Fine, a\n\ngovernment report (here, the 2010 OPM audit report) laid bare the heart of\n\nthe matter—i.e., the falsification and integrity issues that plagued the\n\nbackground-investigation industry.\n\n But unlike in Fine, some of the public disclosures explicitly linked\n\nKeyPoint to the suspected fraud. The OPM audit said that “Contractors”\n\nhad falsification issues; that defined term meant USIS, KeyPoint, and\n\n\n 35\n\fCACI. And the news reports publicized that OPM had “found problems\n\nwith procedures and safeguards used by all three private contractors—USIS,\n\nKeyPoint . . . and CACI.” Aplt.’s App. at 303. Thus, although the public\n\ndisclosures did not say the words “KeyPoint defrauded the government,” the\n\nlink that the disclosures forged between KeyPoint and the fraud was even\n\nstronger than the one in Fine, where we held that the substantially-the-same\n\nstandard was satisfied. It ineluctably follows that this link was sufficient\n\nhere to satisfy that standard—that is, to have set the government on the trail\n\nof KeyPoint’s alleged fraud without Ms. Reed’s help.\n\n Ms. Reed’s attempts to distinguish Fine fall short. For starters, Ms.\n\nReed is mistaken in asserting that “no publicly disclosed information prior\n\nto [her] lawsuit indicated that KeyPoint was a wrongdoer.” Aplt.’s Reply\n\nBr. at 10. The news reports linked KeyPoint to the fraud allegations roiling\n\nthe industry. Even Ms. Reed’s statement that “KeyPoint was not\n\ninvestigated for any suspected wrongdoing,” id., rings somewhat hollow.\n\nAfter all, the government prosecuted a former KeyPoint employee for lying\n\n“about conducting thorough background checks when they were incomplete\n\nand rushed.” Aplt.’s App. at 410. Even if Ms. Reed’s characterization of\n\nthe absence of a KeyPoint-specific investigation were correct, the fact that\n\nKeyPoint was not named as a wrongdoer would not distinguish Fine;\n\n\n 36\n\finstead, it would reinforce the parallels with it. And those parallels persist\n\neven though—as Ms. Reed points out—unlike the Department of Energy,\n\nOPM never “acquiesced to or implicitly approved any fraudulent schemes.”\n\nAplt.’s Reply Br. at 10. Ms. Reed overstates the significance of the\n\nDepartment of Energy’s acquiescence in Fine. We noted this agency\n\nconduct there to emphasize that the government knew of the underlying\n\nproblem at issue in a limited industry; our point was not that the\n\nacquiescence itself was independently important. See Fine, 70 F.3d at 571.\n\nIn sum, Ms. Reed errs in suggesting that Fine is materially distinguishable.\n\nIt is not. To the contrary, it bolsters our conclusion that Ms. Reed’s\n\nallegations are substantially the same as the publicly disclosed allegations.\n\n In re Natural Gas Royalties further supports our view on the\n\nsubstantially-the-same question. The relator there alleged that certain\n\nnatural gas companies used fraudulent measurement techniques to underpay\n\nfederal royalties. The relevant public disclosures included (1)\n\ncongressional documents revealing problems with measurement techniques\n\nin the natural-gas industry, (2) an earlier qui tam suit against different gas\n\ncompanies for the same fraudulent practices, and (3) press accounts\n\nreporting on the earlier suit and “disclos[ing] the industrywide nature of\n\n[the suit’s] broad allegations.” 562 F.3d at 1042. On appeal, the relator\n\n\n 37\n\fargued that these disclosures were not substantially the same as his\n\nallegations because the specific “Defendants and techniques were not\n\nidentified in any public disclosed allegation.” Id. at 1040. This court\n\ndisagreed.\n\n Citing Fine, we explained in In re Natural Gas Royalties that “the\n\npublic disclosures at issue named a significant percentage of industry\n\nparticipants as wrongdoers and indicated that others in the industry were\n\nvery likely engaged in the same practices.” Id. at 1042. These revelations\n\nalleviated the burden for the government “to comb through myriad\n\ntransactions performed by various types of entities in search of potential\n\nfraud.” Id. Rather, the government needed only to investigate the\n\nmeasurement techniques used by a small pool of actors to ferret out the\n\nfraud. For those reasons, we held that, even without naming the specific\n\ndefendants and techniques identified by the relator, “the allegations of\n\nindustrywide gas mismeasurment disclosed” in the public documents “were\n\nsufficient to set the government on the trail of the fraud as to all\n\nDefendants.” Id. at 1043.\n\n So too here. The allegations in the public disclosures identified\n\npervasive fraud in the background-investigation industry. Recall that in the\n\nyears before Ms. Reed’s suit, the government prosecuted individual\n\n\n 38\n\finvestigators for allegedly falsifying information in their reports.\n\nFurthermore, a 2013 news article reported that the government was\n\n“pursuing suspected fraud in the granting of security clearances” by\n\ncontractors. Aplt.’s App. at 308. And the USIS suit alleged that one of\n\nKeyPoint’s two main competitors (i.e., USIS) falsely told OPM that it had\n\nprovided “accurate and complete investigations.” Aplt.’s Reply Br.,\n\nAddendum A, at 10.\n\n As in In re Natural Gas Royalties, the public disclosures here\n\nobviated the need for the government “to comb through myriad transactions\n\nperformed by various types of entities in search of potential fraud.” 562\n\nF.3d at 1042. The disclosures identified three main players (including\n\nKeyPoint), and generally unearthed the type of fraud—false certifications\n\nof accurate and complete investigations—that the government needed to\n\nlook for. Guided by In re Natural Gas Royalties, we conclude that the\n\npublicly available information here was more than enough to set the\n\ngovernment on the trail of KeyPoint’s fraud without Ms. Reed’s allegations.\n\n Ms. Reed rejects such a conclusion. She first argues that her\n\nallegations “relate to a different entity” than the entities—notably,\n\nUSIS—accused of wrongdoing in the public disclosures. Aplt.’s Opening\n\nBr. at 12. Ms. Reed is quick to point out that the USIS suit made “no\n\n\n 39\n\fallegations against KeyPoint” and that none of the public disclosures\n\nexpressly accused KeyPoint of defrauding the government. Id. at 18.\n\nMaybe so. But the substantially-the-same standard does not demand that\n\nthe disclosures identify the defendant by name as the wrongdoer. See In re\n\nNat. Gas Royalties, 562 F.3d at 1039. To the contrary, it is enough that the\n\n“public disclosures alleged industry-wide fraud” and “provide[d] enough\n\ninformation” to link the defendant to the scheme. 13 United States ex rel.\n\nLager v. CSL Behring, L.L.C., 855 F.3d 935, 946 (8th Cir. 2017). In a\n\nsimilar way, “the public disclosure bar contains no requirement that a\n\npublic disclosure use magic words.” Winkelman, 827 F.3d at 209. Thus,\n\nalthough the public disclosures did not say the magic words “KeyPoint\n\ndefrauded the government,” the disclosures were sufficient to link KeyPoint\n\nto fraud in an industry with only three players. No more is required.\n\n Ms. Reed next argues that her allegations substantially differ from the\n\n\n\n 13\n See also Bellevue, 867 F.3d at 719 (noting that the substantially-the-same\nstandard requires only “that the government had enough information” from the public\ndisclosures to infer that the defendant knowingly violated the Act); Osheroff, 776 F.3d at\n814 (same); Jamison, 649 F.3d at 329 (“[T]he public disclosures need not name particular\ndefendants so long as they ‘alerted the government to the industry-wide nature of the\nfraud and enabled the government to readily identify wrongdoers through an\ninvestigation.’” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)); United States ex\nrel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 729 (7th Cir. 2006)\n(rejecting “argument that for there to be public disclosure, the specific defendants named\nin the lawsuit must have been identified in the public records”).\n\n 40\n\fpublicly disclosed allegations because she exposed different schemes. For\n\ninstance, she maintains that “USIS had a very specific fraudulent scheme\n\nthat it used to facilitate ‘dumping’ cases.” Aplt.’s Reply Br. at 5. That\n\nscheme, Ms. Reed explains, involved representing to OPM that cases were\n\ncomplete when they actually were unfinished or “had not been investigated\n\nat all.” Id. Her complaint, by contrast, describes “several types of\n\nfraudulent schemes specific to KeyPoint that are entirely unrelated to the\n\nUSIS case or any of the other publicly disclosed information.” Id. at 6.\n\n Ms. Reed is right that some of the schemes she exposed—especially,\n\nthe scheme involving the TTP—added to the government’s knowledge\n\n(more on this subject later), but these additions do not alter our\n\nsubstantially-the-same assessment. For now, the relevant question is only\n\nwhether the public disclosures set the government on the trail of KeyPoint’s\n\nfraud. As we have explained, this does not require “complete identity of\n\nallegations.” Boothe, 496 F.3d at 1174. Rather, it is enough if the relator’s\n\ncomplaint is “at least ‘in . . . part’” substantially the same as “the publicly\n\ndisclosed information.” Osheroff, 776 F.3d at 814 (alteration in original)\n\n(quoting Battle v. Bd. of Regents, 468 F.3d 755, 762 (11th Cir. 2006) (per\n\ncuriam)).\n\n Moreover, it cannot be gainsaid that in significant, material respects\n\n\n 41\n\fMs. Reed’s complaint averments are substantially the same as the complaint\n\naverments in the USIS suit. For instance, Ms. Reed’s complaint alleges that\n\nKeyPoint conducted “improper, incomplete, and inaccurate investigations.”\n\nAplt.’s App. at 33, ¶ 74. The USIS complaint likewise alleges that USIS\n\n“failed to provide accurate and complete investigations.” Aplt.’s Reply Br.,\n\nAddendum A, at 10. 14 And there are other substantial similarities between\n\nthe complaints. Compare Aplt.’s App. at 32, ¶ 64 (alleging that KeyPoint\n\n“transformed almost every aspect of its investigative processes to maximize\n\nprofits by hitting deadlines and taking on as much work as possible, without\n\nconcern for the quality, accuracy, or completeness of its investigations”),\n\nwith Aplt.’s Reply Br., Addendum A, at 5 (alleging that USIS pressured\n\n“Field Investigators to submit a large number of [reports of investigations]\n\nin a short amount of time in order to meet the revenue goals”). Therefore,\n\ngiven these substantial similarities, that Ms. Reed’s complaint revealed one\n\nor more KeyPoint fraudulent schemes that are distinct from those alleged in\n\nthe USIS lawsuit does not dissuade us from the view that the USIS suit\n\nhelped put the government on the trail of KeyPoint’s alleged fraud.\n\n\n\n 14\n Compare also Aplt.’s App. at 88, ¶ 244 (“Each case was submitted as\nthough it had been properly completed, reviewed, and checked when none had received\nthe required oversight.”), with Aplt.’s Reply Br., Addendum A, at 6 (“USIS knowingly\nsubmitted Cases to OPM for payment that they knew had not been reviewed . . . .”).\n\n 42\n\f Finally, Ms. Reed argues that the district court erred by not\n\nconsidering 2014 congressional testimony from a KeyPoint executive, Ms.\n\nOrdakowski, in its substantially-the-same analysis. In that testimony, Ms.\n\nOrdakowski told Congress that KeyPoint met or exceeded OPM standards\n\nand had “never wavered from its focus on quality.” Aplt.’s Opening Br. at\n\n21. Ms. Reed reasons that “if the government had some suspicions about\n\nthe quality of KeyPoint’s work,” this testimony would have “throw[n] the\n\ngovernment off the trail of the type of fraud [that Ms. Reed] alleges.” Id.\n\n This argument crumbles upon even brief reflection. First of all, Ms.\n\nOrdakowski testified months after Ms. Reed communicated her allegations\n\nto DOJ and after she sued KeyPoint. So the substance of Ms. Ordakowski’s\n\ntestimony tells us nothing about whether the government would have picked\n\nup the trail of fraud at KeyPoint based on the information it already had\n\nwhen Ms. Reed sued KeyPoint. Leaving aside this space-time-continuum\n\nproblem, Ms. Reed’s argument defies common sense. That Congress called\n\na KeyPoint executive to testify about problems with background\n\ninvestigations strongly suggests that Congress thought there was a problem\n\nand that KeyPoint potentially was among the culprits. Cf. Fine, 70 F.3d at\n\n572 (“[T]he public disclosures here were sufficient to put the government\n\non notice as to Sandia’s potential for misappropriating nuclear waste funds\n\n\n 43\n\f. . . .”). Simply put, Ms. Ordakowski’s testimony supports the district\n\ncourt’s (and our) conclusion that the public disclosures were sufficient to\n\nhave alerted the government to KeyPoint’s potential for fraud.\n\n In summary, we agree with the district court that the allegations in\n\nMs. Reed’s qui tam claims are substantially the same as those in the public\n\ndisclosures. Thus, unless Ms. Reed is an “original source” of the\n\ninformation in her claims, the public disclosure bar prevents those claims\n\nfrom proceeding.\n\n B\n\n We now take up the question of whether Ms. Reed is an original\n\nsource. Recall that the district court concluded that Ms. Reed was not an\n\noriginal source and therefore dismissed her qui tam claims under the public\n\ndisclosure bar. Ms. Reed argues that in doing so the district court made\n\nboth a procedural and a substantive error. The court’s procedural error, she\n\nsays, was excluding some of the evidence that she submitted to the court\n\nafter it converted KeyPoint’s motion to dismiss to a summary-judgment\n\nmotion. As for the alleged substantive error, Ms. Reed contends that the\n\ndistrict court erred in concluding that she was not an original source, in\n\nparticular, because her complaint averments did not materially add to the\n\ninformation in the public disclosures.\n\n\n 44\n\f As we explain below, Ms. Reed loses the procedural battle but wins\n\nthe substantive war. That is, we hold that the district court did not err in\n\nexcluding certain proffered evidence at summary judgment, but we hold that\n\nthe court did err in concluding that Ms. Reed was not an original source\n\nbecause her complaint averments did not satisfy the materially-adds\n\nstandard.\n\n 1\n\n When a district court relies on material outside the complaint to\n\nresolve a Rule 12(b)(6) motion, it ordinarily must convert that motion “into\n\na motion for summary judgment.” Burnham v. Humphrey Hosp. REIT Tr.,\n\nInc., 403 F.3d 709, 713 (10th Cir. 2005); see F E D . R. C I V . P. 12(d). If a\n\ndistrict court intends to convert a motion, it should inform the parties of\n\nthis intention and give them “the opportunity to present to the court all\n\nmaterial made pertinent to such motion by Rule 56.” Nichols v. United\n\nStates, 796 F.2d 361, 364 (10th Cir. 1986) (quoting Ohio v. Peterson,\n\nLowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir. 1978)).\n\nConverting a motion “without giving the adverse party an opportunity to\n\npresent pertinent material is error.” Adams v. Campbell Cty. Sch. Dist., 483\n\nF.2d 1351, 1353 (10th Cir. 1973).\n\n We review a district court’s choice to exclude evidence at the\n\n\n 45\n\fsummary-judgment stage, however, “only for an abuse of discretion.”\n\nLifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).\n\nWithout “a definite and firm conviction that the [district] court made a\n\nclear error of judgment or exceeded the bounds of permissible choice,” we\n\ncannot say that the court abused its discretion. Id. (quoting Lantec, Inc. v.\n\nNovell, Inc., 306 F.3d 1003, 1016 (10th Cir. 2002)).\n\n The district court converted KeyPoint’s Rule 12(b)(6) motion into a\n\nsummary-judgment motion. Before doing so, it allowed the parties to\n\npresent relevant material. Ms. Reed asked to present three sets of\n\nmaterials: (1) documents that she had given the government both before and\n\nafter she filed her qui tam suit, (2) a declaration in which she attested “to\n\nthe source of her allegations,” and (3) more “briefing on the public\n\ndisclosure and original source issues.” Aplt.’s Opening Br. at 30.\n\n After considering Ms. Reed’s proffered materials, the district court\n\nallowed her to submit only the documents she gave the government in her\n\npre-filing disclosures: specifically, the court excluded any post-filing\n\ndisclosures to the government, Ms. Reed’s declaration, and the additional\n\nbriefing. Those other materials, the court reasoned, would not add “any\n\nmaterial information” helpful to the public-disclosure-bar inquiry because\n\nMs. Reed’s complaint made “clear what the source of [her] knowledge was”\n\n\n 46\n\fand because the parties had fully briefed the applicable legal standards.\n\nAplt.’s App. at 404. Thus, under the court’s view, the post-filing\n\ndocuments, declaration, and additional briefing “were not ‘made pertinent’\n\nby the conversion.” Id. (quoting Nichols, 796 F.2d at 364).\n\n To the extent that Ms. Reed argues that the district court erred by\n\nrefusing “to allow [her] the opportunity to provide all material evidence,”\n\nAplt.’s Opening Br. at 30 (emphasis added), the record proves otherwise.\n\nThe court notified the parties of its intention to convert the motion to a\n\nsummary-judgment motion, and it gave them time to provide pertinent\n\nmaterial. Unlike the parties in the cases she cites, 15 Ms. Reed had ample\n\nopportunity to provide the court with “material made pertinent by Rule 56.”\n\nNichols, 796 F.2d at 364 (quoting Peterson, 585 F.2d at 457). Indeed, the\n\ncourt twice permitted Ms. Reed to amend her complaint to include the post-\n\nfiling information she now complains the court excluded. In the end, the\n\ncourt gave Ms. Reed notice of the conversion, considered her proffered\n\nmaterial, and even accepted some of that evidence.\n\n And the district court’s exclusion of the post-filing disclosures, Ms.\n\nReed’s declaration, and the added briefing was well within “the bounds of\n\n\n\n 15\n See Peterson, 585 F.2d at 457 (reversing because district court gave party\nno chance to present material); Adams, 483 F.2d at 1353 (same).\n\n 47\n\fpermissible choice.” LifeWise Master Funding, 374 F.3d at 927 (quoting\n\nLantec, 306 F.3d at 1016). Simply put, the court reasonably concluded that\n\nnone of those items contained material and relevant information that the\n\ncourt did not already possess. Therefore, the excluded materials were not\n\n“made pertinent” by the conversion. Nichols, 796 F.2d at 364 (quoting\n\nPeterson, 585 F.2d at 457).\n\n Ms. Reed, however, begs to differ. She says the excluded post-filing\n\ndisclosure statement and personal declaration were “pertinent” to\n\n“establish[ing] her status as an original source.” Aplt.’s Opening Br. at 30.\n\nThese materials, Ms. Reed contends, would have shown “the extent to\n\nwhich [her] allegations materially added to those allegations that had\n\npurportedly been publicly disclosed.” Id. at 33. The problem for Ms. Reed\n\nis that—as she admitted—the allegations in her complaint were “based\n\nalmost entirely upon the documents that were discussed during the\n\npre-filing meeting with [DOJ].” Aplee.’s Suppl. App., Vol. VII, at 1419\n\n(Ms. Reed’s Objs. to R. & R., filed Sept. 12, 2017). And Ms. Reed twice\n\namended her complaint to include the crux of the information from her\n\npost-filing disclosures to the government. Ms. Reed’s proffered materials,\n\nthen, would have merely duplicated that existing information in the twice-\n\namended complaint.\n\n\n 48\n\f In the end, we cannot say that the district court abused its discretion\n\nas to this procedural matter. Thus, we leave undisturbed the district court’s\n\nruling excluding the post-filing disclosures, Ms. Reed’s declaration, and the\n\nadditional briefing.\n\n 2\n\n a\n\n Having resolved the procedural issue, we turn to the substance of the\n\noriginal-source question. The False Claims Act instructs courts to dismiss\n\nqui tam claims under the public disclosure bar “if substantially the same\n\nallegations . . . were publicly disclosed”—unless the relator is “an original\n\nsource of the information.” 31 U.S.C. § 3730(e)(4)(A). We have already\n\nresolved the substantially-the-same question in KeyPoint’s favor. We now\n\nmust decide whether the district court erred in determining that Ms. Reed’s\n\nqui tam claims cannot escape the public disclosure bar through the original-\n\nsource exception.\n\n Two types of relators qualify as “original sources.” The first type is a\n\nrelator who, “prior to a public disclosure [within the meaning of the Act] . .\n\n. , has voluntarily disclosed to the Government the information on which\n\nallegations or transactions in a claim are based.” Id. § 3730(e)(4)(B). The\n\nsecond type is a relator with “knowledge that is independent of and\n\n\n 49\n\fmaterially adds to the publicly disclosed allegations” and who gave the\n\ngovernment this information before filing her qui tam claims. Id.\n\n Before the district court, Ms. Reed argued that she was an original\n\nsource of the second type. The district court agreed that Ms. Reed had in\n\nfact given the government her information before she sued KeyPoint. But\n\nthe court ruled that Ms. Reed’s allegations did not “materially add” to the\n\npublic disclosures. And so, without addressing whether Ms. Reed’s\n\nknowledge was “independent of” the public disclosures, the district court\n\nconcluded that Ms. Reed was not an original source.\n\n On appeal, Ms. Reed argues that the district court erred in concluding\n\nthat her allegations did not “materially add” to the public disclosures. As\n\nfor the “independent of” portion of the original-source inquiry, Ms. Reed\n\nsays in a short footnote that she satisfies that criterion, too. See Aplt.’s\n\nOpening Br. at 29 n.8. For its part, KeyPoint posits that “regardless of\n\nwhether her knowledge was ‘independent of’ the public disclosures,” Ms.\n\nReed is not an original source because her allegations “did not materially\n\nadd to the public disclosures.” Aplee.’s Resp. Br. at 34.\n\n Our circuit has yet to expound on the meaning of the “materially\n\nadds” language in the original-source exception. Congress added this\n\nlanguage in the same 2010 amendment discussed earlier but did not define\n\n\n 50\n\fthe term. Since then, however, several other courts of appeals have\n\ninterpreted the “materially adds” requirement. 16\n\n We are particularly persuaded by the First Circuit’s analysis in\n\nWinkelman. There, the court framed the relevant question for the\n\nmaterially-adds inquiry as “whether the relators’ allegedly new information\n\nis sufficiently significant or essential so as to fall into the narrow category\n\nof information that materially adds to what has already been revealed\n\nthrough public disclosures.” 827 F.3d at 211. To determine what\n\ninformation falls into the materially-adds bucket, the First Circuit looked to\n\nthe ordinary legal meaning of “material”—i.e., an addition that “is ‘[o]f\n\nsuch a nature that knowledge of the item would affect a person’s decision-\n\nmaking,’ or if it is ‘significant,’ or if it is ‘essential.’” Id. (quoting\n\nB LA C K ’ S L A W D I C T I O N A R Y 1124 (10th ed. 2014) [hereinafter B LA C K ’ S ]). In\n\nother words, Winkelman teaches that a relator “materially adds” to public\n\n\n 16\n Although KeyPoint concedes that the meaning of “materially adds” “is a\nmatter of first impression for the Tenth Circuit,” Aplee.’s Resp. Br. at 34, it nonetheless\nrelies on pre-2010-amendment cases to argue that Ms. Reed’s allegations do not\nmaterially add to the public disclosures, see id. at 36–37. Although the 2010 amendment\nratified our prior cases by adopting the “substantially the same” language that we already\nused, the amendment added a new component to the original-source analysis—namely,\nthe materially-adds inquiry. Before the 2010 amendment, our original-source analysis\nasked whether the relator “had direct and independent knowledge of the information\nunderlying his allegations.” In re Nat. Gas Royalties, 562 F.3d at 1043. We did not ask\nwhether the relator’s knowledge materially added to the public disclosures. Thus, our\npre-2010-amendment cases are not germane to the materially-adds inquiry.\n\n 51\n\fdisclosures if her information “is sufficiently important to influence the\n\nbehavior of the recipient.” Id.\n\n The Winkelman definition of “materially adds” finds support in the\n\nAct’s provisions defining the scope of liability, which state that “the term\n\n‘material’ means having a natural tendency to influence, or be capable of\n\ninfluencing, the payment or receipt of money or property.” 31 U.S.C.\n\n§ 3729(b)(4); see also Joel D. Hesch, Restating the “Original Source\n\nException” to the False Claims Act’s “Public Disclosure Bar” in Light of\n\nthe 2010 Amendments, 51 U. OF R I C H . L. R E V . 991, 1019 (2017) (looking to\n\n§ 3729(b)(4) in attempting to discern the meaning of “materially adds” and\n\nultimately concluding that it means that “a reasonable person would attach\n\nimportance to the information”). Furthermore, though they have applied the\n\ndefinition in different ways, a few federal circuit courts have expressly\n\nadopted a like definition of “materially adds.” See United States ex rel.\n\nAdvocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 816 F.3d 428,\n\n431 (6th Cir. 2016) (“Materiality in this setting requires the claimant to\n\nshow it had information ‘[o]f such a nature that knowledge of the item\n\nwould affect a person’s decision-making,’ is ‘significant,’ or is ‘essential.’”\n\n(quoting B LA C K ’ S , supra, at 1124)); United States ex rel. Moore & Co. v.\n\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir. 2016) (concluding\n\n\n 52\n\fbased on dictionary definitions of the separate words “materially” and\n\n“add” that to “‘materially add[]’ to “the publicly disclosed allegation or\n\ntransaction of fraud, a relator must contribute significant additional\n\ninformation to that which has been publicly disclosed so as to improve its\n\nquality”); see also United States ex rel. Paulos v. Stryker Corp., 762 F.3d\n\n688, 694–95 (8th Cir. 2014) (relying on dictionary definitions of the\n\nseparate words “material” and “add” and suggesting that information\n\n“materially adds” to something when it “substantially” or “considerably”\n\n“improve[s] or alter[s] its quality or nature” (quoting T H E N E W O X F O R D\n\nA M E R I C A N D I C T I O N A R Y 18, 1079 (3d ed. 2010))).\n\n Winkelman also offered several helpful guideposts for how to\n\ndistinguish between new but immaterial information and material additions.\n\nIt noted that what is “significant” or “essential” depends in part on “the\n\nlevel of detail in [the] public disclosures.” 827 F.3d at 211. That is, the\n\nfewer questions the public disclosures answer, the more room there is for a\n\nrelator’s allegations to add material information. However, the court\n\npointed out that “a relator who merely adds detail or color to previously\n\ndisclosed elements of an alleged scheme is not materially adding to the\n\npublic disclosures.” Id. at 213. Winkelman also recognized the potential\n\noverlap between the materially-adds inquiry and the inquiry into “whether\n\n\n\n 53\n\fthe relator’s allegations are substantially the same as th[e] prior\n\nrevelations.” Id. at 211. “Despite this potential for overlap,” the First\n\nCircuit explained, “the ‘materially adds’ inquiry must remain conceptually\n\ndistinct; otherwise, the original source exception would be rendered\n\nnugatory.” Id. at 211–12.\n\n In sum, we find persuasive the materially-adds standard that the First\n\nCircuit articulated in Winkelman. Under that standard, a relator who\n\ndiscloses new information that is sufficiently significant or important that it\n\nwould be capable of “influenc[ing] the behavior of the recipient”—i.e., the\n\ngovernment—ordinarily will satisfy the materially-adds standard. Id. at\n\n211. On the other hand, a relator who merely adds background information\n\nor details about a known fraudulent scheme typically will be found not to\n\nhave materially added to the publicly disclosed information. See id. at 213.\n\n We recognize that the Seventh Circuit has taken a different path. For\n\nexample, in Cause of Action v. Chicago Transit Authority, 815 F.3d 267\n\n(7th Cir. 2016), the court held that if a relator’s “allegations are\n\nsubstantially similar to those contained in the” public disclosures, her\n\nallegations cannot “‘materially add[]’ to the public disclosure[s].” Id. at\n\n283. This standard, however, has the effect of collapsing the materially-\n\nadds inquiry into the substantially-the-same inquiry. As such, we cannot\n\n\n\n 54\n\fembrace it.\n\n The plain terms of the original-source exception contemplate that\n\nsome qui tam claims involving allegations that are substantially the same as\n\npublicly disclosed allegations nevertheless will survive the public\n\ndisclosure bar because they materially add to the publicly disclosed\n\ninformation. Yet, the Seventh Circuit’s view runs counter to this idea. And\n\nas a logical matter, its view is simply unpersuasive. After all, what good is\n\nan exception (i.e., the original-source exception) that does not actually\n\nexcept anything? See Hesch, supra, at 1016 (noting that because the\n\nmaterially-adds condition “is designed to be an exception to the public\n\ndisclosure bar,” it “is not meant to block out relators simply because there\n\nhad been a qualifying public disclosure that contains similar allegations”).\n\n Reflecting this sort of reasoning, one commentator observed:\n\n The addition of the new requirement that the information\n “materially add” to the publicly disclosed information has\n caused some confusion. Some courts have required the\n information to be “qualitatively different” from the publicly\n disclosed information or not substantially the same as the\n public disclosure. That approach renders the [materially-\n adds] requirement the same as the public disclosure\n question rather than part of an exception to the public\n disclosure bar. Materially adds connotes the addition of\n something of significance or import and whether it is\n substantially the same as the type of information already\n publicly disclosed should not matter.\n\nClaire M. Sylvia, T H E F A LS E C LA I M S A C T : F R A U D A G A I N S T THE\n\n\n 55\n\fG O V E R N M E N T § 11:68, Westlaw (database updated June 2018) (emphasis\n\nadded) (footnote omitted); see also Hesch, supra, at 1017 (“[M]erely\n\nbecause the allegations are substantially the same as a qualifying public\n\ndisclosure, a relator still qualifies as an original source if she brings\n\nsomething to the table that adds value.”). In sum, we agree with the First\n\nCircuit’s assessment in Winkelman: “[T]he ‘materially adds’ inquiry must\n\nremain conceptually distinct; otherwise, the original source exception\n\nwould be rendered nugatory.” 827 F.3d at 211–12.\n\n The path plotted by the Third Circuit in its noteworthy decision,\n\nMoore, is less clearly defined. However, in fleshing out our approach, we\n\nhighlight a possible point of distinction with it. In Moore, the Third Circuit\n\nlooked to “Rule 9(b)’s pleading requirement,” 812 F.3d at 306, as “a\n\nhelpful benchmark for measuring ‘materially adds,’” id. at 307. Relying on\n\nthis “standard” from Rule 9(b), the court took the position that “a relator\n\nmaterially adds to the publicly disclosed allegation or transaction of fraud\n\nwhen it contributes information—distinct from what was publicly\n\ndisclosed—that adds in a significant way to the essential factual\n\nbackground: ‘the who, what, when, where and how of the events at issue.’”\n\nId. (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198,\n\n217 (3d Cir. 2002)).\n\n\n\n 56\n\f Perhaps Moore is amenable to a narrow interpretation. Cf. id. at 307\n\n(noting that the materially-adds standard is not met unless the relator’s\n\ninformation “adds in a significant way to the essential factual background”\n\nand describing the Rule 9(b) factors as only “a helpful benchmark,” without\n\nexpressly saying that the presence of one or more of the factors is always\n\ndispositive) (emphasis added)). But see United States v. Medtronic, Inc.,\n\n327 F. Supp. 3d 831, 851 (E.D. Pa. 2018) (contrasting Moore’s “relatively\n\nbroad definition of materiality” with “Winkelman[’s] . . . narrower\n\ndefinition”). However, insofar as Moore is (reasonably) interpreted as\n\nholding that a relator’s averments that add a not-insignificant who, what,\n\nwhen, where, or how to a publicly disclosed fraudulent scheme should be\n\nuniformly deemed to meet the materially-adds standard, we must disagree.\n\n In our view, the materially-adds analysis must be firmly grounded in\n\nthe facts and circumstances of a particular case. And those facts and\n\ncircumstances will guide our determination of whether the who, what,\n\nwhen, where, or how actually should be considered sufficiently significant\n\nor important to affect the government’s actions regarding the fraudulent\n\nscheme. For example, as discussed further below, when, as here, the\n\npublicly disclosed fraud exists within an industry with only a few players, a\n\nrelator who identifies a particular industry actor engaged in the fraud (i.e.,\n\n\n\n 57\n\fthe “who”) is unlikely to materially add to the information that the public\n\ndisclosures had already given the government.\n\n We are concerned that Moore (as interpreted above) could allow the\n\noriginal-source exception to swallow the public disclosure bar.\n\nSpecifically, one might read the Third Circuit’s approach in that case to\n\npermit “a relator who merely adds detail or color to previously disclosed\n\nelements of an alleged scheme” to qualify as an original source.\n\nWinkelman, 827 F.3d at 213; see Medtronic, 327 F. Supp. 3d at 851\n\n(“Moore and Winkelman apply two different standards: Moore adopted a\n\nrelatively broad definition of materiality while Winkelman adopted the\n\nnarrower definition from Universal Health [Services, Inc. v. United States\n\nex rel. Escobar, 579 U.S. ----, 136 S. Ct. 1989 (2016)].” (citation omitted)).\n\nLike the First Circuit, we do not think that adding detail or color is enough.\n\nSee also United States ex rel. Hastings v. Wells Fargo Bank, NA, Inc., 656\n\nF. App’x 328, 331–32 (9th Cir. 2016) (unpublished) (Mem. Op.)\n\n(“Allegations do not materially add to public disclosures when they provide\n\nonly background information and details relating to the alleged fraud—they\n\nmust add value to what the government already knew.”).\n\n Thus, we are guided here by materially-adds principles that are\n\ngenerally consistent with those the First Circuit articulated in Winkelman.\n\n\n\n 58\n\fWe believe that these principles are faithful to the balance struck by\n\nCongress, in amending the original-source exception in 2010, between\n\n“attracting whistleblowers and not paying rewards” to relators who fail to\n\nprovide information that “materially adds value.” Hesch, supra, 1026,\n\n1040.\n\n b\n\n We now turn to the question of whether Ms. Reed satisfies this\n\nstandard. Although we conclude that most of Ms. Reed’s arguments\n\nrelative to this standard fall short, we are persuaded that her complaint\n\naverments regarding the TTP program materially add to the information in\n\nthe public disclosures. Therefore, she prevails on this component of the\n\noriginal-source inquiry.\n\n Ms. Reed argues that her allegations materially add to the public\n\ndisclosures in several ways. First, Ms. Reed points out that her complaint\n\nidentifies “a new defendant” (KeyPoint). Aplt.’s Opening Br. at 25.\n\nSecond, she reasons that naming individual “investigators who violated\n\nOPM requirements” adds to the disclosures. Id. Third, Ms. Reed posits\n\nthat she materially adds to the disclosures because she did her own\n\ninvestigation into KeyPoint. Fourth, she says that her allegations\n\nuncovered “new schemes to defraud the government (e.g., the telephone\n\n\n\n 59\n\ftestimony violations).” Id.\n\n To begin, we disagree that naming KeyPoint as a wrongdoer\n\nmaterially adds to the public disclosures. After all, the news reports linked\n\nKeyPoint to the suspected fraud in the background-investigation industry.\n\nAnd the 2010 OPM audit report revealed that there were “falsification and[]\n\nintegrity issues” with investigations done by USIS, KeyPoint, and CACI.\n\nAplt.’s App. at 261. Consequently, Ms. Reed is mistaken in suggesting that\n\nthere was “no information concerning KeyPoint specifically in the public\n\ndomain.” Aplt.’s Opening Br. at 28. To be sure, the disclosures did not\n\n“use the word ‘fraud’” when discussing KeyPoint. Advocates for Basic\n\nLegal Equal., 816 F.3d at 432. But that omission is irrelevant because the\n\ndisclosures “presented enough facts to create an inference of wrongdoing”\n\nby KeyPoint. Id. at 433 (quoting United States ex rel. Jones v. Horizon\n\nHealthcare Corp., 160 F.3d 326, 332 (6th Cir. 1998)).\n\n At bottom, the government already suspected fraud in the background-\n\ninvestigation industry. Counting KeyPoint, that industry only has three\n\nmain players; and the disclosures linked KeyPoint to the suspected fraud.\n\nWe cannot see how naming KeyPoint adds information of sufficient\n\nsignificance or importance “to influence the [government’s] behavior.”\n\nWinkelman, 827 F.3d at 211. Put another way, this is an instance in which\n\n\n\n 60\n\faverments regarding the “who” of a publicly disclosed fraudulent scheme\n\nare not a material addition within the meaning of the original-source\n\nexception. Cf. Moore, 812 F.3d at 307.\n\n Similarly, identifying individual investigators as wrongdoers “merely\n\nadds detail or color to previously disclosed elements of an alleged scheme.”\n\nWinkelman, 827 F.3d at 213. The government knew that individual\n\ninvestigators (including a former KeyPoint employee) “lied about\n\nconducting thorough background checks when they were incomplete and\n\nrushed.” Aplt.’s App. at 410. And a September 2013 article reported that\n\nthe government was “pursuing suspected fraud in granting of security\n\nclearances” and had already convicted at least “19 private and government\n\ninvestigators for submitting fabricated reports.” Id. at 308. True, Ms.\n\nReed’s allegations suggested that the problem was more pervasive at\n\nKeyPoint than the public disclosures hinted. But if identifying new\n\nemployees engaged in fraud were enough, the original-source exception\n\nwould burst from overbreadth. Cf. Winkelman, 827 F.3d at 212 (explaining\n\nthat giving “specific examples of” publicly known fraud “does not provide\n\nany significant new information”).\n\n Ms. Reed also is mistaken that her allegations materially add to the\n\npublic disclosures because she did her own investigation into KeyPoint.\n\n\n\n 61\n\fFor starters, as KeyPoint rightly points out, “the ‘materially adds’\n\nrequirement . . . focuses on the substance of the allegations, not the\n\nsource.” Aplee.’s Resp. Br. at 37. That Ms. Reed’s independent\n\ninvestigation confirmed, as to KeyPoint, some of the allegations floating\n\naround the public sphere is arguably relevant to the question of whether her\n\nknowledge is independent of the public disclosures, but that question is not\n\npresently before us. See Kennard, 363 F.3d at 1046–47 (explaining that\n\nrelators had “direct and independent knowledge” because they did “their\n\nown investigation”). In sum, in our view, Ms. Reed’s separate investigation\n\nis irrelevant to the materially-adds question. See Winkelman, 827 F.3d at\n\n212 (rejecting argument that relators materially added to the public\n\ndisclosures by “trumpet[ing] their personal knowledge of specific instances\n\nof alleged [fraud]”). As the Eighth Circuit remarked, “A relator is not an\n\noriginal source of information . . . simply because he discovered or\n\nsuspected it first” through his own investigation if that investigation only\n\nconfirms what was “already thoroughly revealed.” Paulos, 762 F.3d at 694.\n\n All that said, we ultimately conclude that Ms. Reed does satisfy the\n\nmaterially-adds standard. We reach that conclusion because we determine\n\nthat Ms. Reed’s allegations regarding the TTP materially add to the\n\ninformation available in the public disclosures for two related and\n\n\n\n 62\n\fintertwined reasons. First, Ms. Reed makes specific allegations of both\n\ninvestigator- and management-level fraud in the distinct context of the TTP.\n\nSecond, many of Ms. Reed’s allegations concerning KeyPoint’s responses to\n\nher reports of possible fraud in the TTP provide direct evidence of\n\nKeyPoint’s scienter. Neither the allegations of investigator- and\n\nmanagement-level fraud in the TTP context nor the allegations of\n\nKeyPoint’s scienter were available via the public disclosures. Considered\n\ntogether, these allegations reveal a “new scheme[] to defraud the\n\ngovernment” involving repeated violations of the TTP by KeyPoint\n\ninvestigators and management. Aplt.’s Opening Br. at 25. And they offer\n\n“[t]rue evidence of intent or guilty knowledge” by KeyPoint, Hesch, supra,\n\nat 1026, insofar as they aver Ms. Reed’s specific knowledge of KeyPoint\n\nmanagers’ efforts to knowingly cover up the TTP violations. Cf. United\n\nStates ex rel. Ambrosecchia v. Paddock Labs., LLC, 855 F.3d 949, 955 (8th\n\nCir. 2017) (“[Relator] claims that her information materially adds to the\n\nexisting information by demonstrating scienter. However, the complaint\n\nprovides no more than the simple, conclusory allegation that Defendants’\n\nactions were knowing . . . . Accordingly, [relator’s] complaint is\n\ninsufficient to plausibly state that she qualifies as an original source.”\n\n(citation omitted)).\n\n\n\n 63\n\f Ms. Reed’s allegations of scienter make us especially confident that\n\nher allegations regarding KeyPoint’s fraudulent TTP practices satisfy the\n\nmaterially-adds standard. False Claims Act “cases often turn on the issue\n\nof scienter.” Hesch, supra, at 1024. Yet, “the government is never in a\n\ngood position to have direct evidence of guilty knowledge.” Id. Thus, Ms.\n\nReed’s allegations that KeyPoint’s investigators and managers tried to\n\nknowingly cover up the TTP violations amplify the materiality of the\n\nunderlying allegations of TTP fraud. Cf. Winkelman, 827 F.3d at 213 (“We\n\ndo not rule out the possibility that furnishing information that a particular\n\ndefendant is acting ‘knowingly’ (as opposed to negligently) sometimes may\n\nsuffice as a material addition to information already publicly disclosed.”);\n\nHesch, supra, at 1027 (“[R]egardless of how well defined the fraud\n\nallegations are in a qualifying public disclosure, when a relator brings forth\n\nknowledge of scienter that is not specifically contained in a qualifying\n\npublic disclosure it should be presumed to materially add value.”).\n\n Now consider those underlying allegations. Recall that investigators\n\nwere generally required to conduct in-person interviews, but the TTP\n\npermitted them to do telephone interviews under some circumstances so\n\nlong as they kept their total number of telephone interviews below a certain\n\npercentage threshold. Each month, OPM would send KeyPoint a list of\n\n\n\n 64\n\finvestigators who exceeded their allotted number of telephone interviews\n\nduring the last month. KeyPoint then would be obliged to send OPM\n\n“corrective action report[s]” explaining each infraction and what it was\n\ndoing to remedy the problem. Aplt.’s App. at 31, ¶ 54.\n\n Ms. Reed avers that KeyPoint investigators repeatedly violated the\n\nTTP and KeyPoint management regularly falsified corrective action reports\n\nto cover up the violations. For instance, one corrective action report by a\n\nKeyPoint Field Manager justified an investigator’s violations by claiming\n\nthat telephone interviews were “justified due to weather and due ‘to the\n\nremote and large geographical area [the investigator] work[ed].’” Id. at 90,\n\n¶ 262. When Ms. Reed looked into the matter, she discovered that the\n\nreport was false; the investigator’s sources were actually “located in nearby\n\nColorado, well within the territory he was required to cover in person” Id.\n\nat 90, ¶ 264. When Ms. Reed recommended that the investigator be\n\ndisciplined for violating the TTP, rather than do so and correct the false\n\ncorrective action report, a KeyPoint Regional Manager “tried to persuade\n\n[Ms.] Reed that [the investigator] was covering remote territory in\n\nWyoming.” Id. at 90, ¶¶ 265–267.\n\n Similarly, Ms. Reed determined that another investigator was\n\nviolating the TTP by “not giv[ing] many sources the opportunity for in-\n\n\n\n 65\n\fperson interviews,” id. at 95 ¶ 298, and that KeyPoint management had\n\nfalsely “certified that [the investigator] had not conducted the telephonic\n\ntestimonies that OPM had indicated,” id. at 96, ¶ 300. Ms. Reed\n\nspecifically informed identified members of KeyPoint management that the\n\ninvestigator was violating the TTP—which meant that KeyPoint’s prior\n\ncertifications to OPM to the contrary were false. See id. But rather than\n\ndiscipline the investigator and correct the false certifications, the\n\ninvestigator’s “Field Manager continued to issue Corrective Action Reports\n\nto OPM about [the investigator] that claimed geographic distance and\n\nsource request, when Reed had already shown KeyPoint’s management that\n\n[the investigator] had conducted phone interviews without attempting to\n\nconduct in-person interviews.” Id. at 96, ¶ 310.\n\n Furthermore, on more than one occasion, in response to Ms. Reed’s\n\nefforts to correct problems in the TTP, “KeyPoint management told [her] to\n\nstop interfering.” Id. at 95, ¶ 292; see also id. at 96, ¶ 308 (“[Ms.] Reed\n\nwas later told to ‘stop interfering.’”). In short, Ms. Reed’s complaint offers\n\npages of details describing how KeyPoint managers knowingly schemed to\n\ndefraud the government by covering up systemic violations of the TTP.\n\n None of the public disclosures accused KeyPoint—or the industry\n\ngenerally—of fraud relating to a TTP. The news reports, for instance,\n\n\n\n 66\n\ffocused generally on problems in the industry with “investigators who were\n\nfound to have done substandard work in background checks.” Id. at 303.\n\nThe articles do not hint at systemic investigator fraud designed to evade the\n\nrequirements of a TTP (e.g., its percentage ceiling for conducting telephone\n\ninterviews), let alone discuss knowing efforts of management personnel to\n\ncover up that fraud. Likewise, Congress suspected KeyPoint and its\n\ncompetitors only of using “false, incomplete, or rushed information\n\ngathering” in its background investigations but unearthed no evidence that\n\nindustry management knowingly lied about the circumstances in which they\n\ngathered information by telephone. Id. at 411 & n.3. The two OPM audits\n\ndo not even reference a TTP or fraudulent corrective action reports\n\ncovering up violations of such a program. And the USIS suit alleged that\n\nUSIS investigators “dumped” incomplete and unreviewed cases to OPM and\n\nabused OPM’s “Blue Zone software.” Aplt.’s Reply Br., Addendum A, at\n\n6–12. But this suit makes no mention of a TTP, corrective action reports,\n\nor a scheme by management to cover up deficiencies under that program.\n\n In short, Ms. Reed’s allegations regarding KeyPoint’s fraudulent\n\npractices related to its TTP added material information to the public\n\ndisclosures that satisfied the Act’s materially-adds standard. These\n\nallegations had the effect of “expanding the scope of the fraud” revealed in\n\n\n\n 67\n\fthe public disclosures and introducing “knowledge of scienter that is not\n\nspecifically contained in a qualifying public disclosure.” Hesch, supra, at\n\n1023, 1027. This is not a case where the relator’s allegations contributed\n\nnothing more than personal “knowledge (even if gained early and\n\nindependently).” Paulos, 762 F.3d at 694. Nor is it a situation where the\n\nallegations of fraud in the public disclosures were so detailed that there was\n\nno room for Ms. Reed to materially add to them with her allegations of\n\nKeyPoint’s fraudulent TTP practices. Winkelman, 827 F.3d at 211 (“As the\n\nlevel of detail in public disclosures increases, the universe of potentially\n\nmaterial additions shrinks.”). Indeed, her allegations about KeyPoint’s\n\nscheme to evade the TTP did more than “add[] detail or color to previously\n\ndisclosed elements of an alleged scheme.” Id. at 213; see also Hastings,\n\n656 F. App’x at 331–32 (“Allegations do not materially add to public\n\ndisclosures when they provide only background information and details\n\nrelating to the alleged fraud—they must add value to what the government\n\nalready knew.”). Hence, we conclude that Ms. Reed’s complaint averments\n\nrelating to KeyPoint’s fraudulent TTP practices reveal information “[o]f\n\nsuch a nature that knowledge of the item would affect [the government’s]\n\ndecision-making.” Winkelman, 827 F.3d at 211 (first alteration in original)\n\n(quoting B LA C K ’ S , supra, at 1124). In other words, her allegations\n\n\n\n 68\n\fmaterially add to the public disclosures.\n\n The soundness of this conclusion is highlighted when one contrasts\n\nthe materiality of the new fraudulent scheme that Ms. Reed alleges\n\nregarding the TTP with the immateriality of the added information at issue\n\nin Osheroff. The relator in Osheroff alleged that certain medical clinics\n\nwere violating the federal anti-kickback law and related government\n\ncontracts by providing “a variety of free services for patients . . . ,\n\nincluding transportation, meals, spa and salon services, and entertainment.”\n\n776 F.3d at 808. An earlier lawsuit had disclosed a different clinic’s\n\nsimilar practices. And news reports publicized that the defendant-clinics\n\nprovided “‘free lunch’ . . . and free transportation.” Id. at 813. In arguing\n\nthat he was an original source, the relator emphasized that his complaint\n\nadded to the public disclosures by revealing “the type of food the clinics\n\nserved . . . , the destinations of some of the free transportation, the\n\nfrequency of salon services, and the price of the substitute services or\n\ngoods.” Id. at 815. The Eleventh Circuit, however, was “not persuaded.”\n\nId. At best, the court explained, the relator’s “complaint add[ed]\n\nbackground information and details relating to the value of the services\n\noffered, making it somewhat more plain that the clinics’ programs could\n\nviolate the [statute].” Id. That was not enough. The court held that under\n\n\n\n 69\n\fthe 2010 version of the False Claims Act, the relator’s “information d[id]\n\nnot materially add to the public disclosures, which were already sufficient\n\nto give rise to an inference that the clinics were providing illegal\n\nremuneration to patients.” Id.\n\n Ms. Reed’s complaint averments relating to KeyPoint’s distinct TTP\n\nfraud stand in stark contrast to the general background information\n\nregarding an existing fraudulent scheme that the relator delivered in\n\nOsheroff. Unlike in Osheroff, Ms. Reed’s allegations do not add a few\n\nmore breadcrumbs on an existing trail; they blaze a new trail.\n\n We underscore that we do not rest our holding that Ms. Reed has\n\nsatisfied the materially-adds standard based solely on either her allegations\n\nconcerning specific instances of investigator- and management-level fraud\n\nin the TTP or her allegations concerning KeyPoint’s responses to her\n\nreports of possible TTP fraud—notably, to cover up fraud—that evinced\n\nKeyPoint’s scienter. Instead, we base our holding on the combined,\n\nsynergistic effect of the allegations of distinct misconduct in the TTP and\n\nthe related and intertwined allegations detailing KeyPoint’s knowing efforts\n\nto cover up TTP violations. The combination of these allegations clearly\n\npermit Ms. Reed to satisfy the materially-adds standard. We need not—and\n\nthus do not—opine on whether either of the two related and intertwined\n\n\n\n 70\n\ffeatures of Ms. Reed’s TTP allegations, standing alone, would be sufficient\n\nto satisfy the materially-adds standard.\n\n * * *\n\n In sum, we agree with the district court that the allegations in Ms.\n\nReed’s qui tam claims are substantially the same as those in the public\n\ndisclosures. But we disagree with the court’s conclusion that Ms. Reed’s\n\nallegations do not materially add to the public disclosures, such that she did\n\nnot qualify as an original source. As a consequence, we vacate the district\n\ncourt’s summary-judgment order that dismissed Ms. Reed’s qui tam claims.\n\nHowever, because the district court did not reach the second part of the\n\noriginal-source standard—i.e., whether Ms. Reed’s allegations are\n\n“independent of” the public disclosures—we remand the case for the\n\ndistrict court to resolve that question in the first instance. 17 See Tabor v.\n\n 17\n We likewise decline KeyPoint’s invitation to affirm the district court’s\njudgment on alternative bases not ruled on by the district court. See Aplee.’s Resp. Br. at\n58–60 (arguing that Ms. Reed’s FCA claims fail for want of (1) particularity under Rule\n9(b), (2) falsity, (3) materiality, and (4) scienter). Although it is true that we may affirm\non any basis finding support in the record, see Richison v. Ernest Grp., Inc., 634 F.3d\n1123, 1130 (10th Cir. 2011), we are often “reluctant” to do so when “we are deprived of\nthe benefit of vigorous adversarial testing of the issue, not to mention a reasoned district\ncourt decision on the subject.” Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013);\naccord Sylvia v. Wisler, 875 F.3d 1307, 1325 (10th Cir. 2017). KeyPoint offers only brief\narguments in support of the alternative bases for affirmance. In these circumstances, the\nsuperior course of action is to remand so that district court may decide the issues in the\nfirst instance. See United States v. McLinn, 896 F.3d 1152, 1157 (10th Cir. 2018)\n(declining to rule on inadequately briefed issues “not fully addressed by the district\n (continued...)\n\n 71\n\fHilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not\n\nbeen ruled on by the court below, we generally favor remand for the district\n\ncourt to examine the issue.”); see also Singleton v. Wulff, 428 U.S. 106, 120\n\n(1976) (“It is the general rule, of course, that a federal appellate court does\n\nnot consider an issue not passed upon below.”).\n\n III\n\n We now turn to Ms. Reed’s retaliation claim. The False Claims Act\n\nprotects whistleblowers from retaliation by their employers. See Potts, 908\n\nF.3d at 613–14 (discussing 31 U.S.C. § 3730(h)). To state a claim of\n\nretaliation, a plaintiff must meet her “burden of pleading facts” that prove\n\n(1) she engaged in protected activity, (2) the defendant “had been put on\n\nnotice” of that protected activity, and (3) the defendant retaliated against\n\nthe plaintiff “because of” that activity. McBride v. Peak Wellness Ctr.,\n\nInc., 688 F.3d 698, 704 (10th Cir. 2012); see also 31 U.S.C. § 3730(h).\n\n Ms. Reed alleges that KeyPoint retaliated against her by firing her for\n\ntrying to stop it from violating the False Claims Act. The district court\n\ngranted KeyPoint’s Rule 12(b)(6) motion to dismiss this retaliation claim\n\nbecause Ms. Reed had, in the district court’s view, inadequately pleaded\n\nthat KeyPoint was on notice that she was engaging in protected activity.\n\n 17\n (...continued)\ncourt”).\n\n 72\n\f We review de novo “the district court’s dismissal under Rule\n\n12(b)(6).” United States ex rel. Polukoff v. St. Mark’s Hosp., 895 F.3d 730,\n\n740 (10th Cir. 2018) (quoting United States ex rel. Lemmon v. Envirocare\n\nof Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010)). Dismissal under Rule\n\n12(b)(6) “is appropriate only if the complaint, viewed in the light most\n\nfavorable to plaintiff, ‘lacks “enough facts to state a claim to relief that is\n\nplausible on its face.”’” Conner, 543 F.3d at 1217 (quoting Trentadue v.\n\nIntegrity Comm., 501 F.3d 1215, 1236 (10th Cir. 2007)).\n\n Applying these standards, we affirm the district court’s dismissal of\n\nMs. Reed’s retaliation claim. At the outset, we are constrained to point out\n\nthat the district court relied on a legally erroneous view of what constitutes\n\nprotected activity. But we “can affirm the district court’s dismissal on any\n\nground sufficiently supported by the record.” GF Gaming Corp. v. City of\n\nBlack Hawk, 405 F.3d 876, 882 (10th Cir. 2005); accord George v. Urban\n\nSettlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016). And we determine\n\nthat, under the correct legal understanding of protected activity, Ms. Reed\n\nhas failed to plead sufficient facts to show that KeyPoint was on notice of\n\nher purported protected activity. For that reason, we affirm the district\n\ncourt’s order dismissing Ms. Reed’s retaliation claim.\n\n A\n\n\n\n 73\n\f The False Claims Act protects whistleblowers who engage in\n\n“protected activity.” Armstrong, 897 F.3d at 1286. Until 2009, protected\n\nactivity included only “lawful acts done by the employee . . . in furtherance\n\nof an action under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h)\n\n(2008). The circuit courts split over what conduct qualified as “in\n\nfurtherance of” a qui tam action. Our circuit and several others interpreted\n\nthat language to mean that protected activity encompassed conduct\n\npreparing for “a private qui tam action or assisting in an . . . action brought\n\nby the government.” United States ex rel. Ramseyer v. Century Healthcare\n\nCorp., 90 F.3d 1514, 1522 (10th Cir. 1996); accord Robertson v. Bell\n\nHelicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). In these\n\ncircuits, an employee who, for example, reported a False Claims Act\n\nviolation to her supervisor but did not pursue a qui tam action had not\n\nengaged in protected activity. See, e.g., Zahodnick v. Int’l Bus. Machs.\n\nCorp., 135 F.3d 911, 914 (4th Cir. 1997). Other circuits, by contrast, read\n\n“in furtherance of” more broadly to include protection against “retaliation\n\nfor filing an internal complaint.” United States ex rel. Grenadyor v.\n\nUkrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1108–09 (7th Cir. 2014)\n\n(describing the Seventh Circuit’s pre-2009 precedent).\n\n Congress resolved this circuit split in 2009. That year, it amended\n\n\n\n 74\n\fthe False Claims Act’s whistleblower protections to protect employees who\n\ntake “lawful” actions “in furtherance of other efforts to stop 1 or more\n\nviolations” of the False Claims Act. 31 U.S.C. § 3730(h)(1) (2009)\n\n(emphasis added). With this amendment, Congress thereby expanded “the\n\nuniverse of protected conduct.” 18 United States ex rel. Chorches v. Am.\n\nMed. Response, Inc., 865 F.3d 71, 97 (2d Cir. 2017). In this expanded\n\nuniverse, whistleblowers who lawfully try to stop one or more violations of\n\nthe Act are protected, without regard to whether their conduct advances a\n\nprivate or government lawsuit under the Act.\n\n Congress did amend the whistleblower protections again in 2010. As\n\na consequence, the now-effective protections expressly apply to an\n\nemployee’s “lawful” acts “in furtherance of” either “an action” under the\n\nAct “or other efforts to stop 1 or more violations of” the Act. 31 U.S.C.\n\n§ 3730(h)(1); see also United Stated ex rel. Grant v. United Airlines Inc.,\n\n912 F.3d 190, 201 & n.3 (4th Cir. 2018) (noting these two amendments to\n\nthe Act). But as is evident, the 2010 amendment left intact the 2009\n\namendment’s broad “other efforts to stop” language, which is our focus in\n\n\n 18\n See also United States ex rel. Grant v. United Airlines Inc., 912 F.3d 190,\n201 (4th Cir. 2018) (“[W]e and other circuits have recognized that the amended language\nbroadens the scope of protected activity.”); Halasa v. ITT Educ. Servs., Inc., 690 F.3d\n844, 847–48 (7th Cir. 2012) (noting the broader scope of protected activity under the\namended provision).\n\n 75\n\fthis appeal. Thus, Ms. Reed could avail herself of this “other efforts to\n\nstop” language in this action.\n\n The district court, however, failed to acknowledge the expanded\n\nuniverse that the 2009 amendment defined. Instead, it assessed the\n\nsufficiency of Ms. Reed’s averments under the pre-2009 rubric. In this\n\nregard, the court wrongly declared that under the False Claims Act “the\n\nactivity prompting plaintiff’s discharge must have been taken ‘in\n\nfurtherance of’ a[] [qui tam] action.” Aplt.’s App. at 417 (quoting\n\nMcBride, 688 F.3d at 703–04). 19 The plain text of the amended\n\nwhistleblower provisions does not support such a narrow view. Congress\n\nadded the “other efforts to stop” language for a reason—namely, to stretch\n\n\n 19\n Although we decided McBride in 2012, the conduct at issue there occurred\nin January 2009—before the 2009 amendment took effect in May of that year. See Fraud\nEnforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(f), 123 Stat. 1617\n(2009) (effective date May 20, 2009). McBride, then, had no reason to consider or apply\nthe amended whistleblower provision. Hence, its analysis is inapposite to post-2009\nprotected conduct. That said, in a 2017 unpublished opinion, a panel of our court quoted\nMcBride for the proposition that “without evidence that [plaintiff] was planning to report\n[defendant] to the government or file a qui tam suit, [plaintiff’s] retaliation claim cannot\nsurvive summary judgment.” Cash v. Lockheed Martin Corp., 684 F. App’x 755, 764\n(10th Cir. 2017) (unpublished) (quoting McBride, 688 F.3d at 704). That seeming\ndeclaration of post-2009-amendment law (embodied in a 2017 decision) is of course not\nbinding on us; Cash is not precedential. See 10TH CIR. R. 32.1(A). More fundamentally,\nCash is problematic because (1) it is contrary to the plain text of the current (i.e., post-\namendment) whistleblower provisions, (2) contains no analysis of the change in statutory\nlanguage, and (3) conflicts with the decisions of our sister circuits that have construed the\ncurrent provisions, see, e.g., Grant, 912 F.3d at 201. Accordingly, we decline to follow\nCash’s lead, and KeyPoint’s reliance on Cash is unavailing.\n\n 76\n\fthe “protected activity” umbrella to cover additional conduct. When\n\n“Congress expands the scope of activity protected by a statute, we cannot\n\nrestrict ourselves to applying a narrower old standard that the expansion . .\n\n. eschew[ed].” Grant, 912 F.3d at 201. The district court mistakenly did\n\njust that. Tellingly, the phrase “other efforts to stop” does not appear in\n\nthe district court’s order, and the court fails to cite a single case applying\n\nthe amended provision. Simply put, the district court applied the wrong\n\nversion of the statute.\n\n This error necessarily affected the district court’s consideration of\n\nwhether Ms. Reed adequately pleaded notice. To adequately plead a\n\nretaliation claim, a plaintiff must aver that the defendant was on notice of\n\nher protected activity. See Armstrong, 897 F.3d at 1286. Once Congress\n\nexpanded the scope of protected activity, the universe of conduct that a\n\nplaintiff could allege to show notice also necessarily expanded. See United\n\nStates ex rel. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 434 & n.6 (4th\n\nCir. 2015) (explaining that the amendment expanded the boundaries of what\n\nconstitutes notice of protected activity). But because the district court\n\nthought that only conduct in furtherance of a qui tam lawsuit was properly\n\nclassified as “protected activity,” the court asked the wrong question—an\n\nimproperly narrow one. It asked only whether Ms. Reed pleaded facts\n\n\n\n 77\n\fsufficient to show that KeyPoint was on notice that she was “taking action\n\nin furtherance of a private qui tam action or assisting in an . . . action\n\nbrought by the government.” Aplt.’s App. at 417 (quoting Ramseyer, 90\n\nF.3d at 1522). And the court answered that question in the negative and,\n\naccordingly, dismissed Ms. Reed’s claim.\n\n But as framed by Ms. Reed’s arguments, the right question regarding\n\nthe notice element of the retaliation claim centers on the language Congress\n\nadded to the Act in 2009. The district court should have gone beyond its\n\nprevious inquiry and asked whether Ms. Reed pleaded facts that plausibly\n\nshow that KeyPoint was on notice that she had tried to stop its alleged False\n\nClaims Act violations. The answer to that question determines whether Ms.\n\nReed’s retaliation claim stands or falls. Reviewing her complaint de novo,\n\nwe answer that question in the negative.\n\n B\n\n Specifically, we hold that Ms. Reed has not pleaded sufficient facts to\n\nstate a claim of retaliation because she has failed to establish the notice\n\nelement of that claim. We explain that conclusion in two parts. First, we\n\nclarify what kind of facts Ms. Reed must plead to show that KeyPoint knew\n\nshe was trying to stop its violations of the False Claims Act. Second, we\n\ndetermine that Ms. Reed’s complaint averments come up short.\n\n\n\n 78\n\f 1\n\n Our circuit has yet to begin the work of defining the boundaries of\n\nwhat constitutes protected efforts to stop a violation of the False Claims\n\nAct. Naturally, we cannot narrow our consideration to our pre-2009 view\n\nthat an employee must prove in every instance that the employer knew that\n\nshe was acting “in furtherance of” a qui tam action. Ramseyer, 90 F.3d at\n\n1522. Beginning the outline of those boundaries, we state our agreement\n\nwith KeyPoint “that a relator’s actions still must convey a connection to the\n\n[False Claims Act].” Aplee.’s Resp. Br. at 52; see Grant, 912 F.3d at 202\n\n(noting that “plaintiff’s actions need not lead to a viable” qui tam action,\n\nbut “they must still have a nexus to a[] [False Claims Act] violation”);\n\nUnited States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 59 n.8 (1st Cir.\n\n2017) (explaining that relator’s “activities must pertain to violations” of the\n\nAct). After all, the text of the amendment says the “other efforts” must be\n\n“to stop 1 or more violations of [the False Claims Act].” 31 U.S.C.\n\n§ 3730(h)(1).\n\n We also agree with KeyPoint that compliance employees typically\n\nmust do more than other employees to show that their employer knew of the\n\nprotected activity. Our cases applying the pre-2009 whistleblower\n\nprovisions explained that an employee “whose job entails the investigation\n\n\n\n 79\n\fof fraud . . . . must make clear” that she engaged in protected activity “to\n\novercome the presumption that [she was] merely acting in accordance with\n\n[her] employment obligations.” Ramseyer, 90 F.3d at 1523 n.7; accord\n\nUnited States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472\n\nF.3d 702, 729 (10th Cir. 2006). In other words, in these decisions, we\n\nrecognized that an employer might reasonably presume that when a\n\ncompliance employee reports incidents of fraud she is just doing her job.\n\nSo to hold an employer liable under the Act’s whistleblower provisions, our\n\npre-2009 precedent required a compliance employee to overcome that\n\npresumption by showing that she was engaging in protected activity, not\n\njust doing her job.\n\n We think this reasoning has survived the 2009 amendment. True, as\n\nwe have explained above, that amendment expanded the scope of protected\n\nactivity and thus expanded the universe of conduct that a relator may plead\n\nin giving the employer notice of the protected activity. But nothing about\n\nthe 2009 amendment undercuts the rationale of our precedent addressing\n\ncompliance officers who are charged by their employer with investigating\n\nfraud. See United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890,\n\n908 (9th Cir. 2017) (deeming our pre-2009 Ramseyer decision “instructive,”\n\nin a post-amendment context, on the point that compliance employees must\n\n\n\n 80\n\fdo more to show an employer’s knowledge), cert. denied, 139 S. Ct. 783\n\n(2019).\n\n In sum, to state a retaliation claim, as relevant here, an employee’s\n\ncomplaint must allege facts that show her employer knew of her efforts to\n\nstop a False Claims Act violation. The 2009 amendment left intact our\n\nprecedent requiring compliance employees to do more than other employees\n\nto meet the notice element. And so, to adequately plead notice, a\n\ncompliance employee must allege facts that, viewed in her favor, make\n\nclear that her employer had been put on notice that she was trying to stop it\n\nfrom violating the False Claims Act and not merely doing her job.\n\n 2\n\n We conclude that Ms. Reed’s complaint averments come up short of\n\nthis standard. To be sure, Ms. Reed is correct that her complaint shows that\n\nshe voiced objections regarding the alleged fraud “to everyone at KeyPoint\n\nwho would listen.” Aplt.’s Opening Br. at 41. For instance, the complaint\n\nalleges that “she approached KeyPoint’s Director of Training” and “raised\n\nconcerns to her supervisor,” the “OPM Contract Director,” and “the\n\nRegional Managers and certain Field Managers.” Aplt.’s App. at 31–32, ¶¶\n\n59, 65. Indeed, the complaint notes that Ms. Reed brought some of “the\n\nmost egregious instances” of fraud at the investigator level to the attention\n\n\n\n 81\n\fof “field managers and . . . regional managers.” Id. at 62, ¶ 172. Likewise,\n\nMs. Reed allegedly told “her supervisor . . . on numerous occasions” about\n\nviolations of the TTP. Id. at 89, ¶ 253.\n\n However, Ms. Reed was a “Senior Quality Control Analyst”—that is,\n\na compliance officer. Id. at 24, ¶ 3. Thus, under our precedent, we may\n\npresume that Ms. Reed—as a compliance officer—was just doing her job in\n\nrepeatedly reporting fraud internally to employees at KeyPoint. And Ms.\n\nReed’s complaint averments do not overcome that presumption—indeed,\n\nthey tend to underscore the soundness of it. In this regard, Ms. Reed\n\nherself links her knowledge of, and efforts to report, the alleged fraud at\n\nKeyPoint to her role “as a Senior Quality Control Analyst.” 20 Id. at 25, ¶ 4.\n\nFor instance, the complaint notes that Ms. “Reed and her staff\n\ndiscover[ed]” fraud. Id. at 75, ¶ 201 (emphasis added). And at points, the\n\n\n 20\n See also Aplt.’s App. at 28–29, ¶¶ 29, 33 (noting that KeyPoint put Ms.\n“Reed in charge of the [TTP],” and through these duties, she “uncovered systemic\nviolations” of the OPM contract); id. at 31, ¶¶ 52, 55 (noting that Ms. “Reed developed\nand ran” the TTP, and in that role, she “discovered that KeyPoint management repeatedly\nfalsified corrective action reports by fabricating justifications for the violations”); id. at\n33, ¶ 78 (explaining that Ms. Reed’s job “allowed her to review investigators’ work” and\n“compile[] extensive records of [improper] investigations”); id. at 61, ¶ 165 (alleging that\nwhen extra compliance work was needed, KeyPoint “occasionally tasked [Ms. Reed] with\nextra audits of investigators”); id. at 84, ¶ 228 (“Reed was assigned to determine the\nnature of the chronic infractions.”); id. at 86, ¶¶ 231–232 (pointing out that “[i]n the\ncourse of her duties, Reed discovered that certain investigators were” circumventing\nOPM requirements); id. at 90, ¶ 260 (“Reed was tasked with investigating . . . each\ninvestigator’s high frequency of telephone testimonies.”).\n\n 82\n\fcomplaint specifies that Ms. “Reed and her staff reported [certain]\n\nviolations.” Id. at 78, ¶ 207 (emphasis added); see also id. at 76, 80, ¶¶\n\n203, 210. That her staff was assisting Ms. Reed in fraud detection and\n\nreporting activities suggests that such activities fell within the ambit of Ms.\n\nReed’s responsibilities as a Senior Quality Control Analyst because one\n\nmight reasonably infer that Ms. Reed’s staff would not be assisting her in\n\noff-book operations or matters of personal preference, rather than duty.\n\nEven when Ms. Reed acted alone, the complaint suggests that she reported\n\nmisconduct on a regularized schedule as part of her job—averring that she\n\n“regularly reported [certain] infractions to her supervisor . . . by submitting\n\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171 (emphasis added);\n\nsee also id. at 86, ¶ 230. And for investigators who persistently violated\n\npolicies, Ms. Reed reported them “for disciplinary action by\n\nKeyPoint”—which strongly suggests that she had some job-related mandate\n\nto do so. Id. at 90, ¶ 265; see also id. at 36, ¶ 99.\n\n In sum, as the district court correctly observed, “[T]he monitoring and\n\nreporting activities described in her Complaint were exactly those activities\n\nMs. Reed was required to undertake . . . as a Senior Quality Control\n\nAnalyst.” Id. at 418–19. In other words, Ms. Reed’s complaint averments\n\ndo not rebut—and, indeed, tend to highlight the soundness of—the\n\n\n\n 83\n\fpresumption that her conduct was just part of her job.\n\n Ms. Reed tries to rebut this presumption by showing that she went\n\n“outside [her] normal chain of command to report fraudulent conduct.”\n\nAplt.’s Opening Br. at 37. In this regard, Ms. Reed conclusorily asserts\n\nthat she complained about the fraud to “people well outside her chain of\n\ncommand.” Id. at 41. In particular, Ms. Reed avers that she reported the\n\nfraud to “the OPM Contract Director . . . , the Regional Managers[,] and\n\ncertain Field Managers.” Aplt.’s App. at 32, ¶ 65. Her complaint also\n\nrefers to a conversation with “KeyPoint’s Director of Training.” Id. at\n\n31–32, ¶ 59. By reporting fraud to these individuals, Ms. Reed argues that\n\nshe “acted beyond the scope of her ordinary duties in attempting to stop\n\nKeyPoint’s false statements” and that “[t]he KeyPoint employees who\n\ndecided to fire [her] knew” as much. Id. at 108, ¶¶ 389, 396. Hence, Ms.\n\nReed reasons, KeyPoint knew that her reports of fraud were not part of her\n\njob but, instead, efforts to stop False Claims Act violations.\n\n KeyPoint disagrees. It says that Ms. Reed’s actions were exactly\n\nwhat she “was required to undertake in fulfillment of her job duties” as a\n\nSenior Quality Control Analyst. Aplee.’s Resp. Br. at 53 (quoting\n\nRamseyer, 90 F.3d at 1523). KeyPoint also denies that it was properly put\n\non notice of Ms. Reed’s protected activity because she ostensibly “went\n\n\n\n 84\n\foutside of her usual chain of command.” Id. at 55. Indeed, KeyPoint notes\n\nthat Ms. Reed “does not cite any binding authority for the proposition that\n\nalleged discussions with individuals inside the company but outside of her\n\nnormal reporting structure would suffice to overcome the presumption that\n\nshe was acting within the scope of her ordinary duties.” Id. at 56. Hence,\n\nKeyPoint argues that it “could not have been on notice of [Ms. Reed’s]\n\nallegedly protected actions.” Id. at 53.\n\n KeyPoint is correct that our court has never expressly held that a\n\ncompliance employee may put her employer on notice of her efforts to stop\n\nFalse Claims Act violations by reporting fraud internally but outside her\n\nchain of command. But other circuits have. The Ninth and D.C. Circuits,\n\nfor example, each have held that, under certain circumstances, a compliance\n\nemployee may meet the notice element of retaliation by pleading that her\n\nemployer knew that she had reported fraud within the company in a manner\n\nthat violated or went outside the established chain of command. See, e.g.,\n\nCampie, 862 F.3d at 897, 908 (holding that retaliation complaint by a\n\n“Senior Director of Global Quality Assurance” adequately pleaded notice\n\nbecause, inter alia, the employer knew the employee had “conversations\n\noutside of his chain of command regarding his concerns”); United States ex\n\nrel. Schweizer v. Oce N.V., 677 F.3d 1228, 1239–40 (D.C. Cir. 2012)\n\n\n\n 85\n\f(holding that a compliance employee’s retaliation claim survived summary\n\njudgment because employer knew she had “ignor[ed] ‘the chain of\n\ncommand’” by reporting fraud to her boss’s boss); cf. United States ex rel.\n\nWilliams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C. Cir.\n\n2004) (stating the general proposition that “when an employee acts outside\n\nhis normal job responsibilities or alerts a party outside the usual chain of\n\ncommand, such action may suffice to notify the employer that the employee\n\nis engaging in protected activity,” in a case in which the employee “went\n\noutside the company and alerted the government”).\n\n We need not definitively opine here, however, on the cogency of this\n\nprecedent. Even if Ms. Reed could legally overcome the compliance-\n\nemployee presumption by showing that she went outside of the chain of\n\ncommand to report fraud, her complaint averments do not plausibly\n\nestablish, as a factual matter, that she did so. That is, she has not pleaded\n\nfacts showing that she indeed went outside her ordinary reporting structure\n\nas a compliance officer. To be sure, we must “assume the truth of all well-\n\npleaded facts in the complaint[] and draw all reasonable inferences” in Ms.\n\nReed’s favor. Leverington v. City of Colorado Springs, 643 F.3d 719, 723\n\n(10th Cir. 2011) (quoting Dias v. City & County of Denver, 567 F.3d 1169,\n\n1178 (10th Cir. 2009)). And Ms. Reed avers that she reported fraud to\n\n\n\n 86\n\fpersons other than her direct supervisor—namely, “the OPM Contract\n\nDirector. . . , Regional Managers[,] and certain Field Managers,” as well as\n\nthe “Director of Training.” Aplt.’s App. at 31–32, ¶¶ 59, 65. But Ms. Reed\n\nnever pleaded facts delineating her specific job description or defining the\n\nscope of her duties such that we could discern with some specificity the\n\ncontours of Ms. Reed’s chain of command or ordinary reporting structure\n\nrelated to fraud matters. Without that information, we cannot say, or\n\nreasonably infer, that Ms. Reed broke the chain of command or ordinary\n\ncommunication protocol by speaking with the Director of Training, OPM\n\nContract Director, Regional Managers, or Field Managers.\n\n For example, as a compliance officer, Ms. Reed may have been\n\nobliged as part of her job duties to communicate with, and seek remedial\n\naction from, those at KeyPoint other than her direct supervisor regarding\n\ninstances of employee fraud—especially if her supervisor did not\n\nadequately respond to her concerns. If so, that Ms. Reed turned to, for\n\nexample, the Regional Managers or Field Managers to address her fraud\n\nconcerns could not properly be viewed as an instance of Ms. Reed violating\n\nthe established communication protocol or chain of command. Ms. Reed’s\n\ncomplaint averments shed no appreciable light on whether her job\n\ndescription did in fact contemplate such communications beyond her direct\n\n\n\n 87\n\fsupervisor—much less negate this possibility.\n\n Tellingly, in responding to KeyPoint’s similar comments regarding\n\nfactual gaps in her complaint, the best that Ms. Reed seemingly could\n\nmuster in her Reply Brief was a plea for merciful forbearance: “With\n\nrespect to her retaliation claim, [Ms. Reed] is arguing that, at the motion to\n\ndismiss stage, she gets the benefit of the doubt.” Aplt.’s Reply Br. at 22\n\n(emphasis added). But the one case that she cites for support—Gee v.\n\nPacheco, 627 F.3d 1178 (10th Cir. 2010)—says no such thing. That case\n\nand other controlling decisions make quite clear that, “[t]o survive a motion\n\nto dismiss,” a plaintiff’s complaint averments must be factually plausible.\n\nId. at 1184 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And that\n\nplausibility standard is satisfied “when the plaintiff pleads factual content\n\nthat allows the court to draw the reasonable inference that the defendant is\n\nliable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). As\n\nrelevant here, Ms. Reed had to plead facts from which we could reasonably\n\ninfer that she put KeyPoint on notice of her protected activity by going\n\noutside the established communication protocol or chain of command. But\n\nshe has failed to plead such facts. 21\n\n 21\n Putting aside Ms. Reed’s failure to demonstrate KeyPoint’s notice through a\nchain-of-command theory, Ms. Reed’s complaint averments do not provide sufficient\nfacts from which we could conclude that the content of her communications with the\n (continued...)\n\n 88\n\f The D.C. Circuit’s analysis in Schweizer offers a useful contrast.\n\nLike Ms. Reed, the relator there was responsible for ensuring “compliance\n\nwith government contracts.” 677 F.3d at 1239. Upon uncovering fraud, the\n\nrelator voiced concerns to her supervisor and then “repeatedly disobeyed\n\nthe orders of . . . her supervisor[] to stop investigating” the alleged fraud.\n\nId. In fact, the relator went over her boss’s head to his supervisor “on two\n\nseparate occasions.” Id. In those conversations, “she alleged a variety of\n\nspecific False Claims Act violations” and “made an emotional plea to\n\n‘sav[e] the company’ from ‘legal trouble.’” Id. at 1239–40 (alteration in\n\n 21\n (...continued)\nidentified KeyPoint officials would have put KeyPoint on notice that she was doing\nsomething more than her job. For example, regarding Ms. Reed’s conversation with the\n“OPM Contract Director,” we do not know which “concerns” she voiced or whether\nvoicing those unspecified concerns was inconsistent with her job duties. Aplt.’s App. at\n32, ¶ 65. It is the same story with Ms. Reed’s discussions with “the Regional Managers\nand certain Field Managers.” Id. And, as to the Director of Training, we are especially\nhard-pressed to see how Ms. Reed’s communications with that official would have alerted\nKeyPoint to the fact that she was seeking to prevent the company from committing a\nviolation the False Claims Act. Specifically, Ms. Reed’s complaint speaks of the\nproblems that the Director of Training brought to Ms. Reed’s attention—not\nthe other way around. See id. at 32, ¶¶ 60–63. That the Director of Training reported\nproblems to Ms. Reed tells us nothing about whether KeyPoint knew of Ms. Reed’s\nefforts to stop a False Claims Act violation. Therefore, her complaint averments\nregarding the content of her communications with the identified KeyPoint officials do not\naid her argument that KeyPoint was on notice of her protected activity. Moreover, lest\nthere be any doubt, Ms. Reed’s averments also cannot support a reasonable inference that\nher reports of fraud to her direct supervisor were outside her ordinary job duties. In fact,\nthe complaint suggests otherwise. Recall that Ms. Reed often reported violations “to her\nsupervisor . . . by submitting and discussing a monthly spreadsheet.” Id. at 62, ¶ 171.\nMs. Reed’s descriptions of these meetings with her direct supervisor strongly suggest that\nshe was just doing her “regular monthly duties.” Id. at 38, ¶ 127.\n\n 89\n\foriginal). Some weeks later, “[t]he company fired” the relator. Id. at 1240.\n\nHer termination letter specified that she was fired for “‘refusing to follow\n\norders’ and ignoring ‘the chain of command.’” Id. From this evidence, the\n\nD.C. Circuit held that the relator’s “factual allegations [were] sufficient to\n\novercome ‘the presumption that [she was] merely acting in accordance with\n\n[her] employment obligations.’” Id. (second and third alterations in\n\noriginal) (quoting Williams, 389 F.3d at 1261).\n\n Measured against the allegations in Schweizer, the paucity of the\n\nfactual content in Ms. Reed’s complaint averments is patent. Unlike in\n\nSchweizer, we have no specifically pleaded facts here indicating that Ms.\n\nReed violated the chain of command in reporting suspected fraud to\n\nKeyPoint officials other than her direct supervisor. Whereas the relator in\n\nSchweizer was ordered to stop investigating the fraud, Ms. Reed was\n\n“tasked with extra audits of investigators.” Aplt.’s App. at 61, ¶ 165. And\n\nwhile the employer in Schweizer fired the relator for “failing to follow\n\norders and the chain of command,” 677 F.3d at 1240, we lack any\n\nspecific—much less express—basis in Ms. Reed’s complaint from which to\n\ninfer that Ms. Reed’s activities in reporting suspected fraud, in her capacity\n\nas a compliance officer, violated KeyPoint’s established communication\n\nprotocols or broke her chain of command. Simply put, Ms. Reed’s\n\n\n\n 90\n\fcomplaint averments fail to rebut the presumption that her actions were just\n\ndoing her job.\n\n * * *\n\n In summary, Ms. Reed has the burden of pleading sufficient facts to\n\nshow that KeyPoint knew of her protected activity. See McBride, 688 F.3d\n\nat 704. To do so, she must overcome the presumption that her internal\n\nreports of fraud were part of her job as a Senior Quality Control Analyst.\n\nThis she cannot do. Accordingly, we hold that Ms. Reed has failed to\n\nadequately allege that KeyPoint was on notice of her efforts to stop its\n\nalleged False Claims Act violations. Consequently, her retaliation claim\n\nfails.\n\n IV\n\n For the reasons stated above, we VACATE the district court’s\n\njudgment and order insofar as it granted summary judgment on Ms. Reed’s\n\nqui tam claims. We AFFIRM the district court’s order insofar as it\n\n\n\n\n 91\n\fdismissed Ms. Reed’s retaliation claim. And we REMAND for further\n\nproceedings consistent with this opinion. 22\n\n\n\n\n 22\n We also GRANT KeyPoint’s unopposed motion to seal Volumes II\nthrough VI of its unredacted supplemental appendix. KeyPoint filed two versions\nof its seven-volume supplemental appendix, one redacted and one unredacted.\nKeyPoint moves to seal Volumes II through VI of the unredacted materials, which\ninclude OPM’s contract with KeyPoint and OPM’s Investigator’s Handbook. The\npublic has a “right of access to judicial records.” Eugene S. v. Horizon Blue\nCross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011); 10 TH C IR . R.\n30.1(D). To seal court records and thus impair that right, a party “must articulate\na real and substantial interest that justifies depriving the public of access to the\nrecords that inform our decision-making process.” Helm v. Kansas, 656 F.3d\n1277, 1292 (10th Cir. 2011). Three considerations lead us to conclude that\nsealing is appropriate here. First, KeyPoint has articulated a strong\nnational-security interest in sealing. The OPM contract and handbook contain\nsensitive materials regarding the techniques used in performing background\nchecks; revealing this information could compromise future background\ninvestigations. Second, KeyPoint has preserved the public’s right to view judicial\nrecords by publicly filing a redacted version of the appendices proffered under\nseal. This publicly available—albeit redacted— version of the appendices leaves\nthe content of the appendices visible in significant measure. Finally, sealing is\nappropriate because the documents at issue “play[ed] no role in our resolution of\nthis appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,\n1246 n.14 (10th Cir. 2017). Although KeyPoint’s Response Brief references the\nunredacted materials, we did not rely on the underlying unredacted documents in\ndeciding this appeal.\n\n 92\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America EX REL., Julie REED, Plaintiff - Appellant, v. KEYPOINT GOVERNMENT SOLUTIONS, Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-04-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n Tenth Circuit\\n\\n PUBLISH April 30, 2019\\n Elisabeth A. Shumaker\\n UNITED STATES COURT OF APPEALS Clerk of Court\\n\\n TENTH CIRCUIT\\n\\n\\n\\nUNITED STATES OF AMERICA\\nEX REL., JULIE REED,\\n\\n Plaintiff - Appellant,\\n\\nv. No. 17-1379\\n\\nKEYPOINT GOVERNMENT\\nSOLUTIONS,\\n\\n Defendant - Appellee.\\n\\n\\n\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:14-CV-00004-CMA-MJW)\\n\\n\\nRichard E. Condit, Mehri & Skalet PLLC, Washington, District of Columbia\\n(Steven A. Skalet and Brett D. Watson, Mehri & Skalet PLLC, Washington,\\nDistrict of Columbia, and John T. Harrington and Robert S. Oswald, The\\nEmployment Law Group, Washington, District of Columbia, with him on the\\nbriefs), for Plaintiff-Appellant.\\n\\nRobert C. Blume, Gibson, Dunn & Crutcher LLP, Denver, Colorado (Ryan\\nT. Bergsieker and Allison Chapin, Gibson, Dunn & Crutcher LLP, Denver,\\nColorado, with him on the brief), for Defendant-Appellee.\\n\\n\\nBefore BRISCOE, SEYMOUR, and HOLMES, Circuit Judges.\\n\\fHOLMES, Circuit Judge.\\n\\n\\n The False Claims Act (or the “Act”) allows for the recovery of civil\\n\\npenalties and treble damages from anyone who defrauds the government by\\n\\nsubmitting fraudulent claims for payment. 31 U.S.C. §§ 3729–3733. To\\n\\nenforce its provisions, the Act empowers individuals to file suits on behalf\\n\\nof the government alleging that a third party made a fraudulent claim for\\n\\npayment to the government. Id. § 3730(b)(1). These suits are known as\\n\\n“qui tam” suits, and the individual plaintiffs are called “relators.”\\n\\nRecognizing the risks relators face as prospective whistleblowers, the Act\\n\\nprohibits employers from retaliating against employees who try to stop\\n\\nviolations of the Act. Id. § 3730(h).\\n\\n Julie Reed sued her former employer, KeyPoint Government\\n\\nSolutions, LLC (“KeyPoint”), for violating the False Claims Act. Her qui\\n\\ntam claims alleged that KeyPoint violated the Act by knowingly and\\n\\nfraudulently billing the government for work that was inadequately or\\n\\nimproperly completed. Ms. Reed also claimed that KeyPoint fired her in\\n\\nretaliation for her efforts to stop KeyPoint’s fraud.\\n\\n This case presents two overarching questions. First, did the district\\n\\ncourt err in granting summary judgment in KeyPoint’s favor on Ms. Reed’s\\n\\nqui tam claims? Second, did the district court err in dismissing Ms. Reed’s\\n\\n 2\\n\\fretaliation claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)?\\n\\n Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the\\n\\ndistrict court erred in the first respect but not in the second. We therefore\\n\\nvacate the district court’s order insofar as it granted summary judgment on\\n\\nMs. Reed’s qui tam claims and remand for further proceedings. We affirm\\n\\nthe district court’s order insofar as it dismissed Ms. Reed’s retaliation\\n\\nclaim.\\n\\n I\\n\\n This is a whistleblower case. The relevant background has three\\n\\nparts: (1) the statutory background, (2) the underlying (alleged) bad acts,\\n\\nand (3) the whistleblowing and ensuing procedural history. We recount\\n\\neach part below.\\n\\n A\\n\\n The False Claims Act “covers all fraudulent attempts to cause the\\n\\ngovernment to pay out sums of money.” United States ex rel. Conner v.\\n\\nSalina Reg’l Health Ctr., Inc., 543 F.3d 1211, 1217 (10th Cir. 2008)\\n\\n(quoting United States ex rel. Boothe v. Sun Healthcare Grp., Inc., 496 F.3d\\n\\n1169, 1172 (10th Cir. 2007)). It does so by permitting the recovery of civil\\n\\npenalties and treble damages from anyone who “knowingly presents . . . a\\n\\nfalse or fraudulent claim for payment or approval.” 31 U.S.C.\\n\\n\\n 3\\n\\f§ 3729(a)(1)(A). Liability also attaches to anyone who “knowingly makes,\\n\\nuses, or causes to be made or used, a false record or statement material to a\\n\\nfalse or fraudulent claim.” Id. § 3729(a)(1)(B).\\n\\n The Act’s proscriptions may be effectuated in two ways. “First, the\\n\\nGovernment itself may” sue “the alleged false claimant” to remedy the\\n\\nfraud. Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S.\\n\\n765, 769 (2000). Second, “a private person (the relator) may bring a qui\\n\\ntam” suit on behalf of the government and also for herself alleging that a\\n\\nthird party made fraudulent claims for payment to the government. Id. “As\\n\\na bounty for identifying and prosecuting fraud,” relators get to keep a\\n\\nportion “of any recovery they obtain.” Boothe, 496 F.3d at 1172 (citing 31\\n\\nU.S.C. § 3730(d)).\\n\\n But there are limits to a relator’s right to bring a qui tam suit. One\\n\\nsuch limit is “known as the public disclosure bar.” Id.; see State Farm Fire\\n\\n& Cas. Co. v. United States ex rel. Rigsby, 580 U.S. ----, 137 S. Ct. 436,\\n\\n440 (2016) (describing the public disclosure bar as a threshold relators must\\n\\npass for their qui tam suits to proceed). That bar compels courts to dismiss\\n\\nqui tam claims “if substantially the same allegations . . . as alleged in the\\n\\naction or claim were publicly disclosed,” unless the relator “is an original\\n\\n\\n\\n\\n 4\\n\\fsource of the information.” 1 31 U.S.C. § 3730(e)(4)(A). The public\\n\\n\\n 1\\n Before Congress amended the False Claims Act in 2010, the public\\ndisclosure bar was jurisdictional—that is, if the bar applied, courts lacked subject-matter\\njurisdiction. See Boothe, 496 F.3d at 1177 (explaining that, as of 2007, the public\\ndisclosure bar was jurisdictional). The pre-2010 provision read: “No court shall have\\njurisdiction over” a qui tam action “based upon the public disclosure of allegations.” 31\\nU.S.C. § 3730(e)(4)(A) (2006). The 2010 amendments removed the reference to\\njurisdiction, counseling district courts instead to “dismiss an action” if the public\\ndisclosure bar applies. 31 U.S.C. § 3730(e)(4)(A) (2010). The federal courts of appeals\\nthat have confronted the issue have unanimously held that the 2010 “amendments\\ntransformed the public disclosure bar from a jurisdictional bar to an affirmative defense.”\\nUnited States ex rel. Prather v. AT&T, Inc., 847 F.3d 1097, 1102 (9th Cir.), cert denied,\\n137 S. Ct. 2309 (2017); see also United States ex rel. Beauchamp v. Academi Training\\nCtr., 816 F.3d 37, 40 (4th Cir. 2016) (holding the amended “public-disclosure bar is . . .\\nan affirmative defense,” not “a jurisdictional bar”); United States ex rel. Moore & Co. v.\\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) (same); United States ex\\nrel. Osheroff v. Humana Inc., 776 F.3d 805, 810 (11th Cir. 2015) (same).\\n Our circuit has yet to opine on this issue. And we need not do so today. Let us\\nbriefly explain the most salient reasons. KeyPoint properly raised the public disclosure\\nbar as a defense in its motion to dismiss before the district court. As a result, we need not\\ndetermine the jurisdictional status of the public disclosure bar here. If KeyPoint had\\nfailed to raise the bar before the district court and had asserted it for the first time on\\nappeal, we would have been obliged to consider the issue only if it was\\njurisdictional—that is, if it implicated our jurisdiction to hear the merits of Ms. Reed’s qui\\ntam claims—not if it was merely an affirmative defense. Therefore, under such\\nhypothetical circumstances, the jurisdictional status of the issue would have been an\\nimportant question that we needed to resolve. See Smith v. Cheyenne Ret. Inv’rs L.P.,\\n904 F.3d 1159, 1164 (10th Cir. 2018) (noting that “[i]n most cases, including this one,\\nthis distinction between a jurisdictional requirement and an affirmative defense is\\nimmaterial” because the party has “pled failure to exhaust as an affirmative defense”);\\nMcQueen ex rel. McQueen v. Colo. Springs Sch. Dist., 488 F.3d 868, 873 (10th Cir. 2007)\\n(explaining that the distinction between an affirmative defense and a jurisdictional\\nprerequisite “is important . . . only when the defendant has waived or forfeited the issue”\\nbut because “there is no question of waiver or forfeiture” the court “need not decide\\nwhether exhaustion is jurisdictional”); accord Coleman v. Newburgh Enlarged City Sch.\\nDist., 503 F.3d 198, 204 (2d Cir. 2007) (“[W]e are not forced to decide whether our\\nprecedent, which labels the IDEA’s exhaustion requirement as a rule affecting subject\\n (continued...)\\n\\n 5\\n\\fdisclosure bar aims to strike “the golden mean between” encouraging\\n\\n“whistle-blowing insiders with genuinely valuable information” to come\\n\\nforward while discouraging “opportunistic plaintiffs who have no\\n\\nsignificant information to contribute of their own.” United States ex rel.\\n\\nFine v. Sandia Corp., 70 F.3d 568, 571 (10th Cir. 1995) (quoting United\\n\\nStates ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C.\\n\\nCir. 1994)).\\n\\n\\n\\n\\n 1\\n (...continued)\\nmatter jurisdiction rather than an ‘inflexible claim-processing’ rule that may be waived or\\nforfeited, remains good law . . . because there can be no claim of waiver or forfeiture\\nhere.”); see also Davoll v. Webb, 194 F.3d 1116, 1128 (10th Cir. 1999) (“If [an] issue\\nimplicates subject matter jurisdiction, we have an obligation to address it ‘regardless of\\nnormal rules governing the presentation of issues.’” (quoting Int’l Union of Operating\\nEng’rs, Local 150 v. Rabine, 161 F.3d 427, 429 (7th Cir. 1998))). But those hypothetical\\ncircumstances are not present here; therefore, we need not consider the jurisdictional\\nstatus of the public disclosure bar. Furthermore, as we explain later, we conclude that the\\noriginal-source analysis that the district court used in concluding that the public\\ndisclosure bar precludes Ms. Reed’s qui tam claims is legally flawed. Accordingly, we\\nvacate its judgment and remand for further proceedings. As a product of that disposition,\\nMs. Reed’s qui tam claims are not (at least for the time being) subject to the public\\ndisclosure bar. Thus, also for this reason, whether that bar is jurisdictional or not is\\nimmaterial. Finally, we observe that the parties did not meaningfully address the public\\ndisclosure bar’s proper characterization—i.e., jurisdictional or an affirmative defense.\\nAlthough this failure would not obviate the need for us to independently consider that\\nquestion if our jurisdiction over the merits depended on the answer, the parties’\\nunderdeveloped arguments on this score further militate against us trying to answer the\\nquestion when the answer is not material here, let alone determinative of our jurisdiction.\\nCf. Hill v. Kemp, 478 F.3d 1236, 1251 (10th Cir. 2007) (“Our system of justice, after all,\\nis not a self-directed inquisitorial one; to avoid error, we are dependent on the full\\ndevelopment of issues through the adversarial process . . . .”).\\n\\n 6\\n\\f And because insiders might be reluctant to use these qui tam\\n\\nprovisions due to fear of employer backlash, the False Claims Act protects\\n\\nwhistleblowers from employer retaliation. See Potts v. Ctr. for Excellence\\n\\nin Higher Educ., Inc., 908 F.3d 610, 613–14 (10th Cir. 2018) (discussing 31\\n\\nU.S.C. § 3730(h)). To qualify for whistleblower protection, an employee\\n\\nmust engage in “protected activity.” Armstrong v. Arcanum Grp., Inc., 897\\n\\nF.3d 1283, 1286 (10th Cir. 2018). Until 2009, protected activity included\\n\\nonly “lawful acts done by the employee . . . in furtherance of an action\\n\\nunder this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h) (2008). But\\n\\nCongress amended the anti-retaliation provision in 2009 and 2010, and it\\n\\nnow protects employees who take steps “in furtherance of” either a qui tam\\n\\nclaim or “other efforts to stop 1 or more violations” of the Act. 31 U.S.C.\\n\\n§ 3730(h)(1). A whistleblower who prevails on her retaliation claim is\\n\\nentitled to reinstatement, double back pay, litigation costs, and attorneys’\\n\\nfees. Id. § 3730(h)(2). The events giving rise to this litigation took place\\n\\nagainst this statutory backdrop.\\n\\n B\\n\\n 1\\n\\n KeyPoint is a private company that conducts background\\n\\ninvestigations for the federal government—specifically, the Office of\\n\\n\\n 7\\n\\fPersonnel Management (“OPM”). OPM uses KeyPoint to investigate\\n\\nprospective federal employees. The depth of KeyPoint’s investigations\\n\\nvaries according to the level of security clearance involved. Most\\n\\ninvestigations, though, entail running background checks, interviewing the\\n\\nsubject of the investigation, gathering testimony from the subject’s\\n\\nneighbors and coworkers, and then compiling the information in a report.\\n\\nGovernment agencies rely on these reports in making employment decisions\\n\\nand deciding whether to issue (or reject) security clearances.\\n\\n OPM’s contract with KeyPoint rewards timeliness. If KeyPoint\\n\\nfinishes its investigations on time, OPM pays KeyPoint a premium. But\\n\\nKeyPoint’s pay decreases for each day an investigation runs past the\\n\\ndeadline.\\n\\n The contract also includes safeguards to ensure that KeyPoint’s\\n\\ninvestigations are complete and accurate. For example, KeyPoint must do\\n\\nthorough case reviews of each investigation and reinterview a percentage of\\n\\nall sources. Another safeguard is the Telephone Testimony Program\\n\\n(“TTP”); KeyPoint developed such a program at OPM’s request, and OPM\\n\\nendorsed KeyPoint’s program. Ordinarily, investigators must conduct in-\\n\\nperson interviews. But they may do telephone interviews under some\\n\\ncircumstances, so long as they keep their total number of telephone\\n\\n\\n 8\\n\\finterviews below a certain percentage threshold. Under the TTP, each\\n\\nmonth OPM sends KeyPoint a list of investigators who exceeded their\\n\\nallotted number of telephone interviews during the last month. KeyPoint\\n\\nthen must send OPM “corrective action report[s]” explaining each\\n\\ninfraction and what it is doing to remedy the problem. Aplt.’s App. at 31, ¶\\n\\n54 (Second Am. Compl., filed Dec. 5, 2016). The contract and OPM’s\\n\\nInvestigator’s Handbook, which the contract incorporates, spell out these\\n\\nand other quality-control measures.\\n\\n 2\\n\\n Along with KeyPoint, the background-investigation industry has two\\n\\nother main players—U.S. Investigations Services (“USIS”) and CACI\\n\\nInternational, Inc. (“CACI”). This insular industry has had its share of\\n\\ntroubles. From 2008 to 2010, the government prosecuted several individual\\n\\ninvestigators, including a former KeyPoint employee, for rushing\\n\\ninvestigations and falsifying information in reports to OPM. And a 2010\\n\\nreport summarizing an OPM audit concluded that KeyPoint’s and its\\n\\ncompetitors’ “quality assurance process” needed improvement. Id. at 273\\n\\n(Final Audit Report, dated June 22, 2010).\\n\\n The year 2013 was a particularly turbulent one for the industry. That\\n\\nyear two federal government contractors—Edward Snowden and Aaron\\n\\n\\n 9\\n\\fAlexis—committed high-profile crimes after having received security\\n\\nclearances. These embarrassing episodes put the industry under intense\\n\\nscrutiny.\\n\\n With scrutiny came unflattering news reports. A June 2013 article\\n\\nreporting on allegations against USIS noted that the “concerns about\\n\\nbackground checks [were] not limited to USIS” and later named KeyPoint\\n\\nand CACI as USIS’s “two main competitors.” Id. at 159, 160 (Wash. Post\\n\\nArticle, dated June 27, 2013). Another article that month reported that “a\\n\\nselect group of private contractors conducting background checks for high-\\n\\nsecurity jobs were not doing enough to ensure the quality of their\\n\\ninvestigations.” Id. at 302 (Reuters Article, dated June 26, 2013). The\\n\\narticle noted “problems with procedures and safeguards used by all three\\n\\nprivate contractors—USIS, KeyPoint . . . and CACI.” Id. at 303. A slew of\\n\\nother news reports covered such allegations roiling the background-\\n\\ninvestigation industry.\\n\\n The allegations in the press worried Congress and OPM. Those\\n\\nworries led to several congressional hearings to probe the industry’s alleged\\n\\npractice of using “false, incomplete, or rushed information gathering” in its\\n\\nbackground investigations. Id. at 411 & n.3 (Order, entered Sept. 28,\\n\\n2017). And the bad press of its contractors prompted OPM to commission\\n\\n\\n 10\\n\\fan audit of KeyPoint’s and its competitors’ practices. The audit concluded\\n\\nthat “OPM need[ed] to strengthen its controls over its Contractors and the\\n\\nbackground investigation review process.” Id. at 164 (Audit Report, dated\\n\\nJune 4, 2014). 2\\n\\n Exacerbating the industry’s woes, a federal court unsealed a\\n\\ncomplaint against USIS in October 2013. See United States ex rel. Percival\\n\\nv. U.S. Investigations Servs., LLC, No. 2:11-cv-00527-WKW-WC (M.D.\\n\\nAla. July 1, 2011) (complaint reproduced in Aplt.’s Reply Br., Addendum\\n\\nA). That complaint leveled three accusations against USIS: first, that USIS\\n\\n“failed to provide accurate and complete investigations prior to Cases being\\n\\nsubmitted to the government,” Aplt.’s Reply Br., Addendum A, at 10;\\n\\nsecond, that USIS “knowingly submitted Cases to OPM for payment that [it]\\n\\nknew had not been reviewed,” id. at 6; and third, that USIS exploited “the\\n\\nBlue Zone software . . . . to submit Cases to OPM under the false pretense\\n\\nthat the Cases had been complete[d] and accurately and properly reviewed,”\\n\\nid. at 12. This USIS suit and the government’s intervention into it incited\\n\\n\\n 2\\n The copy of the audit report included in the record is undated. But a copy\\nof the report that is publicly available via the Internet lists the date the report was\\npublished as June 4, 2014. See OFFICE OF PERS. MGMT., AUDIT OF THE FEDERAL\\nINVESTIGATIVE SERVICES’ CASE REVIEW PROCESS OVER BACKGROUND INVESTIGATIONS\\n(2014), https://www.opm.gov/our-inspector-general/publications/reports/2014/audit-of-\\nthe-federal-investigative-services-case-review-process-over-background-\\ninvestigations.pdf.\\n\\n 11\\n\\fmore press accounts of the industry’s shoddy investigations.\\n\\n 3\\n\\n Ms. Reed worked for KeyPoint during this turbulent period. As a\\n\\nSenior Quality Control Analyst, she reviewed investigators’ work and\\n\\ndocumented incomplete investigations in monthly reports. Ms. Reed also\\n\\nran KeyPoint’s TTP by performing a “regular monthly audit of KeyPoint\\n\\ninvestigators who violated” the program. Aplt.’s App. at 34, ¶ 81. Along\\n\\nwith her “regular duties,” Ms. Reed “was occasionally tasked with extra\\n\\naudits of investigators,” id. at 61, ¶ 165, or assigned “to determine the\\n\\nnature of . . . chronic infractions,” id. at 84, ¶ 228. The precise scope of\\n\\nMs. Reed’s responsibilities as a Senior Quality Control Analyst and where\\n\\nshe fell in the KeyPoint hierarchy, however, are not specified in the\\n\\noperative complaint.\\n\\n Nevertheless, that complaint does clearly aver that, in discharging her\\n\\nduties, Ms. Reed observed what she described as “KeyPoint’s systemic\\n\\nviolations” of its contract with OPM and persistent submission of\\n\\nfraudulent claims for payment to the government based on incomplete or\\n\\nimproperly completed investigations. Id. at 29, ¶ 34. Ms. Reed’s position\\n\\nallowed her to see investigators falsely reporting applicants’ backgrounds\\n\\nas “clean” and omitting information showing otherwise, completing fewer\\n\\n\\n 12\\n\\fthan the required number of interviews, and generally cutting corners. Ms.\\n\\nReed also believed that she witnessed rampant violations of the TTP and a\\n\\nscheme by KeyPoint management to hide the violations by submitting\\n\\nknowingly false corrective action reports to OPM.\\n\\n According to Ms. Reed, KeyPoint’s management not only knew of the\\n\\nforegoing systemic violations but also encouraged them by pressuring\\n\\ninvestigators to rush investigations to maximize revenue. Alarmed by the\\n\\nabuses, Ms. Reed voiced her concerns within the company. Periodically,\\n\\nMs. Reed and her staff uncovered and reported violations. Ms. Reed also\\n\\n“regularly reported [certain] infractions to her supervisor . . . by submitting\\n\\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171. Along with these\\n\\nmonthly reports, Ms. Reed repeatedly shared her concerns with her\\n\\nsupervisor. She also discussed the problems with other individuals at\\n\\nKeyPoint, such as the Director of Training, the OPM Contract Director,\\n\\nRegional Managers, and certain Field Managers. But Ms. Reed’s efforts to\\n\\ncurb the violations failed. In fact, she alleges that the problems multiplied\\n\\nover time.\\n\\n Eventually, KeyPoint fired Ms. Reed in October 2013. About a month\\n\\nlater, Ms. Reed and her counsel contacted the Department of Justice\\n\\n(“DOJ”). She told DOJ about the abuses she claimed to have witnessed\\n\\n\\n 13\\n\\fwhile at KeyPoint. To back up her allegations, Ms. Reed provided a pre-\\n\\ndisclosure statement and a presentation detailing KeyPoint’s alleged\\n\\nviolations.\\n\\n C\\n\\n At the government’s urging, Ms. Reed sued KeyPoint in January 2014.\\n\\nHer operative complaint raised three qui tam claims and a retaliation\\n\\nclaim. 3 The qui tam claims alleged that KeyPoint violated the False Claims\\n\\nAct by: (1) falsely certifying that it performed complete and accurate\\n\\ninvestigations, (2) falsely certifying that it did proper case reviews and\\n\\nquality-control checks, and (3) falsifying corrective action reports. Ms.\\n\\nReed’s retaliation claim alleged that KeyPoint fired her for trying to stop it\\n\\nfrom violating the False Claims Act.\\n\\n After the government declined to intervene in the case, KeyPoint\\n\\nmoved to dismiss the suit. The district court then informed the parties that\\n\\nit intended to convert the portion of KeyPoint’s motion concerning the qui\\n\\ntam claims into a summary-judgment motion; the court did not perform a\\n\\nsimilar conversion on KeyPoint’s motion to dismiss the retaliation claim.\\n\\n\\n\\n 3\\n Ms. Reed also alleged that KeyPoint violated the Americans with\\nDisabilities Act by retaliating against her because of her disability. The district court\\ngranted KeyPoint’s motion to dismiss that claim. Ms. Reed does not challenge that ruling\\non appeal.\\n\\n 14\\n\\fAt the court’s invitation, Ms. Reed filed additional evidence to defend her\\n\\nqui tam claims from summary judgment.\\n\\n In September 2017, the district court entered judgment for KeyPoint\\n\\non all counts. Regarding the qui tam claims, the court declined to consider\\n\\nsome of the supplemental materials that Ms. Reed had proffered to oppose\\n\\nKeyPoint’s summary-judgment motion. And, on the merits, the court\\n\\ndetermined that the allegations in Ms. Reed’s qui tam claims were\\n\\n“substantially the same” as those that had been publicly disclosed in (1) the\\n\\ncriminal investigations of individual investigators, (2) the unflattering news\\n\\nreports about the background-investigation industry, (3) the congressional\\n\\nhearings and OPM audits, and (4) the USIS suit. Id. at 411. And, because\\n\\nthe court also concluded that Ms. Reed did not qualify as “an ‘original\\n\\nsource,’” it dismissed her qui tam claims under the public disclosure bar.\\n\\nId. at 414. As for Ms. Reed’s retaliation claim, the district court granted\\n\\nKeyPoint’s Rule 12(b)(6) motion to dismiss after determining that she had\\n\\ninadequately pleaded that KeyPoint was on notice that she was engaging in\\n\\nprotected activity.\\n\\n Ms. Reed now appeals from the district court’s order entering\\n\\njudgment for KeyPoint. Her appeal presents two questions. First, did the\\n\\ndistrict court err in granting KeyPoint summary judgment on the qui tam\\n\\n\\n 15\\n\\fclaims under the public disclosure bar? And second, did the district court\\n\\nerr in granting KeyPoint’s Rule 12(b)(6) motion to dismiss the retaliation\\n\\nclaim? For the reasons explicated below, we answer the first question in\\n\\nthe affirmative and the second in the negative.\\n\\n II\\n\\n We start with the first question. The public disclosure bar compels\\n\\ncourts to dismiss qui tam claims if (1) “substantially the same allegations . .\\n\\n. were publicly disclosed,” unless (2) the relator is “an original source of\\n\\nthe information.” 31 U.S.C. § 3730(e)(4)(A). The district court thought\\n\\nthe allegations in Ms. Reed’s qui tam claims were substantially the same as\\n\\nthose that had been publicly disclosed. And it further reasoned that Ms.\\n\\nReed was not an original source of that information. Thus, the district\\n\\ncourt granted KeyPoint summary judgment on Ms. Reed’s qui tam claims.\\n\\n We review that conclusion de novo and apply the same legal standard\\n\\nthat the district court used. See United States ex rel. Smith v. Boeing Co.,\\n\\n825 F.3d 1138, 1145 (10th Cir. 2016). “Summary judgment is appropriate\\n\\n‘if the movant shows that there is no genuine dispute as to any material fact\\n\\nand the movant is entitled to judgment as a matter of law.’” Id. (quoting\\n\\nF E D . R. C I V . P. 56(a)). When, as here, the district court granted the\\n\\ndefendant’s motion for summary judgment, “we accept as true the\\n\\n\\n 16\\n\\frelator[’s] evidence and draw all reasonable inferences in [her] favor.” Id.\\n\\n Ms. Reed argues that the district court erred twice en route to\\n\\ndismissing her qui tam claims under the public disclosure bar. 4 Its first\\n\\nerror, she says, was concluding that the allegations in her complaint were\\n\\nsubstantially the same as those aired in earlier public disclosures.\\n\\nCompounding that error, in her view, the district court then wrongly\\n\\ndetermined that she did not fall under the “original source” exception to the\\n\\npublic disclosure bar.\\n\\n Put differently, the fate of Ms. Reed’s qui tam claims hangs on two\\n\\nquestions. First, are the allegations in those claims substantially the same\\n\\nas those in earlier public disclosures? And second, if so, is Ms. Reed an\\n\\n“original source” of the information in her claims? Our answer to the first\\n\\nquestion does not favor Ms. Reed, but our answer to the second one does. 5\\n\\n 4\\n For the public disclosure bar to apply, two other conditions must be met.\\nFirst, “the alleged ‘public disclosure’” must “contain[] allegations . . . from one of the\\nlisted sources” in the Act. In re Nat. Gas Royalties, 562 F.3d 1032, 1039 (10th Cir. 2009)\\n(quoting United States ex rel. Holmes v. Consumer Ins. Grp., 318 F.3d 1199, 1203 (10th\\nCir. 2003)); see 31 U.S.C. § 3730(e)(4)(A)(i)–(iii) (listing, among other things, news\\nreports, congressional hearings, prior lawsuits, and federal audits as “sources”). Second,\\nthe disclosure must be “public.” See In re Nat. Gas Royalties, 562 F.3d at 1039. Because\\nthe parties agree that these conditions are met, we need not (and do not) consider them.\\n 5\\n We typically answer “only the questions we must, not those we can.”\\nValley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th\\nCir. 2010). Thus, we pause to explain our rationale for resolving the substantially-the-\\nsame question even though we ultimately vacate the district court’s judgment regarding\\n (continued...)\\n\\n 17\\n\\f 5\\n (...continued)\\nthe qui tam claims because of its error in resolving the original-source question. In other\\nwords, because the original-source error is ultimately determinative here in our resolution\\nof the public-disclosure-bar issue, some might question the need to first rule on the\\nsubstantially-the-same component of the public-disclosure-bar issue. But our precedent\\nteaches that application of the public disclosure bar “requires a four-step inquiry.”\\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1042 (10th Cir. 2004). The first two\\nsteps—which are not at issue here—relate to whether the information in question\\nqualifies under the Act as a public disclosure. See id. The third step is the substantially-\\nthe-same inquiry. These first three steps determine whether, absent an exception, the\\npublic disclosure bar applies at all. See id. And so our circuit has counseled courts to\\n“address the first three public disclosure issues first.” Id. (quoting United States ex rel.\\nHafter v. Spectrum Emergency Care, 190 F.3d 1156, 1161 (10th Cir. 1999)). Reaching\\n“the fourth, ‘original source’ issue is necessary only if the court answers the first three\\nquestions in the affirmative.” Id. (emphasis added) (quoting Hafter, 190 F.3d at 1161).\\nIn Kennard, for example, we first concluded that the public disclosure bar’s three\\nprerequisites applied. Id. Then we held that the relators “qualif[ied] as an original\\nsource,” thus reversing the district court’s order. Id. at 1046.\\n Admittedly, this precedent instructing courts to reach the original-source question\\nonly after answering in the affirmative the substantially-the-same question interpreted the\\npre-2010 version of the public disclosure bar, which was jurisdictional. That said, we see\\nno reason why the 2010 amendment—irrespective of its jurisdictional import—should\\nchange our view that the substantially-the-same “analysis is a threshold inquiry” that we\\nshould resolve before “reach[ing] the ‘original source’ analysis.” United States ex rel.\\nFine v. MK-Ferguson Co., 99 F.3d 1538, 1545 (10th Cir. 1996) (quoting United States ex\\nrel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 552 (10th Cir. 1992)). After all, as\\nwe explain below, the 2010 amendment establishes an analytical rubric consistent with\\nour pre-2010 precedent. Moreover, the structure of the amended provision—like the\\nunamended version—supports the proposition that the substantially-the-same inquiry is a\\nthreshold one. That provision instructs courts to dismiss a qui tam claim “if substantially\\nthe same allegations . . . were publicly disclosed . . . . unless . . . the person bringing the\\naction is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A) (2010)\\n(emphasis added); see Moore, 812 F.3d at 297–98 (quoting this amended language and\\nconcluding that a relator’s allegations were substantially the same as those in the public\\nsphere, “but that [the relator] was nevertheless an original source”). Thus, we adhere to\\nour pre-2010-amendment view that courts should resolve the substantially-the-same\\nquestion before considering whether a relator’s qui tam claims may proceed under the\\n (continued...)\\n\\n 18\\n\\fSpecifically, we hold that Ms. Reed’s complaint averments are substantially\\n\\nthe same as the allegations in the available public disclosures, but the\\n\\ndistrict court erred in finding that Ms. Reed’s averments do not materially\\n\\nadd to those disclosures’ allegations, such that she does not qualify as an\\n\\noriginal source. But this holding does not fully resolve the original-source\\n\\nquestion. Consequently, we vacate the district court’s summary-judgment\\n\\norder and remand for further proceedings regarding whether Ms. Reed\\n\\nqualifies as an original source.\\n\\n A\\n\\n We agree with the district court that Ms. Reed’s allegations\\n\\nundergirding her qui tam claims are “substantially the same” as the\\n\\nallegations in the public disclosures. We explain this conclusion in three\\n\\nsteps. First, we discuss the applicable legal standard that guides our\\n\\nsubstantially-the-same inquiry. Second, we compare the allegations in Ms.\\n\\nReed’s qui tam claims with those in the public disclosures. And third, we\\n\\nclose by concluding that the allegations in the qui tam claims are\\n\\n“substantially the same” as the publicly disclosed allegations.\\n\\n\\n\\n\\n 5\\n (...continued)\\noriginal-source exception.\\n\\n 19\\n\\f 1\\n\\n Congress amended the False Claims Act in 2010. See Pub. L. No.\\n\\n111-148, § 10104(j)(2), 124 Stat. 119, 901–02 (“2010 amendment”). Before\\n\\nthat year, the provision setting out the public disclosure bar read: “No\\n\\ncourt shall have jurisdiction over an action under this section based upon\\n\\nthe public disclosure of allegations or transactions . . . .” 31 U.S.C.\\n\\n§ 3730(e)(4)(A) (2008) (emphasis added). The amended provision reads:\\n\\n“The court shall dismiss an action . . . if substantially the same allegations .\\n\\n. . as alleged in the action or claim were publicly disclosed.” 31 U.S.C.\\n\\n§ 3730(e)(4)(A) (2010) (emphasis added).\\n\\n Our court has yet to opine on the degree of similarity necessary to\\n\\nsatisfy this new substantially-the-same standard. That said, even before\\n\\n2010, our circuit read the unamended provision’s “based upon” language to\\n\\nmean that the public disclosure bar applied when “the allegations in the\\n\\ncomplaint were substantially the same as allegations in the public\\n\\ndisclosures.” Fine, 70 F.3d at 572; see also Glaser v. Wound Care\\n\\nConsultants, Inc., 570 F.3d 907, 910 (7th Cir. 2009) (noting that “eight\\n\\nother circuits have read the phrase ‘based upon’” to encompass allegations\\n\\nthat are “substantially similar” to those publicly disclosed). That the\\n\\nsubstantially-the-same standard adopted in the 2010 amendment resembles\\n\\n\\n 20\\n\\fthe standard we already used is no accident; the amendment “expressly\\n\\nincorporates the ‘substantially similar’ standard in accordance with the\\n\\ninterpretation of this circuit and most other circuits.” Bellevue v. Universal\\n\\nHealth Servs. of Hartgrove, Inc., 867 F.3d 712, 718 (7th Cir. 2017), cert.\\n\\ndenied, 138 S. Ct. 1284 (2018). Thus, the 2010 amendment confirms the\\n\\nvitality of our pre-2010 standard. 6\\n\\n In her reply brief, Ms. Reed argues for the first time that the 2010\\n\\namendment nullifies our earlier cases. See Aplt.’s Reply Br. at 8. In her\\n\\nview, the amendment “made clear” Congress’s “desire to narrow the impact\\n\\nof the public disclosure bar.” Id. Indeed, Ms. Reed believes that Congress\\n\\nacted specifically to jettison the reasoning used in our pre-2010 cases. And\\n\\nso she warns us not to rely on those earlier cases in our substantially-the-\\n\\nsame inquiry.\\n\\n Ms. Reed’s argument is too little too late. For starters, by waiting\\n\\n\\n\\n 6\\n Accord United States ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d\\n201, 208 n.4 (1st Cir. 2016) (“The revised statutory langauge—‘substantially the\\nsame’—merely confirms our earlier understanding.”); United States ex rel. Mateski v.\\nRaytheon Co., 816 F.3d 565, 569 n.7 (9th Cir. 2016) (“[O]ur analysis of the issue of\\nsubstantial similarity would be the same under either version [of the public-disclosure-bar\\nprovision].”); Cause of Action v. Chi. Transit Auth., 815 F.3d 267, 281 n.20 (7th Cir.\\n2016) (“Our analysis [of substantial similarity] is therefore the same under either version\\nof the statute.”); see also United States ex rel. Armes v. Garman, 719 F. App’x 459, 463\\nn.2 (6th Cir. 2017) (unpublished) (“[T]he 2010 amendment does not affect our public-\\ndisclosure analysis . . . .”).\\n\\n 21\\n\\funtil her reply brief to argue that the 2010 amendment narrowed the public\\n\\ndisclosure bar’s sweep and undermined our earlier cases, Ms. Reed waived\\n\\nthat argument. See, e.g., White v. Chafin, 862 F.3d 1065, 1067 (10th Cir.\\n\\n2017) (“Mr. White waived this contention by waiting to present it for the\\n\\nfirst time in his reply brief.”). Furthermore, were we to overlook this\\n\\nwaiver, we nevertheless would decline Ms. Reed’s invitation to discard our\\n\\nearlier precedent because of Congress’s supposed “desire to narrow the\\n\\nimpact of the public disclosure bar.” Aplt.’s Reply Br. at 8.\\n\\n We ordinarily derive Congress’s intent “from the text, not from\\n\\nextrinsic sources.” Antonin Scalia & Bryan A. Garner, R E A D I N G L A W : T H E\\n\\nINTERPRETATION OF L E G A L T E X T S 56 (2012). The amended text says that\\n\\nthe public disclosure bar applies when substantially the same allegations\\n\\nhad been publicly disclosed; that is how our circuit (and most others)\\n\\napplied the public disclosure bar pre-amendment, see Fine, 70 F.3d at 572,\\n\\nand that is how we will continue to apply it until Congress or the Supreme\\n\\nCourt tells us otherwise. In any event, Congress’s supposed desire to\\n\\nnarrow the public disclosure bar presumably would relate to only those\\n\\ncircuits that had used a standard other than the substantially-the-same\\n\\nstandard adopted in the 2010 amendment. See, e.g., United States ex rel.\\n\\nMay v. Purdue Pharma L.P., 737 F.3d 908, 917 (4th Cir. 2013) (explaining\\n\\n\\n 22\\n\\fthat because the Fourth Circuit had not used the substantially-the-same\\n\\nstandard, the 2010 amendment “changed the required connection between\\n\\nthe plaintiff’s claims and the qualifying public disclosure” in that circuit).\\n\\nBut in this circuit—where we already used the substantially-the-same\\n\\nstandard—the 2010 amendment “merely confirms our earlier\\n\\nunderstanding.” United States ex rel. Winkelman v. CVS Caremark Corp.,\\n\\n827 F.3d 201, 208 n.4 (1st Cir. 2016). Thus, our pre-2010-amendment\\n\\ncases guide our substantially-the-same inquiry.\\n\\n Those cases teach that the operative question is whether the public\\n\\ndisclosures were sufficient to set the government “on the trail of the alleged\\n\\nfraud without [the relator’s] assistance.” 7 Fine, 70 F.3d at 571. And we\\n\\nmust recognize that the government’s nose for fraud may be sensitive\\n\\nenough to pick up the scent even if the public disclosures did not “identify\\n\\n\\n\\n\\n 7\\n We are aware of scholarly criticism of the on-the-trail-of-fraud standard.\\nSee Susan Schneider Thomas & Jonathan Z. DeSantis, Misguided Meanders: The “Trail\\nof Fraud” Under the Public Disclosure Bar of the False Claims Act, 43 UNIV. OF\\nDAYTON L. REV. 161, 182 (2018) (“[R]ather than using the innately ambiguous\\nassessment of whether the alleged public disclosures ‘might have’ ‘set’ the government\\non the ‘trail’ of fraud, it would be a far more meaningful analysis to examine, as the plain\\nlanguage of the statue commands, whether the potentially disabling public disclosures in\\nfact disclosed allegations or transactions of fraud, or made actual allegations of fraudulent\\nconduct.”). However, Fine and its progeny are binding precedent in this circuit.\\nMoreover, Ms. Reed does not challenge the propriety of this standard in her Opening\\nBrief.\\n\\n 23\\n\\fany specific compan[y].” 8 See In re Nat. Gas Royalties, 562 F.3d 1032,\\n\\n1039, 1042 (10th Cir. 2009). The need to identify the defendant by name is\\n\\nparticularly weak when “the government has already identified the problem\\n\\nand has an easily identifiable group of probable offenders.” 9 Fine, 70 F.3d\\n\\nat 572. Similarly, “[a] relator need not have learned of the basis for the qui\\n\\ntam action from the public disclosure” to trigger the public disclosure bar.\\n\\nKennard v. Comstock Res., Inc., 363 F.3d 1039, 1044 (10th Cir. 2004). Nor\\n\\nis “a complete identity of allegations, even as to time, place, and manner . .\\n\\n. required to implicate the public disclosure bar.” Boothe, 496 F.3d at\\n\\n1174. Rather, it is enough if “the essence of” the relator’s allegations was\\n\\n“‘derived from’ a prior public disclosure.” Id. In fact, the public\\n\\n 8\\n See also United States ex rel. Lager v. CSL Behring, L.L.C., 855 F.3d 935,\\n946 (8th Cir. 2017) (concluding that the disclosures “‘set the government squarely on the\\ntrail’ of the defendants’” fraud even though the disclosures did not name defendants\\n(quoting In re Nat. Gas Royalties, 562 F.3d at 1041)); United States ex rel. Zizic v.\\nQ2Administrators, LLC, 728 F.3d 228, 238 (3d Cir. 2013) (concluding allegations were\\nsubstantially similar even though defendants “were not actually identified” in the public\\ndisclosure).\\n 9\\n See also Lager, 855 F.3d at 946 (finding substantial similarity when\\ndisclosures gave enough information about an industry-scheme to “identify the\\ndefendants” without naming them); cf. United States ex rel. Jamison v. McKesson Corp.,\\n649 F.3d 322, 329, 330 (5th Cir. 2011) (observing that “the public disclosures need not\\nname particular defendants so long as they ‘alerted the government to the industry-wide\\nnature of the fraud and enabled the government to readily identify wrongdoers through an\\ninvestigation,” but reasoning that “the defendants’ documents, considered alone, likely\\nare not sufficient publically to disclose allegations specific to” them because their\\nindustries “are large” and “[t]he public disclosures do not indicate that fraud is universal\\nor even widespread within them” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)).\\n\\n 24\\n\\fdisclosures need not allege any False Claims Act violations or even “any\\n\\nwrongdoing”; they need only disclose “the material elements of the\\n\\nfraudulent transaction.” 10 Fine, 70 F.3d at 572.\\n\\n In summary, the public disclosure bar applies to qui tam claims “if\\n\\nsubstantially the same allegations . . . were publicly disclosed.” 31 U.S.C.\\n\\n§ 3730(e)(4)(A). Our pre-2010-amendment cases primarily guide our\\n\\nsubstantially-the-same inquiry. And those cases teach that the operative\\n\\nquestion is whether the public disclosures were sufficient to set the\\n\\ngovernment “on the trail of the alleged fraud without [the relator’s]\\n\\nassistance.” Fine, 70 F.3d at 571.\\n\\n 2\\n\\n Having settled on the proper standard governing the substantially-the-\\n\\nsame inquiry, we now must compare Ms. Reed’s allegations with those in\\n\\nthe public disclosures.\\n\\n Ms. Reed’s Allegations. At a high level of generality, Ms. Reed’s qui\\n\\ntam claims allege that KeyPoint “was engaging in systemic fraud.” Aplt.’s\\n\\n\\n\\n 10\\n See also Bellevue, 867 F.3d at 718–19 (noting that the substantially-the-\\nsame standard requires only “that the government had enough information” from the\\npublic disclosures to infer that the defendant knowingly violated the False Claims Act);\\nWinkelman, 827 F.3d at 208 (explaining that it is enough that the public disclosures “lead\\nto a plausible inference of fraud” (quoting United States ex rel. Ondis v. City of\\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); Osheroff, 776 F.3d at 814 (same).\\n\\n 25\\n\\fOpening Br. at 1. This fraud grew from KeyPoint’s “focus[] on meeting . .\\n\\n. deadlines” and winning bonuses “at the expense of the quality,\\n\\ncompleteness, and accuracy” of its investigations, Ms. Reed says. Aplt.’s\\n\\nApp. at 29, ¶ 38. For instance, Ms. Reed accuses KeyPoint of pressuring\\n\\ninvestigators to rush investigations to maximize revenue. This pressure led,\\n\\ngenerally, to rampant violations of KeyPoint’s contract with OPM and, in\\n\\nparticular, of the TTP. Notably, as to the TTP, the pressure led to the\\n\\nsubmission of knowingly false corrective action reports designed to hide the\\n\\nviolations. At bottom, Ms. Reed alleges that KeyPoint knowingly\\n\\ndefrauded the government to “enrich itself and its executives at the expense\\n\\nof national security.” Aplt.’s Opening Br. at 6.\\n\\n Zooming in on the details, Ms. Reed claims that KeyPoint’s fraud\\n\\nmanifested itself in three main ways. First, she says that KeyPoint falsely\\n\\ncertified to OPM that it had performed complete and accurate\\n\\ninvestigations. To support this charge, Ms. Reed points to specific\\n\\ninstances in which investigators failed to do mandatory interviews of\\n\\nsources. She also details how individual investigators uncovered\\n\\nderogatory information about subjects but failed to report that information\\n\\nin their reports to OPM. Piling on, Ms. Reed lists over 100 instances in\\n\\nwhich investigators cut interviews short and then lied about it to OPM. She\\n\\n\\n 26\\n\\fadds to this by exposing scores of violations of the TTP.\\n\\n Ms. Reed contends that the second manifestation of KeyPoint’s fraud\\n\\nentailed falsely representing to OPM that it had done proper case reviews\\n\\nand quality-control checks. For instance, she documents at least five times\\n\\nthat, “despite . . . readily apparent violations,” KeyPoint reviewers violated\\n\\nOPM requirements by failing to reopen cases. Aplt.’s App. at 88, ¶ 248.\\n\\nAnd to circumvent the TTP, “quality control staff failed to perform the\\n\\nproper number of re-interviews.” Id. at 89, ¶ 252.\\n\\n The third (related) strain of fraud Ms. Reed identifies is KeyPoint’s\\n\\nsubmission of falsified corrective action reports. Recall that these reports\\n\\n“are supposed to detail the specific actions taken by KeyPoint management\\n\\nto address” violations of OPM rules and programs—most notably, the TTP.\\n\\nId. at 89, ¶ 255. To hide its rampant violations and institutional\\n\\nacquiescence to those violations, Ms. Reed alleges that “KeyPoint falsified\\n\\ncorrective action reports to OPM” to give the appearance that it “was\\n\\nactively addressing [violations], when it was not.” Id. at 89, ¶ 256. To Ms.\\n\\nReed’s knowledge, KeyPoint falsified dozens of reports to hide malfeasance\\n\\nby at least four individual investigators.\\n\\n Publicly Disclosed Allegations. There are four categories of relevant\\n\\npublic disclosures: (1) criminal investigations of individual investigators,\\n\\n\\n 27\\n\\f(2) the news reports, (3) congressional hearings and OPM audits, and (4)\\n\\nthe previously mentioned USIS suit.\\n\\n Criminal Investigations. Between 2007 and 2013, the government\\n\\nprosecuted individual investigators for allegedly falsifying information in\\n\\ntheir reports. At least one of these “criminal cases involve[d] . . . a former\\n\\nKey[P]oint employee who ‘raced through investigations to get more work’\\n\\nand lied about conducting thorough background checks when they were\\n\\nincomplete and rushed.” Id. at 410.\\n\\n News Reports. In 2013, a slew of news reports chronicled the\\n\\nsuspected fraud and widespread sloppiness in the background-investigation\\n\\nindustry. One article in September 2013 reported that the government was\\n\\n“‘pursuing suspected fraud in the granting of security clearances,’ including\\n\\n‘19 private and government investigators for submitting fabricated\\n\\nreports.’” Id. (quoting id. at 307–09 (NBC Article, dated Sept. 18, 2013)).\\n\\nAnother article in June 2013 relayed that OPM had found problems “with\\n\\nprocedures and safeguards used by all three private contractors—USIS,\\n\\nKeyPoint . . . and CACI.” Id. at 303. This article added that “[a]ll three\\n\\ncompanies have had investigators who were found to have done substandard\\n\\nwork in background checks.” Id. Another June 2013 article reporting on\\n\\nallegations against USIS noted that “concerns about background checks\\n\\n\\n 28\\n\\f[were] not limited to USIS.” Id. at 159.\\n\\n Congressional Hearings & OPM Audits. In 2013, Congress twice\\n\\nheld hearings to investigate the background-investigation industry’s\\n\\npractice of using “false, incomplete, or rushed information gathering” in its\\n\\nbackground investigations. Id. at 411 & n.3. OPM reacted by\\n\\ncommissioning an audit of KeyPoint’s and its competitors’ practices. This\\n\\naudit determined that OPM “need[ed] to strengthen its controls over its\\n\\nContractors and the background investigation review process.” Id. at 164.\\n\\nBack in 2010, OPM had completed a report on another audit of the\\n\\nbackground-investigation industry. This earlier report concluded that\\n\\nKeyPoint’s and its competitors’ “quality assurance process” needed\\n\\nimprovement. Id. at 273. The 2010 report also revealed that KeyPoint\\n\\nsometimes “did not conduct the required amount of re-contacts” in its\\n\\ninvestigations, id. at 289, and that there were “falsification and[] integrity\\n\\nissues” with investigations done by USIS, KeyPoint, and CACI, id. at 261.\\n\\n The USIS Suit. In October 2013—a month before Ms. Reed conveyed\\n\\nher allegations to DOJ and two months before she filed her qui tam suit—a\\n\\nfederal court unsealed a complaint against USIS. The complaint included\\n\\nthree qui tam claims against USIS. First, it alleged that USIS had a\\n\\npractice of “dumping” cases. That is, USIS allegedly sent cases “to OPM\\n\\n\\n 29\\n\\fthat were represented as Field Finished” when, in truth, they were\\n\\nunreviewed or “had not been investigated at all.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 5. Second, the complaint claimed that USIS “failed to\\n\\nprovide accurate and complete investigations.” Id. at 10. Third, USIS\\n\\nsupposedly falsely represented to OPM the extent to which it used a\\n\\nsoftware program known as the “Blue Zone.” Id. at 12. But the suit neither\\n\\nmentioned KeyPoint nor implied that USIS’s fraud extended to its\\n\\ncompetitors or the industry as a whole.\\n\\n 3\\n\\n The question now is: Are the allegations in Ms. Reed’s qui tam\\n\\nclaims substantially the same as those in the publicly disclosed sources?\\n\\nWe agree with the district court that the answer to that question is “yes.”\\n\\nThat is, we conclude that the public disclosures were sufficient to set the\\n\\ngovernment on the trail of KeyPoint’s alleged fraud without Ms. Reed’s\\n\\nassistance. 11\\n\\n\\n 11\\n Ms. Reed alleges on appeal that the district court “fail[ed] to do a diligent\\ncomparison of the putative public disclosures with [her] allegations.” Aplt.’s Opening Br.\\nat 3. Not so. Beyond incorporating the magistrate judge’s discussion of the relevant\\nallegations, see Aplt.’s App. at 409, the district court dutifully recounted Ms. Reed’s\\nallegations and the publicly disclosed allegations in turn, see id. at 408–12. From this\\ncomparison, the court then concluded that Ms. Reed’s allegations were substantially\\nsimilar to the publicly disclosed allegations. The sufficiency of this analysis cannot be\\nquestioned. In any event, our review is de novo, and we have thoroughly compared the\\n (continued...)\\n\\n 30\\n\\f At their most general, Ms. Reed’s qui tam claims allege systemic\\n\\nsloppiness and fraud in the background-investigation industry. 12 But the\\n\\ngovernment and the public knew that much already from the news reports.\\n\\nThose news articles painted a picture of widespread problems with the\\n\\nthoroughness and accuracy of the private contractors’ background\\n\\n\\n 11\\n (...continued)\\naverments of Ms. Reed’s operative complaint to the identified public disclosures.\\nAccordingly, Ms. Reed’s assertion that the district court conducted a faulty analysis of the\\nsummary judgment record is ultimately of no moment. Cf. Rivera v. City & County of\\nDenver, 365 F.3d 912, 920 (10th Cir. 2004) (“Because our review is de novo, we need not\\nseparately address Plaintiff’s argument that the district court erred by viewing evidence in\\nthe light most favorable to the City and by treating disputed issues of fact as\\nundisputed.”).\\n 12\\n We, like other circuits, would have reservations about keeping our analysis\\nof Ms. Reed’s allegations solely at such a high level of generality. See Mateski, 816 F.3d\\nat 578 (agreeing with the “Seventh Circuit’s warning against reading qui tam complaints\\nat only the ‘highest level of generality’” (quoting Leveski v. ITT Educ. Servs., Inc., 719\\nF.3d 818, 831 (7th Cir. 2013))). But at what precise level of generality we should\\ncompare a relator’s claims with allegations in public disclosures is a difficult question.\\nThe Act tells us to ask if the relator’s claims are “substantially the same.” 31 U.S.C.\\n§ 3730(e)(4)(A). The ordinary meaning of “substantial” is: “concerning the essentials of\\nsomething.” THE NEW OXFORD AMERICAN DICTIONARY 1687 (2d ed. 2005). And the\\nordinary meaning of “same” is: “identical; not different; unchanged” or “of an identical\\ntype.” Id. at 1498. “Substantially the same,” then, connotes a standard that requires only\\nthe essentials of the relator’s allegations to be identical to or of an identical type as those\\ndisclosed publicly. This plain-meaning analysis comports with our precedent. See\\nBoothe, 496 F.3d at 1174 (noting that “a complete identity of allegations” is unnecessary;\\nit is enough for “the essence of” the relator’s allegations to be “‘derived from’ a prior\\npublic disclosure”). We need not put a finer point on this issue in this case. That is\\nbecause it is clear to us that only if we accept Ms. Reed’s hyper-specific reading that\\nrequires near-complete identity of allegations could we conclude that her allegations are\\nnot substantially similar to those in the public disclosures. And our precedent forecloses\\nsuch a hyper-specific reading. See id.\\n\\n 31\\n\\finvestigations. And that Congress held hearings to probe the background-\\n\\ninvestigation industry’s alleged practice of using “false, incomplete, or\\n\\nrushed information gathering” underscored the pre-existing public\\n\\nawareness of a strong probability of fraud in the industry. Aplt.’s App. at\\n\\n411 & n.3. What is more, the criminal prosecutions of individual\\n\\ninvestigators confirmed that the government knew that investigators in the\\n\\nindustry were falsifying information in their reports.\\n\\n Moving down a rung on the generality ladder to more specific footing,\\n\\nMs. Reed’s claims allege fraud not only in the background-investigation\\n\\nindustry generally, but also in KeyPoint’s specific background-investigative\\n\\npractices. That information, too, was old news to the government. After\\n\\nall, the government prosecuted a former KeyPoint employee for “rac[ing]\\n\\nthrough investigations” and lying “about conducting thorough background\\n\\nchecks when they were incomplete and rushed.” Id. at 410. News reports\\n\\nfrom 2013 added to this knowledge by reporting that OPM had found\\n\\nproblems “with procedures and safeguards used by all three private\\n\\ncontractors—USIS, KeyPoint . . . and CACI.” Id. at 303. To be sure, the\\n\\nnews reports avoided explicitly accusing KeyPoint of defrauding the\\n\\ngovernment. But direct allegations of fraud were unnecessary to put the\\n\\ngovernment on the trail of KeyPoint’s fraud. Cf. Winkelman, 827 F.3d at\\n\\n\\n 32\\n\\f208 (explaining that it is enough that the disclosures “lead to a plausible\\n\\ninference of fraud” (quoting United States ex rel. Ondis v. City of\\n\\nWoonsocket, 587 F.3d 49, 54 (1st Cir. 2009))); United States ex rel.\\n\\nOsheroff v. Humana Inc., 776 F.3d 805, 814 (11th Cir. 2015) (same);\\n\\nBoothe, 496 F.3d at 1174 (“[A] complete identity of allegations, even as to\\n\\ntime, place, and manner [is unnecessary].”); Fine, 70 F.3d at 572 (noting\\n\\nthat public disclosures need not allege “any wrongdoing”). Moreover, a\\n\\n2010 OPM audit report revealed both that KeyPoint sometimes “did not\\n\\nconduct the required amount of re-contacts” in its investigations, Aplt.’s\\n\\nApp. at 289, and that there were “falsification and[] integrity issues” with\\n\\ninvestigations done by USIS, KeyPoint, and CACI, id. at 261. The\\n\\ngovernment, then, did not need Ms. Reed’s allegations to pick up the scent\\n\\nof fraud at KeyPoint.\\n\\n At their most specific, Ms. Reed’s claims allege that KeyPoint\\n\\nknowingly defrauded the government by submitting fraudulent reports about\\n\\nthe completeness and accuracy of its investigations. The government could\\n\\nhave inferred as much from the public disclosures. Consider the USIS\\n\\nlawsuit. That suit alleged that USIS failed to review investigations, failed\\n\\nto do adequate investigations, and sent false reports to OPM. Those are the\\n\\nsame basic failings Ms. Reed accuses KeyPoint of. Furthermore, the USIS\\n\\n\\n 33\\n\\fsuit alleged that investigators sent cases “to OPM that were represented as\\n\\nField Finished” when, in truth, they were unreviewed or “had not been\\n\\ninvestigated at all.” Aplt.’s Reply Br., Addendum A, at 5. Ms. Reed’s suit\\n\\nsimilarly asserts that KeyPoint sent OPM false claims “certifying that [its]\\n\\ninvestigators conducted complete, accurate, and proper investigations.”\\n\\nAplt.’s App. at 104, ¶ 359.\\n\\n Considering this information from the USIS lawsuit and the other\\n\\npublicly disclosed matters discussed above, we conclude that the public\\n\\ndisclosures were sufficient to set the government on the trail of KeyPoint’s\\n\\nalleged fraud without Ms. Reed’s assistance. Our cases reinforce this\\n\\nconclusion. Take Fine, for example. The relator there accused Sandia\\n\\nCorporation of misappropriating nuclear waste funds. 70 F.3d at 569. At\\n\\nthe time, Sandia was one of only nine laboratories receiving federal funds\\n\\nfrom the Department of Energy. Before the relator’s suit, a government\\n\\nreport documented how three such laboratories, including Sandia, funded\\n\\ntheir discretionary research. The report concluded that the two other\\n\\nlaboratories—but, notably, not Sandia—were fraudulently “taxing” nuclear\\n\\nwaste funds in order to bolster their research programs, possibly in\\n\\nviolation of federal law. Id. Again without implicating Sandia, a later\\n\\ncongressional hearing further probed the Department of Energy’s\\n\\n\\n 34\\n\\facquiescence to such behavior from its laboratories. As we saw it, that\\n\\nneither the report nor the congressional hearing named Sandia as a\\n\\nwrongdoer was not determinative. Id. at 572. We reasoned that because the\\n\\npublic disclosures had “identified the problem and [there was] an easily\\n\\nidentifiable group of probable offenders,” the disclosures “were sufficient\\n\\nto put the government on notice as to Sandia’s potential for\\n\\nmisappropriating nuclear waste funds.” Id. Thus, we held that the relator’s\\n\\nallegations were substantially the same to those in the report and the\\n\\ncongressional hearing. Id.\\n\\n The same reasoning applies here. As in Fine, the public disclosures\\n\\nhere identified the problem—fraud in background investigations—and\\n\\ntraced that problem to an easily identifiable group of probable offenders\\n\\n(USIS, KeyPoint, and CACI). As in Fine, Congress held hearings to probe\\n\\nthe suspected fraud in this limited industry. Moreover, akin to Fine, a\\n\\ngovernment report (here, the 2010 OPM audit report) laid bare the heart of\\n\\nthe matter—i.e., the falsification and integrity issues that plagued the\\n\\nbackground-investigation industry.\\n\\n But unlike in Fine, some of the public disclosures explicitly linked\\n\\nKeyPoint to the suspected fraud. The OPM audit said that “Contractors”\\n\\nhad falsification issues; that defined term meant USIS, KeyPoint, and\\n\\n\\n 35\\n\\fCACI. And the news reports publicized that OPM had “found problems\\n\\nwith procedures and safeguards used by all three private contractors—USIS,\\n\\nKeyPoint . . . and CACI.” Aplt.’s App. at 303. Thus, although the public\\n\\ndisclosures did not say the words “KeyPoint defrauded the government,” the\\n\\nlink that the disclosures forged between KeyPoint and the fraud was even\\n\\nstronger than the one in Fine, where we held that the substantially-the-same\\n\\nstandard was satisfied. It ineluctably follows that this link was sufficient\\n\\nhere to satisfy that standard—that is, to have set the government on the trail\\n\\nof KeyPoint’s alleged fraud without Ms. Reed’s help.\\n\\n Ms. Reed’s attempts to distinguish Fine fall short. For starters, Ms.\\n\\nReed is mistaken in asserting that “no publicly disclosed information prior\\n\\nto [her] lawsuit indicated that KeyPoint was a wrongdoer.” Aplt.’s Reply\\n\\nBr. at 10. The news reports linked KeyPoint to the fraud allegations roiling\\n\\nthe industry. Even Ms. Reed’s statement that “KeyPoint was not\\n\\ninvestigated for any suspected wrongdoing,” id., rings somewhat hollow.\\n\\nAfter all, the government prosecuted a former KeyPoint employee for lying\\n\\n“about conducting thorough background checks when they were incomplete\\n\\nand rushed.” Aplt.’s App. at 410. Even if Ms. Reed’s characterization of\\n\\nthe absence of a KeyPoint-specific investigation were correct, the fact that\\n\\nKeyPoint was not named as a wrongdoer would not distinguish Fine;\\n\\n\\n 36\\n\\finstead, it would reinforce the parallels with it. And those parallels persist\\n\\neven though—as Ms. Reed points out—unlike the Department of Energy,\\n\\nOPM never “acquiesced to or implicitly approved any fraudulent schemes.”\\n\\nAplt.’s Reply Br. at 10. Ms. Reed overstates the significance of the\\n\\nDepartment of Energy’s acquiescence in Fine. We noted this agency\\n\\nconduct there to emphasize that the government knew of the underlying\\n\\nproblem at issue in a limited industry; our point was not that the\\n\\nacquiescence itself was independently important. See Fine, 70 F.3d at 571.\\n\\nIn sum, Ms. Reed errs in suggesting that Fine is materially distinguishable.\\n\\nIt is not. To the contrary, it bolsters our conclusion that Ms. Reed’s\\n\\nallegations are substantially the same as the publicly disclosed allegations.\\n\\n In re Natural Gas Royalties further supports our view on the\\n\\nsubstantially-the-same question. The relator there alleged that certain\\n\\nnatural gas companies used fraudulent measurement techniques to underpay\\n\\nfederal royalties. The relevant public disclosures included (1)\\n\\ncongressional documents revealing problems with measurement techniques\\n\\nin the natural-gas industry, (2) an earlier qui tam suit against different gas\\n\\ncompanies for the same fraudulent practices, and (3) press accounts\\n\\nreporting on the earlier suit and “disclos[ing] the industrywide nature of\\n\\n[the suit’s] broad allegations.” 562 F.3d at 1042. On appeal, the relator\\n\\n\\n 37\\n\\fargued that these disclosures were not substantially the same as his\\n\\nallegations because the specific “Defendants and techniques were not\\n\\nidentified in any public disclosed allegation.” Id. at 1040. This court\\n\\ndisagreed.\\n\\n Citing Fine, we explained in In re Natural Gas Royalties that “the\\n\\npublic disclosures at issue named a significant percentage of industry\\n\\nparticipants as wrongdoers and indicated that others in the industry were\\n\\nvery likely engaged in the same practices.” Id. at 1042. These revelations\\n\\nalleviated the burden for the government “to comb through myriad\\n\\ntransactions performed by various types of entities in search of potential\\n\\nfraud.” Id. Rather, the government needed only to investigate the\\n\\nmeasurement techniques used by a small pool of actors to ferret out the\\n\\nfraud. For those reasons, we held that, even without naming the specific\\n\\ndefendants and techniques identified by the relator, “the allegations of\\n\\nindustrywide gas mismeasurment disclosed” in the public documents “were\\n\\nsufficient to set the government on the trail of the fraud as to all\\n\\nDefendants.” Id. at 1043.\\n\\n So too here. The allegations in the public disclosures identified\\n\\npervasive fraud in the background-investigation industry. Recall that in the\\n\\nyears before Ms. Reed’s suit, the government prosecuted individual\\n\\n\\n 38\\n\\finvestigators for allegedly falsifying information in their reports.\\n\\nFurthermore, a 2013 news article reported that the government was\\n\\n“pursuing suspected fraud in the granting of security clearances” by\\n\\ncontractors. Aplt.’s App. at 308. And the USIS suit alleged that one of\\n\\nKeyPoint’s two main competitors (i.e., USIS) falsely told OPM that it had\\n\\nprovided “accurate and complete investigations.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 10.\\n\\n As in In re Natural Gas Royalties, the public disclosures here\\n\\nobviated the need for the government “to comb through myriad transactions\\n\\nperformed by various types of entities in search of potential fraud.” 562\\n\\nF.3d at 1042. The disclosures identified three main players (including\\n\\nKeyPoint), and generally unearthed the type of fraud—false certifications\\n\\nof accurate and complete investigations—that the government needed to\\n\\nlook for. Guided by In re Natural Gas Royalties, we conclude that the\\n\\npublicly available information here was more than enough to set the\\n\\ngovernment on the trail of KeyPoint’s fraud without Ms. Reed’s allegations.\\n\\n Ms. Reed rejects such a conclusion. She first argues that her\\n\\nallegations “relate to a different entity” than the entities—notably,\\n\\nUSIS—accused of wrongdoing in the public disclosures. Aplt.’s Opening\\n\\nBr. at 12. Ms. Reed is quick to point out that the USIS suit made “no\\n\\n\\n 39\\n\\fallegations against KeyPoint” and that none of the public disclosures\\n\\nexpressly accused KeyPoint of defrauding the government. Id. at 18.\\n\\nMaybe so. But the substantially-the-same standard does not demand that\\n\\nthe disclosures identify the defendant by name as the wrongdoer. See In re\\n\\nNat. Gas Royalties, 562 F.3d at 1039. To the contrary, it is enough that the\\n\\n“public disclosures alleged industry-wide fraud” and “provide[d] enough\\n\\ninformation” to link the defendant to the scheme. 13 United States ex rel.\\n\\nLager v. CSL Behring, L.L.C., 855 F.3d 935, 946 (8th Cir. 2017). In a\\n\\nsimilar way, “the public disclosure bar contains no requirement that a\\n\\npublic disclosure use magic words.” Winkelman, 827 F.3d at 209. Thus,\\n\\nalthough the public disclosures did not say the magic words “KeyPoint\\n\\ndefrauded the government,” the disclosures were sufficient to link KeyPoint\\n\\nto fraud in an industry with only three players. No more is required.\\n\\n Ms. Reed next argues that her allegations substantially differ from the\\n\\n\\n\\n 13\\n See also Bellevue, 867 F.3d at 719 (noting that the substantially-the-same\\nstandard requires only “that the government had enough information” from the public\\ndisclosures to infer that the defendant knowingly violated the Act); Osheroff, 776 F.3d at\\n814 (same); Jamison, 649 F.3d at 329 (“[T]he public disclosures need not name particular\\ndefendants so long as they ‘alerted the government to the industry-wide nature of the\\nfraud and enabled the government to readily identify wrongdoers through an\\ninvestigation.’” (quoting In re Nat. Gas Royalties, 562 F.3d at 1039)); United States ex\\nrel. Gear v. Emergency Med. Assocs. of Ill., Inc., 436 F.3d 726, 729 (7th Cir. 2006)\\n(rejecting “argument that for there to be public disclosure, the specific defendants named\\nin the lawsuit must have been identified in the public records”).\\n\\n 40\\n\\fpublicly disclosed allegations because she exposed different schemes. For\\n\\ninstance, she maintains that “USIS had a very specific fraudulent scheme\\n\\nthat it used to facilitate ‘dumping’ cases.” Aplt.’s Reply Br. at 5. That\\n\\nscheme, Ms. Reed explains, involved representing to OPM that cases were\\n\\ncomplete when they actually were unfinished or “had not been investigated\\n\\nat all.” Id. Her complaint, by contrast, describes “several types of\\n\\nfraudulent schemes specific to KeyPoint that are entirely unrelated to the\\n\\nUSIS case or any of the other publicly disclosed information.” Id. at 6.\\n\\n Ms. Reed is right that some of the schemes she exposed—especially,\\n\\nthe scheme involving the TTP—added to the government’s knowledge\\n\\n(more on this subject later), but these additions do not alter our\\n\\nsubstantially-the-same assessment. For now, the relevant question is only\\n\\nwhether the public disclosures set the government on the trail of KeyPoint’s\\n\\nfraud. As we have explained, this does not require “complete identity of\\n\\nallegations.” Boothe, 496 F.3d at 1174. Rather, it is enough if the relator’s\\n\\ncomplaint is “at least ‘in . . . part’” substantially the same as “the publicly\\n\\ndisclosed information.” Osheroff, 776 F.3d at 814 (alteration in original)\\n\\n(quoting Battle v. Bd. of Regents, 468 F.3d 755, 762 (11th Cir. 2006) (per\\n\\ncuriam)).\\n\\n Moreover, it cannot be gainsaid that in significant, material respects\\n\\n\\n 41\\n\\fMs. Reed’s complaint averments are substantially the same as the complaint\\n\\naverments in the USIS suit. For instance, Ms. Reed’s complaint alleges that\\n\\nKeyPoint conducted “improper, incomplete, and inaccurate investigations.”\\n\\nAplt.’s App. at 33, ¶ 74. The USIS complaint likewise alleges that USIS\\n\\n“failed to provide accurate and complete investigations.” Aplt.’s Reply Br.,\\n\\nAddendum A, at 10. 14 And there are other substantial similarities between\\n\\nthe complaints. Compare Aplt.’s App. at 32, ¶ 64 (alleging that KeyPoint\\n\\n“transformed almost every aspect of its investigative processes to maximize\\n\\nprofits by hitting deadlines and taking on as much work as possible, without\\n\\nconcern for the quality, accuracy, or completeness of its investigations”),\\n\\nwith Aplt.’s Reply Br., Addendum A, at 5 (alleging that USIS pressured\\n\\n“Field Investigators to submit a large number of [reports of investigations]\\n\\nin a short amount of time in order to meet the revenue goals”). Therefore,\\n\\ngiven these substantial similarities, that Ms. Reed’s complaint revealed one\\n\\nor more KeyPoint fraudulent schemes that are distinct from those alleged in\\n\\nthe USIS lawsuit does not dissuade us from the view that the USIS suit\\n\\nhelped put the government on the trail of KeyPoint’s alleged fraud.\\n\\n\\n\\n 14\\n Compare also Aplt.’s App. at 88, ¶ 244 (“Each case was submitted as\\nthough it had been properly completed, reviewed, and checked when none had received\\nthe required oversight.”), with Aplt.’s Reply Br., Addendum A, at 6 (“USIS knowingly\\nsubmitted Cases to OPM for payment that they knew had not been reviewed . . . .”).\\n\\n 42\\n\\f Finally, Ms. Reed argues that the district court erred by not\\n\\nconsidering 2014 congressional testimony from a KeyPoint executive, Ms.\\n\\nOrdakowski, in its substantially-the-same analysis. In that testimony, Ms.\\n\\nOrdakowski told Congress that KeyPoint met or exceeded OPM standards\\n\\nand had “never wavered from its focus on quality.” Aplt.’s Opening Br. at\\n\\n21. Ms. Reed reasons that “if the government had some suspicions about\\n\\nthe quality of KeyPoint’s work,” this testimony would have “throw[n] the\\n\\ngovernment off the trail of the type of fraud [that Ms. Reed] alleges.” Id.\\n\\n This argument crumbles upon even brief reflection. First of all, Ms.\\n\\nOrdakowski testified months after Ms. Reed communicated her allegations\\n\\nto DOJ and after she sued KeyPoint. So the substance of Ms. Ordakowski’s\\n\\ntestimony tells us nothing about whether the government would have picked\\n\\nup the trail of fraud at KeyPoint based on the information it already had\\n\\nwhen Ms. Reed sued KeyPoint. Leaving aside this space-time-continuum\\n\\nproblem, Ms. Reed’s argument defies common sense. That Congress called\\n\\na KeyPoint executive to testify about problems with background\\n\\ninvestigations strongly suggests that Congress thought there was a problem\\n\\nand that KeyPoint potentially was among the culprits. Cf. Fine, 70 F.3d at\\n\\n572 (“[T]he public disclosures here were sufficient to put the government\\n\\non notice as to Sandia’s potential for misappropriating nuclear waste funds\\n\\n\\n 43\\n\\f. . . .”). Simply put, Ms. Ordakowski’s testimony supports the district\\n\\ncourt’s (and our) conclusion that the public disclosures were sufficient to\\n\\nhave alerted the government to KeyPoint’s potential for fraud.\\n\\n In summary, we agree with the district court that the allegations in\\n\\nMs. Reed’s qui tam claims are substantially the same as those in the public\\n\\ndisclosures. Thus, unless Ms. Reed is an “original source” of the\\n\\ninformation in her claims, the public disclosure bar prevents those claims\\n\\nfrom proceeding.\\n\\n B\\n\\n We now take up the question of whether Ms. Reed is an original\\n\\nsource. Recall that the district court concluded that Ms. Reed was not an\\n\\noriginal source and therefore dismissed her qui tam claims under the public\\n\\ndisclosure bar. Ms. Reed argues that in doing so the district court made\\n\\nboth a procedural and a substantive error. The court’s procedural error, she\\n\\nsays, was excluding some of the evidence that she submitted to the court\\n\\nafter it converted KeyPoint’s motion to dismiss to a summary-judgment\\n\\nmotion. As for the alleged substantive error, Ms. Reed contends that the\\n\\ndistrict court erred in concluding that she was not an original source, in\\n\\nparticular, because her complaint averments did not materially add to the\\n\\ninformation in the public disclosures.\\n\\n\\n 44\\n\\f As we explain below, Ms. Reed loses the procedural battle but wins\\n\\nthe substantive war. That is, we hold that the district court did not err in\\n\\nexcluding certain proffered evidence at summary judgment, but we hold that\\n\\nthe court did err in concluding that Ms. Reed was not an original source\\n\\nbecause her complaint averments did not satisfy the materially-adds\\n\\nstandard.\\n\\n 1\\n\\n When a district court relies on material outside the complaint to\\n\\nresolve a Rule 12(b)(6) motion, it ordinarily must convert that motion “into\\n\\na motion for summary judgment.” Burnham v. Humphrey Hosp. REIT Tr.,\\n\\nInc., 403 F.3d 709, 713 (10th Cir. 2005); see F E D . R. C I V . P. 12(d). If a\\n\\ndistrict court intends to convert a motion, it should inform the parties of\\n\\nthis intention and give them “the opportunity to present to the court all\\n\\nmaterial made pertinent to such motion by Rule 56.” Nichols v. United\\n\\nStates, 796 F.2d 361, 364 (10th Cir. 1986) (quoting Ohio v. Peterson,\\n\\nLowry, Rall, Barber & Ross, 585 F.2d 454, 457 (10th Cir. 1978)).\\n\\nConverting a motion “without giving the adverse party an opportunity to\\n\\npresent pertinent material is error.” Adams v. Campbell Cty. Sch. Dist., 483\\n\\nF.2d 1351, 1353 (10th Cir. 1973).\\n\\n We review a district court’s choice to exclude evidence at the\\n\\n\\n 45\\n\\fsummary-judgment stage, however, “only for an abuse of discretion.”\\n\\nLifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).\\n\\nWithout “a definite and firm conviction that the [district] court made a\\n\\nclear error of judgment or exceeded the bounds of permissible choice,” we\\n\\ncannot say that the court abused its discretion. Id. (quoting Lantec, Inc. v.\\n\\nNovell, Inc., 306 F.3d 1003, 1016 (10th Cir. 2002)).\\n\\n The district court converted KeyPoint’s Rule 12(b)(6) motion into a\\n\\nsummary-judgment motion. Before doing so, it allowed the parties to\\n\\npresent relevant material. Ms. Reed asked to present three sets of\\n\\nmaterials: (1) documents that she had given the government both before and\\n\\nafter she filed her qui tam suit, (2) a declaration in which she attested “to\\n\\nthe source of her allegations,” and (3) more “briefing on the public\\n\\ndisclosure and original source issues.” Aplt.’s Opening Br. at 30.\\n\\n After considering Ms. Reed’s proffered materials, the district court\\n\\nallowed her to submit only the documents she gave the government in her\\n\\npre-filing disclosures: specifically, the court excluded any post-filing\\n\\ndisclosures to the government, Ms. Reed’s declaration, and the additional\\n\\nbriefing. Those other materials, the court reasoned, would not add “any\\n\\nmaterial information” helpful to the public-disclosure-bar inquiry because\\n\\nMs. Reed’s complaint made “clear what the source of [her] knowledge was”\\n\\n\\n 46\\n\\fand because the parties had fully briefed the applicable legal standards.\\n\\nAplt.’s App. at 404. Thus, under the court’s view, the post-filing\\n\\ndocuments, declaration, and additional briefing “were not ‘made pertinent’\\n\\nby the conversion.” Id. (quoting Nichols, 796 F.2d at 364).\\n\\n To the extent that Ms. Reed argues that the district court erred by\\n\\nrefusing “to allow [her] the opportunity to provide all material evidence,”\\n\\nAplt.’s Opening Br. at 30 (emphasis added), the record proves otherwise.\\n\\nThe court notified the parties of its intention to convert the motion to a\\n\\nsummary-judgment motion, and it gave them time to provide pertinent\\n\\nmaterial. Unlike the parties in the cases she cites, 15 Ms. Reed had ample\\n\\nopportunity to provide the court with “material made pertinent by Rule 56.”\\n\\nNichols, 796 F.2d at 364 (quoting Peterson, 585 F.2d at 457). Indeed, the\\n\\ncourt twice permitted Ms. Reed to amend her complaint to include the post-\\n\\nfiling information she now complains the court excluded. In the end, the\\n\\ncourt gave Ms. Reed notice of the conversion, considered her proffered\\n\\nmaterial, and even accepted some of that evidence.\\n\\n And the district court’s exclusion of the post-filing disclosures, Ms.\\n\\nReed’s declaration, and the added briefing was well within “the bounds of\\n\\n\\n\\n 15\\n See Peterson, 585 F.2d at 457 (reversing because district court gave party\\nno chance to present material); Adams, 483 F.2d at 1353 (same).\\n\\n 47\\n\\fpermissible choice.” LifeWise Master Funding, 374 F.3d at 927 (quoting\\n\\nLantec, 306 F.3d at 1016). Simply put, the court reasonably concluded that\\n\\nnone of those items contained material and relevant information that the\\n\\ncourt did not already possess. Therefore, the excluded materials were not\\n\\n“made pertinent” by the conversion. Nichols, 796 F.2d at 364 (quoting\\n\\nPeterson, 585 F.2d at 457).\\n\\n Ms. Reed, however, begs to differ. She says the excluded post-filing\\n\\ndisclosure statement and personal declaration were “pertinent” to\\n\\n“establish[ing] her status as an original source.” Aplt.’s Opening Br. at 30.\\n\\nThese materials, Ms. Reed contends, would have shown “the extent to\\n\\nwhich [her] allegations materially added to those allegations that had\\n\\npurportedly been publicly disclosed.” Id. at 33. The problem for Ms. Reed\\n\\nis that—as she admitted—the allegations in her complaint were “based\\n\\nalmost entirely upon the documents that were discussed during the\\n\\npre-filing meeting with [DOJ].” Aplee.’s Suppl. App., Vol. VII, at 1419\\n\\n(Ms. Reed’s Objs. to R. & R., filed Sept. 12, 2017). And Ms. Reed twice\\n\\namended her complaint to include the crux of the information from her\\n\\npost-filing disclosures to the government. Ms. Reed’s proffered materials,\\n\\nthen, would have merely duplicated that existing information in the twice-\\n\\namended complaint.\\n\\n\\n 48\\n\\f In the end, we cannot say that the district court abused its discretion\\n\\nas to this procedural matter. Thus, we leave undisturbed the district court’s\\n\\nruling excluding the post-filing disclosures, Ms. Reed’s declaration, and the\\n\\nadditional briefing.\\n\\n 2\\n\\n a\\n\\n Having resolved the procedural issue, we turn to the substance of the\\n\\noriginal-source question. The False Claims Act instructs courts to dismiss\\n\\nqui tam claims under the public disclosure bar “if substantially the same\\n\\nallegations . . . were publicly disclosed”—unless the relator is “an original\\n\\nsource of the information.” 31 U.S.C. § 3730(e)(4)(A). We have already\\n\\nresolved the substantially-the-same question in KeyPoint’s favor. We now\\n\\nmust decide whether the district court erred in determining that Ms. Reed’s\\n\\nqui tam claims cannot escape the public disclosure bar through the original-\\n\\nsource exception.\\n\\n Two types of relators qualify as “original sources.” The first type is a\\n\\nrelator who, “prior to a public disclosure [within the meaning of the Act] . .\\n\\n. , has voluntarily disclosed to the Government the information on which\\n\\nallegations or transactions in a claim are based.” Id. § 3730(e)(4)(B). The\\n\\nsecond type is a relator with “knowledge that is independent of and\\n\\n\\n 49\\n\\fmaterially adds to the publicly disclosed allegations” and who gave the\\n\\ngovernment this information before filing her qui tam claims. Id.\\n\\n Before the district court, Ms. Reed argued that she was an original\\n\\nsource of the second type. The district court agreed that Ms. Reed had in\\n\\nfact given the government her information before she sued KeyPoint. But\\n\\nthe court ruled that Ms. Reed’s allegations did not “materially add” to the\\n\\npublic disclosures. And so, without addressing whether Ms. Reed’s\\n\\nknowledge was “independent of” the public disclosures, the district court\\n\\nconcluded that Ms. Reed was not an original source.\\n\\n On appeal, Ms. Reed argues that the district court erred in concluding\\n\\nthat her allegations did not “materially add” to the public disclosures. As\\n\\nfor the “independent of” portion of the original-source inquiry, Ms. Reed\\n\\nsays in a short footnote that she satisfies that criterion, too. See Aplt.’s\\n\\nOpening Br. at 29 n.8. For its part, KeyPoint posits that “regardless of\\n\\nwhether her knowledge was ‘independent of’ the public disclosures,” Ms.\\n\\nReed is not an original source because her allegations “did not materially\\n\\nadd to the public disclosures.” Aplee.’s Resp. Br. at 34.\\n\\n Our circuit has yet to expound on the meaning of the “materially\\n\\nadds” language in the original-source exception. Congress added this\\n\\nlanguage in the same 2010 amendment discussed earlier but did not define\\n\\n\\n 50\\n\\fthe term. Since then, however, several other courts of appeals have\\n\\ninterpreted the “materially adds” requirement. 16\\n\\n We are particularly persuaded by the First Circuit’s analysis in\\n\\nWinkelman. There, the court framed the relevant question for the\\n\\nmaterially-adds inquiry as “whether the relators’ allegedly new information\\n\\nis sufficiently significant or essential so as to fall into the narrow category\\n\\nof information that materially adds to what has already been revealed\\n\\nthrough public disclosures.” 827 F.3d at 211. To determine what\\n\\ninformation falls into the materially-adds bucket, the First Circuit looked to\\n\\nthe ordinary legal meaning of “material”—i.e., an addition that “is ‘[o]f\\n\\nsuch a nature that knowledge of the item would affect a person’s decision-\\n\\nmaking,’ or if it is ‘significant,’ or if it is ‘essential.’” Id. (quoting\\n\\nB LA C K ’ S L A W D I C T I O N A R Y 1124 (10th ed. 2014) [hereinafter B LA C K ’ S ]). In\\n\\nother words, Winkelman teaches that a relator “materially adds” to public\\n\\n\\n 16\\n Although KeyPoint concedes that the meaning of “materially adds” “is a\\nmatter of first impression for the Tenth Circuit,” Aplee.’s Resp. Br. at 34, it nonetheless\\nrelies on pre-2010-amendment cases to argue that Ms. Reed’s allegations do not\\nmaterially add to the public disclosures, see id. at 36–37. Although the 2010 amendment\\nratified our prior cases by adopting the “substantially the same” language that we already\\nused, the amendment added a new component to the original-source analysis—namely,\\nthe materially-adds inquiry. Before the 2010 amendment, our original-source analysis\\nasked whether the relator “had direct and independent knowledge of the information\\nunderlying his allegations.” In re Nat. Gas Royalties, 562 F.3d at 1043. We did not ask\\nwhether the relator’s knowledge materially added to the public disclosures. Thus, our\\npre-2010-amendment cases are not germane to the materially-adds inquiry.\\n\\n 51\\n\\fdisclosures if her information “is sufficiently important to influence the\\n\\nbehavior of the recipient.” Id.\\n\\n The Winkelman definition of “materially adds” finds support in the\\n\\nAct’s provisions defining the scope of liability, which state that “the term\\n\\n‘material’ means having a natural tendency to influence, or be capable of\\n\\ninfluencing, the payment or receipt of money or property.” 31 U.S.C.\\n\\n§ 3729(b)(4); see also Joel D. Hesch, Restating the “Original Source\\n\\nException” to the False Claims Act’s “Public Disclosure Bar” in Light of\\n\\nthe 2010 Amendments, 51 U. OF R I C H . L. R E V . 991, 1019 (2017) (looking to\\n\\n§ 3729(b)(4) in attempting to discern the meaning of “materially adds” and\\n\\nultimately concluding that it means that “a reasonable person would attach\\n\\nimportance to the information”). Furthermore, though they have applied the\\n\\ndefinition in different ways, a few federal circuit courts have expressly\\n\\nadopted a like definition of “materially adds.” See United States ex rel.\\n\\nAdvocates for Basic Legal Equal., Inc. v. U.S. Bank, N.A., 816 F.3d 428,\\n\\n431 (6th Cir. 2016) (“Materiality in this setting requires the claimant to\\n\\nshow it had information ‘[o]f such a nature that knowledge of the item\\n\\nwould affect a person’s decision-making,’ is ‘significant,’ or is ‘essential.’”\\n\\n(quoting B LA C K ’ S , supra, at 1124)); United States ex rel. Moore & Co. v.\\n\\nMajestic Blue Fisheries, LLC, 812 F.3d 294, 306 (3d Cir. 2016) (concluding\\n\\n\\n 52\\n\\fbased on dictionary definitions of the separate words “materially” and\\n\\n“add” that to “‘materially add[]’ to “the publicly disclosed allegation or\\n\\ntransaction of fraud, a relator must contribute significant additional\\n\\ninformation to that which has been publicly disclosed so as to improve its\\n\\nquality”); see also United States ex rel. Paulos v. Stryker Corp., 762 F.3d\\n\\n688, 694–95 (8th Cir. 2014) (relying on dictionary definitions of the\\n\\nseparate words “material” and “add” and suggesting that information\\n\\n“materially adds” to something when it “substantially” or “considerably”\\n\\n“improve[s] or alter[s] its quality or nature” (quoting T H E N E W O X F O R D\\n\\nA M E R I C A N D I C T I O N A R Y 18, 1079 (3d ed. 2010))).\\n\\n Winkelman also offered several helpful guideposts for how to\\n\\ndistinguish between new but immaterial information and material additions.\\n\\nIt noted that what is “significant” or “essential” depends in part on “the\\n\\nlevel of detail in [the] public disclosures.” 827 F.3d at 211. That is, the\\n\\nfewer questions the public disclosures answer, the more room there is for a\\n\\nrelator’s allegations to add material information. However, the court\\n\\npointed out that “a relator who merely adds detail or color to previously\\n\\ndisclosed elements of an alleged scheme is not materially adding to the\\n\\npublic disclosures.” Id. at 213. Winkelman also recognized the potential\\n\\noverlap between the materially-adds inquiry and the inquiry into “whether\\n\\n\\n\\n 53\\n\\fthe relator’s allegations are substantially the same as th[e] prior\\n\\nrevelations.” Id. at 211. “Despite this potential for overlap,” the First\\n\\nCircuit explained, “the ‘materially adds’ inquiry must remain conceptually\\n\\ndistinct; otherwise, the original source exception would be rendered\\n\\nnugatory.” Id. at 211–12.\\n\\n In sum, we find persuasive the materially-adds standard that the First\\n\\nCircuit articulated in Winkelman. Under that standard, a relator who\\n\\ndiscloses new information that is sufficiently significant or important that it\\n\\nwould be capable of “influenc[ing] the behavior of the recipient”—i.e., the\\n\\ngovernment—ordinarily will satisfy the materially-adds standard. Id. at\\n\\n211. On the other hand, a relator who merely adds background information\\n\\nor details about a known fraudulent scheme typically will be found not to\\n\\nhave materially added to the publicly disclosed information. See id. at 213.\\n\\n We recognize that the Seventh Circuit has taken a different path. For\\n\\nexample, in Cause of Action v. Chicago Transit Authority, 815 F.3d 267\\n\\n(7th Cir. 2016), the court held that if a relator’s “allegations are\\n\\nsubstantially similar to those contained in the” public disclosures, her\\n\\nallegations cannot “‘materially add[]’ to the public disclosure[s].” Id. at\\n\\n283. This standard, however, has the effect of collapsing the materially-\\n\\nadds inquiry into the substantially-the-same inquiry. As such, we cannot\\n\\n\\n\\n 54\\n\\fembrace it.\\n\\n The plain terms of the original-source exception contemplate that\\n\\nsome qui tam claims involving allegations that are substantially the same as\\n\\npublicly disclosed allegations nevertheless will survive the public\\n\\ndisclosure bar because they materially add to the publicly disclosed\\n\\ninformation. Yet, the Seventh Circuit’s view runs counter to this idea. And\\n\\nas a logical matter, its view is simply unpersuasive. After all, what good is\\n\\nan exception (i.e., the original-source exception) that does not actually\\n\\nexcept anything? See Hesch, supra, at 1016 (noting that because the\\n\\nmaterially-adds condition “is designed to be an exception to the public\\n\\ndisclosure bar,” it “is not meant to block out relators simply because there\\n\\nhad been a qualifying public disclosure that contains similar allegations”).\\n\\n Reflecting this sort of reasoning, one commentator observed:\\n\\n The addition of the new requirement that the information\\n “materially add” to the publicly disclosed information has\\n caused some confusion. Some courts have required the\\n information to be “qualitatively different” from the publicly\\n disclosed information or not substantially the same as the\\n public disclosure. That approach renders the [materially-\\n adds] requirement the same as the public disclosure\\n question rather than part of an exception to the public\\n disclosure bar. Materially adds connotes the addition of\\n something of significance or import and whether it is\\n substantially the same as the type of information already\\n publicly disclosed should not matter.\\n\\nClaire M. Sylvia, T H E F A LS E C LA I M S A C T : F R A U D A G A I N S T THE\\n\\n\\n 55\\n\\fG O V E R N M E N T § 11:68, Westlaw (database updated June 2018) (emphasis\\n\\nadded) (footnote omitted); see also Hesch, supra, at 1017 (“[M]erely\\n\\nbecause the allegations are substantially the same as a qualifying public\\n\\ndisclosure, a relator still qualifies as an original source if she brings\\n\\nsomething to the table that adds value.”). In sum, we agree with the First\\n\\nCircuit’s assessment in Winkelman: “[T]he ‘materially adds’ inquiry must\\n\\nremain conceptually distinct; otherwise, the original source exception\\n\\nwould be rendered nugatory.” 827 F.3d at 211–12.\\n\\n The path plotted by the Third Circuit in its noteworthy decision,\\n\\nMoore, is less clearly defined. However, in fleshing out our approach, we\\n\\nhighlight a possible point of distinction with it. In Moore, the Third Circuit\\n\\nlooked to “Rule 9(b)’s pleading requirement,” 812 F.3d at 306, as “a\\n\\nhelpful benchmark for measuring ‘materially adds,’” id. at 307. Relying on\\n\\nthis “standard” from Rule 9(b), the court took the position that “a relator\\n\\nmaterially adds to the publicly disclosed allegation or transaction of fraud\\n\\nwhen it contributes information—distinct from what was publicly\\n\\ndisclosed—that adds in a significant way to the essential factual\\n\\nbackground: ‘the who, what, when, where and how of the events at issue.’”\\n\\nId. (quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198,\\n\\n217 (3d Cir. 2002)).\\n\\n\\n\\n 56\\n\\f Perhaps Moore is amenable to a narrow interpretation. Cf. id. at 307\\n\\n(noting that the materially-adds standard is not met unless the relator’s\\n\\ninformation “adds in a significant way to the essential factual background”\\n\\nand describing the Rule 9(b) factors as only “a helpful benchmark,” without\\n\\nexpressly saying that the presence of one or more of the factors is always\\n\\ndispositive) (emphasis added)). But see United States v. Medtronic, Inc.,\\n\\n327 F. Supp. 3d 831, 851 (E.D. Pa. 2018) (contrasting Moore’s “relatively\\n\\nbroad definition of materiality” with “Winkelman[’s] . . . narrower\\n\\ndefinition”). However, insofar as Moore is (reasonably) interpreted as\\n\\nholding that a relator’s averments that add a not-insignificant who, what,\\n\\nwhen, where, or how to a publicly disclosed fraudulent scheme should be\\n\\nuniformly deemed to meet the materially-adds standard, we must disagree.\\n\\n In our view, the materially-adds analysis must be firmly grounded in\\n\\nthe facts and circumstances of a particular case. And those facts and\\n\\ncircumstances will guide our determination of whether the who, what,\\n\\nwhen, where, or how actually should be considered sufficiently significant\\n\\nor important to affect the government’s actions regarding the fraudulent\\n\\nscheme. For example, as discussed further below, when, as here, the\\n\\npublicly disclosed fraud exists within an industry with only a few players, a\\n\\nrelator who identifies a particular industry actor engaged in the fraud (i.e.,\\n\\n\\n\\n 57\\n\\fthe “who”) is unlikely to materially add to the information that the public\\n\\ndisclosures had already given the government.\\n\\n We are concerned that Moore (as interpreted above) could allow the\\n\\noriginal-source exception to swallow the public disclosure bar.\\n\\nSpecifically, one might read the Third Circuit’s approach in that case to\\n\\npermit “a relator who merely adds detail or color to previously disclosed\\n\\nelements of an alleged scheme” to qualify as an original source.\\n\\nWinkelman, 827 F.3d at 213; see Medtronic, 327 F. Supp. 3d at 851\\n\\n(“Moore and Winkelman apply two different standards: Moore adopted a\\n\\nrelatively broad definition of materiality while Winkelman adopted the\\n\\nnarrower definition from Universal Health [Services, Inc. v. United States\\n\\nex rel. Escobar, 579 U.S. ----, 136 S. Ct. 1989 (2016)].” (citation omitted)).\\n\\nLike the First Circuit, we do not think that adding detail or color is enough.\\n\\nSee also United States ex rel. Hastings v. Wells Fargo Bank, NA, Inc., 656\\n\\nF. App’x 328, 331–32 (9th Cir. 2016) (unpublished) (Mem. Op.)\\n\\n(“Allegations do not materially add to public disclosures when they provide\\n\\nonly background information and details relating to the alleged fraud—they\\n\\nmust add value to what the government already knew.”).\\n\\n Thus, we are guided here by materially-adds principles that are\\n\\ngenerally consistent with those the First Circuit articulated in Winkelman.\\n\\n\\n\\n 58\\n\\fWe believe that these principles are faithful to the balance struck by\\n\\nCongress, in amending the original-source exception in 2010, between\\n\\n“attracting whistleblowers and not paying rewards” to relators who fail to\\n\\nprovide information that “materially adds value.” Hesch, supra, 1026,\\n\\n1040.\\n\\n b\\n\\n We now turn to the question of whether Ms. Reed satisfies this\\n\\nstandard. Although we conclude that most of Ms. Reed’s arguments\\n\\nrelative to this standard fall short, we are persuaded that her complaint\\n\\naverments regarding the TTP program materially add to the information in\\n\\nthe public disclosures. Therefore, she prevails on this component of the\\n\\noriginal-source inquiry.\\n\\n Ms. Reed argues that her allegations materially add to the public\\n\\ndisclosures in several ways. First, Ms. Reed points out that her complaint\\n\\nidentifies “a new defendant” (KeyPoint). Aplt.’s Opening Br. at 25.\\n\\nSecond, she reasons that naming individual “investigators who violated\\n\\nOPM requirements” adds to the disclosures. Id. Third, Ms. Reed posits\\n\\nthat she materially adds to the disclosures because she did her own\\n\\ninvestigation into KeyPoint. Fourth, she says that her allegations\\n\\nuncovered “new schemes to defraud the government (e.g., the telephone\\n\\n\\n\\n 59\\n\\ftestimony violations).” Id.\\n\\n To begin, we disagree that naming KeyPoint as a wrongdoer\\n\\nmaterially adds to the public disclosures. After all, the news reports linked\\n\\nKeyPoint to the suspected fraud in the background-investigation industry.\\n\\nAnd the 2010 OPM audit report revealed that there were “falsification and[]\\n\\nintegrity issues” with investigations done by USIS, KeyPoint, and CACI.\\n\\nAplt.’s App. at 261. Consequently, Ms. Reed is mistaken in suggesting that\\n\\nthere was “no information concerning KeyPoint specifically in the public\\n\\ndomain.” Aplt.’s Opening Br. at 28. To be sure, the disclosures did not\\n\\n“use the word ‘fraud’” when discussing KeyPoint. Advocates for Basic\\n\\nLegal Equal., 816 F.3d at 432. But that omission is irrelevant because the\\n\\ndisclosures “presented enough facts to create an inference of wrongdoing”\\n\\nby KeyPoint. Id. at 433 (quoting United States ex rel. Jones v. Horizon\\n\\nHealthcare Corp., 160 F.3d 326, 332 (6th Cir. 1998)).\\n\\n At bottom, the government already suspected fraud in the background-\\n\\ninvestigation industry. Counting KeyPoint, that industry only has three\\n\\nmain players; and the disclosures linked KeyPoint to the suspected fraud.\\n\\nWe cannot see how naming KeyPoint adds information of sufficient\\n\\nsignificance or importance “to influence the [government’s] behavior.”\\n\\nWinkelman, 827 F.3d at 211. Put another way, this is an instance in which\\n\\n\\n\\n 60\\n\\faverments regarding the “who” of a publicly disclosed fraudulent scheme\\n\\nare not a material addition within the meaning of the original-source\\n\\nexception. Cf. Moore, 812 F.3d at 307.\\n\\n Similarly, identifying individual investigators as wrongdoers “merely\\n\\nadds detail or color to previously disclosed elements of an alleged scheme.”\\n\\nWinkelman, 827 F.3d at 213. The government knew that individual\\n\\ninvestigators (including a former KeyPoint employee) “lied about\\n\\nconducting thorough background checks when they were incomplete and\\n\\nrushed.” Aplt.’s App. at 410. And a September 2013 article reported that\\n\\nthe government was “pursuing suspected fraud in granting of security\\n\\nclearances” and had already convicted at least “19 private and government\\n\\ninvestigators for submitting fabricated reports.” Id. at 308. True, Ms.\\n\\nReed’s allegations suggested that the problem was more pervasive at\\n\\nKeyPoint than the public disclosures hinted. But if identifying new\\n\\nemployees engaged in fraud were enough, the original-source exception\\n\\nwould burst from overbreadth. Cf. Winkelman, 827 F.3d at 212 (explaining\\n\\nthat giving “specific examples of” publicly known fraud “does not provide\\n\\nany significant new information”).\\n\\n Ms. Reed also is mistaken that her allegations materially add to the\\n\\npublic disclosures because she did her own investigation into KeyPoint.\\n\\n\\n\\n 61\\n\\fFor starters, as KeyPoint rightly points out, “the ‘materially adds’\\n\\nrequirement . . . focuses on the substance of the allegations, not the\\n\\nsource.” Aplee.’s Resp. Br. at 37. That Ms. Reed’s independent\\n\\ninvestigation confirmed, as to KeyPoint, some of the allegations floating\\n\\naround the public sphere is arguably relevant to the question of whether her\\n\\nknowledge is independent of the public disclosures, but that question is not\\n\\npresently before us. See Kennard, 363 F.3d at 1046–47 (explaining that\\n\\nrelators had “direct and independent knowledge” because they did “their\\n\\nown investigation”). In sum, in our view, Ms. Reed’s separate investigation\\n\\nis irrelevant to the materially-adds question. See Winkelman, 827 F.3d at\\n\\n212 (rejecting argument that relators materially added to the public\\n\\ndisclosures by “trumpet[ing] their personal knowledge of specific instances\\n\\nof alleged [fraud]”). As the Eighth Circuit remarked, “A relator is not an\\n\\noriginal source of information . . . simply because he discovered or\\n\\nsuspected it first” through his own investigation if that investigation only\\n\\nconfirms what was “already thoroughly revealed.” Paulos, 762 F.3d at 694.\\n\\n All that said, we ultimately conclude that Ms. Reed does satisfy the\\n\\nmaterially-adds standard. We reach that conclusion because we determine\\n\\nthat Ms. Reed’s allegations regarding the TTP materially add to the\\n\\ninformation available in the public disclosures for two related and\\n\\n\\n\\n 62\\n\\fintertwined reasons. First, Ms. Reed makes specific allegations of both\\n\\ninvestigator- and management-level fraud in the distinct context of the TTP.\\n\\nSecond, many of Ms. Reed’s allegations concerning KeyPoint’s responses to\\n\\nher reports of possible fraud in the TTP provide direct evidence of\\n\\nKeyPoint’s scienter. Neither the allegations of investigator- and\\n\\nmanagement-level fraud in the TTP context nor the allegations of\\n\\nKeyPoint’s scienter were available via the public disclosures. Considered\\n\\ntogether, these allegations reveal a “new scheme[] to defraud the\\n\\ngovernment” involving repeated violations of the TTP by KeyPoint\\n\\ninvestigators and management. Aplt.’s Opening Br. at 25. And they offer\\n\\n“[t]rue evidence of intent or guilty knowledge” by KeyPoint, Hesch, supra,\\n\\nat 1026, insofar as they aver Ms. Reed’s specific knowledge of KeyPoint\\n\\nmanagers’ efforts to knowingly cover up the TTP violations. Cf. United\\n\\nStates ex rel. Ambrosecchia v. Paddock Labs., LLC, 855 F.3d 949, 955 (8th\\n\\nCir. 2017) (“[Relator] claims that her information materially adds to the\\n\\nexisting information by demonstrating scienter. However, the complaint\\n\\nprovides no more than the simple, conclusory allegation that Defendants’\\n\\nactions were knowing . . . . Accordingly, [relator’s] complaint is\\n\\ninsufficient to plausibly state that she qualifies as an original source.”\\n\\n(citation omitted)).\\n\\n\\n\\n 63\\n\\f Ms. Reed’s allegations of scienter make us especially confident that\\n\\nher allegations regarding KeyPoint’s fraudulent TTP practices satisfy the\\n\\nmaterially-adds standard. False Claims Act “cases often turn on the issue\\n\\nof scienter.” Hesch, supra, at 1024. Yet, “the government is never in a\\n\\ngood position to have direct evidence of guilty knowledge.” Id. Thus, Ms.\\n\\nReed’s allegations that KeyPoint’s investigators and managers tried to\\n\\nknowingly cover up the TTP violations amplify the materiality of the\\n\\nunderlying allegations of TTP fraud. Cf. Winkelman, 827 F.3d at 213 (“We\\n\\ndo not rule out the possibility that furnishing information that a particular\\n\\ndefendant is acting ‘knowingly’ (as opposed to negligently) sometimes may\\n\\nsuffice as a material addition to information already publicly disclosed.”);\\n\\nHesch, supra, at 1027 (“[R]egardless of how well defined the fraud\\n\\nallegations are in a qualifying public disclosure, when a relator brings forth\\n\\nknowledge of scienter that is not specifically contained in a qualifying\\n\\npublic disclosure it should be presumed to materially add value.”).\\n\\n Now consider those underlying allegations. Recall that investigators\\n\\nwere generally required to conduct in-person interviews, but the TTP\\n\\npermitted them to do telephone interviews under some circumstances so\\n\\nlong as they kept their total number of telephone interviews below a certain\\n\\npercentage threshold. Each month, OPM would send KeyPoint a list of\\n\\n\\n\\n 64\\n\\finvestigators who exceeded their allotted number of telephone interviews\\n\\nduring the last month. KeyPoint then would be obliged to send OPM\\n\\n“corrective action report[s]” explaining each infraction and what it was\\n\\ndoing to remedy the problem. Aplt.’s App. at 31, ¶ 54.\\n\\n Ms. Reed avers that KeyPoint investigators repeatedly violated the\\n\\nTTP and KeyPoint management regularly falsified corrective action reports\\n\\nto cover up the violations. For instance, one corrective action report by a\\n\\nKeyPoint Field Manager justified an investigator’s violations by claiming\\n\\nthat telephone interviews were “justified due to weather and due ‘to the\\n\\nremote and large geographical area [the investigator] work[ed].’” Id. at 90,\\n\\n¶ 262. When Ms. Reed looked into the matter, she discovered that the\\n\\nreport was false; the investigator’s sources were actually “located in nearby\\n\\nColorado, well within the territory he was required to cover in person” Id.\\n\\nat 90, ¶ 264. When Ms. Reed recommended that the investigator be\\n\\ndisciplined for violating the TTP, rather than do so and correct the false\\n\\ncorrective action report, a KeyPoint Regional Manager “tried to persuade\\n\\n[Ms.] Reed that [the investigator] was covering remote territory in\\n\\nWyoming.” Id. at 90, ¶¶ 265–267.\\n\\n Similarly, Ms. Reed determined that another investigator was\\n\\nviolating the TTP by “not giv[ing] many sources the opportunity for in-\\n\\n\\n\\n 65\\n\\fperson interviews,” id. at 95 ¶ 298, and that KeyPoint management had\\n\\nfalsely “certified that [the investigator] had not conducted the telephonic\\n\\ntestimonies that OPM had indicated,” id. at 96, ¶ 300. Ms. Reed\\n\\nspecifically informed identified members of KeyPoint management that the\\n\\ninvestigator was violating the TTP—which meant that KeyPoint’s prior\\n\\ncertifications to OPM to the contrary were false. See id. But rather than\\n\\ndiscipline the investigator and correct the false certifications, the\\n\\ninvestigator’s “Field Manager continued to issue Corrective Action Reports\\n\\nto OPM about [the investigator] that claimed geographic distance and\\n\\nsource request, when Reed had already shown KeyPoint’s management that\\n\\n[the investigator] had conducted phone interviews without attempting to\\n\\nconduct in-person interviews.” Id. at 96, ¶ 310.\\n\\n Furthermore, on more than one occasion, in response to Ms. Reed’s\\n\\nefforts to correct problems in the TTP, “KeyPoint management told [her] to\\n\\nstop interfering.” Id. at 95, ¶ 292; see also id. at 96, ¶ 308 (“[Ms.] Reed\\n\\nwas later told to ‘stop interfering.’”). In short, Ms. Reed’s complaint offers\\n\\npages of details describing how KeyPoint managers knowingly schemed to\\n\\ndefraud the government by covering up systemic violations of the TTP.\\n\\n None of the public disclosures accused KeyPoint—or the industry\\n\\ngenerally—of fraud relating to a TTP. The news reports, for instance,\\n\\n\\n\\n 66\\n\\ffocused generally on problems in the industry with “investigators who were\\n\\nfound to have done substandard work in background checks.” Id. at 303.\\n\\nThe articles do not hint at systemic investigator fraud designed to evade the\\n\\nrequirements of a TTP (e.g., its percentage ceiling for conducting telephone\\n\\ninterviews), let alone discuss knowing efforts of management personnel to\\n\\ncover up that fraud. Likewise, Congress suspected KeyPoint and its\\n\\ncompetitors only of using “false, incomplete, or rushed information\\n\\ngathering” in its background investigations but unearthed no evidence that\\n\\nindustry management knowingly lied about the circumstances in which they\\n\\ngathered information by telephone. Id. at 411 & n.3. The two OPM audits\\n\\ndo not even reference a TTP or fraudulent corrective action reports\\n\\ncovering up violations of such a program. And the USIS suit alleged that\\n\\nUSIS investigators “dumped” incomplete and unreviewed cases to OPM and\\n\\nabused OPM’s “Blue Zone software.” Aplt.’s Reply Br., Addendum A, at\\n\\n6–12. But this suit makes no mention of a TTP, corrective action reports,\\n\\nor a scheme by management to cover up deficiencies under that program.\\n\\n In short, Ms. Reed’s allegations regarding KeyPoint’s fraudulent\\n\\npractices related to its TTP added material information to the public\\n\\ndisclosures that satisfied the Act’s materially-adds standard. These\\n\\nallegations had the effect of “expanding the scope of the fraud” revealed in\\n\\n\\n\\n 67\\n\\fthe public disclosures and introducing “knowledge of scienter that is not\\n\\nspecifically contained in a qualifying public disclosure.” Hesch, supra, at\\n\\n1023, 1027. This is not a case where the relator’s allegations contributed\\n\\nnothing more than personal “knowledge (even if gained early and\\n\\nindependently).” Paulos, 762 F.3d at 694. Nor is it a situation where the\\n\\nallegations of fraud in the public disclosures were so detailed that there was\\n\\nno room for Ms. Reed to materially add to them with her allegations of\\n\\nKeyPoint’s fraudulent TTP practices. Winkelman, 827 F.3d at 211 (“As the\\n\\nlevel of detail in public disclosures increases, the universe of potentially\\n\\nmaterial additions shrinks.”). Indeed, her allegations about KeyPoint’s\\n\\nscheme to evade the TTP did more than “add[] detail or color to previously\\n\\ndisclosed elements of an alleged scheme.” Id. at 213; see also Hastings,\\n\\n656 F. App’x at 331–32 (“Allegations do not materially add to public\\n\\ndisclosures when they provide only background information and details\\n\\nrelating to the alleged fraud—they must add value to what the government\\n\\nalready knew.”). Hence, we conclude that Ms. Reed’s complaint averments\\n\\nrelating to KeyPoint’s fraudulent TTP practices reveal information “[o]f\\n\\nsuch a nature that knowledge of the item would affect [the government’s]\\n\\ndecision-making.” Winkelman, 827 F.3d at 211 (first alteration in original)\\n\\n(quoting B LA C K ’ S , supra, at 1124). In other words, her allegations\\n\\n\\n\\n 68\\n\\fmaterially add to the public disclosures.\\n\\n The soundness of this conclusion is highlighted when one contrasts\\n\\nthe materiality of the new fraudulent scheme that Ms. Reed alleges\\n\\nregarding the TTP with the immateriality of the added information at issue\\n\\nin Osheroff. The relator in Osheroff alleged that certain medical clinics\\n\\nwere violating the federal anti-kickback law and related government\\n\\ncontracts by providing “a variety of free services for patients . . . ,\\n\\nincluding transportation, meals, spa and salon services, and entertainment.”\\n\\n776 F.3d at 808. An earlier lawsuit had disclosed a different clinic’s\\n\\nsimilar practices. And news reports publicized that the defendant-clinics\\n\\nprovided “‘free lunch’ . . . and free transportation.” Id. at 813. In arguing\\n\\nthat he was an original source, the relator emphasized that his complaint\\n\\nadded to the public disclosures by revealing “the type of food the clinics\\n\\nserved . . . , the destinations of some of the free transportation, the\\n\\nfrequency of salon services, and the price of the substitute services or\\n\\ngoods.” Id. at 815. The Eleventh Circuit, however, was “not persuaded.”\\n\\nId. At best, the court explained, the relator’s “complaint add[ed]\\n\\nbackground information and details relating to the value of the services\\n\\noffered, making it somewhat more plain that the clinics’ programs could\\n\\nviolate the [statute].” Id. That was not enough. The court held that under\\n\\n\\n\\n 69\\n\\fthe 2010 version of the False Claims Act, the relator’s “information d[id]\\n\\nnot materially add to the public disclosures, which were already sufficient\\n\\nto give rise to an inference that the clinics were providing illegal\\n\\nremuneration to patients.” Id.\\n\\n Ms. Reed’s complaint averments relating to KeyPoint’s distinct TTP\\n\\nfraud stand in stark contrast to the general background information\\n\\nregarding an existing fraudulent scheme that the relator delivered in\\n\\nOsheroff. Unlike in Osheroff, Ms. Reed’s allegations do not add a few\\n\\nmore breadcrumbs on an existing trail; they blaze a new trail.\\n\\n We underscore that we do not rest our holding that Ms. Reed has\\n\\nsatisfied the materially-adds standard based solely on either her allegations\\n\\nconcerning specific instances of investigator- and management-level fraud\\n\\nin the TTP or her allegations concerning KeyPoint’s responses to her\\n\\nreports of possible TTP fraud—notably, to cover up fraud—that evinced\\n\\nKeyPoint’s scienter. Instead, we base our holding on the combined,\\n\\nsynergistic effect of the allegations of distinct misconduct in the TTP and\\n\\nthe related and intertwined allegations detailing KeyPoint’s knowing efforts\\n\\nto cover up TTP violations. The combination of these allegations clearly\\n\\npermit Ms. Reed to satisfy the materially-adds standard. We need not—and\\n\\nthus do not—opine on whether either of the two related and intertwined\\n\\n\\n\\n 70\\n\\ffeatures of Ms. Reed’s TTP allegations, standing alone, would be sufficient\\n\\nto satisfy the materially-adds standard.\\n\\n * * *\\n\\n In sum, we agree with the district court that the allegations in Ms.\\n\\nReed’s qui tam claims are substantially the same as those in the public\\n\\ndisclosures. But we disagree with the court’s conclusion that Ms. Reed’s\\n\\nallegations do not materially add to the public disclosures, such that she did\\n\\nnot qualify as an original source. As a consequence, we vacate the district\\n\\ncourt’s summary-judgment order that dismissed Ms. Reed’s qui tam claims.\\n\\nHowever, because the district court did not reach the second part of the\\n\\noriginal-source standard—i.e., whether Ms. Reed’s allegations are\\n\\n“independent of” the public disclosures—we remand the case for the\\n\\ndistrict court to resolve that question in the first instance. 17 See Tabor v.\\n\\n 17\\n We likewise decline KeyPoint’s invitation to affirm the district court’s\\njudgment on alternative bases not ruled on by the district court. See Aplee.’s Resp. Br. at\\n58–60 (arguing that Ms. Reed’s FCA claims fail for want of (1) particularity under Rule\\n9(b), (2) falsity, (3) materiality, and (4) scienter). Although it is true that we may affirm\\non any basis finding support in the record, see Richison v. Ernest Grp., Inc., 634 F.3d\\n1123, 1130 (10th Cir. 2011), we are often “reluctant” to do so when “we are deprived of\\nthe benefit of vigorous adversarial testing of the issue, not to mention a reasoned district\\ncourt decision on the subject.” Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013);\\naccord Sylvia v. Wisler, 875 F.3d 1307, 1325 (10th Cir. 2017). KeyPoint offers only brief\\narguments in support of the alternative bases for affirmance. In these circumstances, the\\nsuperior course of action is to remand so that district court may decide the issues in the\\nfirst instance. See United States v. McLinn, 896 F.3d 1152, 1157 (10th Cir. 2018)\\n(declining to rule on inadequately briefed issues “not fully addressed by the district\\n (continued...)\\n\\n 71\\n\\fHilti, Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not\\n\\nbeen ruled on by the court below, we generally favor remand for the district\\n\\ncourt to examine the issue.”); see also Singleton v. Wulff, 428 U.S. 106, 120\\n\\n(1976) (“It is the general rule, of course, that a federal appellate court does\\n\\nnot consider an issue not passed upon below.”).\\n\\n III\\n\\n We now turn to Ms. Reed’s retaliation claim. The False Claims Act\\n\\nprotects whistleblowers from retaliation by their employers. See Potts, 908\\n\\nF.3d at 613–14 (discussing 31 U.S.C. § 3730(h)). To state a claim of\\n\\nretaliation, a plaintiff must meet her “burden of pleading facts” that prove\\n\\n(1) she engaged in protected activity, (2) the defendant “had been put on\\n\\nnotice” of that protected activity, and (3) the defendant retaliated against\\n\\nthe plaintiff “because of” that activity. McBride v. Peak Wellness Ctr.,\\n\\nInc., 688 F.3d 698, 704 (10th Cir. 2012); see also 31 U.S.C. § 3730(h).\\n\\n Ms. Reed alleges that KeyPoint retaliated against her by firing her for\\n\\ntrying to stop it from violating the False Claims Act. The district court\\n\\ngranted KeyPoint’s Rule 12(b)(6) motion to dismiss this retaliation claim\\n\\nbecause Ms. Reed had, in the district court’s view, inadequately pleaded\\n\\nthat KeyPoint was on notice that she was engaging in protected activity.\\n\\n 17\\n (...continued)\\ncourt”).\\n\\n 72\\n\\f We review de novo “the district court’s dismissal under Rule\\n\\n12(b)(6).” United States ex rel. Polukoff v. St. Mark’s Hosp., 895 F.3d 730,\\n\\n740 (10th Cir. 2018) (quoting United States ex rel. Lemmon v. Envirocare\\n\\nof Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010)). Dismissal under Rule\\n\\n12(b)(6) “is appropriate only if the complaint, viewed in the light most\\n\\nfavorable to plaintiff, ‘lacks “enough facts to state a claim to relief that is\\n\\nplausible on its face.”’” Conner, 543 F.3d at 1217 (quoting Trentadue v.\\n\\nIntegrity Comm., 501 F.3d 1215, 1236 (10th Cir. 2007)).\\n\\n Applying these standards, we affirm the district court’s dismissal of\\n\\nMs. Reed’s retaliation claim. At the outset, we are constrained to point out\\n\\nthat the district court relied on a legally erroneous view of what constitutes\\n\\nprotected activity. But we “can affirm the district court’s dismissal on any\\n\\nground sufficiently supported by the record.” GF Gaming Corp. v. City of\\n\\nBlack Hawk, 405 F.3d 876, 882 (10th Cir. 2005); accord George v. Urban\\n\\nSettlement Servs., 833 F.3d 1242, 1254 (10th Cir. 2016). And we determine\\n\\nthat, under the correct legal understanding of protected activity, Ms. Reed\\n\\nhas failed to plead sufficient facts to show that KeyPoint was on notice of\\n\\nher purported protected activity. For that reason, we affirm the district\\n\\ncourt’s order dismissing Ms. Reed’s retaliation claim.\\n\\n A\\n\\n\\n\\n 73\\n\\f The False Claims Act protects whistleblowers who engage in\\n\\n“protected activity.” Armstrong, 897 F.3d at 1286. Until 2009, protected\\n\\nactivity included only “lawful acts done by the employee . . . in furtherance\\n\\nof an action under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h)\\n\\n(2008). The circuit courts split over what conduct qualified as “in\\n\\nfurtherance of” a qui tam action. Our circuit and several others interpreted\\n\\nthat language to mean that protected activity encompassed conduct\\n\\npreparing for “a private qui tam action or assisting in an . . . action brought\\n\\nby the government.” United States ex rel. Ramseyer v. Century Healthcare\\n\\nCorp., 90 F.3d 1514, 1522 (10th Cir. 1996); accord Robertson v. Bell\\n\\nHelicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). In these\\n\\ncircuits, an employee who, for example, reported a False Claims Act\\n\\nviolation to her supervisor but did not pursue a qui tam action had not\\n\\nengaged in protected activity. See, e.g., Zahodnick v. Int’l Bus. Machs.\\n\\nCorp., 135 F.3d 911, 914 (4th Cir. 1997). Other circuits, by contrast, read\\n\\n“in furtherance of” more broadly to include protection against “retaliation\\n\\nfor filing an internal complaint.” United States ex rel. Grenadyor v.\\n\\nUkrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1108–09 (7th Cir. 2014)\\n\\n(describing the Seventh Circuit’s pre-2009 precedent).\\n\\n Congress resolved this circuit split in 2009. That year, it amended\\n\\n\\n\\n 74\\n\\fthe False Claims Act’s whistleblower protections to protect employees who\\n\\ntake “lawful” actions “in furtherance of other efforts to stop 1 or more\\n\\nviolations” of the False Claims Act. 31 U.S.C. § 3730(h)(1) (2009)\\n\\n(emphasis added). With this amendment, Congress thereby expanded “the\\n\\nuniverse of protected conduct.” 18 United States ex rel. Chorches v. Am.\\n\\nMed. Response, Inc., 865 F.3d 71, 97 (2d Cir. 2017). In this expanded\\n\\nuniverse, whistleblowers who lawfully try to stop one or more violations of\\n\\nthe Act are protected, without regard to whether their conduct advances a\\n\\nprivate or government lawsuit under the Act.\\n\\n Congress did amend the whistleblower protections again in 2010. As\\n\\na consequence, the now-effective protections expressly apply to an\\n\\nemployee’s “lawful” acts “in furtherance of” either “an action” under the\\n\\nAct “or other efforts to stop 1 or more violations of” the Act. 31 U.S.C.\\n\\n§ 3730(h)(1); see also United Stated ex rel. Grant v. United Airlines Inc.,\\n\\n912 F.3d 190, 201 & n.3 (4th Cir. 2018) (noting these two amendments to\\n\\nthe Act). But as is evident, the 2010 amendment left intact the 2009\\n\\namendment’s broad “other efforts to stop” language, which is our focus in\\n\\n\\n 18\\n See also United States ex rel. Grant v. United Airlines Inc., 912 F.3d 190,\\n201 (4th Cir. 2018) (“[W]e and other circuits have recognized that the amended language\\nbroadens the scope of protected activity.”); Halasa v. ITT Educ. Servs., Inc., 690 F.3d\\n844, 847–48 (7th Cir. 2012) (noting the broader scope of protected activity under the\\namended provision).\\n\\n 75\\n\\fthis appeal. Thus, Ms. Reed could avail herself of this “other efforts to\\n\\nstop” language in this action.\\n\\n The district court, however, failed to acknowledge the expanded\\n\\nuniverse that the 2009 amendment defined. Instead, it assessed the\\n\\nsufficiency of Ms. Reed’s averments under the pre-2009 rubric. In this\\n\\nregard, the court wrongly declared that under the False Claims Act “the\\n\\nactivity prompting plaintiff’s discharge must have been taken ‘in\\n\\nfurtherance of’ a[] [qui tam] action.” Aplt.’s App. at 417 (quoting\\n\\nMcBride, 688 F.3d at 703–04). 19 The plain text of the amended\\n\\nwhistleblower provisions does not support such a narrow view. Congress\\n\\nadded the “other efforts to stop” language for a reason—namely, to stretch\\n\\n\\n 19\\n Although we decided McBride in 2012, the conduct at issue there occurred\\nin January 2009—before the 2009 amendment took effect in May of that year. See Fraud\\nEnforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(f), 123 Stat. 1617\\n(2009) (effective date May 20, 2009). McBride, then, had no reason to consider or apply\\nthe amended whistleblower provision. Hence, its analysis is inapposite to post-2009\\nprotected conduct. That said, in a 2017 unpublished opinion, a panel of our court quoted\\nMcBride for the proposition that “without evidence that [plaintiff] was planning to report\\n[defendant] to the government or file a qui tam suit, [plaintiff’s] retaliation claim cannot\\nsurvive summary judgment.” Cash v. Lockheed Martin Corp., 684 F. App’x 755, 764\\n(10th Cir. 2017) (unpublished) (quoting McBride, 688 F.3d at 704). That seeming\\ndeclaration of post-2009-amendment law (embodied in a 2017 decision) is of course not\\nbinding on us; Cash is not precedential. See 10TH CIR. R. 32.1(A). More fundamentally,\\nCash is problematic because (1) it is contrary to the plain text of the current (i.e., post-\\namendment) whistleblower provisions, (2) contains no analysis of the change in statutory\\nlanguage, and (3) conflicts with the decisions of our sister circuits that have construed the\\ncurrent provisions, see, e.g., Grant, 912 F.3d at 201. Accordingly, we decline to follow\\nCash’s lead, and KeyPoint’s reliance on Cash is unavailing.\\n\\n 76\\n\\fthe “protected activity” umbrella to cover additional conduct. When\\n\\n“Congress expands the scope of activity protected by a statute, we cannot\\n\\nrestrict ourselves to applying a narrower old standard that the expansion . .\\n\\n. eschew[ed].” Grant, 912 F.3d at 201. The district court mistakenly did\\n\\njust that. Tellingly, the phrase “other efforts to stop” does not appear in\\n\\nthe district court’s order, and the court fails to cite a single case applying\\n\\nthe amended provision. Simply put, the district court applied the wrong\\n\\nversion of the statute.\\n\\n This error necessarily affected the district court’s consideration of\\n\\nwhether Ms. Reed adequately pleaded notice. To adequately plead a\\n\\nretaliation claim, a plaintiff must aver that the defendant was on notice of\\n\\nher protected activity. See Armstrong, 897 F.3d at 1286. Once Congress\\n\\nexpanded the scope of protected activity, the universe of conduct that a\\n\\nplaintiff could allege to show notice also necessarily expanded. See United\\n\\nStates ex rel. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 434 & n.6 (4th\\n\\nCir. 2015) (explaining that the amendment expanded the boundaries of what\\n\\nconstitutes notice of protected activity). But because the district court\\n\\nthought that only conduct in furtherance of a qui tam lawsuit was properly\\n\\nclassified as “protected activity,” the court asked the wrong question—an\\n\\nimproperly narrow one. It asked only whether Ms. Reed pleaded facts\\n\\n\\n\\n 77\\n\\fsufficient to show that KeyPoint was on notice that she was “taking action\\n\\nin furtherance of a private qui tam action or assisting in an . . . action\\n\\nbrought by the government.” Aplt.’s App. at 417 (quoting Ramseyer, 90\\n\\nF.3d at 1522). And the court answered that question in the negative and,\\n\\naccordingly, dismissed Ms. Reed’s claim.\\n\\n But as framed by Ms. Reed’s arguments, the right question regarding\\n\\nthe notice element of the retaliation claim centers on the language Congress\\n\\nadded to the Act in 2009. The district court should have gone beyond its\\n\\nprevious inquiry and asked whether Ms. Reed pleaded facts that plausibly\\n\\nshow that KeyPoint was on notice that she had tried to stop its alleged False\\n\\nClaims Act violations. The answer to that question determines whether Ms.\\n\\nReed’s retaliation claim stands or falls. Reviewing her complaint de novo,\\n\\nwe answer that question in the negative.\\n\\n B\\n\\n Specifically, we hold that Ms. Reed has not pleaded sufficient facts to\\n\\nstate a claim of retaliation because she has failed to establish the notice\\n\\nelement of that claim. We explain that conclusion in two parts. First, we\\n\\nclarify what kind of facts Ms. Reed must plead to show that KeyPoint knew\\n\\nshe was trying to stop its violations of the False Claims Act. Second, we\\n\\ndetermine that Ms. Reed’s complaint averments come up short.\\n\\n\\n\\n 78\\n\\f 1\\n\\n Our circuit has yet to begin the work of defining the boundaries of\\n\\nwhat constitutes protected efforts to stop a violation of the False Claims\\n\\nAct. Naturally, we cannot narrow our consideration to our pre-2009 view\\n\\nthat an employee must prove in every instance that the employer knew that\\n\\nshe was acting “in furtherance of” a qui tam action. Ramseyer, 90 F.3d at\\n\\n1522. Beginning the outline of those boundaries, we state our agreement\\n\\nwith KeyPoint “that a relator’s actions still must convey a connection to the\\n\\n[False Claims Act].” Aplee.’s Resp. Br. at 52; see Grant, 912 F.3d at 202\\n\\n(noting that “plaintiff’s actions need not lead to a viable” qui tam action,\\n\\nbut “they must still have a nexus to a[] [False Claims Act] violation”);\\n\\nUnited States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 59 n.8 (1st Cir.\\n\\n2017) (explaining that relator’s “activities must pertain to violations” of the\\n\\nAct). After all, the text of the amendment says the “other efforts” must be\\n\\n“to stop 1 or more violations of [the False Claims Act].” 31 U.S.C.\\n\\n§ 3730(h)(1).\\n\\n We also agree with KeyPoint that compliance employees typically\\n\\nmust do more than other employees to show that their employer knew of the\\n\\nprotected activity. Our cases applying the pre-2009 whistleblower\\n\\nprovisions explained that an employee “whose job entails the investigation\\n\\n\\n\\n 79\\n\\fof fraud . . . . must make clear” that she engaged in protected activity “to\\n\\novercome the presumption that [she was] merely acting in accordance with\\n\\n[her] employment obligations.” Ramseyer, 90 F.3d at 1523 n.7; accord\\n\\nUnited States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472\\n\\nF.3d 702, 729 (10th Cir. 2006). In other words, in these decisions, we\\n\\nrecognized that an employer might reasonably presume that when a\\n\\ncompliance employee reports incidents of fraud she is just doing her job.\\n\\nSo to hold an employer liable under the Act’s whistleblower provisions, our\\n\\npre-2009 precedent required a compliance employee to overcome that\\n\\npresumption by showing that she was engaging in protected activity, not\\n\\njust doing her job.\\n\\n We think this reasoning has survived the 2009 amendment. True, as\\n\\nwe have explained above, that amendment expanded the scope of protected\\n\\nactivity and thus expanded the universe of conduct that a relator may plead\\n\\nin giving the employer notice of the protected activity. But nothing about\\n\\nthe 2009 amendment undercuts the rationale of our precedent addressing\\n\\ncompliance officers who are charged by their employer with investigating\\n\\nfraud. See United States ex rel. Campie v. Gilead Scis., Inc., 862 F.3d 890,\\n\\n908 (9th Cir. 2017) (deeming our pre-2009 Ramseyer decision “instructive,”\\n\\nin a post-amendment context, on the point that compliance employees must\\n\\n\\n\\n 80\\n\\fdo more to show an employer’s knowledge), cert. denied, 139 S. Ct. 783\\n\\n(2019).\\n\\n In sum, to state a retaliation claim, as relevant here, an employee’s\\n\\ncomplaint must allege facts that show her employer knew of her efforts to\\n\\nstop a False Claims Act violation. The 2009 amendment left intact our\\n\\nprecedent requiring compliance employees to do more than other employees\\n\\nto meet the notice element. And so, to adequately plead notice, a\\n\\ncompliance employee must allege facts that, viewed in her favor, make\\n\\nclear that her employer had been put on notice that she was trying to stop it\\n\\nfrom violating the False Claims Act and not merely doing her job.\\n\\n 2\\n\\n We conclude that Ms. Reed’s complaint averments come up short of\\n\\nthis standard. To be sure, Ms. Reed is correct that her complaint shows that\\n\\nshe voiced objections regarding the alleged fraud “to everyone at KeyPoint\\n\\nwho would listen.” Aplt.’s Opening Br. at 41. For instance, the complaint\\n\\nalleges that “she approached KeyPoint’s Director of Training” and “raised\\n\\nconcerns to her supervisor,” the “OPM Contract Director,” and “the\\n\\nRegional Managers and certain Field Managers.” Aplt.’s App. at 31–32, ¶¶\\n\\n59, 65. Indeed, the complaint notes that Ms. Reed brought some of “the\\n\\nmost egregious instances” of fraud at the investigator level to the attention\\n\\n\\n\\n 81\\n\\fof “field managers and . . . regional managers.” Id. at 62, ¶ 172. Likewise,\\n\\nMs. Reed allegedly told “her supervisor . . . on numerous occasions” about\\n\\nviolations of the TTP. Id. at 89, ¶ 253.\\n\\n However, Ms. Reed was a “Senior Quality Control Analyst”—that is,\\n\\na compliance officer. Id. at 24, ¶ 3. Thus, under our precedent, we may\\n\\npresume that Ms. Reed—as a compliance officer—was just doing her job in\\n\\nrepeatedly reporting fraud internally to employees at KeyPoint. And Ms.\\n\\nReed’s complaint averments do not overcome that presumption—indeed,\\n\\nthey tend to underscore the soundness of it. In this regard, Ms. Reed\\n\\nherself links her knowledge of, and efforts to report, the alleged fraud at\\n\\nKeyPoint to her role “as a Senior Quality Control Analyst.” 20 Id. at 25, ¶ 4.\\n\\nFor instance, the complaint notes that Ms. “Reed and her staff\\n\\ndiscover[ed]” fraud. Id. at 75, ¶ 201 (emphasis added). And at points, the\\n\\n\\n 20\\n See also Aplt.’s App. at 28–29, ¶¶ 29, 33 (noting that KeyPoint put Ms.\\n“Reed in charge of the [TTP],” and through these duties, she “uncovered systemic\\nviolations” of the OPM contract); id. at 31, ¶¶ 52, 55 (noting that Ms. “Reed developed\\nand ran” the TTP, and in that role, she “discovered that KeyPoint management repeatedly\\nfalsified corrective action reports by fabricating justifications for the violations”); id. at\\n33, ¶ 78 (explaining that Ms. Reed’s job “allowed her to review investigators’ work” and\\n“compile[] extensive records of [improper] investigations”); id. at 61, ¶ 165 (alleging that\\nwhen extra compliance work was needed, KeyPoint “occasionally tasked [Ms. Reed] with\\nextra audits of investigators”); id. at 84, ¶ 228 (“Reed was assigned to determine the\\nnature of the chronic infractions.”); id. at 86, ¶¶ 231–232 (pointing out that “[i]n the\\ncourse of her duties, Reed discovered that certain investigators were” circumventing\\nOPM requirements); id. at 90, ¶ 260 (“Reed was tasked with investigating . . . each\\ninvestigator’s high frequency of telephone testimonies.”).\\n\\n 82\\n\\fcomplaint specifies that Ms. “Reed and her staff reported [certain]\\n\\nviolations.” Id. at 78, ¶ 207 (emphasis added); see also id. at 76, 80, ¶¶\\n\\n203, 210. That her staff was assisting Ms. Reed in fraud detection and\\n\\nreporting activities suggests that such activities fell within the ambit of Ms.\\n\\nReed’s responsibilities as a Senior Quality Control Analyst because one\\n\\nmight reasonably infer that Ms. Reed’s staff would not be assisting her in\\n\\noff-book operations or matters of personal preference, rather than duty.\\n\\nEven when Ms. Reed acted alone, the complaint suggests that she reported\\n\\nmisconduct on a regularized schedule as part of her job—averring that she\\n\\n“regularly reported [certain] infractions to her supervisor . . . by submitting\\n\\nand discussing a monthly spreadsheet.” Id. at 62, ¶ 171 (emphasis added);\\n\\nsee also id. at 86, ¶ 230. And for investigators who persistently violated\\n\\npolicies, Ms. Reed reported them “for disciplinary action by\\n\\nKeyPoint”—which strongly suggests that she had some job-related mandate\\n\\nto do so. Id. at 90, ¶ 265; see also id. at 36, ¶ 99.\\n\\n In sum, as the district court correctly observed, “[T]he monitoring and\\n\\nreporting activities described in her Complaint were exactly those activities\\n\\nMs. Reed was required to undertake . . . as a Senior Quality Control\\n\\nAnalyst.” Id. at 418–19. In other words, Ms. Reed’s complaint averments\\n\\ndo not rebut—and, indeed, tend to highlight the soundness of—the\\n\\n\\n\\n 83\\n\\fpresumption that her conduct was just part of her job.\\n\\n Ms. Reed tries to rebut this presumption by showing that she went\\n\\n“outside [her] normal chain of command to report fraudulent conduct.”\\n\\nAplt.’s Opening Br. at 37. In this regard, Ms. Reed conclusorily asserts\\n\\nthat she complained about the fraud to “people well outside her chain of\\n\\ncommand.” Id. at 41. In particular, Ms. Reed avers that she reported the\\n\\nfraud to “the OPM Contract Director . . . , the Regional Managers[,] and\\n\\ncertain Field Managers.” Aplt.’s App. at 32, ¶ 65. Her complaint also\\n\\nrefers to a conversation with “KeyPoint’s Director of Training.” Id. at\\n\\n31–32, ¶ 59. By reporting fraud to these individuals, Ms. Reed argues that\\n\\nshe “acted beyond the scope of her ordinary duties in attempting to stop\\n\\nKeyPoint’s false statements” and that “[t]he KeyPoint employees who\\n\\ndecided to fire [her] knew” as much. Id. at 108, ¶¶ 389, 396. Hence, Ms.\\n\\nReed reasons, KeyPoint knew that her reports of fraud were not part of her\\n\\njob but, instead, efforts to stop False Claims Act violations.\\n\\n KeyPoint disagrees. It says that Ms. Reed’s actions were exactly\\n\\nwhat she “was required to undertake in fulfillment of her job duties” as a\\n\\nSenior Quality Control Analyst. Aplee.’s Resp. Br. at 53 (quoting\\n\\nRamseyer, 90 F.3d at 1523). KeyPoint also denies that it was properly put\\n\\non notice of Ms. Reed’s protected activity because she ostensibly “went\\n\\n\\n\\n 84\\n\\foutside of her usual chain of command.” Id. at 55. Indeed, KeyPoint notes\\n\\nthat Ms. Reed “does not cite any binding authority for the proposition that\\n\\nalleged discussions with individuals inside the company but outside of her\\n\\nnormal reporting structure would suffice to overcome the presumption that\\n\\nshe was acting within the scope of her ordinary duties.” Id. at 56. Hence,\\n\\nKeyPoint argues that it “could not have been on notice of [Ms. Reed’s]\\n\\nallegedly protected actions.” Id. at 53.\\n\\n KeyPoint is correct that our court has never expressly held that a\\n\\ncompliance employee may put her employer on notice of her efforts to stop\\n\\nFalse Claims Act violations by reporting fraud internally but outside her\\n\\nchain of command. But other circuits have. The Ninth and D.C. Circuits,\\n\\nfor example, each have held that, under certain circumstances, a compliance\\n\\nemployee may meet the notice element of retaliation by pleading that her\\n\\nemployer knew that she had reported fraud within the company in a manner\\n\\nthat violated or went outside the established chain of command. See, e.g.,\\n\\nCampie, 862 F.3d at 897, 908 (holding that retaliation complaint by a\\n\\n“Senior Director of Global Quality Assurance” adequately pleaded notice\\n\\nbecause, inter alia, the employer knew the employee had “conversations\\n\\noutside of his chain of command regarding his concerns”); United States ex\\n\\nrel. Schweizer v. Oce N.V., 677 F.3d 1228, 1239–40 (D.C. Cir. 2012)\\n\\n\\n\\n 85\\n\\f(holding that a compliance employee’s retaliation claim survived summary\\n\\njudgment because employer knew she had “ignor[ed] ‘the chain of\\n\\ncommand’” by reporting fraud to her boss’s boss); cf. United States ex rel.\\n\\nWilliams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C. Cir.\\n\\n2004) (stating the general proposition that “when an employee acts outside\\n\\nhis normal job responsibilities or alerts a party outside the usual chain of\\n\\ncommand, such action may suffice to notify the employer that the employee\\n\\nis engaging in protected activity,” in a case in which the employee “went\\n\\noutside the company and alerted the government”).\\n\\n We need not definitively opine here, however, on the cogency of this\\n\\nprecedent. Even if Ms. Reed could legally overcome the compliance-\\n\\nemployee presumption by showing that she went outside of the chain of\\n\\ncommand to report fraud, her complaint averments do not plausibly\\n\\nestablish, as a factual matter, that she did so. That is, she has not pleaded\\n\\nfacts showing that she indeed went outside her ordinary reporting structure\\n\\nas a compliance officer. To be sure, we must “assume the truth of all well-\\n\\npleaded facts in the complaint[] and draw all reasonable inferences” in Ms.\\n\\nReed’s favor. Leverington v. City of Colorado Springs, 643 F.3d 719, 723\\n\\n(10th Cir. 2011) (quoting Dias v. City & County of Denver, 567 F.3d 1169,\\n\\n1178 (10th Cir. 2009)). And Ms. Reed avers that she reported fraud to\\n\\n\\n\\n 86\\n\\fpersons other than her direct supervisor—namely, “the OPM Contract\\n\\nDirector. . . , Regional Managers[,] and certain Field Managers,” as well as\\n\\nthe “Director of Training.” Aplt.’s App. at 31–32, ¶¶ 59, 65. But Ms. Reed\\n\\nnever pleaded facts delineating her specific job description or defining the\\n\\nscope of her duties such that we could discern with some specificity the\\n\\ncontours of Ms. Reed’s chain of command or ordinary reporting structure\\n\\nrelated to fraud matters. Without that information, we cannot say, or\\n\\nreasonably infer, that Ms. Reed broke the chain of command or ordinary\\n\\ncommunication protocol by speaking with the Director of Training, OPM\\n\\nContract Director, Regional Managers, or Field Managers.\\n\\n For example, as a compliance officer, Ms. Reed may have been\\n\\nobliged as part of her job duties to communicate with, and seek remedial\\n\\naction from, those at KeyPoint other than her direct supervisor regarding\\n\\ninstances of employee fraud—especially if her supervisor did not\\n\\nadequately respond to her concerns. If so, that Ms. Reed turned to, for\\n\\nexample, the Regional Managers or Field Managers to address her fraud\\n\\nconcerns could not properly be viewed as an instance of Ms. Reed violating\\n\\nthe established communication protocol or chain of command. Ms. Reed’s\\n\\ncomplaint averments shed no appreciable light on whether her job\\n\\ndescription did in fact contemplate such communications beyond her direct\\n\\n\\n\\n 87\\n\\fsupervisor—much less negate this possibility.\\n\\n Tellingly, in responding to KeyPoint’s similar comments regarding\\n\\nfactual gaps in her complaint, the best that Ms. Reed seemingly could\\n\\nmuster in her Reply Brief was a plea for merciful forbearance: “With\\n\\nrespect to her retaliation claim, [Ms. Reed] is arguing that, at the motion to\\n\\ndismiss stage, she gets the benefit of the doubt.” Aplt.’s Reply Br. at 22\\n\\n(emphasis added). But the one case that she cites for support—Gee v.\\n\\nPacheco, 627 F.3d 1178 (10th Cir. 2010)—says no such thing. That case\\n\\nand other controlling decisions make quite clear that, “[t]o survive a motion\\n\\nto dismiss,” a plaintiff’s complaint averments must be factually plausible.\\n\\nId. at 1184 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). And that\\n\\nplausibility standard is satisfied “when the plaintiff pleads factual content\\n\\nthat allows the court to draw the reasonable inference that the defendant is\\n\\nliable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). As\\n\\nrelevant here, Ms. Reed had to plead facts from which we could reasonably\\n\\ninfer that she put KeyPoint on notice of her protected activity by going\\n\\noutside the established communication protocol or chain of command. But\\n\\nshe has failed to plead such facts. 21\\n\\n 21\\n Putting aside Ms. Reed’s failure to demonstrate KeyPoint’s notice through a\\nchain-of-command theory, Ms. Reed’s complaint averments do not provide sufficient\\nfacts from which we could conclude that the content of her communications with the\\n (continued...)\\n\\n 88\\n\\f The D.C. Circuit’s analysis in Schweizer offers a useful contrast.\\n\\nLike Ms. Reed, the relator there was responsible for ensuring “compliance\\n\\nwith government contracts.” 677 F.3d at 1239. Upon uncovering fraud, the\\n\\nrelator voiced concerns to her supervisor and then “repeatedly disobeyed\\n\\nthe orders of . . . her supervisor[] to stop investigating” the alleged fraud.\\n\\nId. In fact, the relator went over her boss’s head to his supervisor “on two\\n\\nseparate occasions.” Id. In those conversations, “she alleged a variety of\\n\\nspecific False Claims Act violations” and “made an emotional plea to\\n\\n‘sav[e] the company’ from ‘legal trouble.’” Id. at 1239–40 (alteration in\\n\\n 21\\n (...continued)\\nidentified KeyPoint officials would have put KeyPoint on notice that she was doing\\nsomething more than her job. For example, regarding Ms. Reed’s conversation with the\\n“OPM Contract Director,” we do not know which “concerns” she voiced or whether\\nvoicing those unspecified concerns was inconsistent with her job duties. Aplt.’s App. at\\n32, ¶ 65. It is the same story with Ms. Reed’s discussions with “the Regional Managers\\nand certain Field Managers.” Id. And, as to the Director of Training, we are especially\\nhard-pressed to see how Ms. Reed’s communications with that official would have alerted\\nKeyPoint to the fact that she was seeking to prevent the company from committing a\\nviolation the False Claims Act. Specifically, Ms. Reed’s complaint speaks of the\\nproblems that the Director of Training brought to Ms. Reed’s attention—not\\nthe other way around. See id. at 32, ¶¶ 60–63. That the Director of Training reported\\nproblems to Ms. Reed tells us nothing about whether KeyPoint knew of Ms. Reed’s\\nefforts to stop a False Claims Act violation. Therefore, her complaint averments\\nregarding the content of her communications with the identified KeyPoint officials do not\\naid her argument that KeyPoint was on notice of her protected activity. Moreover, lest\\nthere be any doubt, Ms. Reed’s averments also cannot support a reasonable inference that\\nher reports of fraud to her direct supervisor were outside her ordinary job duties. In fact,\\nthe complaint suggests otherwise. Recall that Ms. Reed often reported violations “to her\\nsupervisor . . . by submitting and discussing a monthly spreadsheet.” Id. at 62, ¶ 171.\\nMs. Reed’s descriptions of these meetings with her direct supervisor strongly suggest that\\nshe was just doing her “regular monthly duties.” Id. at 38, ¶ 127.\\n\\n 89\\n\\foriginal). Some weeks later, “[t]he company fired” the relator. Id. at 1240.\\n\\nHer termination letter specified that she was fired for “‘refusing to follow\\n\\norders’ and ignoring ‘the chain of command.’” Id. From this evidence, the\\n\\nD.C. Circuit held that the relator’s “factual allegations [were] sufficient to\\n\\novercome ‘the presumption that [she was] merely acting in accordance with\\n\\n[her] employment obligations.’” Id. (second and third alterations in\\n\\noriginal) (quoting Williams, 389 F.3d at 1261).\\n\\n Measured against the allegations in Schweizer, the paucity of the\\n\\nfactual content in Ms. Reed’s complaint averments is patent. Unlike in\\n\\nSchweizer, we have no specifically pleaded facts here indicating that Ms.\\n\\nReed violated the chain of command in reporting suspected fraud to\\n\\nKeyPoint officials other than her direct supervisor. Whereas the relator in\\n\\nSchweizer was ordered to stop investigating the fraud, Ms. Reed was\\n\\n“tasked with extra audits of investigators.” Aplt.’s App. at 61, ¶ 165. And\\n\\nwhile the employer in Schweizer fired the relator for “failing to follow\\n\\norders and the chain of command,” 677 F.3d at 1240, we lack any\\n\\nspecific—much less express—basis in Ms. Reed’s complaint from which to\\n\\ninfer that Ms. Reed’s activities in reporting suspected fraud, in her capacity\\n\\nas a compliance officer, violated KeyPoint’s established communication\\n\\nprotocols or broke her chain of command. Simply put, Ms. Reed’s\\n\\n\\n\\n 90\\n\\fcomplaint averments fail to rebut the presumption that her actions were just\\n\\ndoing her job.\\n\\n * * *\\n\\n In summary, Ms. Reed has the burden of pleading sufficient facts to\\n\\nshow that KeyPoint knew of her protected activity. See McBride, 688 F.3d\\n\\nat 704. To do so, she must overcome the presumption that her internal\\n\\nreports of fraud were part of her job as a Senior Quality Control Analyst.\\n\\nThis she cannot do. Accordingly, we hold that Ms. Reed has failed to\\n\\nadequately allege that KeyPoint was on notice of her efforts to stop its\\n\\nalleged False Claims Act violations. Consequently, her retaliation claim\\n\\nfails.\\n\\n IV\\n\\n For the reasons stated above, we VACATE the district court’s\\n\\njudgment and order insofar as it granted summary judgment on Ms. Reed’s\\n\\nqui tam claims. We AFFIRM the district court’s order insofar as it\\n\\n\\n\\n\\n 91\\n\\fdismissed Ms. Reed’s retaliation claim. And we REMAND for further\\n\\nproceedings consistent with this opinion. 22\\n\\n\\n\\n\\n 22\\n We also GRANT KeyPoint’s unopposed motion to seal Volumes II\\nthrough VI of its unredacted supplemental appendix. KeyPoint filed two versions\\nof its seven-volume supplemental appendix, one redacted and one unredacted.\\nKeyPoint moves to seal Volumes II through VI of the unredacted materials, which\\ninclude OPM’s contract with KeyPoint and OPM’s Investigator’s Handbook. The\\npublic has a “right of access to judicial records.” Eugene S. v. Horizon Blue\\nCross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011); 10 TH C IR . R.\\n30.1(D). To seal court records and thus impair that right, a party “must articulate\\na real and substantial interest that justifies depriving the public of access to the\\nrecords that inform our decision-making process.” Helm v. Kansas, 656 F.3d\\n1277, 1292 (10th Cir. 2011). Three considerations lead us to conclude that\\nsealing is appropriate here. First, KeyPoint has articulated a strong\\nnational-security interest in sealing. The OPM contract and handbook contain\\nsensitive materials regarding the techniques used in performing background\\nchecks; revealing this information could compromise future background\\ninvestigations. Second, KeyPoint has preserved the public’s right to view judicial\\nrecords by publicly filing a redacted version of the appendices proffered under\\nseal. This publicly available—albeit redacted— version of the appendices leaves\\nthe content of the appendices visible in significant measure. Finally, sealing is\\nappropriate because the documents at issue “play[ed] no role in our resolution of\\nthis appeal.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,\\n1246 n.14 (10th Cir. 2017). Although KeyPoint’s Response Brief references the\\nunredacted materials, we did not rely on the underlying unredacted documents in\\ndeciding this appeal.\\n\\n 92\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1871,"cells":{"id":{"kind":"number","value":4605644,"string":"4,605,644"},"name":{"kind":"string","value":"KROMA MAKEUP EU, LLC, a United Kingdom Limited Liability Company, Plaintiff-Appellant, v. BOLDFACE LICENSING + BRANDING, INC., a Nevada Corporation, Kimberly Kardashian, a California Resident, Kourtney Kardashian, a California Resident, Khloe Kardashian, a California Resident, BY Lee Tillett, Inc., a Florida Corporation Defendants-Appellee."},"name_abbreviation":{"kind":"string","value":"Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc."},"decision_date":{"kind":"string","value":"2019-04-01"},"docket_number":{"kind":"string","value":"17-14211"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Dubina, Goldberg\", \"parties\": \"\", \"opinions\": [{\"author\": \"GOLDBERG, Judge\", \"type\": \"010combined\", \"text\": \"Case: 17-14211 Date Filed: 04/01/2019 Page: 1 of 13\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14211\\n ________________________\\n\\n D.C. Docket No. 6:14-cv-01551-PGB-GJK\\n\\nKROMA MAKEUP EU, LLC,\\na United Kingdom Limited Liability Company,\\n\\n Plaintiff-Appellant,\\n\\n versus\\n\\nBOLDFACE LICENSING + BRANDING, INC.,\\na Nevada Corporation,\\nKIMBERLY KARDASHIAN,\\na California resident,\\nKOURTNEY KARDASHIAN,\\na California resident,\\nKHLOE KARDASHIAN,\\na California resident,\\nBY LEE TILLETT, INC.,\\na Florida Corporation\\n\\n Defendants-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 2 of 13\\n\\n\\nBefore MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.\\n\\nGOLDBERG, Judge:\\n\\n Plaintiff-Appellant Kroma Makeup EU, LLC (“Kroma EU”) appeals the\\n\\ndistrict court’s grant of summary judgment based on its finding that Kroma EU\\n\\nlacked standing to enforce the KROMA trademark. Because Kroma EU does not\\n\\nhave sufficient rights in the mark to sue under the Lanham Act, we affirm the\\n\\njudgment of the district court.\\n\\n BACKGROUND\\n\\n Kroma EU is the former European distributor of cosmetics products using the\\n\\nfederally registered mark, KROMA. The owner and registrant of the mark is By Lee\\n\\nTillett, Inc. (“Tillett”) and the rights to use the KROMA mark in the United States\\n\\nrest solely with Tillett. In October 2012, Tillett granted an exclusive license to\\n\\nKroma EU to import, sell, and distribute KROMA products in Europe, and to use\\n\\nthe KROMA mark in furtherance of its business. As part of the licensing agreement,\\n\\nTillett guaranteed that it owned the KROMA mark and would hold Kroma EU\\n\\nharmless from any judgments against Tillett based on the mark. Tillett retained the\\n\\nright to use the KROMA mark in the United States.\\n\\n\\n\\n\\n*\\n Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by\\ndesignation.\\n 2\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 3 of 13\\n\\n\\n Defendant-Appellees—the Kardashian sisters—were celebrity endorsers of a\\n\\ncosmetic line called “Khroma Beauty,” sold and manufactured by Defendant\\n\\nBoldface Licensing & Branding, Inc. (“Boldface”). The Kardashians claim that they\\n\\nhad no personal knowledge of the KROMA trademark until an entertainment news\\n\\nwebsite, TMZ, published an article about the Kardashians’ potential infringement.\\n\\nHowever, before the Khroma Beauty line launched, Boldface had purportedly\\n\\nconducted a trademark search that revealed the existence of the KROMA mark. The\\n\\nKardashians claim that they did not receive this information. Boldface sought to\\n\\nregister the KHROMA or KARDASHIAN KHROMA mark with the U.S. Patent\\n\\nand Trademark Office, but registration was denied because of likelihood of\\n\\nconfusion with the previously registered KROMA mark.\\n\\n After the Khroma line was released, Boldface sought a declaratory judgment\\n\\nin California federal court that Boldface did not infringe the KROMA trademark.\\n\\nThere, Tillett filed a trademark infringement counterclaim, adding the Kardashians\\n\\nas counterclaim defendants. The California district court granted Tillett’s motion\\n\\nfor a preliminary injunction against Boldface, finding that Tillett had demonstrated\\n\\na likelihood of success on the trademark infringement claim. Boldface Licensing +\\n\\nBranding v. By Lee Tillett, Inc., 940 F. Supp. 2d 1178 (C.D. Cal. 2013). Thereafter,\\n\\nBoldface rebranded the product line to “Kardashian Beauty” and the parties settled\\n\\n\\n\\n\\n 3\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 4 of 13\\n\\n\\nthe dispute. Kroma was not a party to the California action and did not receive a\\n\\nshare of the settlement recovery from Tillett.\\n\\n Kroma EU subsequently filed this action in the Middle District of Florida\\n\\nagainst Boldface and the Kardashians, alleging that Boldface directly infringed the\\n\\nKROMA trademark under common law trademark infringement and the Lanham\\n\\nAct by distributing “Khroma” branded cosmetics in Europe, and that the\\n\\nKardashians were vicariously liable for Boldface’s infringement. Kroma EU also\\n\\nbrought claims against Tillett, alleging a cause of action for promissory estoppel. As\\n\\nto the promissory estoppel claim, the district court held in an earlier order that under\\n\\nFlorida law, a foreign licensee could not state a claim for promissory estoppel against\\n\\nits licensor; however, Kroma EU was able to proceed against Tillett under a breach\\n\\nof contract theory. Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, Inc.,\\n\\nNo. 6:14-cv-1551-ORL, 2015 WL 1708757, at *1 (M.D. Fla. Apr. 15, 2015).\\n\\n The Kardashians moved for summary judgment arguing that Kroma EU did\\n\\nnot have the requisite standing to bring the infringement action and that the\\n\\ntrademark infringement cause of action was barred by claim preclusion. Kroma EU\\n\\nalso moved for partial summary judgment on the issue of liability. Earlier in the\\n\\nlitigation, Tillett successfully moved to compel arbitration and Kroma EU’s claim\\n\\nagainst Tillett remains stayed pending the arbitration.\\n\\n\\n\\n\\n 4\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 5 of 13\\n\\n\\n The district court granted the Kardashians’ motion. The court found that\\n\\nKroma EU lacked standing to sue for trademark infringement and did not reach the\\n\\nKardashians’ claim preclusion argument. Relying primarily on the licensing\\n\\nagreement between Tillett and Kroma EU, the district court held that the agreement\\n\\n“plainly authorized only Tillett to enforce the trademarks” and to “protect” the mark\\n\\n“from any attempts of illegal use,” while “Kroma EU’s sole directive was to inform\\n\\nTillett of instances of infringement.” Based on this reading, the district court\\n\\nconcluded that these provisions “plainly authorized only Tillett to enforce the\\n\\ntrademarks governed by the License Agreement.” Therefore, Kroma EU “lack[ed]\\n\\ncontractual authority, and hence standing, to pursue § 1125(a) violations against\\n\\ninfringers in its own capacity.” Based on Kroma EU’s purported lack of standing,\\n\\nthe court denied Kroma EU’s motion for partial summary judgment as moot.\\n\\n JURISDICTION\\n\\n At the time of this appeal, the district court had not yet disposed of all claims\\n\\nagainst all parties. Kroma EU’s claim against Tillett had been stayed pending\\n\\narbitration, and the district court had failed to enter a default judgment as to\\n\\nBoldface, which was served with process but had never appeared. Instead of\\n\\ndismissing the appeal for lack of jurisdiction, however, we gave Kroma EU the\\n\\nopportunity to request certification of the summary judgment order from the district\\n\\ncourt under Rule 54(b). Order, Kroma Makeup EU, LLC v. Boldface Licensing &\\n\\n\\n 5\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 6 of 13\\n\\n\\nBranding, Inc., et al., No. 17-14211 (11th Cir. Feb. 5, 2019). A Rule 54(b) judgment\\n\\nhas now been entered as to the claims against the Kardashians and final judgment\\n\\nwas entered in favor of the Kardashians. Rule 54(b) Judgment, Kroma Makeup EU,\\n\\nLLC v. Boldface Licensing & Branding, Inc., et al., 6:14–cv–1551, ECF No. 172\\n\\n(M.D. Fla. Feb. 21, 2019). The Court, then, maintains jurisdiction over this appeal.\\n\\n STANDARD OF REVIEW\\n\\n The district court’s grant of summary judgment is reviewed de novo and we\\n\\napply the same legal standards that governed the district court. Johnson v. Bd. of\\n\\nRegents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). Summary judgment\\n\\nis proper when the evidence shows “that there is no genuine dispute as to any\\n\\nmaterial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\\n\\nP. 56(a). When reviewing a grant of summary judgment, we view the evidence in\\n\\nthe light most favorable to the non-moving party and resolve all reasonable doubts\\n\\nabout the facts in favor of the non-movant. Feliciano v. City of Miami Beach, 707\\n\\nF.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, 485 F.3d 1130,\\n\\n1143 (11th Cir. 2007)). The district court’s judgment can be affirmed on any ground\\n\\nsupported by the record, regardless of the basis for the initial decision. Parks v. City\\n\\nof Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).\\n\\n\\n\\n\\n 6\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 7 of 13\\n\\n\\n ANALYSIS\\n\\n The issue before us is the extent of a licensee’s rights in a trademark\\n\\ninfringement action under Section 43(a) of the Lanham Act. While the Lanham Act\\n\\ntypically evokes questions of standing, as a licensee, Kroma EU’s rights thereunder\\n\\nrely upon the licensing agreement it entered with Tillett. We adopt the position taken\\n\\nby the district courts in this circuit—that a licensee’s right to sue to protect the mark\\n\\n“largely depends on the rights granted to the licensee in the licensing agreement.”\\n\\nDrew Estate Holding Co. v. Fantasia Distrib., Inc., 875 F. Supp. 2d 1360, 1366 (S.D.\\n\\nFla. 2012) (quoting Hako-Med USA, Inc. v. Axiom Worldwide, Inc., No. 8:06-cv-\\n\\n1790-T-27EAJ, 2006 WL 3755328, at *6 (M.D. Fla. Nov. 15, 2006)). See also Aceto\\n\\nCorp. v. TherapeuticsMD, Inc., 953 F. Supp. 2d 1269, 1279 (S.D. Fla. 2013)\\n\\n(“[S]tanding to sue depends largely on the rights granted to the licensee under the\\n\\nlicensing agreement.”).\\n\\n Kroma EU disputes the district court’s ruling that it lacks the requisite\\n\\nstanding to bring an infringement claim under the Lanham Act. The Lanham Act\\n\\nprovides a cause of action against “[a]ny person who, on or in connection with any\\n\\ngoods or services, . . . uses in commerce any word, term, name, symbol, or device,\\n\\nor any combination thereof, . . . [which] is likely to cause confusion . . . as to the\\n\\naffiliation, connection, or association of such person with another person, or as to\\n\\nthe origin, sponsorship, or approval of his or her goods, services, or commercial\\n\\n\\n 7\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 8 of 13\\n\\n\\nactivities by another person.” 15 U.S.C. § 1125(a)(1). The statute affords a cause\\n\\nof action to “any person who believes that he or she is likely to be damaged.” Id.\\n\\nBut, despite this broad language, 1125(a) does not get “such an expansive reading”\\n\\nso as to allow “all factually injured plaintiffs to recover.” Lexmark Int’l, Inc v. Static\\n\\nControl Components, Inc., 572 U.S. 118, 129 (2014) (quoting Holmes v. Sec. Inv'r\\n\\nProt. Corp., 503 U.S. 258, 266 (1992)). This is especially true where, as here, a\\n\\nlicensing agreement between two parties governs each party’s entitlement to\\n\\ninfringement claims.\\n\\n The court below focused its attention on whether the license agreement\\n\\nbetween Tillett and Kroma EU conferred adequate standing on Kroma EU to bring\\n\\na claim under Section 1125(a). But, the question before us is not that of traditional\\n\\nstanding. Indeed, it is “not [of] standing at all.” City of Miami v. Bank of Am. Corp.,\\n\\n800 F.3d 1262, 1276 (11th Cir. 2015), vacated on other grounds, 137 S. Ct. 1296\\n\\n(2017). Rather, it is whether the statute “grants the plaintiff the cause of action that\\n\\nhe asserts.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017). See\\n\\nalso Lexmark, 572 U.S. at 128 n.4. (“We have on occasion referred to this inquiry\\n\\nas ‘statutory standing’ and treated it as effectively jurisdictional. That label is an\\n\\nimprovement over the language of ‘prudential standing,’ since it correctly places the\\n\\nfocus on the statute. But it, too, is misleading, since the absence of a valid . . . cause\\n\\nof action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or\\n\\n\\n 8\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 9 of 13\\n\\n\\nconstitutional power to adjudicate the case.” (internal quotation marks and citations\\n\\nomitted)). In other words, does the licensing agreement between Tillett and Kroma\\n\\nEU give Kroma EU, the licensee, sufficient “rights in the name” to sue under the\\n\\nLanham Act? Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d\\n\\n1396, 1412 (11th Cir. 1998).\\n\\n The answer is no.\\n\\n To start, “a statutory cause of action extends only to plaintiffs whose interests\\n\\n‘fall within the zone of interest protected by the law invoked.’” Lexmark, 572 U.S.\\n\\nat 129 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The licensing agreement\\n\\naffords rights and imposes obligations on the parties relating to the enforcement of\\n\\nany trademark claims. As such, there is little dispute between the parties that we\\n\\nturn to that agreement to determine if Kroma’s interests fall within the zone of\\n\\ninterest protected by the Lanham Act. In so doing, we fall back on basic principles\\n\\nof contract interpretation and “construe the agreement as a whole,” Westport Ins.\\n\\nCorp. v. Tuskegee Newspapers, Inc., 402 F.3d 1161, 1164 (11th Cir. 2005), careful\\n\\nto afford the plain language meaning of “each and every word [the agreement]\\n\\ncontains,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556\\n\\nF.3d 1232, 1242 (11th Cir. 2009).\\n\\n Here, applying the licensing agreement to this inquiry is a straightforward\\n\\nexercise. The plain language of the agreement demonstrates the parties’ intent for\\n\\n\\n 9\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 10 of 13\\n\\n\\nTillett to retain all ownership and enforcement rights. Kroma EU—while it may\\n\\nhave other rights under the agreement—does not possess the ability to assert its\\n\\nrights in the mark in this proceeding.\\n\\n There are two integral provisions of the licensing agreement between Tillett\\n\\nand Kroma EU as they relate to trademark infringement. First, and in no uncertain\\n\\nterms, ownership of the mark is reserved to Tillett. Tillett retains the KROMA\\n\\ntrademark as its “exclusive and inalienable property” and “reserves the right to\\n\\nassign/transfer it to any individual person or legal entity.” Tethered to the ownership\\n\\nprovision, the agreement requires that Tillet “protect [the trademark] properly from\\n\\nany attempts of illegal use, to the best of his knowledge.” Should any infringement\\n\\noccur, Tillett would be required to “guarantee[] [Kroma EU] against any claims . . .\\n\\nconcerning [the mark’s] intellectual property rights.” And even if there were any\\n\\ndoubt about the agreement’s terms as they relate to Tillett’s enforcement obligation,\\n\\nthe owner of Tillett, Aglaia Lee Rodriguez, explained in a declaration to the district\\n\\ncourt that these provisions were created with the intent to retain Tillett’s enforcement\\n\\npower over the KROMA mark:\\n\\n\\n [M]y Company’s intention was to allow [Kroma EU] to advertise and\\n sell our Kroma products in Europe, but at the same time to retain for\\n my Company all rights to the KROMA trademark, including the\\n exclusive right to protect and enforce the KROMA trademark in any\\n infringement actions. I wanted my Company and its lawyers to\\n exclusively control the enforcement of the KROMA trademark,\\n\\n\\n 10\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 11 of 13\\n\\n\\n because infringement actions and the publicity surrounding them can\\n have lasting effects on the trademark.\\n\\n The issue boils down to Kroma EU’s rights pursuant to the agreement—and\\n\\nspecifically, if an explicit obligation on Tillett to protect against the mark’s\\n\\ninfringement precludes Kroma EU’s enforcement powers against the same\\n\\ninfringement. Certainly, Kroma EU maintained the exclusive right to use the mark\\n\\n“for advertising purposes and for the purpose of Goods sale and promotion” in\\n\\nEurope. But importantly, Section 4.3.2 only vested Kroma EU with the obligation\\n\\nto “inform [Tillett] of any illegal use of the trademark,” prompting Tillett to file suit\\n\\nagainst the infringer—at which point Tillett would be required to compensate\\n\\nKroma for its losses resulting from the infringement. These provisions read together\\n\\nindicate that Tillett alone has the exclusive right to sue for infringement. Otherwise,\\n\\nas the Kardashians point out, there would have been little need for the agreement to\\n\\nrequire Tillett to compensate Kroma EU for any loss from the infringement. And in\\n\\nconcert with the “time-honored maxim of construction, expressio unius est exclusio\\n\\nalterius, the inclusion of specific things implies the exclusion of those not\\n\\nmentioned,” Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298, 1303 (11th\\n\\nCir. 2003), these provisions “manifest the [parties’] ability to clearly and precisely\\n\\ndelegate and limit authority” over infringement claims, In re Celotex Corp., 487 F.3d\\n\\n1320, 1334 (11th Cir. 2007). The licensing agreement—and at its core, Kroma EU’s\\n\\n\\n\\n 11\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 12 of 13\\n\\n\\nexclusion from any trademark protection rights coupled with Tillett’s explicit\\n\\nenforcement power—does just that.\\n\\n And contrary to Kroma EU’s suggestion that the Kardashians’ interpretation\\n\\nof the agreement implies that Kroma EU ceded to Tillett “any” or “every last shred”\\n\\nof Kroma’s “ability to seek legal recourse”—our reading of the licensing agreement\\n\\nmakes no such inference. The agreement—as understood by both parties—obliges\\n\\nTillett to indemnify Kroma EU for monetary losses caused by any infringement.\\n\\nSurely, Tillett’s failure to do so would potentially raise a cogent breach of contract\\n\\ncause of action. As testament to that available recourse, that is exactly what Kroma\\n\\nEU did when it brought a breach of contract claim for Tillett’s alleged failure to\\n\\ncompensate Kroma in the California litigation. Kroma EU, then, is not left without\\n\\na “shred” of its ability to seek legal recourse based on its rights in the mark.\\n\\n Our sister courts of appeals have agreed with the general sentiment that a\\n\\nlicense agreement between two parties can limit a licensee’s ability to bring a\\n\\nLanham Act claim. For example, in Finance Investments Co. (Bermuda) v. Geberit\\n\\nAG, 165 F.3d 526 (7th Cir. 1998), the licensee there was permitted to sue on its own\\n\\nbehalf only if the licensor declined to sue after it was notified of the infringement.\\n\\nOtherwise, per the agreement, the licensee’s sole recourse was to notify the licensor\\n\\nof any infringing acts. Id. at 532. Thus, “[b]ecause the license [was] the sole source\\n\\n\\n\\n\\n 12\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 13 of 13\\n\\n\\ngiving the plaintiffs any interest in the [] mark,” when the licensee failed to follow\\n\\nthese procedures, it was “strip[ped] . . . of the right to raise a § 43(a) claim.” Id.\\n\\n The same can be said for Kroma EU. The licensing agreement plainly\\n\\nauthorized Tillett to file suit against infringers. Kroma EU was limited in its\\n\\navailable recourse: it was assigned limited rights to the KROMA mark and the\\n\\nagreement clearly delineated its only available recourse regarding trademark\\n\\ninfringement. Therefore, the licensing agreement does not give Kroma EU sufficient\\n\\n“rights in the name” to sue under the Lanham Act.\\n\\n Accordingly, we affirm the judgment of the district court.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4382897/\", \"author_raw\": \"GOLDBERG, Judge\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"DUBINA"},"judge3":{"kind":"string","value":"GOLDBERG"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4605644/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: KROMA MAKEUP EU, LLC, a United Kingdom Limited Liability Company, Plaintiff-Appellant, v. BOLDFACE LICENSING + BRANDING, INC., a Nevada Corporation, Kimberly Kardashian, a California Resident, Kourtney Kardashian, a California Resident, Khloe Kardashian, a California Resident, BY Lee Tillett, Inc., a Florida Corporation Defendants-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14211 Date Filed: 04/01/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14211\n ________________________\n\n D.C. Docket No. 6:14-cv-01551-PGB-GJK\n\nKROMA MAKEUP EU, LLC,\na United Kingdom Limited Liability Company,\n\n Plaintiff-Appellant,\n\n versus\n\nBOLDFACE LICENSING + BRANDING, INC.,\na Nevada Corporation,\nKIMBERLY KARDASHIAN,\na California resident,\nKOURTNEY KARDASHIAN,\na California resident,\nKHLOE KARDASHIAN,\na California resident,\nBY LEE TILLETT, INC.,\na Florida Corporation\n\n Defendants-Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 1, 2019)\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 2 of 13\n\n\nBefore MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.\n\nGOLDBERG, Judge:\n\n Plaintiff-Appellant Kroma Makeup EU, LLC (“Kroma EU”) appeals the\n\ndistrict court’s grant of summary judgment based on its finding that Kroma EU\n\nlacked standing to enforce the KROMA trademark. Because Kroma EU does not\n\nhave sufficient rights in the mark to sue under the Lanham Act, we affirm the\n\njudgment of the district court.\n\n BACKGROUND\n\n Kroma EU is the former European distributor of cosmetics products using the\n\nfederally registered mark, KROMA. The owner and registrant of the mark is By Lee\n\nTillett, Inc. (“Tillett”) and the rights to use the KROMA mark in the United States\n\nrest solely with Tillett. In October 2012, Tillett granted an exclusive license to\n\nKroma EU to import, sell, and distribute KROMA products in Europe, and to use\n\nthe KROMA mark in furtherance of its business. As part of the licensing agreement,\n\nTillett guaranteed that it owned the KROMA mark and would hold Kroma EU\n\nharmless from any judgments against Tillett based on the mark. Tillett retained the\n\nright to use the KROMA mark in the United States.\n\n\n\n\n*\n Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by\ndesignation.\n 2\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 3 of 13\n\n\n Defendant-Appellees—the Kardashian sisters—were celebrity endorsers of a\n\ncosmetic line called “Khroma Beauty,” sold and manufactured by Defendant\n\nBoldface Licensing & Branding, Inc. (“Boldface”). The Kardashians claim that they\n\nhad no personal knowledge of the KROMA trademark until an entertainment news\n\nwebsite, TMZ, published an article about the Kardashians’ potential infringement.\n\nHowever, before the Khroma Beauty line launched, Boldface had purportedly\n\nconducted a trademark search that revealed the existence of the KROMA mark. The\n\nKardashians claim that they did not receive this information. Boldface sought to\n\nregister the KHROMA or KARDASHIAN KHROMA mark with the U.S. Patent\n\nand Trademark Office, but registration was denied because of likelihood of\n\nconfusion with the previously registered KROMA mark.\n\n After the Khroma line was released, Boldface sought a declaratory judgment\n\nin California federal court that Boldface did not infringe the KROMA trademark.\n\nThere, Tillett filed a trademark infringement counterclaim, adding the Kardashians\n\nas counterclaim defendants. The California district court granted Tillett’s motion\n\nfor a preliminary injunction against Boldface, finding that Tillett had demonstrated\n\na likelihood of success on the trademark infringement claim. Boldface Licensing +\n\nBranding v. By Lee Tillett, Inc., 940 F. Supp. 2d 1178 (C.D. Cal. 2013). Thereafter,\n\nBoldface rebranded the product line to “Kardashian Beauty” and the parties settled\n\n\n\n\n 3\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 4 of 13\n\n\nthe dispute. Kroma was not a party to the California action and did not receive a\n\nshare of the settlement recovery from Tillett.\n\n Kroma EU subsequently filed this action in the Middle District of Florida\n\nagainst Boldface and the Kardashians, alleging that Boldface directly infringed the\n\nKROMA trademark under common law trademark infringement and the Lanham\n\nAct by distributing “Khroma” branded cosmetics in Europe, and that the\n\nKardashians were vicariously liable for Boldface’s infringement. Kroma EU also\n\nbrought claims against Tillett, alleging a cause of action for promissory estoppel. As\n\nto the promissory estoppel claim, the district court held in an earlier order that under\n\nFlorida law, a foreign licensee could not state a claim for promissory estoppel against\n\nits licensor; however, Kroma EU was able to proceed against Tillett under a breach\n\nof contract theory. Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, Inc.,\n\nNo. 6:14-cv-1551-ORL, 2015 WL 1708757, at *1 (M.D. Fla. Apr. 15, 2015).\n\n The Kardashians moved for summary judgment arguing that Kroma EU did\n\nnot have the requisite standing to bring the infringement action and that the\n\ntrademark infringement cause of action was barred by claim preclusion. Kroma EU\n\nalso moved for partial summary judgment on the issue of liability. Earlier in the\n\nlitigation, Tillett successfully moved to compel arbitration and Kroma EU’s claim\n\nagainst Tillett remains stayed pending the arbitration.\n\n\n\n\n 4\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 5 of 13\n\n\n The district court granted the Kardashians’ motion. The court found that\n\nKroma EU lacked standing to sue for trademark infringement and did not reach the\n\nKardashians’ claim preclusion argument. Relying primarily on the licensing\n\nagreement between Tillett and Kroma EU, the district court held that the agreement\n\n“plainly authorized only Tillett to enforce the trademarks” and to “protect” the mark\n\n“from any attempts of illegal use,” while “Kroma EU’s sole directive was to inform\n\nTillett of instances of infringement.” Based on this reading, the district court\n\nconcluded that these provisions “plainly authorized only Tillett to enforce the\n\ntrademarks governed by the License Agreement.” Therefore, Kroma EU “lack[ed]\n\ncontractual authority, and hence standing, to pursue § 1125(a) violations against\n\ninfringers in its own capacity.” Based on Kroma EU’s purported lack of standing,\n\nthe court denied Kroma EU’s motion for partial summary judgment as moot.\n\n JURISDICTION\n\n At the time of this appeal, the district court had not yet disposed of all claims\n\nagainst all parties. Kroma EU’s claim against Tillett had been stayed pending\n\narbitration, and the district court had failed to enter a default judgment as to\n\nBoldface, which was served with process but had never appeared. Instead of\n\ndismissing the appeal for lack of jurisdiction, however, we gave Kroma EU the\n\nopportunity to request certification of the summary judgment order from the district\n\ncourt under Rule 54(b). Order, Kroma Makeup EU, LLC v. Boldface Licensing &\n\n\n 5\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 6 of 13\n\n\nBranding, Inc., et al., No. 17-14211 (11th Cir. Feb. 5, 2019). A Rule 54(b) judgment\n\nhas now been entered as to the claims against the Kardashians and final judgment\n\nwas entered in favor of the Kardashians. Rule 54(b) Judgment, Kroma Makeup EU,\n\nLLC v. Boldface Licensing & Branding, Inc., et al., 6:14–cv–1551, ECF No. 172\n\n(M.D. Fla. Feb. 21, 2019). The Court, then, maintains jurisdiction over this appeal.\n\n STANDARD OF REVIEW\n\n The district court’s grant of summary judgment is reviewed de novo and we\n\napply the same legal standards that governed the district court. Johnson v. Bd. of\n\nRegents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). Summary judgment\n\nis proper when the evidence shows “that there is no genuine dispute as to any\n\nmaterial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\n\nP. 56(a). When reviewing a grant of summary judgment, we view the evidence in\n\nthe light most favorable to the non-moving party and resolve all reasonable doubts\n\nabout the facts in favor of the non-movant. Feliciano v. City of Miami Beach, 707\n\nF.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, 485 F.3d 1130,\n\n1143 (11th Cir. 2007)). The district court’s judgment can be affirmed on any ground\n\nsupported by the record, regardless of the basis for the initial decision. Parks v. City\n\nof Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).\n\n\n\n\n 6\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 7 of 13\n\n\n ANALYSIS\n\n The issue before us is the extent of a licensee’s rights in a trademark\n\ninfringement action under Section 43(a) of the Lanham Act. While the Lanham Act\n\ntypically evokes questions of standing, as a licensee, Kroma EU’s rights thereunder\n\nrely upon the licensing agreement it entered with Tillett. We adopt the position taken\n\nby the district courts in this circuit—that a licensee’s right to sue to protect the mark\n\n“largely depends on the rights granted to the licensee in the licensing agreement.”\n\nDrew Estate Holding Co. v. Fantasia Distrib., Inc., 875 F. Supp. 2d 1360, 1366 (S.D.\n\nFla. 2012) (quoting Hako-Med USA, Inc. v. Axiom Worldwide, Inc., No. 8:06-cv-\n\n1790-T-27EAJ, 2006 WL 3755328, at *6 (M.D. Fla. Nov. 15, 2006)). See also Aceto\n\nCorp. v. TherapeuticsMD, Inc., 953 F. Supp. 2d 1269, 1279 (S.D. Fla. 2013)\n\n(“[S]tanding to sue depends largely on the rights granted to the licensee under the\n\nlicensing agreement.”).\n\n Kroma EU disputes the district court’s ruling that it lacks the requisite\n\nstanding to bring an infringement claim under the Lanham Act. The Lanham Act\n\nprovides a cause of action against “[a]ny person who, on or in connection with any\n\ngoods or services, . . . uses in commerce any word, term, name, symbol, or device,\n\nor any combination thereof, . . . [which] is likely to cause confusion . . . as to the\n\naffiliation, connection, or association of such person with another person, or as to\n\nthe origin, sponsorship, or approval of his or her goods, services, or commercial\n\n\n 7\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 8 of 13\n\n\nactivities by another person.” 15 U.S.C. § 1125(a)(1). The statute affords a cause\n\nof action to “any person who believes that he or she is likely to be damaged.” Id.\n\nBut, despite this broad language, 1125(a) does not get “such an expansive reading”\n\nso as to allow “all factually injured plaintiffs to recover.” Lexmark Int’l, Inc v. Static\n\nControl Components, Inc., 572 U.S. 118, 129 (2014) (quoting Holmes v. Sec. Inv'r\n\nProt. Corp., 503 U.S. 258, 266 (1992)). This is especially true where, as here, a\n\nlicensing agreement between two parties governs each party’s entitlement to\n\ninfringement claims.\n\n The court below focused its attention on whether the license agreement\n\nbetween Tillett and Kroma EU conferred adequate standing on Kroma EU to bring\n\na claim under Section 1125(a). But, the question before us is not that of traditional\n\nstanding. Indeed, it is “not [of] standing at all.” City of Miami v. Bank of Am. Corp.,\n\n800 F.3d 1262, 1276 (11th Cir. 2015), vacated on other grounds, 137 S. Ct. 1296\n\n(2017). Rather, it is whether the statute “grants the plaintiff the cause of action that\n\nhe asserts.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017). See\n\nalso Lexmark, 572 U.S. at 128 n.4. (“We have on occasion referred to this inquiry\n\nas ‘statutory standing’ and treated it as effectively jurisdictional. That label is an\n\nimprovement over the language of ‘prudential standing,’ since it correctly places the\n\nfocus on the statute. But it, too, is misleading, since the absence of a valid . . . cause\n\nof action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or\n\n\n 8\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 9 of 13\n\n\nconstitutional power to adjudicate the case.” (internal quotation marks and citations\n\nomitted)). In other words, does the licensing agreement between Tillett and Kroma\n\nEU give Kroma EU, the licensee, sufficient “rights in the name” to sue under the\n\nLanham Act? Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d\n\n1396, 1412 (11th Cir. 1998).\n\n The answer is no.\n\n To start, “a statutory cause of action extends only to plaintiffs whose interests\n\n‘fall within the zone of interest protected by the law invoked.’” Lexmark, 572 U.S.\n\nat 129 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The licensing agreement\n\naffords rights and imposes obligations on the parties relating to the enforcement of\n\nany trademark claims. As such, there is little dispute between the parties that we\n\nturn to that agreement to determine if Kroma’s interests fall within the zone of\n\ninterest protected by the Lanham Act. In so doing, we fall back on basic principles\n\nof contract interpretation and “construe the agreement as a whole,” Westport Ins.\n\nCorp. v. Tuskegee Newspapers, Inc., 402 F.3d 1161, 1164 (11th Cir. 2005), careful\n\nto afford the plain language meaning of “each and every word [the agreement]\n\ncontains,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556\n\nF.3d 1232, 1242 (11th Cir. 2009).\n\n Here, applying the licensing agreement to this inquiry is a straightforward\n\nexercise. The plain language of the agreement demonstrates the parties’ intent for\n\n\n 9\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 10 of 13\n\n\nTillett to retain all ownership and enforcement rights. Kroma EU—while it may\n\nhave other rights under the agreement—does not possess the ability to assert its\n\nrights in the mark in this proceeding.\n\n There are two integral provisions of the licensing agreement between Tillett\n\nand Kroma EU as they relate to trademark infringement. First, and in no uncertain\n\nterms, ownership of the mark is reserved to Tillett. Tillett retains the KROMA\n\ntrademark as its “exclusive and inalienable property” and “reserves the right to\n\nassign/transfer it to any individual person or legal entity.” Tethered to the ownership\n\nprovision, the agreement requires that Tillet “protect [the trademark] properly from\n\nany attempts of illegal use, to the best of his knowledge.” Should any infringement\n\noccur, Tillett would be required to “guarantee[] [Kroma EU] against any claims . . .\n\nconcerning [the mark’s] intellectual property rights.” And even if there were any\n\ndoubt about the agreement’s terms as they relate to Tillett’s enforcement obligation,\n\nthe owner of Tillett, Aglaia Lee Rodriguez, explained in a declaration to the district\n\ncourt that these provisions were created with the intent to retain Tillett’s enforcement\n\npower over the KROMA mark:\n\n\n [M]y Company’s intention was to allow [Kroma EU] to advertise and\n sell our Kroma products in Europe, but at the same time to retain for\n my Company all rights to the KROMA trademark, including the\n exclusive right to protect and enforce the KROMA trademark in any\n infringement actions. I wanted my Company and its lawyers to\n exclusively control the enforcement of the KROMA trademark,\n\n\n 10\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 11 of 13\n\n\n because infringement actions and the publicity surrounding them can\n have lasting effects on the trademark.\n\n The issue boils down to Kroma EU’s rights pursuant to the agreement—and\n\nspecifically, if an explicit obligation on Tillett to protect against the mark’s\n\ninfringement precludes Kroma EU’s enforcement powers against the same\n\ninfringement. Certainly, Kroma EU maintained the exclusive right to use the mark\n\n“for advertising purposes and for the purpose of Goods sale and promotion” in\n\nEurope. But importantly, Section 4.3.2 only vested Kroma EU with the obligation\n\nto “inform [Tillett] of any illegal use of the trademark,” prompting Tillett to file suit\n\nagainst the infringer—at which point Tillett would be required to compensate\n\nKroma for its losses resulting from the infringement. These provisions read together\n\nindicate that Tillett alone has the exclusive right to sue for infringement. Otherwise,\n\nas the Kardashians point out, there would have been little need for the agreement to\n\nrequire Tillett to compensate Kroma EU for any loss from the infringement. And in\n\nconcert with the “time-honored maxim of construction, expressio unius est exclusio\n\nalterius, the inclusion of specific things implies the exclusion of those not\n\nmentioned,” Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298, 1303 (11th\n\nCir. 2003), these provisions “manifest the [parties’] ability to clearly and precisely\n\ndelegate and limit authority” over infringement claims, In re Celotex Corp., 487 F.3d\n\n1320, 1334 (11th Cir. 2007). The licensing agreement—and at its core, Kroma EU’s\n\n\n\n 11\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 12 of 13\n\n\nexclusion from any trademark protection rights coupled with Tillett’s explicit\n\nenforcement power—does just that.\n\n And contrary to Kroma EU’s suggestion that the Kardashians’ interpretation\n\nof the agreement implies that Kroma EU ceded to Tillett “any” or “every last shred”\n\nof Kroma’s “ability to seek legal recourse”—our reading of the licensing agreement\n\nmakes no such inference. The agreement—as understood by both parties—obliges\n\nTillett to indemnify Kroma EU for monetary losses caused by any infringement.\n\nSurely, Tillett’s failure to do so would potentially raise a cogent breach of contract\n\ncause of action. As testament to that available recourse, that is exactly what Kroma\n\nEU did when it brought a breach of contract claim for Tillett’s alleged failure to\n\ncompensate Kroma in the California litigation. Kroma EU, then, is not left without\n\na “shred” of its ability to seek legal recourse based on its rights in the mark.\n\n Our sister courts of appeals have agreed with the general sentiment that a\n\nlicense agreement between two parties can limit a licensee’s ability to bring a\n\nLanham Act claim. For example, in Finance Investments Co. (Bermuda) v. Geberit\n\nAG, 165 F.3d 526 (7th Cir. 1998), the licensee there was permitted to sue on its own\n\nbehalf only if the licensor declined to sue after it was notified of the infringement.\n\nOtherwise, per the agreement, the licensee’s sole recourse was to notify the licensor\n\nof any infringing acts. Id. at 532. Thus, “[b]ecause the license [was] the sole source\n\n\n\n\n 12\n\f Case: 17-14211 Date Filed: 04/01/2019 Page: 13 of 13\n\n\ngiving the plaintiffs any interest in the [] mark,” when the licensee failed to follow\n\nthese procedures, it was “strip[ped] . . . of the right to raise a § 43(a) claim.” Id.\n\n The same can be said for Kroma EU. The licensing agreement plainly\n\nauthorized Tillett to file suit against infringers. Kroma EU was limited in its\n\navailable recourse: it was assigned limited rights to the KROMA mark and the\n\nagreement clearly delineated its only available recourse regarding trademark\n\ninfringement. Therefore, the licensing agreement does not give Kroma EU sufficient\n\n“rights in the name” to sue under the Lanham Act.\n\n Accordingly, we affirm the judgment of the district court.\n\n AFFIRMED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: KROMA MAKEUP EU, LLC, a United Kingdom Limited Liability Company, Plaintiff-Appellant, v. BOLDFACE LICENSING + BRANDING, INC., a Nevada Corporation, Kimberly Kardashian, a California Resident, Kourtney Kardashian, a California Resident, Khloe Kardashian, a California Resident, BY Lee Tillett, Inc., a Florida Corporation Defendants-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14211 Date Filed: 04/01/2019 Page: 1 of 13\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14211\\n ________________________\\n\\n D.C. Docket No. 6:14-cv-01551-PGB-GJK\\n\\nKROMA MAKEUP EU, LLC,\\na United Kingdom Limited Liability Company,\\n\\n Plaintiff-Appellant,\\n\\n versus\\n\\nBOLDFACE LICENSING + BRANDING, INC.,\\na Nevada Corporation,\\nKIMBERLY KARDASHIAN,\\na California resident,\\nKOURTNEY KARDASHIAN,\\na California resident,\\nKHLOE KARDASHIAN,\\na California resident,\\nBY LEE TILLETT, INC.,\\na Florida Corporation\\n\\n Defendants-Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 2 of 13\\n\\n\\nBefore MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.\\n\\nGOLDBERG, Judge:\\n\\n Plaintiff-Appellant Kroma Makeup EU, LLC (“Kroma EU”) appeals the\\n\\ndistrict court’s grant of summary judgment based on its finding that Kroma EU\\n\\nlacked standing to enforce the KROMA trademark. Because Kroma EU does not\\n\\nhave sufficient rights in the mark to sue under the Lanham Act, we affirm the\\n\\njudgment of the district court.\\n\\n BACKGROUND\\n\\n Kroma EU is the former European distributor of cosmetics products using the\\n\\nfederally registered mark, KROMA. The owner and registrant of the mark is By Lee\\n\\nTillett, Inc. (“Tillett”) and the rights to use the KROMA mark in the United States\\n\\nrest solely with Tillett. In October 2012, Tillett granted an exclusive license to\\n\\nKroma EU to import, sell, and distribute KROMA products in Europe, and to use\\n\\nthe KROMA mark in furtherance of its business. As part of the licensing agreement,\\n\\nTillett guaranteed that it owned the KROMA mark and would hold Kroma EU\\n\\nharmless from any judgments against Tillett based on the mark. Tillett retained the\\n\\nright to use the KROMA mark in the United States.\\n\\n\\n\\n\\n*\\n Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by\\ndesignation.\\n 2\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 3 of 13\\n\\n\\n Defendant-Appellees—the Kardashian sisters—were celebrity endorsers of a\\n\\ncosmetic line called “Khroma Beauty,” sold and manufactured by Defendant\\n\\nBoldface Licensing & Branding, Inc. (“Boldface”). The Kardashians claim that they\\n\\nhad no personal knowledge of the KROMA trademark until an entertainment news\\n\\nwebsite, TMZ, published an article about the Kardashians’ potential infringement.\\n\\nHowever, before the Khroma Beauty line launched, Boldface had purportedly\\n\\nconducted a trademark search that revealed the existence of the KROMA mark. The\\n\\nKardashians claim that they did not receive this information. Boldface sought to\\n\\nregister the KHROMA or KARDASHIAN KHROMA mark with the U.S. Patent\\n\\nand Trademark Office, but registration was denied because of likelihood of\\n\\nconfusion with the previously registered KROMA mark.\\n\\n After the Khroma line was released, Boldface sought a declaratory judgment\\n\\nin California federal court that Boldface did not infringe the KROMA trademark.\\n\\nThere, Tillett filed a trademark infringement counterclaim, adding the Kardashians\\n\\nas counterclaim defendants. The California district court granted Tillett’s motion\\n\\nfor a preliminary injunction against Boldface, finding that Tillett had demonstrated\\n\\na likelihood of success on the trademark infringement claim. Boldface Licensing +\\n\\nBranding v. By Lee Tillett, Inc., 940 F. Supp. 2d 1178 (C.D. Cal. 2013). Thereafter,\\n\\nBoldface rebranded the product line to “Kardashian Beauty” and the parties settled\\n\\n\\n\\n\\n 3\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 4 of 13\\n\\n\\nthe dispute. Kroma was not a party to the California action and did not receive a\\n\\nshare of the settlement recovery from Tillett.\\n\\n Kroma EU subsequently filed this action in the Middle District of Florida\\n\\nagainst Boldface and the Kardashians, alleging that Boldface directly infringed the\\n\\nKROMA trademark under common law trademark infringement and the Lanham\\n\\nAct by distributing “Khroma” branded cosmetics in Europe, and that the\\n\\nKardashians were vicariously liable for Boldface’s infringement. Kroma EU also\\n\\nbrought claims against Tillett, alleging a cause of action for promissory estoppel. As\\n\\nto the promissory estoppel claim, the district court held in an earlier order that under\\n\\nFlorida law, a foreign licensee could not state a claim for promissory estoppel against\\n\\nits licensor; however, Kroma EU was able to proceed against Tillett under a breach\\n\\nof contract theory. Kroma Makeup EU, Ltd. v. Boldface Licensing + Branding, Inc.,\\n\\nNo. 6:14-cv-1551-ORL, 2015 WL 1708757, at *1 (M.D. Fla. Apr. 15, 2015).\\n\\n The Kardashians moved for summary judgment arguing that Kroma EU did\\n\\nnot have the requisite standing to bring the infringement action and that the\\n\\ntrademark infringement cause of action was barred by claim preclusion. Kroma EU\\n\\nalso moved for partial summary judgment on the issue of liability. Earlier in the\\n\\nlitigation, Tillett successfully moved to compel arbitration and Kroma EU’s claim\\n\\nagainst Tillett remains stayed pending the arbitration.\\n\\n\\n\\n\\n 4\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 5 of 13\\n\\n\\n The district court granted the Kardashians’ motion. The court found that\\n\\nKroma EU lacked standing to sue for trademark infringement and did not reach the\\n\\nKardashians’ claim preclusion argument. Relying primarily on the licensing\\n\\nagreement between Tillett and Kroma EU, the district court held that the agreement\\n\\n“plainly authorized only Tillett to enforce the trademarks” and to “protect” the mark\\n\\n“from any attempts of illegal use,” while “Kroma EU’s sole directive was to inform\\n\\nTillett of instances of infringement.” Based on this reading, the district court\\n\\nconcluded that these provisions “plainly authorized only Tillett to enforce the\\n\\ntrademarks governed by the License Agreement.” Therefore, Kroma EU “lack[ed]\\n\\ncontractual authority, and hence standing, to pursue § 1125(a) violations against\\n\\ninfringers in its own capacity.” Based on Kroma EU’s purported lack of standing,\\n\\nthe court denied Kroma EU’s motion for partial summary judgment as moot.\\n\\n JURISDICTION\\n\\n At the time of this appeal, the district court had not yet disposed of all claims\\n\\nagainst all parties. Kroma EU’s claim against Tillett had been stayed pending\\n\\narbitration, and the district court had failed to enter a default judgment as to\\n\\nBoldface, which was served with process but had never appeared. Instead of\\n\\ndismissing the appeal for lack of jurisdiction, however, we gave Kroma EU the\\n\\nopportunity to request certification of the summary judgment order from the district\\n\\ncourt under Rule 54(b). Order, Kroma Makeup EU, LLC v. Boldface Licensing &\\n\\n\\n 5\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 6 of 13\\n\\n\\nBranding, Inc., et al., No. 17-14211 (11th Cir. Feb. 5, 2019). A Rule 54(b) judgment\\n\\nhas now been entered as to the claims against the Kardashians and final judgment\\n\\nwas entered in favor of the Kardashians. Rule 54(b) Judgment, Kroma Makeup EU,\\n\\nLLC v. Boldface Licensing & Branding, Inc., et al., 6:14–cv–1551, ECF No. 172\\n\\n(M.D. Fla. Feb. 21, 2019). The Court, then, maintains jurisdiction over this appeal.\\n\\n STANDARD OF REVIEW\\n\\n The district court’s grant of summary judgment is reviewed de novo and we\\n\\napply the same legal standards that governed the district court. Johnson v. Bd. of\\n\\nRegents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). Summary judgment\\n\\nis proper when the evidence shows “that there is no genuine dispute as to any\\n\\nmaterial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.\\n\\nP. 56(a). When reviewing a grant of summary judgment, we view the evidence in\\n\\nthe light most favorable to the non-moving party and resolve all reasonable doubts\\n\\nabout the facts in favor of the non-movant. Feliciano v. City of Miami Beach, 707\\n\\nF.3d 1244, 1247 (11th Cir. 2013) (quoting Skop v. City of Atlanta, 485 F.3d 1130,\\n\\n1143 (11th Cir. 2007)). The district court’s judgment can be affirmed on any ground\\n\\nsupported by the record, regardless of the basis for the initial decision. Parks v. City\\n\\nof Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995).\\n\\n\\n\\n\\n 6\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 7 of 13\\n\\n\\n ANALYSIS\\n\\n The issue before us is the extent of a licensee’s rights in a trademark\\n\\ninfringement action under Section 43(a) of the Lanham Act. While the Lanham Act\\n\\ntypically evokes questions of standing, as a licensee, Kroma EU’s rights thereunder\\n\\nrely upon the licensing agreement it entered with Tillett. We adopt the position taken\\n\\nby the district courts in this circuit—that a licensee’s right to sue to protect the mark\\n\\n“largely depends on the rights granted to the licensee in the licensing agreement.”\\n\\nDrew Estate Holding Co. v. Fantasia Distrib., Inc., 875 F. Supp. 2d 1360, 1366 (S.D.\\n\\nFla. 2012) (quoting Hako-Med USA, Inc. v. Axiom Worldwide, Inc., No. 8:06-cv-\\n\\n1790-T-27EAJ, 2006 WL 3755328, at *6 (M.D. Fla. Nov. 15, 2006)). See also Aceto\\n\\nCorp. v. TherapeuticsMD, Inc., 953 F. Supp. 2d 1269, 1279 (S.D. Fla. 2013)\\n\\n(“[S]tanding to sue depends largely on the rights granted to the licensee under the\\n\\nlicensing agreement.”).\\n\\n Kroma EU disputes the district court’s ruling that it lacks the requisite\\n\\nstanding to bring an infringement claim under the Lanham Act. The Lanham Act\\n\\nprovides a cause of action against “[a]ny person who, on or in connection with any\\n\\ngoods or services, . . . uses in commerce any word, term, name, symbol, or device,\\n\\nor any combination thereof, . . . [which] is likely to cause confusion . . . as to the\\n\\naffiliation, connection, or association of such person with another person, or as to\\n\\nthe origin, sponsorship, or approval of his or her goods, services, or commercial\\n\\n\\n 7\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 8 of 13\\n\\n\\nactivities by another person.” 15 U.S.C. § 1125(a)(1). The statute affords a cause\\n\\nof action to “any person who believes that he or she is likely to be damaged.” Id.\\n\\nBut, despite this broad language, 1125(a) does not get “such an expansive reading”\\n\\nso as to allow “all factually injured plaintiffs to recover.” Lexmark Int’l, Inc v. Static\\n\\nControl Components, Inc., 572 U.S. 118, 129 (2014) (quoting Holmes v. Sec. Inv'r\\n\\nProt. Corp., 503 U.S. 258, 266 (1992)). This is especially true where, as here, a\\n\\nlicensing agreement between two parties governs each party’s entitlement to\\n\\ninfringement claims.\\n\\n The court below focused its attention on whether the license agreement\\n\\nbetween Tillett and Kroma EU conferred adequate standing on Kroma EU to bring\\n\\na claim under Section 1125(a). But, the question before us is not that of traditional\\n\\nstanding. Indeed, it is “not [of] standing at all.” City of Miami v. Bank of Am. Corp.,\\n\\n800 F.3d 1262, 1276 (11th Cir. 2015), vacated on other grounds, 137 S. Ct. 1296\\n\\n(2017). Rather, it is whether the statute “grants the plaintiff the cause of action that\\n\\nhe asserts.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017). See\\n\\nalso Lexmark, 572 U.S. at 128 n.4. (“We have on occasion referred to this inquiry\\n\\nas ‘statutory standing’ and treated it as effectively jurisdictional. That label is an\\n\\nimprovement over the language of ‘prudential standing,’ since it correctly places the\\n\\nfocus on the statute. But it, too, is misleading, since the absence of a valid . . . cause\\n\\nof action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or\\n\\n\\n 8\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 9 of 13\\n\\n\\nconstitutional power to adjudicate the case.” (internal quotation marks and citations\\n\\nomitted)). In other words, does the licensing agreement between Tillett and Kroma\\n\\nEU give Kroma EU, the licensee, sufficient “rights in the name” to sue under the\\n\\nLanham Act? Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d\\n\\n1396, 1412 (11th Cir. 1998).\\n\\n The answer is no.\\n\\n To start, “a statutory cause of action extends only to plaintiffs whose interests\\n\\n‘fall within the zone of interest protected by the law invoked.’” Lexmark, 572 U.S.\\n\\nat 129 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The licensing agreement\\n\\naffords rights and imposes obligations on the parties relating to the enforcement of\\n\\nany trademark claims. As such, there is little dispute between the parties that we\\n\\nturn to that agreement to determine if Kroma’s interests fall within the zone of\\n\\ninterest protected by the Lanham Act. In so doing, we fall back on basic principles\\n\\nof contract interpretation and “construe the agreement as a whole,” Westport Ins.\\n\\nCorp. v. Tuskegee Newspapers, Inc., 402 F.3d 1161, 1164 (11th Cir. 2005), careful\\n\\nto afford the plain language meaning of “each and every word [the agreement]\\n\\ncontains,” Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556\\n\\nF.3d 1232, 1242 (11th Cir. 2009).\\n\\n Here, applying the licensing agreement to this inquiry is a straightforward\\n\\nexercise. The plain language of the agreement demonstrates the parties’ intent for\\n\\n\\n 9\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 10 of 13\\n\\n\\nTillett to retain all ownership and enforcement rights. Kroma EU—while it may\\n\\nhave other rights under the agreement—does not possess the ability to assert its\\n\\nrights in the mark in this proceeding.\\n\\n There are two integral provisions of the licensing agreement between Tillett\\n\\nand Kroma EU as they relate to trademark infringement. First, and in no uncertain\\n\\nterms, ownership of the mark is reserved to Tillett. Tillett retains the KROMA\\n\\ntrademark as its “exclusive and inalienable property” and “reserves the right to\\n\\nassign/transfer it to any individual person or legal entity.” Tethered to the ownership\\n\\nprovision, the agreement requires that Tillet “protect [the trademark] properly from\\n\\nany attempts of illegal use, to the best of his knowledge.” Should any infringement\\n\\noccur, Tillett would be required to “guarantee[] [Kroma EU] against any claims . . .\\n\\nconcerning [the mark’s] intellectual property rights.” And even if there were any\\n\\ndoubt about the agreement’s terms as they relate to Tillett’s enforcement obligation,\\n\\nthe owner of Tillett, Aglaia Lee Rodriguez, explained in a declaration to the district\\n\\ncourt that these provisions were created with the intent to retain Tillett’s enforcement\\n\\npower over the KROMA mark:\\n\\n\\n [M]y Company’s intention was to allow [Kroma EU] to advertise and\\n sell our Kroma products in Europe, but at the same time to retain for\\n my Company all rights to the KROMA trademark, including the\\n exclusive right to protect and enforce the KROMA trademark in any\\n infringement actions. I wanted my Company and its lawyers to\\n exclusively control the enforcement of the KROMA trademark,\\n\\n\\n 10\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 11 of 13\\n\\n\\n because infringement actions and the publicity surrounding them can\\n have lasting effects on the trademark.\\n\\n The issue boils down to Kroma EU’s rights pursuant to the agreement—and\\n\\nspecifically, if an explicit obligation on Tillett to protect against the mark’s\\n\\ninfringement precludes Kroma EU’s enforcement powers against the same\\n\\ninfringement. Certainly, Kroma EU maintained the exclusive right to use the mark\\n\\n“for advertising purposes and for the purpose of Goods sale and promotion” in\\n\\nEurope. But importantly, Section 4.3.2 only vested Kroma EU with the obligation\\n\\nto “inform [Tillett] of any illegal use of the trademark,” prompting Tillett to file suit\\n\\nagainst the infringer—at which point Tillett would be required to compensate\\n\\nKroma for its losses resulting from the infringement. These provisions read together\\n\\nindicate that Tillett alone has the exclusive right to sue for infringement. Otherwise,\\n\\nas the Kardashians point out, there would have been little need for the agreement to\\n\\nrequire Tillett to compensate Kroma EU for any loss from the infringement. And in\\n\\nconcert with the “time-honored maxim of construction, expressio unius est exclusio\\n\\nalterius, the inclusion of specific things implies the exclusion of those not\\n\\nmentioned,” Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298, 1303 (11th\\n\\nCir. 2003), these provisions “manifest the [parties’] ability to clearly and precisely\\n\\ndelegate and limit authority” over infringement claims, In re Celotex Corp., 487 F.3d\\n\\n1320, 1334 (11th Cir. 2007). The licensing agreement—and at its core, Kroma EU’s\\n\\n\\n\\n 11\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 12 of 13\\n\\n\\nexclusion from any trademark protection rights coupled with Tillett’s explicit\\n\\nenforcement power—does just that.\\n\\n And contrary to Kroma EU’s suggestion that the Kardashians’ interpretation\\n\\nof the agreement implies that Kroma EU ceded to Tillett “any” or “every last shred”\\n\\nof Kroma’s “ability to seek legal recourse”—our reading of the licensing agreement\\n\\nmakes no such inference. The agreement—as understood by both parties—obliges\\n\\nTillett to indemnify Kroma EU for monetary losses caused by any infringement.\\n\\nSurely, Tillett’s failure to do so would potentially raise a cogent breach of contract\\n\\ncause of action. As testament to that available recourse, that is exactly what Kroma\\n\\nEU did when it brought a breach of contract claim for Tillett’s alleged failure to\\n\\ncompensate Kroma in the California litigation. Kroma EU, then, is not left without\\n\\na “shred” of its ability to seek legal recourse based on its rights in the mark.\\n\\n Our sister courts of appeals have agreed with the general sentiment that a\\n\\nlicense agreement between two parties can limit a licensee’s ability to bring a\\n\\nLanham Act claim. For example, in Finance Investments Co. (Bermuda) v. Geberit\\n\\nAG, 165 F.3d 526 (7th Cir. 1998), the licensee there was permitted to sue on its own\\n\\nbehalf only if the licensor declined to sue after it was notified of the infringement.\\n\\nOtherwise, per the agreement, the licensee’s sole recourse was to notify the licensor\\n\\nof any infringing acts. Id. at 532. Thus, “[b]ecause the license [was] the sole source\\n\\n\\n\\n\\n 12\\n\\f Case: 17-14211 Date Filed: 04/01/2019 Page: 13 of 13\\n\\n\\ngiving the plaintiffs any interest in the [] mark,” when the licensee failed to follow\\n\\nthese procedures, it was “strip[ped] . . . of the right to raise a § 43(a) claim.” Id.\\n\\n The same can be said for Kroma EU. The licensing agreement plainly\\n\\nauthorized Tillett to file suit against infringers. Kroma EU was limited in its\\n\\navailable recourse: it was assigned limited rights to the KROMA mark and the\\n\\nagreement clearly delineated its only available recourse regarding trademark\\n\\ninfringement. Therefore, the licensing agreement does not give Kroma EU sufficient\\n\\n“rights in the name” to sue under the Lanham Act.\\n\\n Accordingly, we affirm the judgment of the district court.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1872,"cells":{"id":{"kind":"number","value":4605761,"string":"4,605,761"},"name":{"kind":"string","value":"Pablo GUEVARA, Plaintiff-Appellant, v. NCL (BAHAMAS) LTD., a Bermuda Company Doing Business as Norwegian Cruise Line, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Pablo Guevara v. NCL (Bahamas) Ltd."},"decision_date":{"kind":"string","value":"2019-04-01"},"docket_number":{"kind":"string","value":"17-14889"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilson, Pryor, Sutton\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888299/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888300/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888301/\", \"author_raw\": \"\"}, {\"author\": \"WILSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14889\\n ________________________\\n\\n D.C. Docket No. 1:15-cv-24294-KMW\\n\\n\\n\\nPABLO GUEVARA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nNCL (BAHAMAS) LTD.,\\na Bermuda Company\\ndoing business as\\nNorwegian Cruise Line,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\\n\\n\\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\n Pablo Guevara slipped and fell as he stepped down from a landing located\\n\\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\\n\\nclaimed that he did not perceive the step down because NCL failed to adequately\\n\\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\\n\\nwhere Guevara fell, making it harder for him to navigate the floor level change at\\n\\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\\n\\npassengers of the step down and (2) maintain and inspect the lighting in the area.\\n\\nThe district court granted summary judgment in favor of NCL on both claims,\\n\\nholding that Guevara failed to create a genuine issue of material fact regarding\\n\\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\\n\\nthe step down or the unilluminated light.\\n\\n Guevara appeals the district court’s orders (1) striking his expert’s\\n\\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\\n\\ncareful review and with the benefit of oral argument, we reverse and remand the\\n\\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\\n\\n\\n\\n\\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n 2\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\\n\\n\\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\\n\\ngranting summary judgment on Guevara’s negligent maintenance claim.\\n\\n I. Factual Background\\n\\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\\n\\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\\n\\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\\n\\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\\n\\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\\n\\nGuevara slipped on the deck and fell, landing with his arm wedged between the\\n\\nwall and a handrail. As a result, Guevara broke his arm.\\n\\n After he fell, Guevara noticed a “sheen” of water on the floor where he\\n\\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\\n\\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\\n\\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\\n\\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\\n\\nthe warning sign because the bulb immediately above the sign was out.\\n\\n II. Procedural History\\n\\n\\n\\n\\n1\\n Guevara claims that the landing appeared flush with the brown deck area below the step.\\n 3\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\\n\\n\\n Guevara filed a complaint against NCL in the Southern District of Florida.\\n\\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\\n\\nand (2) maintain and inspect the lighting in the area.\\n\\n A. Expert Witness Reports\\n\\n The parties proceeded to discovery. The district court’s Scheduling Order\\n\\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\\n\\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\\n\\nreports for July 16th.\\n\\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\\n\\nreport on June 20th—two days after the expert disclosure deadline.\\n\\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\\n\\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\\n\\nattentive person walking in the area to safely navigate the floor level change.\\n\\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\\n\\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\\n\\nreport addressed the step’s dimensions and the insufficient slip resistance on the\\n\\nflooring.\\n\\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\\n\\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\\n\\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\\n\\n 4\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\\n\\n\\nrebuttal expert opinions. The First Supplemental Report contained previously\\n\\nundisclosed opinions and references to authoritative materials. NCL proceeded\\n\\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\\n\\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\\n\\nand refused to resume later in the day.\\n\\n Discovery closed on August 26th.\\n\\n On September 26th—a month after the close of discovery and three days\\n\\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\\n\\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\\n\\nSupplemental Report).\\n\\n NCL moved to strike Dr. Zollo’s testimony and reports because of\\n\\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\\n\\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\\n\\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\\n\\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\\n\\narguing that (1) he was not qualified to offer opinions on the construction of\\n\\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\\n\\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\\n\\nhis opinions would not assist the trier of fact.\\n\\n\\n\\n\\n 5\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\\n\\n\\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\\n\\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\\n\\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\\n\\nsetting the deposition of NCL’s corporate representative, which was taken well\\n\\nafter the expert discovery deadlines and a week before discovery closed on August\\n\\n26th. During the corporate representative’s deposition, NCL produced for the first\\n\\ntime a drawing of the deck area, photographs of the area taken the night of\\n\\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\\n\\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\\n\\nsupplementing his initial report based on the new information obtained during the\\n\\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\\n\\nblanche to supplement everything in both his initial and rebuttal expert reports.”\\n\\nAs such, the district court excluded certain portions of the First Supplemental\\n\\nReport and the entirety of the Second Supplemental Report because Guevara failed\\n\\nto show that their late disclosure was either justified or harmless.\\n\\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\\n\\nlisting industry standards on lighting because it was produced too close in time to\\n\\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\\n\\n\\n2\\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\\n892, 896, 921 n.2 (7th Cir. 2004)).\\n 6\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\\n\\n\\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\\n\\nto any of the late discovery produced by NCL. The district court found that the\\n\\nlate submission of the report was not harmless.\\n\\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\\n\\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\\n\\nsupplementing his initial expert reports on account of NCL’s late production of the\\n\\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\\n\\nopinion more than five weeks after he received the COF report, over a month after\\n\\nthe close of discovery, and three days after the district court’s dispositive and\\n\\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\\n\\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\\n\\nReport.\\n\\n B. NCL’s Motion for Summary Judgment\\n\\n NCL moved for summary judgment, arguing that there was no record\\n\\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\\n\\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\\n\\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\\n\\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\\n\\nadequately warn him of the dangerous condition posed by the step down. Under\\n\\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\\n\\n 7\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\\n\\n\\nto go out and remain out and [did] not post[] warning signs (or other more effective\\n\\nwarnings such as yellow tape) that could have been seen by passengers traveling\\n\\nfrom the direction that Mr. Guevara was traveling.”\\n\\n The district court granted summary judgment in favor of NCL, holding that\\n\\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\\n\\nconstructive notice of the allegedly dangerous condition posed by the step down.\\n\\nThe district court rejected Guevara’s argument that the presence of the warning\\n\\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\\n\\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\\n\\ncreated or affixed the warning sign, and thus failed to create a “logical inference\\n\\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\\n\\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\\n\\nFla. 2015).\\n\\n Guevara also argued that NCL was on constructive notice that the light had\\n\\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\\n\\n8:00 p.m. The light thus theoretically could have been out for up to four hours\\n\\nbefore Guevara fell. The district court disagreed. The court reasoned that the\\n\\npossibility that the light could have been out for four hours was not evidence of\\n\\n\\n3\\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\\nclaims against NCL related to the step.\\n 8\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\\n\\n\\nwhen the light actually went out. The district court held that Guevara failed to\\n\\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\\n\\ndangerous condition posed by the unilluminated light. Guevara appealed.\\n\\n III. Discussion\\n\\n We now consider Guevara’s argument that the district court erred in\\n\\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\\n\\njudgment to NCL.\\n\\n A. Exclusion of Supplemental Expert Reports\\n\\n Guevara challenges the district court’s ruling to exclude his expert’s\\n\\nsupplemental reports, arguing that those reports would have created a genuine\\n\\ndispute of material fact. “We . . . review a district court’s exclusion of expert\\n\\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\\n\\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\\n\\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\\n\\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\\n\\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\\n\\n[expert witness] disclosures at the times and in the sequence the court orders.”\\n\\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\\n\\nthe deadline, disclose the identity of their experts “accompanied by a written\\n\\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\\n\\n 9\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\\n\\n\\nstatement of all opinions the witness will express and the basis and reasons for\\n\\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\\n\\nCiv. P. 26(a)(2)(B)(i)–(ii).\\n\\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\\n\\nmanner if the party learns that in some material respect the disclosure . . . is\\n\\nincomplete or incorrect, and if the additional or corrective information has not\\n\\notherwise been made known to the other parties during the discovery process or in\\n\\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\\n\\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\\n\\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\\n\\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\\n\\nthe expert evidence “unless the failure was substantially justified or is harmless.”\\n\\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\\n\\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\\n\\nclearly has authority to exclude an expert’s testimony where a party has failed to\\n\\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\\n\\nCourts have broad discretion to exclude untimely expert testimony—even when\\n\\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\\n\\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\\n\\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\\n\\n 10\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\\n\\n\\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\\n\\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\\n\\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\\n\\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\\n\\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\\n\\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\\n\\nopined that Guevara’s fall was caused by the inadequate design of the stairway\\n\\nlanding, insufficient maintenance of the landing and surrounding area (including\\n\\ninsufficient lighting), and the use of improper flooring material that was\\n\\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\\n\\nSupplemental Report, which listed a host of industry standards on lighting. The\\n\\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\\n\\nproduced ahead of his deposition. A month after the close of discovery and three\\n\\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\\n\\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\\n\\naddressed the COF report disclosed by NCL’s corporate representative. The\\n\\ndistrict court excluded certain portions of the First Supplemental Report addressing\\n\\nthe industry standards on lighting and the entirety of the Second Supplemental\\n\\nReport because Guevara failed to show that the late disclosure of these reports was\\n\\n\\n\\n\\n 11\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\\n\\n\\neither justified or harmless. We conclude that the district court did not abuse its\\n\\ndiscretion.\\n\\n Guevara argues that the district court erred in excluding portions of the First\\n\\nSupplemental Report because his delay in disclosing these opinions was harmless\\n\\nas NCL had delayed producing documents and responding to discovery. The\\n\\nproblem with this argument is that the district court did not strike the opinions in\\n\\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\\n\\ndiscovery. The portions of the First Supplemental Report that the district court\\n\\nexcluded made no reference to any of NCL’s late discovery. The district court did\\n\\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\\n\\n“carte blanche to supplement everything in both his initial and rebuttal expert\\n\\nreports.”\\n\\n We also cannot say that the district court’s conclusion that the late disclosure\\n\\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\\n\\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\\n\\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\\n\\nZollo’s deposition, which gave NCL little time to review or prepare questions on\\n\\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\\n\\nleft his deposition after only three hours without the prior agreement of the\\n\\n\\n\\n\\n 12\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\\n\\n\\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\\n\\nGuevara moved for a protective order, claiming that NCL’s counsel took an\\n\\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\\n\\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\\n\\nthe eve of Dr. Zollo’s deposition.\\n\\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\\n\\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\\n\\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\\n\\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\\n\\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\\n\\nthese facts, we cannot say that the district court abused its discretion when it struck\\n\\nportions of Dr. Zollo’s First Supplemental Report.\\n\\n We also cannot say that the district court abused its discretion in striking Dr.\\n\\nZollo’s Second Supplemental Report in its entirety. The district court\\n\\nacknowledged that NCL was not diligent in producing the COF report, and\\n\\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\\n\\ninformation. But Guevara unreasonably delayed in filing that supplement.\\n\\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\\n\\nhe received the COF report, over a month after the close of discovery, and three\\n\\n\\n4\\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\\n 13\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\\n\\n\\ndays after the district court’s deadline for dispositive and Daubert motions.\\n\\nGuevara did not seek leave of the district court prior to disclosing the Second\\n\\nSupplemental Report, nor did he move to extend discovery.\\n\\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\\n\\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\\n\\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\\n\\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\\n\\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\\n\\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\\n\\nId. at 1266. “Because the expert witness discovery rules are designed to allow\\n\\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\\n\\nreasoned, “compliance with the requirements of Rule 26 is not merely\\n\\naspirational.” Id. Accordingly, we held that the district court did not abuse its\\n\\ndiscretion in striking the expert’s report in its entirety. Id.\\n\\n Similarly, the district court did not abuse its discretion in striking the Second\\n\\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\\n\\npoint, NCL had already filed its motion for summary judgment and Daubert\\n\\nmotions. As in Reese, Guevara never sought leave of the district court for the late\\n\\nfiling or moved to extend discovery.\\n\\n\\n\\n\\n 14\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\\n\\n\\n We thus conclude that the district court did not abuse its discretion in\\n\\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\\n\\nSecond Supplemental Report.\\n\\n B. Summary Judgment\\n\\n Guevara contends that the district court erred in holding that (1) the warning\\n\\nsign was insufficient to establish NCL’s actual or constructive notice of the\\n\\ndangerous condition posed by the step down, and (2) Guevara failed to present\\n\\nevidence of negligent maintenance of the lightbulb.\\n\\n “We review a district court’s grant of summary judgment de novo, viewing\\n\\nall the evidence, and drawing all reasonable factual inferences, in favor of the\\n\\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\\n\\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\\n\\nthere is no genuine dispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\\n\\nimproper, however, “if the evidence is such that a reasonable jury could return a\\n\\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n248 (1986).\\n\\n Maritime law governs actions arising from alleged torts committed aboard a\\n\\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\\n\\n 15\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\\n\\n\\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\\n\\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\\n\\n827 (5th Cir. 1980)).\\n\\n To prevail on a negligence claim, a plaintiff must show that “(1) the\\n\\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\\n\\ndefendant breached that duty, (3) the breach actually and proximately caused the\\n\\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\\n\\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\\n\\nreasonable care towards those lawfully aboard the vessel who are not members of\\n\\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\\n\\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\\n\\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\\n\\nwhere, as here, the menace is one commonly encountered on land and not clearly\\n\\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\\n\\ncruise ship operator’s liability “hinges on whether it knew or should have known”\\n\\nabout the dangerous condition. Id.5\\n\\n A maritime plaintiff can establish constructive notice with evidence that the\\n\\n“defective condition exist[ed] for a sufficient period of time to invite corrective\\n\\n\\n\\n5\\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\\n 16\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\\n\\n\\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\\n\\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\\n\\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\\n\\nplaintiff can establish constructive notice with evidence of substantially similar\\n\\nincidents in which “conditions substantially similar to the occurrence in question\\n\\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\\n\\n661–62 (11th Cir. 1988).\\n\\n i. Guevara’s Failure to Warn Claim\\n\\n Guevara argues that NCL failed to adequately warn him of the dangerous\\n\\ncondition posed by the step down. NCL responds that summary judgment is\\n\\nwarranted because it lacked prior notice of the dangerous condition and therefore\\n\\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\\n\\nalerting passengers to “watch your step” as evidence that NCL was on actual or\\n\\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\\n\\ndown.\\n\\n NCL contends that the mere presence of a warning sign does not\\n\\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\\n\\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\\n\\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\\n\\n\\n\\n\\n 17\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\\n\\n\\nsign was placed at that location or what specific condition, if any, it was affixed to\\n\\naddress.\\n\\n In analyzing whether the warning sign raises a genuine issue of material fact\\n\\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\\n\\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\\n\\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\\n\\ntestimony—that the cruise line regularly placed warning signs advising passengers\\n\\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\\n\\nmaterial fact regarding whether the cruise line had actual or constructive\\n\\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\\n\\n Not all warning signs will be evidence of notice; there must also be a\\n\\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\\n\\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\\n\\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\\n\\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\\n\\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\\n\\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\\n\\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\\n\\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\\n\\nthat the step was there; that is, it warned passengers that the surface was not flat.\\n\\n 18\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\\n\\n\\nThere is no evidence that it was intended to warn passengers that the nosing may\\n\\nbe slippery.” Id. at 602 (emphasis added).\\n\\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\\n\\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\\n\\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\\n\\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\\n\\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\\n\\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\\n\\nsigns establishes a sufficient connection between the warning and the danger—the\\n\\nstep down.\\n\\n NCL argues that Sorrels does not control here because the cruise line in that\\n\\ncase was responsible for creating and placing the warning. But we see no\\n\\nsignificant distinction between a cruise line placing a warning sign and a cruise\\n\\nline having knowledge of a permanently affixed warning sign that has been present\\n\\non its ship for years. A warning sign’s primary function is to warn of dangers.\\n\\nWhether a cruise line places the warning sign itself or becomes aware of the\\n\\nwarning sign after taking ownership is of little significance.6 Both situations allow\\n\\n\\n6\\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\\n 19\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\\n\\n\\nfor an inference that NCL had actual or constructive knowledge that the step down\\n\\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\\n\\n796 F.3d at 1288.\\n\\n The district court noted that the language of the warning sign did not\\n\\ndemonstrate notice of the dangerous condition posed by the step down because it\\n\\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\\n\\nas they climb the three steps to the landing. It does not warn of a potential danger\\n\\nassociated with the small step from the landing to the deck.” At the summary\\n\\njudgment stage, however, we must view all evidence and factual inferences in\\n\\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\\n\\nconclusion, NCL’s corporate representative testified that the warning sign was\\n\\nintended to draw passengers’ attention to the step down in the area at issue. A\\n\\nreasonable jury could conclude that the warning sign’s language applies to the step\\n\\ndown, particularly where, as here, the warning sign immediately precedes the very\\n\\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\\n\\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\\n\\ndangerous condition posed by the step down.\\n\\n\\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\\nresponsible for maintaining the deck area in the present case.\\n 20\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\\n\\n\\n NCL contends that by holding that the warning sign here put it on notice of\\n\\nthe dangerous condition, we are improperly transforming cruise ship operators into\\n\\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\\n\\nWe are merely holding that a cruise ship operator has notice of a condition—and\\n\\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\\n\\nThis decision does not mean that a cruise ship operator is automatically liable any\\n\\ntime a passenger is injured in the area of the sign. After all, the cruise ship\\n\\noperator may be able to defeat the negligence claim by showing that it did not\\n\\nbreach its duty to warn because the sign provided passengers with a sufficient\\n\\nwarning about the dangerous condition in the area. In this case, NCL still may\\n\\nargue at trial that it is not liable because it fulfilled its duty to warn through the\\n\\nposted sign. 7\\n\\n Accordingly, we reverse and remand the district court’s ruling regarding\\n\\nGuevara’s failure to warn claim.\\n\\n ii. Guevara’s Negligent Maintenance Claim\\n\\n Guevara argues that the district court erroneously granted summary\\n\\njudgment based on its finding that he failed to present any evidence of NCL’s\\n\\n\\n7\\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\\nwarn is established, the adequacy of the warning is usually a question for the jury).\\n 21\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\\n\\n\\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\\n\\nnot required to present evidence of negligent maintenance because NCL did not\\n\\npresent any admissible evidence of its proper maintenance of the lightbulb. We\\n\\ndisagree.\\n\\n NCL may carry its burden of showing no genuine issue of material fact by\\n\\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\\n\\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\\n\\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\\n\\nthat there was no evidence in the record establishing “a condition requiring\\n\\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\\n\\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\\n\\nfailure to maintain or inspect the subject deck or lighting fixtures caused\\n\\n[Guevara’s] injuries.”\\n\\n Guevara has failed to adduce evidence proving that NCL had actual or\\n\\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\\n\\nGuevara does not point to any prior passenger complaints or reported issues about\\n\\nthe ship’s lighting that would alert NCL to any potential safety concern. See\\n\\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\\n\\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\\n\\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\\n\\n 22\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\\n\\n\\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\\n\\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\\n\\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\\n\\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\\n\\nGuevara cannot identify when the light went out, he has failed to make a sufficient\\n\\nshowing that the dangerous condition was “present for a period of time so lengthy\\n\\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\\n\\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\\n\\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\\n\\ndangerous condition posed by the unilluminated lightbulb.\\n\\n IV. Conclusion\\n\\n We affirm in part and reverse in part the district court’s ruling granting\\n\\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\\n\\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\\n\\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\\n\\nsummary judgment on Guevara’s failure to warn claim. We remand for further\\n\\nproceedings consistent with this opinion.\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\\n\\n\\n\\n8\\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\\nF.2d at 66.\\n 23\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383014/\", \"author_raw\": \"WILSON, Circuit Judge:\"}, {\"author\": \"JILL PRYOR, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JILL PRYOR, Circuit Judge, concurring:\\n\\n I concur fully in the majority’s opinion. I write this special concurrence to\\n\\nrespond in more detail to the dissent’s argument that our decision today is in\\n\\ntension with the admiralty law of this circuit.\\n\\n Plaintiff Pablo Guevara contends that defendant NCL (Bahamas), Inc. was\\n\\nnegligent because it failed to warn him of a hidden step down on its cruise ship, the\\n\\nSpirit. To determine whether the district court erred in granting summary\\n\\njudgment to NCL, we must decide whether NCL owed Guevara a duty.\\n\\n Like the dissent, I begin with the premise that a cruise ship operator “is not\\n\\nliable to passengers as an insurer.” See Keefe v. Bahama Cruise Line, Inc.,\\n\\n867 F.2d 1318, 1322 (11th Cir. 1989) (internal quotation marks omitted). But a\\n\\ncruise ship operator remains liable for its negligence and thus must exercise\\n\\n“ordinary reasonable care under the circumstances.” Id. The reasonable care\\n\\nstandard “requires, as a prerequisite to imposing liability, that the carrier have had\\n\\nactual or constructive notice of the risk-creating condition,” at least when the\\n\\nmenace is commonly encountered on land. Id. The dissent accepts that when a\\n\\ncruise ship operator has actual or constructive notice of a dangerous condition, it\\n\\ngenerally owes a duty to warn its passengers of that condition.\\n\\n Whether NCL had a duty to warn Guevara of the step down turns on\\n\\nwhether it had notice of the dangerous condition. Guevara contends that NCL had\\n\\n 24\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 25 of 37\\n\\n\\nnotice of the dangerous condition based on a sign installed immediately before the\\n\\nstep down that cautioned “WATCH YOUR STEP.” As an initial matter, the entire\\n\\npanel agrees that a reasonable jury could find that the sign warned about the\\n\\ndangerous condition created by the step down (as opposed to some other dangerous\\n\\ncondition). See Dissent at 4 (observing that the risk created by the step down\\n\\n“came with a warning”).\\n\\n The dissent nonetheless concludes that NCL had no notice of the dangerous\\n\\ncondition because the ship’s manufacturer, rather than NCL, installed the sign.\\n\\nBut I see no reason to require that NCL must have installed the sign for a factfinder\\n\\nto conclude that NCL had notice. A reasonable jury could infer that NCL\\n\\nunderstood or at least should have understood from the sign that the step down\\n\\ncreated a dangerous condition. After all, the dissent acknowledges, “[w]arning\\n\\nsigns are meant to be seen,” id., and this sign could be seen by the ship’s crew and\\n\\npassengers alike.\\n\\n Instead of allowing this question of fact to be decided by a jury, the dissent\\n\\nwould prefer a legal rule that a cruise ship operator can be put on notice of a\\n\\ndangerous condition by a warning sign only if the ship operator installed the\\n\\nwarning sign. See id. at 5 (“Because the boat came with the warning sign, [NCL]\\n\\nnever took any affirmative act in connection with the alleged risk and cannot be\\n\\nheld liable for it.”). The dissent’s bright-line rule would require courts to ignore\\n\\n 25\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 26 of 37\\n\\n\\nfacts establishing that the cruise ship’s officers and crew learned or should have\\n\\nlearned of the dangerous condition from the sign. Nothing in our precedent\\n\\nestablishes such a rule. We have held that a cruise ship operator’s affirmative act\\n\\nof warning of a risk is sufficient to establish that it had notice of a danger. See,\\n\\ne.g., Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1288-89 (11th Cir. 2015)\\n\\n(concluding that a cruise ship operator had notice that the ship’s pool deck could\\n\\nbe slippery after rain from evidence that crew members sometimes posted warning\\n\\nsigns on the pool deck after rain). But we have never held that it is necessary that\\n\\na cruise ship operator have taken an affirmative act regarding a risk to establish\\n\\nthat it had knowledge of the danger. To the contrary, we have recognized that a\\n\\ncruise ship operator may be put on notice of a danger after the dangerous condition\\n\\ncauses an injury, even though the operator has taken no affirmative act. See Caron\\n\\nv. NCL (Bahamas), Ltd., 910 F.3d 1359, 1370 (11th Cir. 2018) (accepting that that\\n\\nprior reports of similar incidents are sufficient to provide a cruise ship operator\\n\\nwith notice of a dangerous condition); see generally Chimene v. Royal Caribbean\\n\\nCruises, Ltd., No. 16-23775-CV, 2017 WL 8794706, at *4 (S.D. Fla. Nov. 14,\\n\\n2017) (concluding that cruise ship operator had notice of dangerous condition\\n\\ncreated by zip line from prior reports of substantially similar incidents).\\n\\n The dissent contends that our previous decision in Everett v. Carnival Cruise\\n\\nLines, 912 F.2d 1355 (11th Cir. 1990), bars us from concluding that a cruise ship\\n\\n 26\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 27 of 37\\n\\n\\noperator could receive notice of a dangerous condition from a sign that it did not\\n\\ninstall. In that case, a cruise ship passenger sustained injuries when she tripped\\n\\nover a metal threshold on the ship. Id. at 1357. The passenger argued that the\\n\\ncruise ship operator had knowledge of the dangerous condition because it created\\n\\nand maintained the threshold. Id. at 1359. We rejected this argument, explaining\\n\\nthat accepting the passenger’s argument would effectively “defeat[]” the notice\\n\\nrequirement. Id. Although we recognized in Everett that a cruise ship operator\\n\\ndoes not have knowledge of a dangerous condition simply because the condition is\\n\\npresent on the ship that it maintains, Everett did not address whether a warning\\n\\nposted on a cruise ship—that is, a posting identifying a condition as dangerous—\\n\\ncould put the operator on notice of that dangerous condition. 1\\n\\n The majority opinion runs afoul of the rule established by Everett, the\\n\\ndissent argues, because if the warning sign put NCL on notice, it must have also\\n\\n\\n\\n 1\\n The dissent also relies on our unpublished decision in Pizzino v. NCL (Bahamas) Ltd.,\\n709 F. App’x 563 (11th Cir. 2017) (unpublished). Like Everett, Pizzino did not address whether\\na warning sign placed by a third party can put a cruise ship operator on notice. In Pizzino, a\\npassenger sued a cruise ship operator for negligence after slipping on the cruise ship’s floor. Id.\\nat 564. The hazard was created by water that appeared to splash out of a ship employee’s bucket.\\nId. at 563-64. After the district court instructed the jury that the passenger had to show that the\\noperator had actual or constructive notice of the dangerous condition, the jury returned a verdict\\nin favor of the cruise ship operator. Id. at 564. The passenger appealed, arguing that the cruise\\nship operator could be held liable on the basis that its employee had created the dangerous\\ncondition by spilling water on the floor. Id. We affirmed, concluding that the district court had\\nproperly instructed the jury that a cruise ship operator must have actual or constructive notice of\\na dangerous condition, even if it created the danger. Id. at 566-67. There was no posted warning\\nin Pizzino that arguably put the cruise ship operator on notice of the dangerous condition, so\\nPizzino did not decide or address the issue we face here.\\n 27\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 28 of 37\\n\\n\\nput Guevara on notice, unless NCL’s ability to understand the sign differed from\\n\\nGuevara’s. And “the only thing that differentiates Guevara from [NCL],”\\n\\naccording to the dissent, “is [NCL’s] operation of the Spirit.” Dissent at 6. The\\n\\ndissent glosses over another important difference between NCL and Guevara,\\n\\nhowever. A reasonable jury could find that NCL received notice before Guevara’s\\n\\nfall when the Spirit’s officers and crew members encountered the area with the\\n\\nsign in daylight or at night time when the sign was lit. In contrast, a reasonable\\n\\njury could find that Guevara encountered this area just once—the night of the\\n\\nincident when the light above the sign was not lit, which made the sign unreadable.\\n\\n The dissent also asserts that NCL should not be held liable because it was\\n\\ndue only to “bad luck” that the light was out and Guevara could not see the sign.\\n\\nId. at 4. This argument addresses a different issue, though: whether, assuming\\n\\nNCL had a duty to warn, the sign was sufficient to discharge NCL’s duty. At trial,\\n\\nthe jury could find that the warning sign was visible and adequately warned\\n\\nGuevara of the danger, meaning that NCL had discharged its duty to warn. But\\n\\nwhether NCL gave an adequate warning, assuming it had a duty to warn, does not\\n\\ntell us whether it had notice and thus owed such a duty. See Chaparro v. Carnival\\n\\nCorp., 693 F.3d 1333, 1336 (11th Cir. 2012) (identifying duty and breach as\\n\\nseparate elements of a negligence claim).\\n\\n\\n\\n\\n 28\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 29 of 37\\n\\n\\n Returning to where it began, the dissent closes with the concern that our\\n\\ndecision will make a cruise ship operator a general insurer liable for every warning\\n\\nany manufacturer places on a ship. To answer that concern, the dissent would\\n\\nadopt a bright-line rule that a cruise ship operator can never receive notice of a\\n\\ndangerous condition from a warning sign installed by a manufacturer or other third\\n\\nparty. By eliminating one way in which a cruise ship operator could actually gain\\n\\nknowledge of a danger, the dissent’s approach defies common experience and\\n\\nwould erode the long-standing principle of admiralty law that a cruise ship\\n\\noperator must warn its passengers of known dangerous conditions. Because\\n\\nquestions of fact remain about whether the warning sign installed by the ship’s\\n\\nmanufacturer put NCL on notice of the danger associated with the step down, I\\n\\nvoted with the majority to allow the case to go to a jury.\\n\\n I want to emphasize that the majority’s decision today is narrow. Even\\n\\nassuming the dissent is correct that the decision means a cruise ship operator owes\\n\\na duty to warn of any danger for which a warning is posted on a ship, 2 only in rare\\n\\n\\n\\n 2\\n Some warnings posted by third parties on a ship would be insufficient to put a cruise\\nship operator on notice of the dangerous condition identified by the warning. To take the\\ndissent’s example, a sticker placed on a lamp in a cabin stateroom warning that the lamp\\nbecomes hot may not give the cruise ship operator actual or constructive notice of the danger.\\nThe question of whether such a sticker would put the cruise ship operator on notice could depend\\non factual issues such as: the access that officers and crew had to the cabin stateroom to see the\\nsticker, the size of the sticker, and the location of the sticker (in this example, the warning could\\nbe hidden by the lamp shade). In contrast, here there is ample evidence from which a reasonable\\njury could infer that the warning sign informed NCL of the danger caused by the step down\\n 29\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 30 of 37\\n\\n\\ncases will a passenger attempting to hold a cruise ship operator liable for a breach\\n\\nof that duty get past summary judgment. To get to trial, the passenger will have to\\n\\ncome forward with evidence, not speculation, that the warning was sufficiently\\n\\nvisible to put the cruise ship operator on notice yet was not visible to the\\n\\npassenger. Guevara has carried this burden given the cruise ship operator’s “bad\\n\\nluck” that the light over the sign went out, but I doubt many operators will be so\\n\\nunlucky.\\n\\n\\n\\n\\nbecause the warning sign was large and prominently posted in a public area that was accessible\\nto anyone on the ship.\\n 30\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 31 of 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383014/\", \"author_raw\": \"JILL PRYOR, Circuit Judge, concurring\"}, {\"author\": \"SUTTON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"SUTTON, Circuit Judge, concurring in part and dissenting in part:\\n\\n As a visiting judge, I am reluctant to quibble over the meaning of local law.\\n\\nAnd as a visiting judge from a largely land-locked and exclusively fresh-water\\n\\ncircuit, I am especially reluctant to quibble over the meaning of admiralty law with\\n\\njudges from a circuit whose every State touches the sea. In overcoming that\\n\\nhesitation, I take some comfort in the reality that the Miami-based district court\\n\\njudge who handled this case reached the same conclusion I do and the view that\\n\\none does not have to be a seaworthy judge to see some tension between today’s\\n\\ndecision and the admiralty law of this circuit.\\n\\n Eleventh Circuit admiralty law establishes three related propositions when it\\n\\ncomes to slip-and-fall accidents at sea. The first is that cruise ships are not general\\n\\ninsurers of their passengers. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1322 (11th Cir. 1989) (per curiam). The second is that cruise ships may be\\n\\nliable only if they knew or should have known about the danger that caused the\\n\\naccident. Id. The third is that such knowledge does not arise from buying and\\n\\noperating a ship with pre-existing signage about pre-existing risks. See Everett v.\\n\\nCarnival Cruise Lines, 912 F.2d 1355, 1358–59 (11th Cir. 1990); see also Malley\\n\\nv. Royal Caribbean Cruises Ltd., 713 F. App’x 905, 908 (11th Cir. 2017) (per\\n\\ncuriam); Pizzino v. NCL (Bahamas) Ltd., 709 F. App’x 563, 566–67 (11th Cir.\\n\\n\\n\\n\\n 31\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 32 of 37\\n\\n\\n2017) (per curiam); cf. Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311,\\n\\n1323 (S.D. Fla. 2015).\\n\\n Applied here, these principles should make short work of this case. On\\n\\nNovember 26, 2014, Pablo Guevara and his wife boarded a cruise ship, the Spirit,\\n\\nin Barcelona, Spain. Later that first night, at around 11:30 p.m., Guevara left his\\n\\nwife in the casino and went in search of the cigar lounge. The accident occurred\\n\\non Spirit’s pool deck. Here’s the scene: Three steps lead up to a small landing,\\n\\nfollowed by a step down. Two pillars flank the landing. Each pillar has a light and\\n\\na handrail; one pillar bears a sign warning pedestrians to “please use the handrail”\\n\\nand “watch your step.” R. 66-1.\\n\\n According to Guevara, the light next to the sign was out and the deck was\\n\\nwet. After he ascended the three steps, he didn’t notice the step down, tripped,\\n\\nslipped, and broke his arm.\\n\\n Guevara’s negligence complaint against Norwegian targeted three defects:\\n\\n(1) The company “[f]ailed to adequately inspect the lights in the subject area to\\n\\nmake sure operational”; (2) the company “[f]ailed to warn plaintiff of the danger of\\n\\na wet and slippery floor in the subject area”; and (3) the company “failed to warn\\n\\nof the change of level in the area.” R. 1 at 3–4.\\n\\n Each theory does not work.\\n\\n\\n\\n\\n 32\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 33 of 37\\n\\n\\n Begin with the broken-light-bulb theory. The unrebutted evidence shows\\n\\nthat Norwegian did not notice the spent light bulb, that no one identified any such\\n\\nproblem before the accident, and that its employees checked the area (and the light\\n\\nbulbs) twice a day and did not see any problem. On this record, Norwegian did not\\n\\nact negligently. The majority agrees.\\n\\n Turn to the wet-deck theory. Here too Norwegian did nothing wrong, as it\\n\\nhad no notice of any problem. The record does not contain any evidence of prior\\n\\naccidents on this part of the ship due to a wet deck. This thus is not a case in\\n\\nwhich the cruise ship identified the problem, say by putting orange cones near the\\n\\nhazard, and could be liable if its precautions did not adequately address the risk.\\n\\n Think by comparison of Horne v. Carnival Corporation, 741 F. App’x 607\\n\\n(11th Cir. 2018) (per curiam). A passenger sued the cruise line after high winds\\n\\ncaused a door to slam and chop off part of his finger. Id. at 608. The cruise line\\n\\nhad previously “put up signs warning of strong winds” but failed to provide notice\\n\\non the day of the accident. Id. at 609. The prior signs, the court reasoned, could\\n\\nshow that the cruise line had “notice of the hazardous condition.” Id.\\n\\n Nor is this a case in which passengers had slipped on this same wet deck\\n\\nbefore, placing the cruise ship on notice of the danger. See Sorrels v. NCL\\n\\n(Bahamas) Ltd., 796 F.3d 1275, 1287–88 (11th Cir. 2015). No evidence of any\\n\\nsuch accidents appears in the record. Apparently appreciating these gaps in this\\n\\n 33\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 34 of 37\\n\\n\\ntheory of liability, Guevara does not develop on appeal his claim premised on a\\n\\nwet deck, which explains why the court (correctly) does not address it.\\n\\n That leaves the last theory—that Norwegian did not adequately warn of the\\n\\nrisk from the step down. But that’s the least plausible theory of the three. It takes\\n\\nup the one risk that night (a drop down in the steps) that came with a warning (a\\n\\n“please use the handrail” and “watch your step” sign). It involves a risk and a\\n\\nwarning sign that predated Norwegian’s ownership of the cruise ship. And it\\n\\ninvolves a warning sign that by Guevara’s own admission could not be seen given\\n\\nthe broken light. For many of the reasons that Judge Kathleen Williams rejected\\n\\nthis claim as a matter of law, so would I.\\n\\n Start with a problem of Guevara’s making. By his own account, Guevara\\n\\ncould not see the sign “because the bulb immediately above the sign was not\\n\\nfunctioning.” Appellant’s Br. 6; id. at 36 (“[T]he light on the pedestal just above\\n\\nthe warning sign was out.”); see also Reply Br. 6 (“The sign is clearly visible in\\n\\ndaylight, or at night with appropriate lighting.”). Warning signs are meant to be\\n\\nseen. Just as arguments are meant to be heard. And briefs and opinions are meant\\n\\nto be read. The law does not hold parties liable for signs that, by a claimant’s own\\n\\naccount, cannot be seen. I am not aware of any case from any court that holds a\\n\\nproperty owner liable for posting an inadequate warning sign when the source of\\n\\nthe inadequacy—darkness—turned on bad luck, not the negligence of the owner.\\n\\n 34\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 35 of 37\\n\\n\\nGuevara never acknowledges, much less fills, this yawning gap in his theory of the\\n\\ncase.\\n\\n No less importantly, Norwegian had nothing to do with the sign. It came\\n\\nwith the boat. And no evidence shows that the sign did not do its job. The record\\n\\ndoes not contain any evidence of prior accidents during the day based on the step\\n\\ndown or accidents during the night (whether the light worked or not) based on the\\n\\nstep down. Because the boat came with the warning sign, Norwegian never took\\n\\nany affirmative act in connection with the alleged risk and cannot be held liable for\\n\\nit. See Horne, 741 F. App’x at 609; Sorrels, 796 F.3d at 1287–88.\\n\\n Last of all, precedent does not allow us to hold that Norwegian knew about\\n\\nthe sign and realized that the step was dangerous simply because Norwegian\\n\\nbought and operated the vessel. See Everett, 912 F.2d at 1359. That’s simply\\n\\nanother way of making Norwegian a general insurer—liable for all risks of running\\n\\na cruise ship and transporting passengers—which is just what this court’s decisions\\n\\nforeclose. See Keefe, 867 F.2d at 1322.\\n\\n Everett v. Carnival Cruise Lines illustrates the point. 912 F. App’x 1355\\n\\n(11th Cir. 1990). A passenger tripped over a metal door threshold. Id. at 1357.\\n\\nShe argued that she did not need to prove the cruise line knew about the threshold\\n\\nbecause the cruise line “created the threshold and maintained it. In other words,\\n\\n[the shipowner] should have known that there was a danger of passenger injury\\n\\n 35\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 36 of 37\\n\\n\\nbecause it was the owner and operator of the ship.” Id. at 1359. The court rejected\\n\\nthe theory as a matter of law, holding that it would “defeat[]” the point of having a\\n\\nnotice requirement and the point of “limit[ing] . . . the shipowner’s liability” so that\\n\\nit was not a general insurer of its passengers. Id.\\n\\n Pizzino v. NCL (Bahamas) Ltd. is of a piece. 709 F. App’x 563 (11th Cir.\\n\\n2017) (per curiam). A crew member spilled water on the deck, and the Eleventh\\n\\nCircuit re-affirmed that operation of a ship alone does not create notice. Id. at\\n\\n564–66. Something more is required—namely that the passenger prove that the\\n\\nshipowner knew about the danger. Id. at 565.\\n\\n Size up this aspect of Guevara’s argument—that the pre-existing warning\\n\\nsign gave Norwegian notice of this risk—from another direction. If it’s fair to say\\n\\nthat the warning sign put Norwegian on notice of the danger posed by the step\\n\\ndown, the sign also must have made Guevara aware of the danger as well—unless\\n\\ndaylight exists between Guevara’s ability to understand the sign and Norwegian’s.\\n\\nBut the only thing that differentiates Guevara from Norwegian is Norwegian’s\\n\\noperation of the Spirit. And we cannot attribute notice to a shipowner simply\\n\\nbecause it operates a ship, as case after case from this circuit says. See supra.\\n\\n Any other approach to this case will make shipowners liable for every\\n\\nwarning that a manufacturer places on any part of the ship. Imagine a\\n\\nmanufacturer who places a sticker on lamps in cabin bedrooms, warning patrons\\n\\n 36\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 37 of 37\\n\\n\\nthat they can become hot to the touch. Or a manufacturer who warns that children\\n\\nmight suffocate if they play with the plastic trash bags in cabin bathrooms. Under\\n\\nthe majority’s rule, the cruise line now possesses constructive notice of these\\n\\ndangers and can become liable to the first passenger who burns himself or the first\\n\\nchild who asphyxiates. Cruise ships are floating cities, and these types of scenarios\\n\\nend only when the horizon does.\\n\\n That Norwegian may argue at trial that this sign fulfilled its duty to warn and\\n\\nthus may still prevail, as the court points out, offers cold comfort to this shipowner\\n\\nand any other. All that means is that in some number of cases juries will not treat\\n\\nshipowners as general insurers and in some number of cases they will. But never,\\n\\nnot sometimes, is the point of the court’s steadfast commitment to declining to\\n\\nmake shipowners the general insurers of their passengers. That is a rule of law, not\\n\\na rule of fact.\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383014/\", \"author_raw\": \"SUTTON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WILSON"},"judge2":{"kind":"string","value":"PRYOR"},"judge3":{"kind":"string","value":"SUTTON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":6,"string":"6"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":4,"string":"4"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4605761/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Pablo GUEVARA, Plaintiff-Appellant, v. NCL (BAHAMAS) LTD., a Bermuda Company Doing Business as Norwegian Cruise Line, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14889\n ________________________\n\n D.C. Docket No. 1:15-cv-24294-KMW\n\n\n\nPABLO GUEVARA,\n\n Plaintiff - Appellant,\n\nversus\n\nNCL (BAHAMAS) LTD.,\na Bermuda Company\ndoing business as\nNorwegian Cruise Line,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 1, 2019)\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\n\n\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\n\nWILSON, Circuit Judge:\n\n Pablo Guevara slipped and fell as he stepped down from a landing located\n\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\n\nclaimed that he did not perceive the step down because NCL failed to adequately\n\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\n\nwhere Guevara fell, making it harder for him to navigate the floor level change at\n\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\n\npassengers of the step down and (2) maintain and inspect the lighting in the area.\n\nThe district court granted summary judgment in favor of NCL on both claims,\n\nholding that Guevara failed to create a genuine issue of material fact regarding\n\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\n\nthe step down or the unilluminated light.\n\n Guevara appeals the district court’s orders (1) striking his expert’s\n\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\n\ncareful review and with the benefit of oral argument, we reverse and remand the\n\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\n\n\n\n\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n 2\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\n\n\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\n\ngranting summary judgment on Guevara’s negligent maintenance claim.\n\n I. Factual Background\n\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\n\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\n\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\n\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\n\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\n\nGuevara slipped on the deck and fell, landing with his arm wedged between the\n\nwall and a handrail. As a result, Guevara broke his arm.\n\n After he fell, Guevara noticed a “sheen” of water on the floor where he\n\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\n\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\n\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\n\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\n\nthe warning sign because the bulb immediately above the sign was out.\n\n II. Procedural History\n\n\n\n\n1\n Guevara claims that the landing appeared flush with the brown deck area below the step.\n 3\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\n\n\n Guevara filed a complaint against NCL in the Southern District of Florida.\n\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\n\nand (2) maintain and inspect the lighting in the area.\n\n A. Expert Witness Reports\n\n The parties proceeded to discovery. The district court’s Scheduling Order\n\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\n\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\n\nreports for July 16th.\n\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\n\nreport on June 20th—two days after the expert disclosure deadline.\n\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\n\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\n\nattentive person walking in the area to safely navigate the floor level change.\n\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\n\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\n\nreport addressed the step’s dimensions and the insufficient slip resistance on the\n\nflooring.\n\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\n\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\n\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\n\n 4\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\n\n\nrebuttal expert opinions. The First Supplemental Report contained previously\n\nundisclosed opinions and references to authoritative materials. NCL proceeded\n\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\n\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\n\nand refused to resume later in the day.\n\n Discovery closed on August 26th.\n\n On September 26th—a month after the close of discovery and three days\n\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\n\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\n\nSupplemental Report).\n\n NCL moved to strike Dr. Zollo’s testimony and reports because of\n\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\n\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\n\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\n\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\n\narguing that (1) he was not qualified to offer opinions on the construction of\n\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\n\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\n\nhis opinions would not assist the trier of fact.\n\n\n\n\n 5\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\n\n\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\n\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\n\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\n\nsetting the deposition of NCL’s corporate representative, which was taken well\n\nafter the expert discovery deadlines and a week before discovery closed on August\n\n26th. During the corporate representative’s deposition, NCL produced for the first\n\ntime a drawing of the deck area, photographs of the area taken the night of\n\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\n\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\n\nsupplementing his initial report based on the new information obtained during the\n\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\n\nblanche to supplement everything in both his initial and rebuttal expert reports.”\n\nAs such, the district court excluded certain portions of the First Supplemental\n\nReport and the entirety of the Second Supplemental Report because Guevara failed\n\nto show that their late disclosure was either justified or harmless.\n\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\n\nlisting industry standards on lighting because it was produced too close in time to\n\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\n\n\n2\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\n892, 896, 921 n.2 (7th Cir. 2004)).\n 6\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\n\n\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\n\nto any of the late discovery produced by NCL. The district court found that the\n\nlate submission of the report was not harmless.\n\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\n\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\n\nsupplementing his initial expert reports on account of NCL’s late production of the\n\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\n\nopinion more than five weeks after he received the COF report, over a month after\n\nthe close of discovery, and three days after the district court’s dispositive and\n\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\n\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\n\nReport.\n\n B. NCL’s Motion for Summary Judgment\n\n NCL moved for summary judgment, arguing that there was no record\n\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\n\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\n\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\n\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\n\nadequately warn him of the dangerous condition posed by the step down. Under\n\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\n\n 7\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\n\n\nto go out and remain out and [did] not post[] warning signs (or other more effective\n\nwarnings such as yellow tape) that could have been seen by passengers traveling\n\nfrom the direction that Mr. Guevara was traveling.”\n\n The district court granted summary judgment in favor of NCL, holding that\n\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\n\nconstructive notice of the allegedly dangerous condition posed by the step down.\n\nThe district court rejected Guevara’s argument that the presence of the warning\n\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\n\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\n\ncreated or affixed the warning sign, and thus failed to create a “logical inference\n\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\n\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\n\nFla. 2015).\n\n Guevara also argued that NCL was on constructive notice that the light had\n\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\n\n8:00 p.m. The light thus theoretically could have been out for up to four hours\n\nbefore Guevara fell. The district court disagreed. The court reasoned that the\n\npossibility that the light could have been out for four hours was not evidence of\n\n\n3\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\nclaims against NCL related to the step.\n 8\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\n\n\nwhen the light actually went out. The district court held that Guevara failed to\n\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\n\ndangerous condition posed by the unilluminated light. Guevara appealed.\n\n III. Discussion\n\n We now consider Guevara’s argument that the district court erred in\n\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\n\njudgment to NCL.\n\n A. Exclusion of Supplemental Expert Reports\n\n Guevara challenges the district court’s ruling to exclude his expert’s\n\nsupplemental reports, arguing that those reports would have created a genuine\n\ndispute of material fact. “We . . . review a district court’s exclusion of expert\n\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\n\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\n\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\n\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\n\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\n\n[expert witness] disclosures at the times and in the sequence the court orders.”\n\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\n\nthe deadline, disclose the identity of their experts “accompanied by a written\n\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\n\n 9\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\n\n\nstatement of all opinions the witness will express and the basis and reasons for\n\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\n\nCiv. P. 26(a)(2)(B)(i)–(ii).\n\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\n\nmanner if the party learns that in some material respect the disclosure . . . is\n\nincomplete or incorrect, and if the additional or corrective information has not\n\notherwise been made known to the other parties during the discovery process or in\n\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\n\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\n\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\n\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\n\nthe expert evidence “unless the failure was substantially justified or is harmless.”\n\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\n\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\n\nclearly has authority to exclude an expert’s testimony where a party has failed to\n\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\n\nCourts have broad discretion to exclude untimely expert testimony—even when\n\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\n\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\n\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\n\n 10\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\n\n\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\n\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\n\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\n\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\n\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\n\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\n\nopined that Guevara’s fall was caused by the inadequate design of the stairway\n\nlanding, insufficient maintenance of the landing and surrounding area (including\n\ninsufficient lighting), and the use of improper flooring material that was\n\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\n\nSupplemental Report, which listed a host of industry standards on lighting. The\n\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\n\nproduced ahead of his deposition. A month after the close of discovery and three\n\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\n\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\n\naddressed the COF report disclosed by NCL’s corporate representative. The\n\ndistrict court excluded certain portions of the First Supplemental Report addressing\n\nthe industry standards on lighting and the entirety of the Second Supplemental\n\nReport because Guevara failed to show that the late disclosure of these reports was\n\n\n\n\n 11\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\n\n\neither justified or harmless. We conclude that the district court did not abuse its\n\ndiscretion.\n\n Guevara argues that the district court erred in excluding portions of the First\n\nSupplemental Report because his delay in disclosing these opinions was harmless\n\nas NCL had delayed producing documents and responding to discovery. The\n\nproblem with this argument is that the district court did not strike the opinions in\n\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\n\ndiscovery. The portions of the First Supplemental Report that the district court\n\nexcluded made no reference to any of NCL’s late discovery. The district court did\n\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\n\n“carte blanche to supplement everything in both his initial and rebuttal expert\n\nreports.”\n\n We also cannot say that the district court’s conclusion that the late disclosure\n\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\n\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\n\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\n\nZollo’s deposition, which gave NCL little time to review or prepare questions on\n\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\n\nleft his deposition after only three hours without the prior agreement of the\n\n\n\n\n 12\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\n\n\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\n\nGuevara moved for a protective order, claiming that NCL’s counsel took an\n\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\n\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\n\nthe eve of Dr. Zollo’s deposition.\n\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\n\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\n\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\n\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\n\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\n\nthese facts, we cannot say that the district court abused its discretion when it struck\n\nportions of Dr. Zollo’s First Supplemental Report.\n\n We also cannot say that the district court abused its discretion in striking Dr.\n\nZollo’s Second Supplemental Report in its entirety. The district court\n\nacknowledged that NCL was not diligent in producing the COF report, and\n\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\n\ninformation. But Guevara unreasonably delayed in filing that supplement.\n\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\n\nhe received the COF report, over a month after the close of discovery, and three\n\n\n4\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\n 13\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\n\n\ndays after the district court’s deadline for dispositive and Daubert motions.\n\nGuevara did not seek leave of the district court prior to disclosing the Second\n\nSupplemental Report, nor did he move to extend discovery.\n\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\n\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\n\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\n\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\n\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\n\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\n\nId. at 1266. “Because the expert witness discovery rules are designed to allow\n\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\n\nreasoned, “compliance with the requirements of Rule 26 is not merely\n\naspirational.” Id. Accordingly, we held that the district court did not abuse its\n\ndiscretion in striking the expert’s report in its entirety. Id.\n\n Similarly, the district court did not abuse its discretion in striking the Second\n\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\n\npoint, NCL had already filed its motion for summary judgment and Daubert\n\nmotions. As in Reese, Guevara never sought leave of the district court for the late\n\nfiling or moved to extend discovery.\n\n\n\n\n 14\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\n\n\n We thus conclude that the district court did not abuse its discretion in\n\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\n\nSecond Supplemental Report.\n\n B. Summary Judgment\n\n Guevara contends that the district court erred in holding that (1) the warning\n\nsign was insufficient to establish NCL’s actual or constructive notice of the\n\ndangerous condition posed by the step down, and (2) Guevara failed to present\n\nevidence of negligent maintenance of the lightbulb.\n\n “We review a district court’s grant of summary judgment de novo, viewing\n\nall the evidence, and drawing all reasonable factual inferences, in favor of the\n\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\n\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\n\nthere is no genuine dispute as to any material fact and the movant is entitled to\n\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\n\nimproper, however, “if the evidence is such that a reasonable jury could return a\n\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\n\n248 (1986).\n\n Maritime law governs actions arising from alleged torts committed aboard a\n\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\n\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\n\n 15\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\n\n\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\n\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\n\n827 (5th Cir. 1980)).\n\n To prevail on a negligence claim, a plaintiff must show that “(1) the\n\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\n\ndefendant breached that duty, (3) the breach actually and proximately caused the\n\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\n\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\n\nreasonable care towards those lawfully aboard the vessel who are not members of\n\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\n\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\n\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\n\nwhere, as here, the menace is one commonly encountered on land and not clearly\n\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\n\ncruise ship operator’s liability “hinges on whether it knew or should have known”\n\nabout the dangerous condition. Id.5\n\n A maritime plaintiff can establish constructive notice with evidence that the\n\n“defective condition exist[ed] for a sufficient period of time to invite corrective\n\n\n\n5\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\n 16\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\n\n\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\n\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\n\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\n\nplaintiff can establish constructive notice with evidence of substantially similar\n\nincidents in which “conditions substantially similar to the occurrence in question\n\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\n\n661–62 (11th Cir. 1988).\n\n i. Guevara’s Failure to Warn Claim\n\n Guevara argues that NCL failed to adequately warn him of the dangerous\n\ncondition posed by the step down. NCL responds that summary judgment is\n\nwarranted because it lacked prior notice of the dangerous condition and therefore\n\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\n\nalerting passengers to “watch your step” as evidence that NCL was on actual or\n\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\n\ndown.\n\n NCL contends that the mere presence of a warning sign does not\n\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\n\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\n\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\n\n\n\n\n 17\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\n\n\nsign was placed at that location or what specific condition, if any, it was affixed to\n\naddress.\n\n In analyzing whether the warning sign raises a genuine issue of material fact\n\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\n\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\n\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\n\ntestimony—that the cruise line regularly placed warning signs advising passengers\n\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\n\nmaterial fact regarding whether the cruise line had actual or constructive\n\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\n\n Not all warning signs will be evidence of notice; there must also be a\n\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\n\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\n\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\n\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\n\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\n\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\n\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\n\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\n\nthat the step was there; that is, it warned passengers that the surface was not flat.\n\n 18\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\n\n\nThere is no evidence that it was intended to warn passengers that the nosing may\n\nbe slippery.” Id. at 602 (emphasis added).\n\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\n\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\n\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\n\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\n\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\n\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\n\nsigns establishes a sufficient connection between the warning and the danger—the\n\nstep down.\n\n NCL argues that Sorrels does not control here because the cruise line in that\n\ncase was responsible for creating and placing the warning. But we see no\n\nsignificant distinction between a cruise line placing a warning sign and a cruise\n\nline having knowledge of a permanently affixed warning sign that has been present\n\non its ship for years. A warning sign’s primary function is to warn of dangers.\n\nWhether a cruise line places the warning sign itself or becomes aware of the\n\nwarning sign after taking ownership is of little significance.6 Both situations allow\n\n\n6\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\n 19\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\n\n\nfor an inference that NCL had actual or constructive knowledge that the step down\n\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\n\n796 F.3d at 1288.\n\n The district court noted that the language of the warning sign did not\n\ndemonstrate notice of the dangerous condition posed by the step down because it\n\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\n\nas they climb the three steps to the landing. It does not warn of a potential danger\n\nassociated with the small step from the landing to the deck.” At the summary\n\njudgment stage, however, we must view all evidence and factual inferences in\n\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\n\nconclusion, NCL’s corporate representative testified that the warning sign was\n\nintended to draw passengers’ attention to the step down in the area at issue. A\n\nreasonable jury could conclude that the warning sign’s language applies to the step\n\ndown, particularly where, as here, the warning sign immediately precedes the very\n\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\n\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\n\ndangerous condition posed by the step down.\n\n\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\nresponsible for maintaining the deck area in the present case.\n 20\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\n\n\n NCL contends that by holding that the warning sign here put it on notice of\n\nthe dangerous condition, we are improperly transforming cruise ship operators into\n\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\n\nWe are merely holding that a cruise ship operator has notice of a condition—and\n\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\n\nThis decision does not mean that a cruise ship operator is automatically liable any\n\ntime a passenger is injured in the area of the sign. After all, the cruise ship\n\noperator may be able to defeat the negligence claim by showing that it did not\n\nbreach its duty to warn because the sign provided passengers with a sufficient\n\nwarning about the dangerous condition in the area. In this case, NCL still may\n\nargue at trial that it is not liable because it fulfilled its duty to warn through the\n\nposted sign. 7\n\n Accordingly, we reverse and remand the district court’s ruling regarding\n\nGuevara’s failure to warn claim.\n\n ii. Guevara’s Negligent Maintenance Claim\n\n Guevara argues that the district court erroneously granted summary\n\njudgment based on its finding that he failed to present any evidence of NCL’s\n\n\n7\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\nwarn is established, the adequacy of the warning is usually a question for the jury).\n 21\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\n\n\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\n\nnot required to present evidence of negligent maintenance because NCL did not\n\npresent any admissible evidence of its proper maintenance of the lightbulb. We\n\ndisagree.\n\n NCL may carry its burden of showing no genuine issue of material fact by\n\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\n\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\n\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\n\nthat there was no evidence in the record establishing “a condition requiring\n\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\n\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\n\nfailure to maintain or inspect the subject deck or lighting fixtures caused\n\n[Guevara’s] injuries.”\n\n Guevara has failed to adduce evidence proving that NCL had actual or\n\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\n\nGuevara does not point to any prior passenger complaints or reported issues about\n\nthe ship’s lighting that would alert NCL to any potential safety concern. See\n\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\n\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\n\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\n\n 22\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\n\n\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\n\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\n\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\n\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\n\nGuevara cannot identify when the light went out, he has failed to make a sufficient\n\nshowing that the dangerous condition was “present for a period of time so lengthy\n\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\n\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\n\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\n\ndangerous condition posed by the unilluminated lightbulb.\n\n IV. Conclusion\n\n We affirm in part and reverse in part the district court’s ruling granting\n\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\n\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\n\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\n\nsummary judgment on Guevara’s failure to warn claim. We remand for further\n\nproceedings consistent with this opinion.\n\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\n\n\n\n8\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\nF.2d at 66.\n 23\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Pablo GUEVARA, Plaintiff-Appellant, v. NCL (BAHAMAS) LTD., a Bermuda Company Doing Business as Norwegian Cruise Line, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14889\\n ________________________\\n\\n D.C. Docket No. 1:15-cv-24294-KMW\\n\\n\\n\\nPABLO GUEVARA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nNCL (BAHAMAS) LTD.,\\na Bermuda Company\\ndoing business as\\nNorwegian Cruise Line,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\\n\\n\\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\n Pablo Guevara slipped and fell as he stepped down from a landing located\\n\\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\\n\\nclaimed that he did not perceive the step down because NCL failed to adequately\\n\\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\\n\\nwhere Guevara fell, making it harder for him to navigate the floor level change at\\n\\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\\n\\npassengers of the step down and (2) maintain and inspect the lighting in the area.\\n\\nThe district court granted summary judgment in favor of NCL on both claims,\\n\\nholding that Guevara failed to create a genuine issue of material fact regarding\\n\\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\\n\\nthe step down or the unilluminated light.\\n\\n Guevara appeals the district court’s orders (1) striking his expert’s\\n\\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\\n\\ncareful review and with the benefit of oral argument, we reverse and remand the\\n\\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\\n\\n\\n\\n\\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n 2\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\\n\\n\\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\\n\\ngranting summary judgment on Guevara’s negligent maintenance claim.\\n\\n I. Factual Background\\n\\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\\n\\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\\n\\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\\n\\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\\n\\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\\n\\nGuevara slipped on the deck and fell, landing with his arm wedged between the\\n\\nwall and a handrail. As a result, Guevara broke his arm.\\n\\n After he fell, Guevara noticed a “sheen” of water on the floor where he\\n\\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\\n\\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\\n\\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\\n\\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\\n\\nthe warning sign because the bulb immediately above the sign was out.\\n\\n II. Procedural History\\n\\n\\n\\n\\n1\\n Guevara claims that the landing appeared flush with the brown deck area below the step.\\n 3\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\\n\\n\\n Guevara filed a complaint against NCL in the Southern District of Florida.\\n\\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\\n\\nand (2) maintain and inspect the lighting in the area.\\n\\n A. Expert Witness Reports\\n\\n The parties proceeded to discovery. The district court’s Scheduling Order\\n\\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\\n\\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\\n\\nreports for July 16th.\\n\\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\\n\\nreport on June 20th—two days after the expert disclosure deadline.\\n\\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\\n\\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\\n\\nattentive person walking in the area to safely navigate the floor level change.\\n\\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\\n\\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\\n\\nreport addressed the step’s dimensions and the insufficient slip resistance on the\\n\\nflooring.\\n\\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\\n\\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\\n\\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\\n\\n 4\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\\n\\n\\nrebuttal expert opinions. The First Supplemental Report contained previously\\n\\nundisclosed opinions and references to authoritative materials. NCL proceeded\\n\\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\\n\\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\\n\\nand refused to resume later in the day.\\n\\n Discovery closed on August 26th.\\n\\n On September 26th—a month after the close of discovery and three days\\n\\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\\n\\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\\n\\nSupplemental Report).\\n\\n NCL moved to strike Dr. Zollo’s testimony and reports because of\\n\\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\\n\\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\\n\\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\\n\\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\\n\\narguing that (1) he was not qualified to offer opinions on the construction of\\n\\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\\n\\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\\n\\nhis opinions would not assist the trier of fact.\\n\\n\\n\\n\\n 5\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\\n\\n\\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\\n\\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\\n\\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\\n\\nsetting the deposition of NCL’s corporate representative, which was taken well\\n\\nafter the expert discovery deadlines and a week before discovery closed on August\\n\\n26th. During the corporate representative’s deposition, NCL produced for the first\\n\\ntime a drawing of the deck area, photographs of the area taken the night of\\n\\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\\n\\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\\n\\nsupplementing his initial report based on the new information obtained during the\\n\\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\\n\\nblanche to supplement everything in both his initial and rebuttal expert reports.”\\n\\nAs such, the district court excluded certain portions of the First Supplemental\\n\\nReport and the entirety of the Second Supplemental Report because Guevara failed\\n\\nto show that their late disclosure was either justified or harmless.\\n\\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\\n\\nlisting industry standards on lighting because it was produced too close in time to\\n\\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\\n\\n\\n2\\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\\n892, 896, 921 n.2 (7th Cir. 2004)).\\n 6\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\\n\\n\\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\\n\\nto any of the late discovery produced by NCL. The district court found that the\\n\\nlate submission of the report was not harmless.\\n\\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\\n\\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\\n\\nsupplementing his initial expert reports on account of NCL’s late production of the\\n\\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\\n\\nopinion more than five weeks after he received the COF report, over a month after\\n\\nthe close of discovery, and three days after the district court’s dispositive and\\n\\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\\n\\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\\n\\nReport.\\n\\n B. NCL’s Motion for Summary Judgment\\n\\n NCL moved for summary judgment, arguing that there was no record\\n\\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\\n\\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\\n\\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\\n\\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\\n\\nadequately warn him of the dangerous condition posed by the step down. Under\\n\\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\\n\\n 7\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\\n\\n\\nto go out and remain out and [did] not post[] warning signs (or other more effective\\n\\nwarnings such as yellow tape) that could have been seen by passengers traveling\\n\\nfrom the direction that Mr. Guevara was traveling.”\\n\\n The district court granted summary judgment in favor of NCL, holding that\\n\\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\\n\\nconstructive notice of the allegedly dangerous condition posed by the step down.\\n\\nThe district court rejected Guevara’s argument that the presence of the warning\\n\\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\\n\\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\\n\\ncreated or affixed the warning sign, and thus failed to create a “logical inference\\n\\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\\n\\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\\n\\nFla. 2015).\\n\\n Guevara also argued that NCL was on constructive notice that the light had\\n\\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\\n\\n8:00 p.m. The light thus theoretically could have been out for up to four hours\\n\\nbefore Guevara fell. The district court disagreed. The court reasoned that the\\n\\npossibility that the light could have been out for four hours was not evidence of\\n\\n\\n3\\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\\nclaims against NCL related to the step.\\n 8\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\\n\\n\\nwhen the light actually went out. The district court held that Guevara failed to\\n\\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\\n\\ndangerous condition posed by the unilluminated light. Guevara appealed.\\n\\n III. Discussion\\n\\n We now consider Guevara’s argument that the district court erred in\\n\\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\\n\\njudgment to NCL.\\n\\n A. Exclusion of Supplemental Expert Reports\\n\\n Guevara challenges the district court’s ruling to exclude his expert’s\\n\\nsupplemental reports, arguing that those reports would have created a genuine\\n\\ndispute of material fact. “We . . . review a district court’s exclusion of expert\\n\\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\\n\\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\\n\\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\\n\\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\\n\\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\\n\\n[expert witness] disclosures at the times and in the sequence the court orders.”\\n\\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\\n\\nthe deadline, disclose the identity of their experts “accompanied by a written\\n\\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\\n\\n 9\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\\n\\n\\nstatement of all opinions the witness will express and the basis and reasons for\\n\\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\\n\\nCiv. P. 26(a)(2)(B)(i)–(ii).\\n\\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\\n\\nmanner if the party learns that in some material respect the disclosure . . . is\\n\\nincomplete or incorrect, and if the additional or corrective information has not\\n\\notherwise been made known to the other parties during the discovery process or in\\n\\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\\n\\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\\n\\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\\n\\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\\n\\nthe expert evidence “unless the failure was substantially justified or is harmless.”\\n\\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\\n\\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\\n\\nclearly has authority to exclude an expert’s testimony where a party has failed to\\n\\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\\n\\nCourts have broad discretion to exclude untimely expert testimony—even when\\n\\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\\n\\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\\n\\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\\n\\n 10\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\\n\\n\\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\\n\\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\\n\\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\\n\\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\\n\\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\\n\\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\\n\\nopined that Guevara’s fall was caused by the inadequate design of the stairway\\n\\nlanding, insufficient maintenance of the landing and surrounding area (including\\n\\ninsufficient lighting), and the use of improper flooring material that was\\n\\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\\n\\nSupplemental Report, which listed a host of industry standards on lighting. The\\n\\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\\n\\nproduced ahead of his deposition. A month after the close of discovery and three\\n\\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\\n\\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\\n\\naddressed the COF report disclosed by NCL’s corporate representative. The\\n\\ndistrict court excluded certain portions of the First Supplemental Report addressing\\n\\nthe industry standards on lighting and the entirety of the Second Supplemental\\n\\nReport because Guevara failed to show that the late disclosure of these reports was\\n\\n\\n\\n\\n 11\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\\n\\n\\neither justified or harmless. We conclude that the district court did not abuse its\\n\\ndiscretion.\\n\\n Guevara argues that the district court erred in excluding portions of the First\\n\\nSupplemental Report because his delay in disclosing these opinions was harmless\\n\\nas NCL had delayed producing documents and responding to discovery. The\\n\\nproblem with this argument is that the district court did not strike the opinions in\\n\\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\\n\\ndiscovery. The portions of the First Supplemental Report that the district court\\n\\nexcluded made no reference to any of NCL’s late discovery. The district court did\\n\\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\\n\\n“carte blanche to supplement everything in both his initial and rebuttal expert\\n\\nreports.”\\n\\n We also cannot say that the district court’s conclusion that the late disclosure\\n\\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\\n\\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\\n\\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\\n\\nZollo’s deposition, which gave NCL little time to review or prepare questions on\\n\\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\\n\\nleft his deposition after only three hours without the prior agreement of the\\n\\n\\n\\n\\n 12\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\\n\\n\\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\\n\\nGuevara moved for a protective order, claiming that NCL’s counsel took an\\n\\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\\n\\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\\n\\nthe eve of Dr. Zollo’s deposition.\\n\\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\\n\\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\\n\\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\\n\\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\\n\\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\\n\\nthese facts, we cannot say that the district court abused its discretion when it struck\\n\\nportions of Dr. Zollo’s First Supplemental Report.\\n\\n We also cannot say that the district court abused its discretion in striking Dr.\\n\\nZollo’s Second Supplemental Report in its entirety. The district court\\n\\nacknowledged that NCL was not diligent in producing the COF report, and\\n\\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\\n\\ninformation. But Guevara unreasonably delayed in filing that supplement.\\n\\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\\n\\nhe received the COF report, over a month after the close of discovery, and three\\n\\n\\n4\\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\\n 13\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\\n\\n\\ndays after the district court’s deadline for dispositive and Daubert motions.\\n\\nGuevara did not seek leave of the district court prior to disclosing the Second\\n\\nSupplemental Report, nor did he move to extend discovery.\\n\\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\\n\\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\\n\\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\\n\\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\\n\\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\\n\\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\\n\\nId. at 1266. “Because the expert witness discovery rules are designed to allow\\n\\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\\n\\nreasoned, “compliance with the requirements of Rule 26 is not merely\\n\\naspirational.” Id. Accordingly, we held that the district court did not abuse its\\n\\ndiscretion in striking the expert’s report in its entirety. Id.\\n\\n Similarly, the district court did not abuse its discretion in striking the Second\\n\\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\\n\\npoint, NCL had already filed its motion for summary judgment and Daubert\\n\\nmotions. As in Reese, Guevara never sought leave of the district court for the late\\n\\nfiling or moved to extend discovery.\\n\\n\\n\\n\\n 14\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\\n\\n\\n We thus conclude that the district court did not abuse its discretion in\\n\\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\\n\\nSecond Supplemental Report.\\n\\n B. Summary Judgment\\n\\n Guevara contends that the district court erred in holding that (1) the warning\\n\\nsign was insufficient to establish NCL’s actual or constructive notice of the\\n\\ndangerous condition posed by the step down, and (2) Guevara failed to present\\n\\nevidence of negligent maintenance of the lightbulb.\\n\\n “We review a district court’s grant of summary judgment de novo, viewing\\n\\nall the evidence, and drawing all reasonable factual inferences, in favor of the\\n\\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\\n\\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\\n\\nthere is no genuine dispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\\n\\nimproper, however, “if the evidence is such that a reasonable jury could return a\\n\\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n248 (1986).\\n\\n Maritime law governs actions arising from alleged torts committed aboard a\\n\\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\\n\\n 15\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\\n\\n\\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\\n\\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\\n\\n827 (5th Cir. 1980)).\\n\\n To prevail on a negligence claim, a plaintiff must show that “(1) the\\n\\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\\n\\ndefendant breached that duty, (3) the breach actually and proximately caused the\\n\\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\\n\\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\\n\\nreasonable care towards those lawfully aboard the vessel who are not members of\\n\\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\\n\\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\\n\\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\\n\\nwhere, as here, the menace is one commonly encountered on land and not clearly\\n\\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\\n\\ncruise ship operator’s liability “hinges on whether it knew or should have known”\\n\\nabout the dangerous condition. Id.5\\n\\n A maritime plaintiff can establish constructive notice with evidence that the\\n\\n“defective condition exist[ed] for a sufficient period of time to invite corrective\\n\\n\\n\\n5\\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\\n 16\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\\n\\n\\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\\n\\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\\n\\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\\n\\nplaintiff can establish constructive notice with evidence of substantially similar\\n\\nincidents in which “conditions substantially similar to the occurrence in question\\n\\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\\n\\n661–62 (11th Cir. 1988).\\n\\n i. Guevara’s Failure to Warn Claim\\n\\n Guevara argues that NCL failed to adequately warn him of the dangerous\\n\\ncondition posed by the step down. NCL responds that summary judgment is\\n\\nwarranted because it lacked prior notice of the dangerous condition and therefore\\n\\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\\n\\nalerting passengers to “watch your step” as evidence that NCL was on actual or\\n\\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\\n\\ndown.\\n\\n NCL contends that the mere presence of a warning sign does not\\n\\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\\n\\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\\n\\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\\n\\n\\n\\n\\n 17\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\\n\\n\\nsign was placed at that location or what specific condition, if any, it was affixed to\\n\\naddress.\\n\\n In analyzing whether the warning sign raises a genuine issue of material fact\\n\\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\\n\\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\\n\\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\\n\\ntestimony—that the cruise line regularly placed warning signs advising passengers\\n\\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\\n\\nmaterial fact regarding whether the cruise line had actual or constructive\\n\\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\\n\\n Not all warning signs will be evidence of notice; there must also be a\\n\\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\\n\\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\\n\\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\\n\\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\\n\\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\\n\\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\\n\\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\\n\\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\\n\\nthat the step was there; that is, it warned passengers that the surface was not flat.\\n\\n 18\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\\n\\n\\nThere is no evidence that it was intended to warn passengers that the nosing may\\n\\nbe slippery.” Id. at 602 (emphasis added).\\n\\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\\n\\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\\n\\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\\n\\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\\n\\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\\n\\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\\n\\nsigns establishes a sufficient connection between the warning and the danger—the\\n\\nstep down.\\n\\n NCL argues that Sorrels does not control here because the cruise line in that\\n\\ncase was responsible for creating and placing the warning. But we see no\\n\\nsignificant distinction between a cruise line placing a warning sign and a cruise\\n\\nline having knowledge of a permanently affixed warning sign that has been present\\n\\non its ship for years. A warning sign’s primary function is to warn of dangers.\\n\\nWhether a cruise line places the warning sign itself or becomes aware of the\\n\\nwarning sign after taking ownership is of little significance.6 Both situations allow\\n\\n\\n6\\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\\n 19\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\\n\\n\\nfor an inference that NCL had actual or constructive knowledge that the step down\\n\\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\\n\\n796 F.3d at 1288.\\n\\n The district court noted that the language of the warning sign did not\\n\\ndemonstrate notice of the dangerous condition posed by the step down because it\\n\\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\\n\\nas they climb the three steps to the landing. It does not warn of a potential danger\\n\\nassociated with the small step from the landing to the deck.” At the summary\\n\\njudgment stage, however, we must view all evidence and factual inferences in\\n\\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\\n\\nconclusion, NCL’s corporate representative testified that the warning sign was\\n\\nintended to draw passengers’ attention to the step down in the area at issue. A\\n\\nreasonable jury could conclude that the warning sign’s language applies to the step\\n\\ndown, particularly where, as here, the warning sign immediately precedes the very\\n\\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\\n\\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\\n\\ndangerous condition posed by the step down.\\n\\n\\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\\nresponsible for maintaining the deck area in the present case.\\n 20\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\\n\\n\\n NCL contends that by holding that the warning sign here put it on notice of\\n\\nthe dangerous condition, we are improperly transforming cruise ship operators into\\n\\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\\n\\nWe are merely holding that a cruise ship operator has notice of a condition—and\\n\\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\\n\\nThis decision does not mean that a cruise ship operator is automatically liable any\\n\\ntime a passenger is injured in the area of the sign. After all, the cruise ship\\n\\noperator may be able to defeat the negligence claim by showing that it did not\\n\\nbreach its duty to warn because the sign provided passengers with a sufficient\\n\\nwarning about the dangerous condition in the area. In this case, NCL still may\\n\\nargue at trial that it is not liable because it fulfilled its duty to warn through the\\n\\nposted sign. 7\\n\\n Accordingly, we reverse and remand the district court’s ruling regarding\\n\\nGuevara’s failure to warn claim.\\n\\n ii. Guevara’s Negligent Maintenance Claim\\n\\n Guevara argues that the district court erroneously granted summary\\n\\njudgment based on its finding that he failed to present any evidence of NCL’s\\n\\n\\n7\\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\\nwarn is established, the adequacy of the warning is usually a question for the jury).\\n 21\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\\n\\n\\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\\n\\nnot required to present evidence of negligent maintenance because NCL did not\\n\\npresent any admissible evidence of its proper maintenance of the lightbulb. We\\n\\ndisagree.\\n\\n NCL may carry its burden of showing no genuine issue of material fact by\\n\\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\\n\\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\\n\\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\\n\\nthat there was no evidence in the record establishing “a condition requiring\\n\\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\\n\\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\\n\\nfailure to maintain or inspect the subject deck or lighting fixtures caused\\n\\n[Guevara’s] injuries.”\\n\\n Guevara has failed to adduce evidence proving that NCL had actual or\\n\\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\\n\\nGuevara does not point to any prior passenger complaints or reported issues about\\n\\nthe ship’s lighting that would alert NCL to any potential safety concern. See\\n\\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\\n\\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\\n\\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\\n\\n 22\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\\n\\n\\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\\n\\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\\n\\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\\n\\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\\n\\nGuevara cannot identify when the light went out, he has failed to make a sufficient\\n\\nshowing that the dangerous condition was “present for a period of time so lengthy\\n\\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\\n\\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\\n\\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\\n\\ndangerous condition posed by the unilluminated lightbulb.\\n\\n IV. Conclusion\\n\\n We affirm in part and reverse in part the district court’s ruling granting\\n\\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\\n\\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\\n\\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\\n\\nsummary judgment on Guevara’s failure to warn claim. We remand for further\\n\\nproceedings consistent with this opinion.\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\\n\\n\\n\\n8\\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\\nF.2d at 66.\\n 23\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1873,"cells":{"id":{"kind":"number","value":4606259,"string":"4,606,259"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Pablo Guevara v. NCL (Bahamas) Ltd."},"decision_date":{"kind":"string","value":"2019-04-01"},"docket_number":{"kind":"string","value":"17-14889"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14889\\n ________________________\\n\\n D.C. Docket No. 1:15-cv-24294-KMW\\n\\n\\n\\nPABLO GUEVARA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nNCL (BAHAMAS) LTD.,\\na Bermuda Company\\ndoing business as\\nNorwegian Cruise Line,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\\n\\n\\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\n Pablo Guevara slipped and fell as he stepped down from a landing located\\n\\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\\n\\nclaimed that he did not perceive the step down because NCL failed to adequately\\n\\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\\n\\nwhere Guevara fell, making it harder for him to navigate the floor level change at\\n\\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\\n\\npassengers of the step down and (2) maintain and inspect the lighting in the area.\\n\\nThe district court granted summary judgment in favor of NCL on both claims,\\n\\nholding that Guevara failed to create a genuine issue of material fact regarding\\n\\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\\n\\nthe step down or the unilluminated light.\\n\\n Guevara appeals the district court’s orders (1) striking his expert’s\\n\\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\\n\\ncareful review and with the benefit of oral argument, we reverse and remand the\\n\\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\\n\\n\\n\\n\\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n 2\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\\n\\n\\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\\n\\ngranting summary judgment on Guevara’s negligent maintenance claim.\\n\\n I. Factual Background\\n\\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\\n\\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\\n\\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\\n\\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\\n\\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\\n\\nGuevara slipped on the deck and fell, landing with his arm wedged between the\\n\\nwall and a handrail. As a result, Guevara broke his arm.\\n\\n After he fell, Guevara noticed a “sheen” of water on the floor where he\\n\\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\\n\\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\\n\\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\\n\\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\\n\\nthe warning sign because the bulb immediately above the sign was out.\\n\\n II. Procedural History\\n\\n\\n\\n\\n1\\n Guevara claims that the landing appeared flush with the brown deck area below the step.\\n 3\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\\n\\n\\n Guevara filed a complaint against NCL in the Southern District of Florida.\\n\\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\\n\\nand (2) maintain and inspect the lighting in the area.\\n\\n A. Expert Witness Reports\\n\\n The parties proceeded to discovery. The district court’s Scheduling Order\\n\\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\\n\\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\\n\\nreports for July 16th.\\n\\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\\n\\nreport on June 20th—two days after the expert disclosure deadline.\\n\\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\\n\\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\\n\\nattentive person walking in the area to safely navigate the floor level change.\\n\\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\\n\\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\\n\\nreport addressed the step’s dimensions and the insufficient slip resistance on the\\n\\nflooring.\\n\\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\\n\\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\\n\\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\\n\\n 4\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\\n\\n\\nrebuttal expert opinions. The First Supplemental Report contained previously\\n\\nundisclosed opinions and references to authoritative materials. NCL proceeded\\n\\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\\n\\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\\n\\nand refused to resume later in the day.\\n\\n Discovery closed on August 26th.\\n\\n On September 26th—a month after the close of discovery and three days\\n\\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\\n\\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\\n\\nSupplemental Report).\\n\\n NCL moved to strike Dr. Zollo’s testimony and reports because of\\n\\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\\n\\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\\n\\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\\n\\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\\n\\narguing that (1) he was not qualified to offer opinions on the construction of\\n\\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\\n\\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\\n\\nhis opinions would not assist the trier of fact.\\n\\n\\n\\n\\n 5\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\\n\\n\\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\\n\\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\\n\\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\\n\\nsetting the deposition of NCL’s corporate representative, which was taken well\\n\\nafter the expert discovery deadlines and a week before discovery closed on August\\n\\n26th. During the corporate representative’s deposition, NCL produced for the first\\n\\ntime a drawing of the deck area, photographs of the area taken the night of\\n\\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\\n\\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\\n\\nsupplementing his initial report based on the new information obtained during the\\n\\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\\n\\nblanche to supplement everything in both his initial and rebuttal expert reports.”\\n\\nAs such, the district court excluded certain portions of the First Supplemental\\n\\nReport and the entirety of the Second Supplemental Report because Guevara failed\\n\\nto show that their late disclosure was either justified or harmless.\\n\\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\\n\\nlisting industry standards on lighting because it was produced too close in time to\\n\\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\\n\\n\\n2\\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\\n892, 896, 921 n.2 (7th Cir. 2004)).\\n 6\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\\n\\n\\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\\n\\nto any of the late discovery produced by NCL. The district court found that the\\n\\nlate submission of the report was not harmless.\\n\\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\\n\\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\\n\\nsupplementing his initial expert reports on account of NCL’s late production of the\\n\\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\\n\\nopinion more than five weeks after he received the COF report, over a month after\\n\\nthe close of discovery, and three days after the district court’s dispositive and\\n\\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\\n\\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\\n\\nReport.\\n\\n B. NCL’s Motion for Summary Judgment\\n\\n NCL moved for summary judgment, arguing that there was no record\\n\\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\\n\\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\\n\\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\\n\\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\\n\\nadequately warn him of the dangerous condition posed by the step down. Under\\n\\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\\n\\n 7\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\\n\\n\\nto go out and remain out and [did] not post[] warning signs (or other more effective\\n\\nwarnings such as yellow tape) that could have been seen by passengers traveling\\n\\nfrom the direction that Mr. Guevara was traveling.”\\n\\n The district court granted summary judgment in favor of NCL, holding that\\n\\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\\n\\nconstructive notice of the allegedly dangerous condition posed by the step down.\\n\\nThe district court rejected Guevara’s argument that the presence of the warning\\n\\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\\n\\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\\n\\ncreated or affixed the warning sign, and thus failed to create a “logical inference\\n\\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\\n\\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\\n\\nFla. 2015).\\n\\n Guevara also argued that NCL was on constructive notice that the light had\\n\\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\\n\\n8:00 p.m. The light thus theoretically could have been out for up to four hours\\n\\nbefore Guevara fell. The district court disagreed. The court reasoned that the\\n\\npossibility that the light could have been out for four hours was not evidence of\\n\\n\\n3\\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\\nclaims against NCL related to the step.\\n 8\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\\n\\n\\nwhen the light actually went out. The district court held that Guevara failed to\\n\\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\\n\\ndangerous condition posed by the unilluminated light. Guevara appealed.\\n\\n III. Discussion\\n\\n We now consider Guevara’s argument that the district court erred in\\n\\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\\n\\njudgment to NCL.\\n\\n A. Exclusion of Supplemental Expert Reports\\n\\n Guevara challenges the district court’s ruling to exclude his expert’s\\n\\nsupplemental reports, arguing that those reports would have created a genuine\\n\\ndispute of material fact. “We . . . review a district court’s exclusion of expert\\n\\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\\n\\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\\n\\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\\n\\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\\n\\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\\n\\n[expert witness] disclosures at the times and in the sequence the court orders.”\\n\\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\\n\\nthe deadline, disclose the identity of their experts “accompanied by a written\\n\\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\\n\\n 9\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\\n\\n\\nstatement of all opinions the witness will express and the basis and reasons for\\n\\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\\n\\nCiv. P. 26(a)(2)(B)(i)–(ii).\\n\\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\\n\\nmanner if the party learns that in some material respect the disclosure . . . is\\n\\nincomplete or incorrect, and if the additional or corrective information has not\\n\\notherwise been made known to the other parties during the discovery process or in\\n\\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\\n\\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\\n\\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\\n\\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\\n\\nthe expert evidence “unless the failure was substantially justified or is harmless.”\\n\\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\\n\\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\\n\\nclearly has authority to exclude an expert’s testimony where a party has failed to\\n\\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\\n\\nCourts have broad discretion to exclude untimely expert testimony—even when\\n\\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\\n\\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\\n\\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\\n\\n 10\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\\n\\n\\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\\n\\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\\n\\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\\n\\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\\n\\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\\n\\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\\n\\nopined that Guevara’s fall was caused by the inadequate design of the stairway\\n\\nlanding, insufficient maintenance of the landing and surrounding area (including\\n\\ninsufficient lighting), and the use of improper flooring material that was\\n\\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\\n\\nSupplemental Report, which listed a host of industry standards on lighting. The\\n\\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\\n\\nproduced ahead of his deposition. A month after the close of discovery and three\\n\\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\\n\\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\\n\\naddressed the COF report disclosed by NCL’s corporate representative. The\\n\\ndistrict court excluded certain portions of the First Supplemental Report addressing\\n\\nthe industry standards on lighting and the entirety of the Second Supplemental\\n\\nReport because Guevara failed to show that the late disclosure of these reports was\\n\\n\\n\\n\\n 11\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\\n\\n\\neither justified or harmless. We conclude that the district court did not abuse its\\n\\ndiscretion.\\n\\n Guevara argues that the district court erred in excluding portions of the First\\n\\nSupplemental Report because his delay in disclosing these opinions was harmless\\n\\nas NCL had delayed producing documents and responding to discovery. The\\n\\nproblem with this argument is that the district court did not strike the opinions in\\n\\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\\n\\ndiscovery. The portions of the First Supplemental Report that the district court\\n\\nexcluded made no reference to any of NCL’s late discovery. The district court did\\n\\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\\n\\n“carte blanche to supplement everything in both his initial and rebuttal expert\\n\\nreports.”\\n\\n We also cannot say that the district court’s conclusion that the late disclosure\\n\\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\\n\\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\\n\\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\\n\\nZollo’s deposition, which gave NCL little time to review or prepare questions on\\n\\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\\n\\nleft his deposition after only three hours without the prior agreement of the\\n\\n\\n\\n\\n 12\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\\n\\n\\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\\n\\nGuevara moved for a protective order, claiming that NCL’s counsel took an\\n\\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\\n\\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\\n\\nthe eve of Dr. Zollo’s deposition.\\n\\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\\n\\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\\n\\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\\n\\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\\n\\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\\n\\nthese facts, we cannot say that the district court abused its discretion when it struck\\n\\nportions of Dr. Zollo’s First Supplemental Report.\\n\\n We also cannot say that the district court abused its discretion in striking Dr.\\n\\nZollo’s Second Supplemental Report in its entirety. The district court\\n\\nacknowledged that NCL was not diligent in producing the COF report, and\\n\\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\\n\\ninformation. But Guevara unreasonably delayed in filing that supplement.\\n\\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\\n\\nhe received the COF report, over a month after the close of discovery, and three\\n\\n\\n4\\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\\n 13\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\\n\\n\\ndays after the district court’s deadline for dispositive and Daubert motions.\\n\\nGuevara did not seek leave of the district court prior to disclosing the Second\\n\\nSupplemental Report, nor did he move to extend discovery.\\n\\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\\n\\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\\n\\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\\n\\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\\n\\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\\n\\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\\n\\nId. at 1266. “Because the expert witness discovery rules are designed to allow\\n\\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\\n\\nreasoned, “compliance with the requirements of Rule 26 is not merely\\n\\naspirational.” Id. Accordingly, we held that the district court did not abuse its\\n\\ndiscretion in striking the expert’s report in its entirety. Id.\\n\\n Similarly, the district court did not abuse its discretion in striking the Second\\n\\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\\n\\npoint, NCL had already filed its motion for summary judgment and Daubert\\n\\nmotions. As in Reese, Guevara never sought leave of the district court for the late\\n\\nfiling or moved to extend discovery.\\n\\n\\n\\n\\n 14\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\\n\\n\\n We thus conclude that the district court did not abuse its discretion in\\n\\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\\n\\nSecond Supplemental Report.\\n\\n B. Summary Judgment\\n\\n Guevara contends that the district court erred in holding that (1) the warning\\n\\nsign was insufficient to establish NCL’s actual or constructive notice of the\\n\\ndangerous condition posed by the step down, and (2) Guevara failed to present\\n\\nevidence of negligent maintenance of the lightbulb.\\n\\n “We review a district court’s grant of summary judgment de novo, viewing\\n\\nall the evidence, and drawing all reasonable factual inferences, in favor of the\\n\\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\\n\\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\\n\\nthere is no genuine dispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\\n\\nimproper, however, “if the evidence is such that a reasonable jury could return a\\n\\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n248 (1986).\\n\\n Maritime law governs actions arising from alleged torts committed aboard a\\n\\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\\n\\n 15\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\\n\\n\\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\\n\\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\\n\\n827 (5th Cir. 1980)).\\n\\n To prevail on a negligence claim, a plaintiff must show that “(1) the\\n\\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\\n\\ndefendant breached that duty, (3) the breach actually and proximately caused the\\n\\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\\n\\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\\n\\nreasonable care towards those lawfully aboard the vessel who are not members of\\n\\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\\n\\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\\n\\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\\n\\nwhere, as here, the menace is one commonly encountered on land and not clearly\\n\\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\\n\\ncruise ship operator’s liability “hinges on whether it knew or should have known”\\n\\nabout the dangerous condition. Id.5\\n\\n A maritime plaintiff can establish constructive notice with evidence that the\\n\\n“defective condition exist[ed] for a sufficient period of time to invite corrective\\n\\n\\n\\n5\\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\\n 16\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\\n\\n\\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\\n\\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\\n\\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\\n\\nplaintiff can establish constructive notice with evidence of substantially similar\\n\\nincidents in which “conditions substantially similar to the occurrence in question\\n\\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\\n\\n661–62 (11th Cir. 1988).\\n\\n i. Guevara’s Failure to Warn Claim\\n\\n Guevara argues that NCL failed to adequately warn him of the dangerous\\n\\ncondition posed by the step down. NCL responds that summary judgment is\\n\\nwarranted because it lacked prior notice of the dangerous condition and therefore\\n\\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\\n\\nalerting passengers to “watch your step” as evidence that NCL was on actual or\\n\\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\\n\\ndown.\\n\\n NCL contends that the mere presence of a warning sign does not\\n\\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\\n\\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\\n\\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\\n\\n\\n\\n\\n 17\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\\n\\n\\nsign was placed at that location or what specific condition, if any, it was affixed to\\n\\naddress.\\n\\n In analyzing whether the warning sign raises a genuine issue of material fact\\n\\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\\n\\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\\n\\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\\n\\ntestimony—that the cruise line regularly placed warning signs advising passengers\\n\\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\\n\\nmaterial fact regarding whether the cruise line had actual or constructive\\n\\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\\n\\n Not all warning signs will be evidence of notice; there must also be a\\n\\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\\n\\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\\n\\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\\n\\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\\n\\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\\n\\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\\n\\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\\n\\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\\n\\nthat the step was there; that is, it warned passengers that the surface was not flat.\\n\\n 18\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\\n\\n\\nThere is no evidence that it was intended to warn passengers that the nosing may\\n\\nbe slippery.” Id. at 602 (emphasis added).\\n\\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\\n\\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\\n\\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\\n\\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\\n\\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\\n\\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\\n\\nsigns establishes a sufficient connection between the warning and the danger—the\\n\\nstep down.\\n\\n NCL argues that Sorrels does not control here because the cruise line in that\\n\\ncase was responsible for creating and placing the warning. But we see no\\n\\nsignificant distinction between a cruise line placing a warning sign and a cruise\\n\\nline having knowledge of a permanently affixed warning sign that has been present\\n\\non its ship for years. A warning sign’s primary function is to warn of dangers.\\n\\nWhether a cruise line places the warning sign itself or becomes aware of the\\n\\nwarning sign after taking ownership is of little significance.6 Both situations allow\\n\\n\\n6\\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\\n 19\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\\n\\n\\nfor an inference that NCL had actual or constructive knowledge that the step down\\n\\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\\n\\n796 F.3d at 1288.\\n\\n The district court noted that the language of the warning sign did not\\n\\ndemonstrate notice of the dangerous condition posed by the step down because it\\n\\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\\n\\nas they climb the three steps to the landing. It does not warn of a potential danger\\n\\nassociated with the small step from the landing to the deck.” At the summary\\n\\njudgment stage, however, we must view all evidence and factual inferences in\\n\\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\\n\\nconclusion, NCL’s corporate representative testified that the warning sign was\\n\\nintended to draw passengers’ attention to the step down in the area at issue. A\\n\\nreasonable jury could conclude that the warning sign’s language applies to the step\\n\\ndown, particularly where, as here, the warning sign immediately precedes the very\\n\\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\\n\\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\\n\\ndangerous condition posed by the step down.\\n\\n\\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\\nresponsible for maintaining the deck area in the present case.\\n 20\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\\n\\n\\n NCL contends that by holding that the warning sign here put it on notice of\\n\\nthe dangerous condition, we are improperly transforming cruise ship operators into\\n\\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\\n\\nWe are merely holding that a cruise ship operator has notice of a condition—and\\n\\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\\n\\nThis decision does not mean that a cruise ship operator is automatically liable any\\n\\ntime a passenger is injured in the area of the sign. After all, the cruise ship\\n\\noperator may be able to defeat the negligence claim by showing that it did not\\n\\nbreach its duty to warn because the sign provided passengers with a sufficient\\n\\nwarning about the dangerous condition in the area. In this case, NCL still may\\n\\nargue at trial that it is not liable because it fulfilled its duty to warn through the\\n\\nposted sign. 7\\n\\n Accordingly, we reverse and remand the district court’s ruling regarding\\n\\nGuevara’s failure to warn claim.\\n\\n ii. Guevara’s Negligent Maintenance Claim\\n\\n Guevara argues that the district court erroneously granted summary\\n\\njudgment based on its finding that he failed to present any evidence of NCL’s\\n\\n\\n7\\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\\nwarn is established, the adequacy of the warning is usually a question for the jury).\\n 21\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\\n\\n\\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\\n\\nnot required to present evidence of negligent maintenance because NCL did not\\n\\npresent any admissible evidence of its proper maintenance of the lightbulb. We\\n\\ndisagree.\\n\\n NCL may carry its burden of showing no genuine issue of material fact by\\n\\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\\n\\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\\n\\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\\n\\nthat there was no evidence in the record establishing “a condition requiring\\n\\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\\n\\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\\n\\nfailure to maintain or inspect the subject deck or lighting fixtures caused\\n\\n[Guevara’s] injuries.”\\n\\n Guevara has failed to adduce evidence proving that NCL had actual or\\n\\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\\n\\nGuevara does not point to any prior passenger complaints or reported issues about\\n\\nthe ship’s lighting that would alert NCL to any potential safety concern. See\\n\\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\\n\\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\\n\\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\\n\\n 22\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\\n\\n\\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\\n\\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\\n\\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\\n\\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\\n\\nGuevara cannot identify when the light went out, he has failed to make a sufficient\\n\\nshowing that the dangerous condition was “present for a period of time so lengthy\\n\\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\\n\\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\\n\\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\\n\\ndangerous condition posed by the unilluminated lightbulb.\\n\\n IV. Conclusion\\n\\n We affirm in part and reverse in part the district court’s ruling granting\\n\\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\\n\\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\\n\\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\\n\\nsummary judgment on Guevara’s failure to warn claim. We remand for further\\n\\nproceedings consistent with this opinion.\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\\n\\n\\n\\n8\\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\\nF.2d at 66.\\n 23\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383512/\", \"author_raw\": \"WILSON, Circuit Judge:\"}, {\"author\": \"JILL PRYOR, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JILL PRYOR, Circuit Judge, concurring:\\n\\n I concur fully in the majority’s opinion. I write this special concurrence to\\n\\nrespond in more detail to the dissent’s argument that our decision today is in\\n\\ntension with the admiralty law of this circuit.\\n\\n Plaintiff Pablo Guevara contends that defendant NCL (Bahamas), Inc. was\\n\\nnegligent because it failed to warn him of a hidden step down on its cruise ship, the\\n\\nSpirit. To determine whether the district court erred in granting summary\\n\\njudgment to NCL, we must decide whether NCL owed Guevara a duty.\\n\\n Like the dissent, I begin with the premise that a cruise ship operator “is not\\n\\nliable to passengers as an insurer.” See Keefe v. Bahama Cruise Line, Inc.,\\n\\n867 F.2d 1318, 1322 (11th Cir. 1989) (internal quotation marks omitted). But a\\n\\ncruise ship operator remains liable for its negligence and thus must exercise\\n\\n“ordinary reasonable care under the circumstances.” Id. The reasonable care\\n\\nstandard “requires, as a prerequisite to imposing liability, that the carrier have had\\n\\nactual or constructive notice of the risk-creating condition,” at least when the\\n\\nmenace is commonly encountered on land. Id. The dissent accepts that when a\\n\\ncruise ship operator has actual or constructive notice of a dangerous condition, it\\n\\ngenerally owes a duty to warn its passengers of that condition.\\n\\n Whether NCL had a duty to warn Guevara of the step down turns on\\n\\nwhether it had notice of the dangerous condition. Guevara contends that NCL had\\n\\n 24\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 25 of 37\\n\\n\\nnotice of the dangerous condition based on a sign installed immediately before the\\n\\nstep down that cautioned “WATCH YOUR STEP.” As an initial matter, the entire\\n\\npanel agrees that a reasonable jury could find that the sign warned about the\\n\\ndangerous condition created by the step down (as opposed to some other dangerous\\n\\ncondition). See Dissent at 34 (observing that the risk created by the step down\\n\\n“came with a warning”).\\n\\n The dissent nonetheless concludes that NCL had no notice of the dangerous\\n\\ncondition because the ship’s manufacturer, rather than NCL, installed the sign.\\n\\nBut I see no reason to require that NCL must have installed the sign for a factfinder\\n\\nto conclude that NCL had notice. A reasonable jury could infer that NCL\\n\\nunderstood or at least should have understood from the sign that the step down\\n\\ncreated a dangerous condition. After all, the dissent acknowledges, “[w]arning\\n\\nsigns are meant to be seen,” id., and this sign could be seen by the ship’s crew and\\n\\npassengers alike.\\n\\n Instead of allowing this question of fact to be decided by a jury, the dissent\\n\\nwould prefer a legal rule that a cruise ship operator can be put on notice of a\\n\\ndangerous condition by a warning sign only if the ship operator installed the\\n\\nwarning sign. See id. at 35 (“Because the boat came with the warning sign, [NCL]\\n\\nnever took any affirmative act in connection with the alleged risk and cannot be\\n\\nheld liable for it.”). The dissent’s bright-line rule would require courts to ignore\\n\\n 25\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 26 of 37\\n\\n\\nfacts establishing that the cruise ship’s officers and crew learned or should have\\n\\nlearned of the dangerous condition from the sign. Nothing in our precedent\\n\\nestablishes such a rule. We have held that a cruise ship operator’s affirmative act\\n\\nof warning of a risk is sufficient to establish that it had notice of a danger. See,\\n\\ne.g., Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1288-89 (11th Cir. 2015)\\n\\n(concluding that a cruise ship operator had notice that the ship’s pool deck could\\n\\nbe slippery after rain from evidence that crew members sometimes posted warning\\n\\nsigns on the pool deck after rain). But we have never held that it is necessary that\\n\\na cruise ship operator have taken an affirmative act regarding a risk to establish\\n\\nthat it had knowledge of the danger. To the contrary, we have recognized that a\\n\\ncruise ship operator may be put on notice of a danger after the dangerous condition\\n\\ncauses an injury, even though the operator has taken no affirmative act. See Caron\\n\\nv. NCL (Bahamas), Ltd., 910 F.3d 1359, 1370 (11th Cir. 2018) (accepting that that\\n\\nprior reports of similar incidents are sufficient to provide a cruise ship operator\\n\\nwith notice of a dangerous condition); see generally Chimene v. Royal Caribbean\\n\\nCruises, Ltd., No. 16-23775-CV, 2017 WL 8794706, at *4 (S.D. Fla. Nov. 14,\\n\\n2017) (concluding that cruise ship operator had notice of dangerous condition\\n\\ncreated by zip line from prior reports of substantially similar incidents).\\n\\n The dissent contends that our previous decision in Everett v. Carnival Cruise\\n\\nLines, 912 F.2d 1355 (11th Cir. 1990), bars us from concluding that a cruise ship\\n\\n 26\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 27 of 37\\n\\n\\noperator could receive notice of a dangerous condition from a sign that it did not\\n\\ninstall. In that case, a cruise ship passenger sustained injuries when she tripped\\n\\nover a metal threshold on the ship. Id. at 1357. The passenger argued that the\\n\\ncruise ship operator had knowledge of the dangerous condition because it created\\n\\nand maintained the threshold. Id. at 1359. We rejected this argument, explaining\\n\\nthat accepting the passenger’s argument would effectively “defeat[]” the notice\\n\\nrequirement. Id. Although we recognized in Everett that a cruise ship operator\\n\\ndoes not have knowledge of a dangerous condition simply because the condition is\\n\\npresent on the ship that it maintains, Everett did not address whether a warning\\n\\nposted on a cruise ship—that is, a posting identifying a condition as dangerous—\\n\\ncould put the operator on notice of that dangerous condition. 1\\n\\n The majority opinion runs afoul of the rule established by Everett, the\\n\\ndissent argues, because if the warning sign put NCL on notice, it must have also\\n\\n\\n\\n 1\\n The dissent also relies on our unpublished decision in Pizzino v. NCL (Bahamas) Ltd.,\\n709 F. App’x 563 (11th Cir. 2017) (unpublished). Like Everett, Pizzino did not address whether\\na warning sign placed by a third party can put a cruise ship operator on notice. In Pizzino, a\\npassenger sued a cruise ship operator for negligence after slipping on the cruise ship’s floor. Id.\\nat 564. The hazard was created by water that appeared to splash out of a ship employee’s bucket.\\nId. at 563-64. After the district court instructed the jury that the passenger had to show that the\\noperator had actual or constructive notice of the dangerous condition, the jury returned a verdict\\nin favor of the cruise ship operator. Id. at 564. The passenger appealed, arguing that the cruise\\nship operator could be held liable on the basis that its employee had created the dangerous\\ncondition by spilling water on the floor. Id. We affirmed, concluding that the district court had\\nproperly instructed the jury that a cruise ship operator must have actual or constructive notice of\\na dangerous condition, even if it created the danger. Id. at 566-67. There was no posted warning\\nin Pizzino that arguably put the cruise ship operator on notice of the dangerous condition, so\\nPizzino did not decide or address the issue we face here.\\n 27\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 28 of 37\\n\\n\\nput Guevara on notice, unless NCL’s ability to understand the sign differed from\\n\\nGuevara’s. And “the only thing that differentiates Guevara from [NCL],”\\n\\naccording to the dissent, “is [NCL’s] operation of the Spirit.” Dissent at 36. The\\n\\ndissent glosses over another important difference between NCL and Guevara,\\n\\nhowever. A reasonable jury could find that NCL received notice before Guevara’s\\n\\nfall when the Spirit’s officers and crew members encountered the area with the\\n\\nsign in daylight or at night time when the sign was lit. In contrast, a reasonable\\n\\njury could find that Guevara encountered this area just once—the night of the\\n\\nincident when the light above the sign was not lit, which made the sign unreadable.\\n\\n The dissent also asserts that NCL should not be held liable because it was\\n\\ndue only to “bad luck” that the light was out and Guevara could not see the sign.\\n\\nId. at 34. This argument addresses a different issue, though: whether, assuming\\n\\nNCL had a duty to warn, the sign was sufficient to discharge NCL’s duty. At trial,\\n\\nthe jury could find that the warning sign was visible and adequately warned\\n\\nGuevara of the danger, meaning that NCL had discharged its duty to warn. But\\n\\nwhether NCL gave an adequate warning, assuming it had a duty to warn, does not\\n\\ntell us whether it had notice and thus owed such a duty. See Chaparro v. Carnival\\n\\nCorp., 693 F.3d 1333, 1336 (11th Cir. 2012) (identifying duty and breach as\\n\\nseparate elements of a negligence claim).\\n\\n\\n\\n\\n 28\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 29 of 37\\n\\n\\n Returning to where it began, the dissent closes with the concern that our\\n\\ndecision will make a cruise ship operator a general insurer liable for every warning\\n\\nany manufacturer places on a ship. To answer that concern, the dissent would\\n\\nadopt a bright-line rule that a cruise ship operator can never receive notice of a\\n\\ndangerous condition from a warning sign installed by a manufacturer or other third\\n\\nparty. By eliminating one way in which a cruise ship operator could actually gain\\n\\nknowledge of a danger, the dissent’s approach defies common experience and\\n\\nwould erode the long-standing principle of admiralty law that a cruise ship\\n\\noperator must warn its passengers of known dangerous conditions. Because\\n\\nquestions of fact remain about whether the warning sign installed by the ship’s\\n\\nmanufacturer put NCL on notice of the danger associated with the step down, I\\n\\nvoted with the majority to allow the case to go to a jury.\\n\\n I want to emphasize that the majority’s decision today is narrow. Even\\n\\nassuming the dissent is correct that the decision means a cruise ship operator owes\\n\\na duty to warn of any danger for which a warning is posted on a ship, 2 only in rare\\n\\n\\n\\n 2\\n Some warnings posted by third parties on a ship would be insufficient to put a cruise\\nship operator on notice of the dangerous condition identified by the warning. To take the\\ndissent’s example, a sticker placed on a lamp in a cabin stateroom warning that the lamp\\nbecomes hot may not give the cruise ship operator actual or constructive notice of the danger.\\nThe question of whether such a sticker would put the cruise ship operator on notice could depend\\non factual issues such as: the access that officers and crew had to the cabin stateroom to see the\\nsticker, the size of the sticker, and the location of the sticker (in this example, the warning could\\nbe hidden by the lamp shade). In contrast, here there is ample evidence from which a reasonable\\njury could infer that the warning sign informed NCL of the danger caused by the step down\\n 29\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 30 of 37\\n\\n\\ncases will a passenger attempting to hold a cruise ship operator liable for a breach\\n\\nof that duty get past summary judgment. To get to trial, the passenger will have to\\n\\ncome forward with evidence, not speculation, that the warning was sufficiently\\n\\nvisible to put the cruise ship operator on notice yet was not visible to the\\n\\npassenger. Guevara has carried this burden given the cruise ship operator’s “bad\\n\\nluck” that the light over the sign went out, but I doubt many operators will be so\\n\\nunlucky.\\n\\n\\n\\n\\nbecause the warning sign was large and prominently posted in a public area that was accessible\\nto anyone on the ship.\\n 30\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 31 of 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383512/\", \"author_raw\": \"JILL PRYOR, Circuit Judge, concurring\"}, {\"author\": \"SUTTON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"SUTTON, Circuit Judge, concurring in part and dissenting in part:\\n\\n As a visiting judge, I am reluctant to quibble over the meaning of local law.\\n\\nAnd as a visiting judge from a largely land-locked and exclusively fresh-water\\n\\ncircuit, I am especially reluctant to quibble over the meaning of admiralty law with\\n\\njudges from a circuit whose every State touches the sea. In overcoming that\\n\\nhesitation, I take some comfort in the reality that the Miami-based district court\\n\\njudge who handled this case reached the same conclusion I do and the view that\\n\\none does not have to be a seaworthy judge to see some tension between today’s\\n\\ndecision and the admiralty law of this circuit.\\n\\n Eleventh Circuit admiralty law establishes three related propositions when it\\n\\ncomes to slip-and-fall accidents at sea. The first is that cruise ships are not general\\n\\ninsurers of their passengers. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1322 (11th Cir. 1989) (per curiam). The second is that cruise ships may be\\n\\nliable only if they knew or should have known about the danger that caused the\\n\\naccident. Id. The third is that such knowledge does not arise from buying and\\n\\noperating a ship with pre-existing signage about pre-existing risks. See Everett v.\\n\\nCarnival Cruise Lines, 912 F.2d 1355, 1358–59 (11th Cir. 1990); see also Malley\\n\\nv. Royal Caribbean Cruises Ltd., 713 F. App’x 905, 908 (11th Cir. 2017) (per\\n\\ncuriam); Pizzino v. NCL (Bahamas) Ltd., 709 F. App’x 563, 566–67 (11th Cir.\\n\\n\\n\\n\\n 31\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 32 of 37\\n\\n\\n2017) (per curiam); cf. Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311,\\n\\n1323 (S.D. Fla. 2015).\\n\\n Applied here, these principles should make short work of this case. On\\n\\nNovember 26, 2014, Pablo Guevara and his wife boarded a cruise ship, the Spirit,\\n\\nin Barcelona, Spain. Later that first night, at around 11:30 p.m., Guevara left his\\n\\nwife in the casino and went in search of the cigar lounge. The accident occurred\\n\\non Spirit’s pool deck. Here’s the scene: Three steps lead up to a small landing,\\n\\nfollowed by a step down. Two pillars flank the landing. Each pillar has a light and\\n\\na handrail; one pillar bears a sign warning pedestrians to “please use the handrail”\\n\\nand “watch your step.” R. 66-1.\\n\\n According to Guevara, the light next to the sign was out and the deck was\\n\\nwet. After he ascended the three steps, he didn’t notice the step down, tripped,\\n\\nslipped, and broke his arm.\\n\\n Guevara’s negligence complaint against Norwegian targeted three defects:\\n\\n(1) The company “[f]ailed to adequately inspect the lights in the subject area to\\n\\nmake sure operational”; (2) the company “[f]ailed to warn plaintiff of the danger of\\n\\na wet and slippery floor in the subject area”; and (3) the company “failed to warn\\n\\nof the change of level in the area.” R. 1 at 3–4.\\n\\n Each theory does not work.\\n\\n\\n\\n\\n 32\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 33 of 37\\n\\n\\n Begin with the broken-light-bulb theory. The unrebutted evidence shows\\n\\nthat Norwegian did not notice the spent light bulb, that no one identified any such\\n\\nproblem before the accident, and that its employees checked the area (and the light\\n\\nbulbs) twice a day and did not see any problem. On this record, Norwegian did not\\n\\nact negligently. The majority agrees.\\n\\n Turn to the wet-deck theory. Here too Norwegian did nothing wrong, as it\\n\\nhad no notice of any problem. The record does not contain any evidence of prior\\n\\naccidents on this part of the ship due to a wet deck. This thus is not a case in\\n\\nwhich the cruise ship identified the problem, say by putting orange cones near the\\n\\nhazard, and could be liable if its precautions did not adequately address the risk.\\n\\n Think by comparison of Horne v. Carnival Corporation, 741 F. App’x 607\\n\\n(11th Cir. 2018) (per curiam). A passenger sued the cruise line after high winds\\n\\ncaused a door to slam and chop off part of his finger. Id. at 608. The cruise line\\n\\nhad previously “put up signs warning of strong winds” but failed to provide notice\\n\\non the day of the accident. Id. at 609. The prior signs, the court reasoned, could\\n\\nshow that the cruise line had “notice of the hazardous condition.” Id.\\n\\n Nor is this a case in which passengers had slipped on this same wet deck\\n\\nbefore, placing the cruise ship on notice of the danger. See Sorrels v. NCL\\n\\n(Bahamas) Ltd., 796 F.3d 1275, 1287–88 (11th Cir. 2015). No evidence of any\\n\\nsuch accidents appears in the record. Apparently appreciating these gaps in this\\n\\n 33\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 34 of 37\\n\\n\\ntheory of liability, Guevara does not develop on appeal his claim premised on a\\n\\nwet deck, which explains why the court (correctly) does not address it.\\n\\n That leaves the last theory—that Norwegian did not adequately warn of the\\n\\nrisk from the step down. But that’s the least plausible theory of the three. It takes\\n\\nup the one risk that night (a drop down in the steps) that came with a warning (a\\n\\n“please use the handrail” and “watch your step” sign). It involves a risk and a\\n\\nwarning sign that predated Norwegian’s ownership of the cruise ship. And it\\n\\ninvolves a warning sign that by Guevara’s own admission could not be seen given\\n\\nthe broken light. For many of the reasons that Judge Kathleen Williams rejected\\n\\nthis claim as a matter of law, so would I.\\n\\n Start with a problem of Guevara’s making. By his own account, Guevara\\n\\ncould not see the sign “because the bulb immediately above the sign was not\\n\\nfunctioning.” Appellant’s Br. 6; id. at 36 (“[T]he light on the pedestal just above\\n\\nthe warning sign was out.”); see also Reply Br. 6 (“The sign is clearly visible in\\n\\ndaylight, or at night with appropriate lighting.”). Warning signs are meant to be\\n\\nseen. Just as arguments are meant to be heard. And briefs and opinions are meant\\n\\nto be read. The law does not hold parties liable for signs that, by a claimant’s own\\n\\naccount, cannot be seen. I am not aware of any case from any court that holds a\\n\\nproperty owner liable for posting an inadequate warning sign when the source of\\n\\nthe inadequacy—darkness—turned on bad luck, not the negligence of the owner.\\n\\n 34\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 35 of 37\\n\\n\\nGuevara never acknowledges, much less fills, this yawning gap in his theory of the\\n\\ncase.\\n\\n No less importantly, Norwegian had nothing to do with the sign. It came\\n\\nwith the boat. And no evidence shows that the sign did not do its job. The record\\n\\ndoes not contain any evidence of prior accidents during the day based on the step\\n\\ndown or accidents during the night (whether the light worked or not) based on the\\n\\nstep down. Because the boat came with the warning sign, Norwegian never took\\n\\nany affirmative act in connection with the alleged risk and cannot be held liable for\\n\\nit. See Horne, 741 F. App’x at 609; Sorrels, 796 F.3d at 1287–88.\\n\\n Last of all, precedent does not allow us to hold that Norwegian knew about\\n\\nthe sign and realized that the step was dangerous simply because Norwegian\\n\\nbought and operated the vessel. See Everett, 912 F.2d at 1359. That’s simply\\n\\nanother way of making Norwegian a general insurer—liable for all risks of running\\n\\na cruise ship and transporting passengers—which is just what this court’s decisions\\n\\nforeclose. See Keefe, 867 F.2d at 1322.\\n\\n Everett v. Carnival Cruise Lines illustrates the point. 912 F. App’x 1355\\n\\n(11th Cir. 1990). A passenger tripped over a metal door threshold. Id. at 1357.\\n\\nShe argued that she did not need to prove the cruise line knew about the threshold\\n\\nbecause the cruise line “created the threshold and maintained it. In other words,\\n\\n[the shipowner] should have known that there was a danger of passenger injury\\n\\n 35\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 36 of 37\\n\\n\\nbecause it was the owner and operator of the ship.” Id. at 1359. The court rejected\\n\\nthe theory as a matter of law, holding that it would “defeat[]” the point of having a\\n\\nnotice requirement and the point of “limit[ing] . . . the shipowner’s liability” so that\\n\\nit was not a general insurer of its passengers. Id.\\n\\n Pizzino v. NCL (Bahamas) Ltd. is of a piece. 709 F. App’x 563 (11th Cir.\\n\\n2017) (per curiam). A crew member spilled water on the deck, and the Eleventh\\n\\nCircuit re-affirmed that operation of a ship alone does not create notice. Id. at\\n\\n564–66. Something more is required—namely that the passenger prove that the\\n\\nshipowner knew about the danger. Id. at 565.\\n\\n Size up this aspect of Guevara’s argument—that the pre-existing warning\\n\\nsign gave Norwegian notice of this risk—from another direction. If it’s fair to say\\n\\nthat the warning sign put Norwegian on notice of the danger posed by the step\\n\\ndown, the sign also must have made Guevara aware of the danger as well—unless\\n\\ndaylight exists between Guevara’s ability to understand the sign and Norwegian’s.\\n\\nBut the only thing that differentiates Guevara from Norwegian is Norwegian’s\\n\\noperation of the Spirit. And we cannot attribute notice to a shipowner simply\\n\\nbecause it operates a ship, as case after case from this circuit says. See supra.\\n\\n Any other approach to this case will make shipowners liable for every\\n\\nwarning that a manufacturer places on any part of the ship. Imagine a\\n\\nmanufacturer who places a sticker on lamps in cabin bedrooms, warning patrons\\n\\n 36\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 37 of 37\\n\\n\\nthat they can become hot to the touch. Or a manufacturer who warns that children\\n\\nmight suffocate if they play with the plastic trash bags in cabin bathrooms. Under\\n\\nthe majority’s rule, the cruise line now possesses constructive notice of these\\n\\ndangers and can become liable to the first passenger who burns himself or the first\\n\\nchild who asphyxiates. Cruise ships are floating cities, and these types of scenarios\\n\\nend only when the horizon does.\\n\\n That Norwegian may argue at trial that this sign fulfilled its duty to warn and\\n\\nthus may still prevail, as the court points out, offers cold comfort to this shipowner\\n\\nand any other. All that means is that in some number of cases juries will not treat\\n\\nshipowners as general insurers and in some number of cases they will. But never,\\n\\nnot sometimes, is the point of the court’s steadfast commitment to declining to\\n\\nmake shipowners the general insurers of their passengers. That is a rule of law, not\\n\\na rule of fact.\\n\\n I respectfully dissent.\\n\\n\\n\\n\\n 37\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383512/\", \"author_raw\": \"SUTTON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WILSON"},"judge2":{"kind":"string","value":"JILL PRYOR"},"judge3":{"kind":"string","value":"SUTTON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILSON\": \", Circuit\", \"JILL PRYOR\": \", Circuit\", \"SUTTON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4606259/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Pablo Guevara v. NCL (Bahamas) Ltd.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-01\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14889\n ________________________\n\n D.C. Docket No. 1:15-cv-24294-KMW\n\n\n\nPABLO GUEVARA,\n\n Plaintiff - Appellant,\n\nversus\n\nNCL (BAHAMAS) LTD.,\na Bermuda Company\ndoing business as\nNorwegian Cruise Line,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 1, 2019)\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\n\n\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\n\nWILSON, Circuit Judge:\n\n Pablo Guevara slipped and fell as he stepped down from a landing located\n\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\n\nclaimed that he did not perceive the step down because NCL failed to adequately\n\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\n\nwhere Guevara fell, making it harder for him to navigate the floor level change at\n\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\n\npassengers of the step down and (2) maintain and inspect the lighting in the area.\n\nThe district court granted summary judgment in favor of NCL on both claims,\n\nholding that Guevara failed to create a genuine issue of material fact regarding\n\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\n\nthe step down or the unilluminated light.\n\n Guevara appeals the district court’s orders (1) striking his expert’s\n\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\n\ncareful review and with the benefit of oral argument, we reverse and remand the\n\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\n\n\n\n\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n 2\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\n\n\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\n\ngranting summary judgment on Guevara’s negligent maintenance claim.\n\n I. Factual Background\n\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\n\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\n\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\n\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\n\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\n\nGuevara slipped on the deck and fell, landing with his arm wedged between the\n\nwall and a handrail. As a result, Guevara broke his arm.\n\n After he fell, Guevara noticed a “sheen” of water on the floor where he\n\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\n\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\n\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\n\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\n\nthe warning sign because the bulb immediately above the sign was out.\n\n II. Procedural History\n\n\n\n\n1\n Guevara claims that the landing appeared flush with the brown deck area below the step.\n 3\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\n\n\n Guevara filed a complaint against NCL in the Southern District of Florida.\n\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\n\nand (2) maintain and inspect the lighting in the area.\n\n A. Expert Witness Reports\n\n The parties proceeded to discovery. The district court’s Scheduling Order\n\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\n\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\n\nreports for July 16th.\n\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\n\nreport on June 20th—two days after the expert disclosure deadline.\n\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\n\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\n\nattentive person walking in the area to safely navigate the floor level change.\n\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\n\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\n\nreport addressed the step’s dimensions and the insufficient slip resistance on the\n\nflooring.\n\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\n\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\n\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\n\n 4\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\n\n\nrebuttal expert opinions. The First Supplemental Report contained previously\n\nundisclosed opinions and references to authoritative materials. NCL proceeded\n\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\n\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\n\nand refused to resume later in the day.\n\n Discovery closed on August 26th.\n\n On September 26th—a month after the close of discovery and three days\n\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\n\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\n\nSupplemental Report).\n\n NCL moved to strike Dr. Zollo’s testimony and reports because of\n\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\n\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\n\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\n\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\n\narguing that (1) he was not qualified to offer opinions on the construction of\n\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\n\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\n\nhis opinions would not assist the trier of fact.\n\n\n\n\n 5\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\n\n\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\n\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\n\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\n\nsetting the deposition of NCL’s corporate representative, which was taken well\n\nafter the expert discovery deadlines and a week before discovery closed on August\n\n26th. During the corporate representative’s deposition, NCL produced for the first\n\ntime a drawing of the deck area, photographs of the area taken the night of\n\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\n\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\n\nsupplementing his initial report based on the new information obtained during the\n\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\n\nblanche to supplement everything in both his initial and rebuttal expert reports.”\n\nAs such, the district court excluded certain portions of the First Supplemental\n\nReport and the entirety of the Second Supplemental Report because Guevara failed\n\nto show that their late disclosure was either justified or harmless.\n\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\n\nlisting industry standards on lighting because it was produced too close in time to\n\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\n\n\n2\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\n892, 896, 921 n.2 (7th Cir. 2004)).\n 6\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\n\n\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\n\nto any of the late discovery produced by NCL. The district court found that the\n\nlate submission of the report was not harmless.\n\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\n\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\n\nsupplementing his initial expert reports on account of NCL’s late production of the\n\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\n\nopinion more than five weeks after he received the COF report, over a month after\n\nthe close of discovery, and three days after the district court’s dispositive and\n\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\n\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\n\nReport.\n\n B. NCL’s Motion for Summary Judgment\n\n NCL moved for summary judgment, arguing that there was no record\n\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\n\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\n\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\n\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\n\nadequately warn him of the dangerous condition posed by the step down. Under\n\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\n\n 7\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\n\n\nto go out and remain out and [did] not post[] warning signs (or other more effective\n\nwarnings such as yellow tape) that could have been seen by passengers traveling\n\nfrom the direction that Mr. Guevara was traveling.”\n\n The district court granted summary judgment in favor of NCL, holding that\n\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\n\nconstructive notice of the allegedly dangerous condition posed by the step down.\n\nThe district court rejected Guevara’s argument that the presence of the warning\n\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\n\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\n\ncreated or affixed the warning sign, and thus failed to create a “logical inference\n\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\n\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\n\nFla. 2015).\n\n Guevara also argued that NCL was on constructive notice that the light had\n\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\n\n8:00 p.m. The light thus theoretically could have been out for up to four hours\n\nbefore Guevara fell. The district court disagreed. The court reasoned that the\n\npossibility that the light could have been out for four hours was not evidence of\n\n\n3\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\nclaims against NCL related to the step.\n 8\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\n\n\nwhen the light actually went out. The district court held that Guevara failed to\n\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\n\ndangerous condition posed by the unilluminated light. Guevara appealed.\n\n III. Discussion\n\n We now consider Guevara’s argument that the district court erred in\n\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\n\njudgment to NCL.\n\n A. Exclusion of Supplemental Expert Reports\n\n Guevara challenges the district court’s ruling to exclude his expert’s\n\nsupplemental reports, arguing that those reports would have created a genuine\n\ndispute of material fact. “We . . . review a district court’s exclusion of expert\n\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\n\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\n\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\n\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\n\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\n\n[expert witness] disclosures at the times and in the sequence the court orders.”\n\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\n\nthe deadline, disclose the identity of their experts “accompanied by a written\n\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\n\n 9\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\n\n\nstatement of all opinions the witness will express and the basis and reasons for\n\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\n\nCiv. P. 26(a)(2)(B)(i)–(ii).\n\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\n\nmanner if the party learns that in some material respect the disclosure . . . is\n\nincomplete or incorrect, and if the additional or corrective information has not\n\notherwise been made known to the other parties during the discovery process or in\n\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\n\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\n\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\n\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\n\nthe expert evidence “unless the failure was substantially justified or is harmless.”\n\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\n\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\n\nclearly has authority to exclude an expert’s testimony where a party has failed to\n\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\n\nCourts have broad discretion to exclude untimely expert testimony—even when\n\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\n\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\n\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\n\n 10\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\n\n\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\n\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\n\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\n\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\n\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\n\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\n\nopined that Guevara’s fall was caused by the inadequate design of the stairway\n\nlanding, insufficient maintenance of the landing and surrounding area (including\n\ninsufficient lighting), and the use of improper flooring material that was\n\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\n\nSupplemental Report, which listed a host of industry standards on lighting. The\n\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\n\nproduced ahead of his deposition. A month after the close of discovery and three\n\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\n\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\n\naddressed the COF report disclosed by NCL’s corporate representative. The\n\ndistrict court excluded certain portions of the First Supplemental Report addressing\n\nthe industry standards on lighting and the entirety of the Second Supplemental\n\nReport because Guevara failed to show that the late disclosure of these reports was\n\n\n\n\n 11\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\n\n\neither justified or harmless. We conclude that the district court did not abuse its\n\ndiscretion.\n\n Guevara argues that the district court erred in excluding portions of the First\n\nSupplemental Report because his delay in disclosing these opinions was harmless\n\nas NCL had delayed producing documents and responding to discovery. The\n\nproblem with this argument is that the district court did not strike the opinions in\n\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\n\ndiscovery. The portions of the First Supplemental Report that the district court\n\nexcluded made no reference to any of NCL’s late discovery. The district court did\n\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\n\n“carte blanche to supplement everything in both his initial and rebuttal expert\n\nreports.”\n\n We also cannot say that the district court’s conclusion that the late disclosure\n\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\n\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\n\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\n\nZollo’s deposition, which gave NCL little time to review or prepare questions on\n\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\n\nleft his deposition after only three hours without the prior agreement of the\n\n\n\n\n 12\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\n\n\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\n\nGuevara moved for a protective order, claiming that NCL’s counsel took an\n\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\n\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\n\nthe eve of Dr. Zollo’s deposition.\n\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\n\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\n\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\n\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\n\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\n\nthese facts, we cannot say that the district court abused its discretion when it struck\n\nportions of Dr. Zollo’s First Supplemental Report.\n\n We also cannot say that the district court abused its discretion in striking Dr.\n\nZollo’s Second Supplemental Report in its entirety. The district court\n\nacknowledged that NCL was not diligent in producing the COF report, and\n\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\n\ninformation. But Guevara unreasonably delayed in filing that supplement.\n\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\n\nhe received the COF report, over a month after the close of discovery, and three\n\n\n4\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\n 13\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\n\n\ndays after the district court’s deadline for dispositive and Daubert motions.\n\nGuevara did not seek leave of the district court prior to disclosing the Second\n\nSupplemental Report, nor did he move to extend discovery.\n\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\n\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\n\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\n\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\n\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\n\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\n\nId. at 1266. “Because the expert witness discovery rules are designed to allow\n\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\n\nreasoned, “compliance with the requirements of Rule 26 is not merely\n\naspirational.” Id. Accordingly, we held that the district court did not abuse its\n\ndiscretion in striking the expert’s report in its entirety. Id.\n\n Similarly, the district court did not abuse its discretion in striking the Second\n\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\n\npoint, NCL had already filed its motion for summary judgment and Daubert\n\nmotions. As in Reese, Guevara never sought leave of the district court for the late\n\nfiling or moved to extend discovery.\n\n\n\n\n 14\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\n\n\n We thus conclude that the district court did not abuse its discretion in\n\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\n\nSecond Supplemental Report.\n\n B. Summary Judgment\n\n Guevara contends that the district court erred in holding that (1) the warning\n\nsign was insufficient to establish NCL’s actual or constructive notice of the\n\ndangerous condition posed by the step down, and (2) Guevara failed to present\n\nevidence of negligent maintenance of the lightbulb.\n\n “We review a district court’s grant of summary judgment de novo, viewing\n\nall the evidence, and drawing all reasonable factual inferences, in favor of the\n\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\n\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\n\nthere is no genuine dispute as to any material fact and the movant is entitled to\n\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\n\nimproper, however, “if the evidence is such that a reasonable jury could return a\n\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\n\n248 (1986).\n\n Maritime law governs actions arising from alleged torts committed aboard a\n\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\n\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\n\n 15\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\n\n\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\n\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\n\n827 (5th Cir. 1980)).\n\n To prevail on a negligence claim, a plaintiff must show that “(1) the\n\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\n\ndefendant breached that duty, (3) the breach actually and proximately caused the\n\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\n\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\n\nreasonable care towards those lawfully aboard the vessel who are not members of\n\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\n\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\n\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\n\nwhere, as here, the menace is one commonly encountered on land and not clearly\n\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\n\ncruise ship operator’s liability “hinges on whether it knew or should have known”\n\nabout the dangerous condition. Id.5\n\n A maritime plaintiff can establish constructive notice with evidence that the\n\n“defective condition exist[ed] for a sufficient period of time to invite corrective\n\n\n\n5\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\n 16\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\n\n\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\n\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\n\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\n\nplaintiff can establish constructive notice with evidence of substantially similar\n\nincidents in which “conditions substantially similar to the occurrence in question\n\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\n\n661–62 (11th Cir. 1988).\n\n i. Guevara’s Failure to Warn Claim\n\n Guevara argues that NCL failed to adequately warn him of the dangerous\n\ncondition posed by the step down. NCL responds that summary judgment is\n\nwarranted because it lacked prior notice of the dangerous condition and therefore\n\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\n\nalerting passengers to “watch your step” as evidence that NCL was on actual or\n\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\n\ndown.\n\n NCL contends that the mere presence of a warning sign does not\n\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\n\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\n\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\n\n\n\n\n 17\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\n\n\nsign was placed at that location or what specific condition, if any, it was affixed to\n\naddress.\n\n In analyzing whether the warning sign raises a genuine issue of material fact\n\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\n\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\n\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\n\ntestimony—that the cruise line regularly placed warning signs advising passengers\n\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\n\nmaterial fact regarding whether the cruise line had actual or constructive\n\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\n\n Not all warning signs will be evidence of notice; there must also be a\n\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\n\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\n\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\n\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\n\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\n\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\n\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\n\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\n\nthat the step was there; that is, it warned passengers that the surface was not flat.\n\n 18\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\n\n\nThere is no evidence that it was intended to warn passengers that the nosing may\n\nbe slippery.” Id. at 602 (emphasis added).\n\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\n\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\n\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\n\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\n\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\n\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\n\nsigns establishes a sufficient connection between the warning and the danger—the\n\nstep down.\n\n NCL argues that Sorrels does not control here because the cruise line in that\n\ncase was responsible for creating and placing the warning. But we see no\n\nsignificant distinction between a cruise line placing a warning sign and a cruise\n\nline having knowledge of a permanently affixed warning sign that has been present\n\non its ship for years. A warning sign’s primary function is to warn of dangers.\n\nWhether a cruise line places the warning sign itself or becomes aware of the\n\nwarning sign after taking ownership is of little significance.6 Both situations allow\n\n\n6\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\n 19\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\n\n\nfor an inference that NCL had actual or constructive knowledge that the step down\n\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\n\n796 F.3d at 1288.\n\n The district court noted that the language of the warning sign did not\n\ndemonstrate notice of the dangerous condition posed by the step down because it\n\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\n\nas they climb the three steps to the landing. It does not warn of a potential danger\n\nassociated with the small step from the landing to the deck.” At the summary\n\njudgment stage, however, we must view all evidence and factual inferences in\n\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\n\nconclusion, NCL’s corporate representative testified that the warning sign was\n\nintended to draw passengers’ attention to the step down in the area at issue. A\n\nreasonable jury could conclude that the warning sign’s language applies to the step\n\ndown, particularly where, as here, the warning sign immediately precedes the very\n\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\n\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\n\ndangerous condition posed by the step down.\n\n\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\nresponsible for maintaining the deck area in the present case.\n 20\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\n\n\n NCL contends that by holding that the warning sign here put it on notice of\n\nthe dangerous condition, we are improperly transforming cruise ship operators into\n\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\n\nWe are merely holding that a cruise ship operator has notice of a condition—and\n\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\n\nThis decision does not mean that a cruise ship operator is automatically liable any\n\ntime a passenger is injured in the area of the sign. After all, the cruise ship\n\noperator may be able to defeat the negligence claim by showing that it did not\n\nbreach its duty to warn because the sign provided passengers with a sufficient\n\nwarning about the dangerous condition in the area. In this case, NCL still may\n\nargue at trial that it is not liable because it fulfilled its duty to warn through the\n\nposted sign. 7\n\n Accordingly, we reverse and remand the district court’s ruling regarding\n\nGuevara’s failure to warn claim.\n\n ii. Guevara’s Negligent Maintenance Claim\n\n Guevara argues that the district court erroneously granted summary\n\njudgment based on its finding that he failed to present any evidence of NCL’s\n\n\n7\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\nwarn is established, the adequacy of the warning is usually a question for the jury).\n 21\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\n\n\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\n\nnot required to present evidence of negligent maintenance because NCL did not\n\npresent any admissible evidence of its proper maintenance of the lightbulb. We\n\ndisagree.\n\n NCL may carry its burden of showing no genuine issue of material fact by\n\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\n\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\n\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\n\nthat there was no evidence in the record establishing “a condition requiring\n\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\n\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\n\nfailure to maintain or inspect the subject deck or lighting fixtures caused\n\n[Guevara’s] injuries.”\n\n Guevara has failed to adduce evidence proving that NCL had actual or\n\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\n\nGuevara does not point to any prior passenger complaints or reported issues about\n\nthe ship’s lighting that would alert NCL to any potential safety concern. See\n\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\n\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\n\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\n\n 22\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\n\n\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\n\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\n\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\n\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\n\nGuevara cannot identify when the light went out, he has failed to make a sufficient\n\nshowing that the dangerous condition was “present for a period of time so lengthy\n\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\n\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\n\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\n\ndangerous condition posed by the unilluminated lightbulb.\n\n IV. Conclusion\n\n We affirm in part and reverse in part the district court’s ruling granting\n\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\n\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\n\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\n\nsummary judgment on Guevara’s failure to warn claim. We remand for further\n\nproceedings consistent with this opinion.\n\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\n\n\n\n8\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\nF.2d at 66.\n 23\n\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Pablo Guevara v. NCL (Bahamas) Ltd.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-01\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14889\\n ________________________\\n\\n D.C. Docket No. 1:15-cv-24294-KMW\\n\\n\\n\\nPABLO GUEVARA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nNCL (BAHAMAS) LTD.,\\na Bermuda Company\\ndoing business as\\nNorwegian Cruise Line,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 1, 2019)\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 2 of 37\\n\\n\\nBefore WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\n Pablo Guevara slipped and fell as he stepped down from a landing located\\n\\non the outer deck of a cruise ship operated by NCL (Bahamas) Ltd. Guevara\\n\\nclaimed that he did not perceive the step down because NCL failed to adequately\\n\\nwarn him of the change in elevation. Moreover, a lightbulb was out in the area\\n\\nwhere Guevara fell, making it harder for him to navigate the floor level change at\\n\\nnight. Guevara sued NCL, alleging that NCL negligently failed to (1) warn\\n\\npassengers of the step down and (2) maintain and inspect the lighting in the area.\\n\\nThe district court granted summary judgment in favor of NCL on both claims,\\n\\nholding that Guevara failed to create a genuine issue of material fact regarding\\n\\nNCL’s actual or constructive notice of the allegedly dangerous conditions posed by\\n\\nthe step down or the unilluminated light.\\n\\n Guevara appeals the district court’s orders (1) striking his expert’s\\n\\nsupplemental reports and (2) granting summary judgment in favor of NCL. After\\n\\ncareful review and with the benefit of oral argument, we reverse and remand the\\n\\ndistrict court’s ruling on Guevara’s failure to warn claim. We affirm, however, the\\n\\n\\n\\n\\n∗Honorable Jeffrey S. Sutton, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n 2\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 3 of 37\\n\\n\\ndistrict court’s orders (1) striking Guevara’s expert’s supplemental reports and (2)\\n\\ngranting summary judgment on Guevara’s negligent maintenance claim.\\n\\n I. Factual Background\\n\\n Guevara was a cruise passenger on the Norwegian Spirit, which departed\\n\\nfrom Barcelona, Spain. On his first night aboard, at approximately 11:30 p.m.,\\n\\nGuevara was walking on an outdoor deck near the pool, searching for the ship’s\\n\\ncigar lounge. He walked up three steps to a landing. After the landing, there is a\\n\\nsingle step down, which Guevara claims he did not see.1 When he stepped down,\\n\\nGuevara slipped on the deck and fell, landing with his arm wedged between the\\n\\nwall and a handrail. As a result, Guevara broke his arm.\\n\\n After he fell, Guevara noticed a “sheen” of water on the floor where he\\n\\nslipped and that a lightbulb was out in one of the globe lamps at the top of the\\n\\nsteps. Directly underneath the unilluminated lamp was a permanently affixed\\n\\nwarning sign: “ATTENTION! FOR YOUR OWN SAFETY PLEASE USE THE\\n\\nHANDRAIL. WATCH YOUR STEP.” Guevara contends that he could not see\\n\\nthe warning sign because the bulb immediately above the sign was out.\\n\\n II. Procedural History\\n\\n\\n\\n\\n1\\n Guevara claims that the landing appeared flush with the brown deck area below the step.\\n 3\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 4 of 37\\n\\n\\n Guevara filed a complaint against NCL in the Southern District of Florida.\\n\\nHe alleged that NCL negligently failed to (1) warn passengers of the step down,\\n\\nand (2) maintain and inspect the lighting in the area.\\n\\n A. Expert Witness Reports\\n\\n The parties proceeded to discovery. The district court’s Scheduling Order\\n\\nset Guevara’s expert disclosure deadline for June 18th, NCL’s expert disclosure\\n\\ndeadline for July 2nd, and the disclosure deadline for any rebuttal expert witness\\n\\nreports for July 16th.\\n\\n Guevara disclosed Dr. Ronald Zollo as an expert and served a copy of his\\n\\nreport on June 20th—two days after the expert disclosure deadline.\\n\\n NCL’s human factors and illumination expert, Dr. Joseph B. Sala, opined\\n\\nthat there was sufficient lighting on the deck of the Spirit for a reasonably alert and\\n\\nattentive person walking in the area to safely navigate the floor level change.\\n\\nGuevara successfully moved for an extension of time to file rebuttal expert reports.\\n\\nHe served Dr. Zollo’s rebuttal expert report on July 26th. Dr. Zollo’s rebuttal\\n\\nreport addressed the step’s dimensions and the insufficient slip resistance on the\\n\\nflooring.\\n\\n On August 19th—the Friday before Dr. Zollo’s Monday deposition—\\n\\nGuevara served NCL with a copy of a thirteen-page “Addendum to the Preliminary\\n\\nReport” (First Supplemental Report) that supplemented both Dr. Zollo’s initial and\\n\\n 4\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 5 of 37\\n\\n\\nrebuttal expert opinions. The First Supplemental Report contained previously\\n\\nundisclosed opinions and references to authoritative materials. NCL proceeded\\n\\nwith Dr. Zollo’s deposition notwithstanding its objection to the submission of the\\n\\nFirst Supplemental Report. Dr. Zollo terminated his deposition after three hours\\n\\nand refused to resume later in the day.\\n\\n Discovery closed on August 26th.\\n\\n On September 26th—a month after the close of discovery and three days\\n\\nafter the district court’s deadline for dispositive and Daubert motions—Guevara\\n\\nfiled a second, three-page addendum to Dr. Zollo’s preliminary report (Second\\n\\nSupplemental Report).\\n\\n NCL moved to strike Dr. Zollo’s testimony and reports because of\\n\\nGuevara’s untimely disclosure of Dr. Zollo as an expert witness, Dr. Zollo’s early\\n\\ntermination of his deposition, and the presentation of new arguments in Dr. Zollo’s\\n\\nsupplemental reports that were not addressed in NCL’s expert’s report or alleged in\\n\\nthe complaint. NCL also filed a Daubert motion to exclude Dr. Zollo’s opinions,\\n\\narguing that (1) he was not qualified to offer opinions on the construction of\\n\\nseaworthy vessels or human factors; (2) he did not use a sufficiently reliable\\n\\nmethodology; (3) his opinions were based on assumptions and speculation; and (4)\\n\\nhis opinions would not assist the trier of fact.\\n\\n\\n\\n\\n 5\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 6 of 37\\n\\n\\n The district court did not strike Dr. Zollo’s initial expert report as untimely,\\n\\neven though it was filed two days late. In considering Dr. Zollo’s First and Second\\n\\nSupplemental Reports, the district court acknowledged that NCL was dilatory in\\n\\nsetting the deposition of NCL’s corporate representative, which was taken well\\n\\nafter the expert discovery deadlines and a week before discovery closed on August\\n\\n26th. During the corporate representative’s deposition, NCL produced for the first\\n\\ntime a drawing of the deck area, photographs of the area taken the night of\\n\\nGuevara’s fall, and a coefficient of friction (COF) 2 testing report of the deck. The\\n\\ndistrict court found that, given NCL’s late production, Dr. Zollo was justified in\\n\\nsupplementing his initial report based on the new information obtained during the\\n\\ncorporate representative’s deposition. Dr. Zollo did not, however, have “carte\\n\\nblanche to supplement everything in both his initial and rebuttal expert reports.”\\n\\nAs such, the district court excluded certain portions of the First Supplemental\\n\\nReport and the entirety of the Second Supplemental Report because Guevara failed\\n\\nto show that their late disclosure was either justified or harmless.\\n\\n The district court struck the portion of Dr. Zollo’s First Supplemental Report\\n\\nlisting industry standards on lighting because it was produced too close in time to\\n\\nDr. Zollo’s deposition. In reaching this conclusion, the district court explained that\\n\\n\\n2\\n Coefficient of friction measures a surface’s “degree of slip resistance.” Sorrels v. NCL\\n(Bahamas) Ltd., 796 F.3d 1275, 1279 (11th Cir. 2015) (citing Mihailovich v. Laatsch, 359 F.3d\\n892, 896, 921 n.2 (7th Cir. 2004)).\\n 6\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 7 of 37\\n\\n\\nnone of Dr. Zollo’s opinions on lighting in the First Supplemental Report referred\\n\\nto any of the late discovery produced by NCL. The district court found that the\\n\\nlate submission of the report was not harmless.\\n\\n The district court struck the entirety of Dr. Zollo’s Second Supplemental\\n\\nReport because its late disclosure harmed NCL. While Dr. Zollo was justified in\\n\\nsupplementing his initial expert reports on account of NCL’s late production of the\\n\\nCOF report, the court found no justification for Dr. Zollo supplementing his expert\\n\\nopinion more than five weeks after he received the COF report, over a month after\\n\\nthe close of discovery, and three days after the district court’s dispositive and\\n\\nDaubert motions deadline. Guevara did not seek leave to extend discovery, which\\n\\nleft NCL with no opportunity to depose Dr. Zollo about his Second Supplemental\\n\\nReport.\\n\\n B. NCL’s Motion for Summary Judgment\\n\\n NCL moved for summary judgment, arguing that there was no record\\n\\nevidence of a dangerous condition, or evidence of actual or constructive notice of a\\n\\ndangerous condition, in the area where Guevara fell. Guevara opposed NCL’s\\n\\nmotion, asserting two theories of NCL’s negligence liability: duty to warn and\\n\\nnegligent maintenance. Under the first theory, Guevara argued that NCL failed to\\n\\nadequately warn him of the dangerous condition posed by the step down. Under\\n\\nthe negligent maintenance theory, Guevara argued that NCL “permit[ed] the light\\n\\n 7\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 8 of 37\\n\\n\\nto go out and remain out and [did] not post[] warning signs (or other more effective\\n\\nwarnings such as yellow tape) that could have been seen by passengers traveling\\n\\nfrom the direction that Mr. Guevara was traveling.”\\n\\n The district court granted summary judgment in favor of NCL, holding that\\n\\nGuevara did not create a genuine issue of material fact regarding NCL’s actual or\\n\\nconstructive notice of the allegedly dangerous condition posed by the step down.\\n\\nThe district court rejected Guevara’s argument that the presence of the warning\\n\\nsign alone was sufficient to create an issue of fact regarding NCL’s notice of the\\n\\ndangerous step.3 The court reasoned that Guevara offered no evidence that NCL\\n\\ncreated or affixed the warning sign, and thus failed to create a “logical inference\\n\\nthat [NCL] had prior knowledge of the dangerous condition necessitating the\\n\\nwarning.” Lipkin v. Norwegian Cruise Line Ltd., 93 F. Supp. 3d 1311, 1323 (S.D.\\n\\nFla. 2015).\\n\\n Guevara also argued that NCL was on constructive notice that the light had\\n\\nbeen out because, under NCL’s normal practices, the light was checked at 7:00 or\\n\\n8:00 p.m. The light thus theoretically could have been out for up to four hours\\n\\nbefore Guevara fell. The district court disagreed. The court reasoned that the\\n\\npossibility that the light could have been out for four hours was not evidence of\\n\\n\\n3\\n Guevara conceded that NCL did not design, manufacture, construct, or install the step or\\ndecking materials. Guevara also conceded that there had been no prior injuries, accidents, or\\nclaims against NCL related to the step.\\n 8\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 9 of 37\\n\\n\\nwhen the light actually went out. The district court held that Guevara failed to\\n\\ncreate a genuine dispute of material fact about NCL’s notice of the alleged\\n\\ndangerous condition posed by the unilluminated light. Guevara appealed.\\n\\n III. Discussion\\n\\n We now consider Guevara’s argument that the district court erred in\\n\\nexcluding Dr. Zollo’s supplemental expert reports and in granting summary\\n\\njudgment to NCL.\\n\\n A. Exclusion of Supplemental Expert Reports\\n\\n Guevara challenges the district court’s ruling to exclude his expert’s\\n\\nsupplemental reports, arguing that those reports would have created a genuine\\n\\ndispute of material fact. “We . . . review a district court’s exclusion of expert\\n\\nreports for abuse of discretion.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250\\n\\n(11th Cir. 2007). “A district court abuses its discretion when it makes a clear error\\n\\nof judgment or applies an incorrect legal standard.” Sorrels v. NCL (Bahamas)\\n\\nLtd., 796 F.3d 1275, 1281 (11th Cir. 2015).\\n\\n Federal Rule of Civil Procedure 26 requires that “[a] party must make\\n\\n[expert witness] disclosures at the times and in the sequence the court orders.”\\n\\nFed. R. Civ. P. 26(a)(2)(D). In order to make a proper disclosure, parties must, by\\n\\nthe deadline, disclose the identity of their experts “accompanied by a written\\n\\nreport.” Fed. R. Civ. P. 26(a)(2)(B). This written report “must contain a complete\\n\\n 9\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 10 of 37\\n\\n\\nstatement of all opinions the witness will express and the basis and reasons for\\n\\nthem” and “the facts or data considered by the witness in forming them.” Fed. R.\\n\\nCiv. P. 26(a)(2)(B)(i)–(ii).\\n\\n Rule 26(e) imposes a duty on an expert to supplement her report “in a timely\\n\\nmanner if the party learns that in some material respect the disclosure . . . is\\n\\nincomplete or incorrect, and if the additional or corrective information has not\\n\\notherwise been made known to the other parties during the discovery process or in\\n\\nwriting.” Fed. R. Civ. P. 26(e)(1)(A). But “[a]ny additions or changes to” the\\n\\nexpert report “must be disclosed by the time the party’s pretrial disclosures under\\n\\nRule 26(a)(3) are due.” Fed. R. Civ. P. 26(e)(2) (emphasis added).\\n\\n If a party violates Rule 26(a) or (e), Rule 37(c) provides for the exclusion of\\n\\nthe expert evidence “unless the failure was substantially justified or is harmless.”\\n\\nFed. R. Civ. P. 37(c)(1); see also OFS Fitel, LLC v. Epstein, Becker and Green,\\n\\nP.C., 549 F.3d 1344, 1363 (11th Cir. 2008) (“Under Rule 37(c)(1), a district court\\n\\nclearly has authority to exclude an expert’s testimony where a party has failed to\\n\\ncomply with Rule 26(a) unless the failure is substantially justified or harmless.”).\\n\\nCourts have broad discretion to exclude untimely expert testimony—even when\\n\\nthey are designated as “supplemental” reports. See Corwin, 475 F.3d at 1252 (“[A]\\n\\nsupplemental expert report may be excluded pursuant to Federal Rule of Civil\\n\\nProcedure 37(c) if a party fails to file it prior to the deadline imposed.”).\\n\\n 10\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 11 of 37\\n\\n\\n Guevara submitted Dr. Zollo’s supplemental reports out of time. The district\\n\\ncourt set deadlines for Guevara to produce initial and rebuttal reports from his\\n\\nexperts. But Guevara produced Dr. Zollo’s two supplemental reports after these\\n\\ndeadlines. The district court set a June 18th deadline for Guevara to identify his\\n\\nexpert witnesses and produce their reports. Guevara identified Dr. Zollo as an\\n\\nexpert and produced his initial report on June 20th. In his initial report, Dr. Zollo\\n\\nopined that Guevara’s fall was caused by the inadequate design of the stairway\\n\\nlanding, insufficient maintenance of the landing and surrounding area (including\\n\\ninsufficient lighting), and the use of improper flooring material that was\\n\\nunreasonably slippery when wet. On August 19th, Guevara filed Dr. Zollo’s First\\n\\nSupplemental Report, which listed a host of industry standards on lighting. The\\n\\nstandards were not included in Dr. Zollo’s initial or rebuttal reports and were not\\n\\nproduced ahead of his deposition. A month after the close of discovery and three\\n\\ndays after the deadline for dispositive and Daubert motions, Guevara filed Dr.\\n\\nZollo’s Second Supplemental Report. The Second Supplemental Report largely\\n\\naddressed the COF report disclosed by NCL’s corporate representative. The\\n\\ndistrict court excluded certain portions of the First Supplemental Report addressing\\n\\nthe industry standards on lighting and the entirety of the Second Supplemental\\n\\nReport because Guevara failed to show that the late disclosure of these reports was\\n\\n\\n\\n\\n 11\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 12 of 37\\n\\n\\neither justified or harmless. We conclude that the district court did not abuse its\\n\\ndiscretion.\\n\\n Guevara argues that the district court erred in excluding portions of the First\\n\\nSupplemental Report because his delay in disclosing these opinions was harmless\\n\\nas NCL had delayed producing documents and responding to discovery. The\\n\\nproblem with this argument is that the district court did not strike the opinions in\\n\\nDr. Zollo’s First Supplemental Report that incorporated or relied upon NCL’s late\\n\\ndiscovery. The portions of the First Supplemental Report that the district court\\n\\nexcluded made no reference to any of NCL’s late discovery. The district court did\\n\\nnot abuse its discretion in finding that NCL’s late production did not give Dr. Zollo\\n\\n“carte blanche to supplement everything in both his initial and rebuttal expert\\n\\nreports.”\\n\\n We also cannot say that the district court’s conclusion that the late disclosure\\n\\nharmed NCL was an abuse of discretion given the timing of Guevara’s disclosure\\n\\nof the First Supplemental Report immediately before Dr. Zollo’s deposition.\\n\\nGuevara only produced Dr. Zollo’s First Supplemental Report on the eve of Dr.\\n\\nZollo’s deposition, which gave NCL little time to review or prepare questions on\\n\\nthe new information. The severity of the harm to NCL increased when Dr. Zollo\\n\\nleft his deposition after only three hours without the prior agreement of the\\n\\n\\n\\n\\n 12\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 13 of 37\\n\\n\\nparties.4 NCL attempted to object to Dr. Zollo’s early departure. In response,\\n\\nGuevara moved for a protective order, claiming that NCL’s counsel took an\\n\\n“inordinate amount of time” going through Dr. Zollo’s file. But Guevara, not\\n\\nNCL, created the problem by disclosing Dr. Zollo’s First Supplemental Report on\\n\\nthe eve of Dr. Zollo’s deposition.\\n\\n The First Supplemental Report attempts to bolster Dr. Zollo’s preliminary\\n\\nand rebuttal opinions regarding lighting conditions in response to NCL’s expert\\n\\nreport. But “a party cannot abuse Rule 26(e) to merely bolster a defective or\\n\\nproblematic expert witness report.” Companhia Energetica Potiguar v. Caterpillar\\n\\nInc., No. 14-cv-24277, 2016 WL 3102225, at *6 (S.D. Fla. June 2, 2016). Given\\n\\nthese facts, we cannot say that the district court abused its discretion when it struck\\n\\nportions of Dr. Zollo’s First Supplemental Report.\\n\\n We also cannot say that the district court abused its discretion in striking Dr.\\n\\nZollo’s Second Supplemental Report in its entirety. The district court\\n\\nacknowledged that NCL was not diligent in producing the COF report, and\\n\\npermitted Dr. Zollo to supplement his initial expert report after receiving the new\\n\\ninformation. But Guevara unreasonably delayed in filing that supplement.\\n\\nGuevara filed Dr. Zollo’s Second Supplemental Report more than five weeks after\\n\\nhe received the COF report, over a month after the close of discovery, and three\\n\\n\\n4\\n Federal Rule of Civil Procedure 30(d)(1) limits a deposition to one day of seven hours.\\n 13\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 14 of 37\\n\\n\\ndays after the district court’s deadline for dispositive and Daubert motions.\\n\\nGuevara did not seek leave of the district court prior to disclosing the Second\\n\\nSupplemental Report, nor did he move to extend discovery.\\n\\n Our decision in Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008), is\\n\\ninstructive. In Reese, a plaintiff filed his expert report almost seven weeks after\\n\\nthe close of discovery. 527 F.3d at 1264–65. This late filing harmed the\\n\\ndefendants because it “foreclosed the defendants’ opportunity to depose [the\\n\\nexpert].” Id. at 1265. We found that, at a minimum, the plaintiff could have filed\\n\\na motion to extend discovery to permit a proper disclosure, but he failed to do so.\\n\\nId. at 1266. “Because the expert witness discovery rules are designed to allow\\n\\nboth sides in a case to prepare their cases adequately and to prevent surprise,” we\\n\\nreasoned, “compliance with the requirements of Rule 26 is not merely\\n\\naspirational.” Id. Accordingly, we held that the district court did not abuse its\\n\\ndiscretion in striking the expert’s report in its entirety. Id.\\n\\n Similarly, the district court did not abuse its discretion in striking the Second\\n\\nSupplemental Report, which Guevara unreasonably delayed in filing. By that\\n\\npoint, NCL had already filed its motion for summary judgment and Daubert\\n\\nmotions. As in Reese, Guevara never sought leave of the district court for the late\\n\\nfiling or moved to extend discovery.\\n\\n\\n\\n\\n 14\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 15 of 37\\n\\n\\n We thus conclude that the district court did not abuse its discretion in\\n\\nstriking a portion of Dr. Zollo’s First Supplemental Report and the entirety of his\\n\\nSecond Supplemental Report.\\n\\n B. Summary Judgment\\n\\n Guevara contends that the district court erred in holding that (1) the warning\\n\\nsign was insufficient to establish NCL’s actual or constructive notice of the\\n\\ndangerous condition posed by the step down, and (2) Guevara failed to present\\n\\nevidence of negligent maintenance of the lightbulb.\\n\\n “We review a district court’s grant of summary judgment de novo, viewing\\n\\nall the evidence, and drawing all reasonable factual inferences, in favor of the\\n\\nnonmoving party.” Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321\\n\\n(11th Cir. 2014). Summary judgment must be granted “if the movant shows that\\n\\nthere is no genuine dispute as to any material fact and the movant is entitled to\\n\\njudgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is\\n\\nimproper, however, “if the evidence is such that a reasonable jury could return a\\n\\nverdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,\\n\\n248 (1986).\\n\\n Maritime law governs actions arising from alleged torts committed aboard a\\n\\nship sailing in navigable waters. See Keefe v. Bahama Cruise Line, Inc., 867 F.2d\\n\\n1318, 1320–21 (11th Cir. 1989). “In analyzing a maritime tort case, [we] rely on\\n\\n 15\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 16 of 37\\n\\n\\ngeneral principles of negligence law.” Chaparro v. Carnival Corp., 693 F.3d\\n\\n1333, 1336 (11th Cir. 2012) (quoting Daigle v. Point Landing, Inc., 616 F.2d 825,\\n\\n827 (5th Cir. 1980)).\\n\\n To prevail on a negligence claim, a plaintiff must show that “(1) the\\n\\ndefendant had a duty to protect the plaintiff from a particular injury, (2) the\\n\\ndefendant breached that duty, (3) the breach actually and proximately caused the\\n\\nplaintiff’s injury, and (4) the plaintiff suffered actual harm.” Id. With respect to\\n\\nthe duty element in a maritime context, “a shipowner owes the duty of exercising\\n\\nreasonable care towards those lawfully aboard the vessel who are not members of\\n\\nthe crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630\\n\\n(1959). This standard “requires, as a prerequisite to imposing liability, that the\\n\\ncarrier have had actual or constructive notice of [a] risk-creating condition, at least\\n\\nwhere, as here, the menace is one commonly encountered on land and not clearly\\n\\nlinked to nautical adventure.” Keefe, 867 F.2d at 1322. In this circumstance, a\\n\\ncruise ship operator’s liability “hinges on whether it knew or should have known”\\n\\nabout the dangerous condition. Id.5\\n\\n A maritime plaintiff can establish constructive notice with evidence that the\\n\\n“defective condition exist[ed] for a sufficient period of time to invite corrective\\n\\n\\n\\n5\\n An operator of a cruise ship has a duty to warn only of known dangers that are not open and\\nobvious. See Thomas v. NCL (Bahamas) Ltd., 203 F. Supp. 3d 1189, 1192 (S.D. Fla. 2016).\\n 16\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 17 of 37\\n\\n\\nmeasures.” Monteleone v. Bahama Cruise Line, Inc., 838 F.2d 63, 65 (2d Cir.\\n\\n1988); see Keefe, 867 F.2d at 1322; Rodgers v. Costa Crociere, S.p.A., No. 08-\\n\\n60233, 2009 WL 10666976, at *3 (S.D. Fla. July 6, 2009). Alternatively, a\\n\\nplaintiff can establish constructive notice with evidence of substantially similar\\n\\nincidents in which “conditions substantially similar to the occurrence in question\\n\\nmust have caused the prior accident.” Jones v. Otis Elevator Co., 861 F.2d 655,\\n\\n661–62 (11th Cir. 1988).\\n\\n i. Guevara’s Failure to Warn Claim\\n\\n Guevara argues that NCL failed to adequately warn him of the dangerous\\n\\ncondition posed by the step down. NCL responds that summary judgment is\\n\\nwarranted because it lacked prior notice of the dangerous condition and therefore\\n\\nhad no duty to warn Guevara of the step down. Guevara points to the warning sign\\n\\nalerting passengers to “watch your step” as evidence that NCL was on actual or\\n\\nconstructive notice of the deceptive, and therefore dangerous, nature of the step\\n\\ndown.\\n\\n NCL contends that the mere presence of a warning sign does not\\n\\nautomatically establish a cruise line’s notice of a potentially dangerous condition.\\n\\nSpecifically, NCL asserts that the warning sign at issue was installed by either the\\n\\noriginal owner or the builder of the Spirit, and there is no evidence as to why the\\n\\n\\n\\n\\n 17\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 18 of 37\\n\\n\\nsign was placed at that location or what specific condition, if any, it was affixed to\\n\\naddress.\\n\\n In analyzing whether the warning sign raises a genuine issue of material fact\\n\\nas to NCL’s knowledge, we look to our recent decision in Sorrels. In Sorrels, a\\n\\ncruise ship passenger slipped and fell on the deck of a Norwegian ship, which was\\n\\nwet from rain. 796 F.3d at 1279. We held that the cruise ship employees’\\n\\ntestimony—that the cruise line regularly placed warning signs advising passengers\\n\\nthat the deck was “slippery when wet”—was enough to create a genuine issue of\\n\\nmaterial fact regarding whether the cruise line had actual or constructive\\n\\nknowledge that the deck could be slippery after precipitation. Id. at 1288–89.\\n\\n Not all warning signs will be evidence of notice; there must also be a\\n\\nconnection between the warning and the danger. See, e.g., Taiariol v. MSC\\n\\nCrociere S.A., 677 F. App’x 599 (11th Cir. 2017). The district court cited Taiariol\\n\\nin support of its ruling against Guevara, but we find Taiariol favors Guevara. In\\n\\nTaiariol, the plaintiff slipped on the metal nosing of a step while leaving a theater\\n\\non a cruise ship. Id. at 600. The plaintiff argued that the presence of a “watch\\n\\nyour step” sticker affixed to the nosing of the step was evidence that the cruise line\\n\\nhad notice of the nosing’s slippery condition. Id. at 601. We disagreed, holding\\n\\nthat “[c]ommon sense dictates that the sticker served to caution persons on the ship\\n\\nthat the step was there; that is, it warned passengers that the surface was not flat.\\n\\n 18\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 19 of 37\\n\\n\\nThere is no evidence that it was intended to warn passengers that the nosing may\\n\\nbe slippery.” Id. at 602 (emphasis added).\\n\\n In Taiariol, the plaintiff attempted to utilize the “watch your step” sticker as\\n\\nevidence of notice for a different purpose: that the stair’s nosing was slippery. By\\n\\ncontrast, Guevara argues that the “watch your step” warning sign means precisely\\n\\nwhat it says, and what this Court interpreted a similar warning to mean in Taiariol:\\n\\n“to caution persons on the ship that the step was there.” Id. Contrary to the district\\n\\ncourt’s application of Taiariol against Guevara, we find that the similarity of the\\n\\nsigns establishes a sufficient connection between the warning and the danger—the\\n\\nstep down.\\n\\n NCL argues that Sorrels does not control here because the cruise line in that\\n\\ncase was responsible for creating and placing the warning. But we see no\\n\\nsignificant distinction between a cruise line placing a warning sign and a cruise\\n\\nline having knowledge of a permanently affixed warning sign that has been present\\n\\non its ship for years. A warning sign’s primary function is to warn of dangers.\\n\\nWhether a cruise line places the warning sign itself or becomes aware of the\\n\\nwarning sign after taking ownership is of little significance.6 Both situations allow\\n\\n\\n6\\n The district court heavily relied on its previous decision in Lipkin, in which it held that a\\nwarning label affixed to a moving walkway off of the vessel in the port of Miami was\\ninsufficient to establish Norwegian’s notice because “the undisputed evidence shows that the\\nwalkway manufacturer, not Norwegian, affixed the warning labels, and that Miami-Dade\\nCounty, not Norwegian, was responsible for maintenance of the walkway.” 93 F. Supp. 3d at\\n1322–23. We find Lipkin distinguishable on its facts, and therefore unpersuasive. In Lipkin, the\\n 19\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 20 of 37\\n\\n\\nfor an inference that NCL had actual or constructive knowledge that the step down\\n\\ncould be deceiving, and therefore dangerous, to cruise passengers. See Sorrels,\\n\\n796 F.3d at 1288.\\n\\n The district court noted that the language of the warning sign did not\\n\\ndemonstrate notice of the dangerous condition posed by the step down because it\\n\\nonly “generically advises passengers to ‘hold the handrail’ and ‘watch your step’\\n\\nas they climb the three steps to the landing. It does not warn of a potential danger\\n\\nassociated with the small step from the landing to the deck.” At the summary\\n\\njudgment stage, however, we must view all evidence and factual inferences in\\n\\nfavor of Guevara. See Stephens, 749 F.3d at 1321. Contrary to the district court’s\\n\\nconclusion, NCL’s corporate representative testified that the warning sign was\\n\\nintended to draw passengers’ attention to the step down in the area at issue. A\\n\\nreasonable jury could conclude that the warning sign’s language applies to the step\\n\\ndown, particularly where, as here, the warning sign immediately precedes the very\\n\\nstep at issue and expressly warns passengers to “watch your step.” Guevara has\\n\\nthus raised a genuine issue of material fact regarding NCL’s prior notice of the\\n\\ndangerous condition posed by the step down.\\n\\n\\nwarning in question was affixed to a moving walkway off of the vessel in the port of Miami. And\\nit was Miami-Dade County, not Norwegian, who was responsible for maintaining the walkway.\\nIt is one thing to find that a cruise line cannot be responsible for a sign that is off of the vessel—\\nit is another thing entirely to rule that a cruise line is not responsible for a sign that has been\\npermanently affixed on the vessel for years. In further contrast to Lipkin, NCL itself was\\nresponsible for maintaining the deck area in the present case.\\n 20\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 21 of 37\\n\\n\\n NCL contends that by holding that the warning sign here put it on notice of\\n\\nthe dangerous condition, we are improperly transforming cruise ship operators into\\n\\ninsurers of their passengers’ safety. But NCL overstates the effect of our decision.\\n\\nWe are merely holding that a cruise ship operator has notice of a condition—and\\n\\nthus a duty to warn—if a sign is posted on a ship warning about the condition.\\n\\nThis decision does not mean that a cruise ship operator is automatically liable any\\n\\ntime a passenger is injured in the area of the sign. After all, the cruise ship\\n\\noperator may be able to defeat the negligence claim by showing that it did not\\n\\nbreach its duty to warn because the sign provided passengers with a sufficient\\n\\nwarning about the dangerous condition in the area. In this case, NCL still may\\n\\nargue at trial that it is not liable because it fulfilled its duty to warn through the\\n\\nposted sign. 7\\n\\n Accordingly, we reverse and remand the district court’s ruling regarding\\n\\nGuevara’s failure to warn claim.\\n\\n ii. Guevara’s Negligent Maintenance Claim\\n\\n Guevara argues that the district court erroneously granted summary\\n\\njudgment based on its finding that he failed to present any evidence of NCL’s\\n\\n\\n7\\n Guevara contends that he did not see the warning sign alerting him to the change in elevation\\nbecause the bulb immediately above the sign was out. At trial, the factfinder can decide whether\\nGuevara could see the sign at the time of his fall and, if Guevara could see the sign prior to\\nfalling, whether the warning was sufficient to satisfy NCL’s duty to warn. See Outlaw v.\\nFirestone Tire & Rubber, 770 F.2d 1012, 1014 (11th Cir. 1985) (holding that once a duty to\\nwarn is established, the adequacy of the warning is usually a question for the jury).\\n 21\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 22 of 37\\n\\n\\nnegligent maintenance of the unilluminated lightbulb. Guevara asserts that he was\\n\\nnot required to present evidence of negligent maintenance because NCL did not\\n\\npresent any admissible evidence of its proper maintenance of the lightbulb. We\\n\\ndisagree.\\n\\n NCL may carry its burden of showing no genuine issue of material fact by\\n\\nshowing “an absence of evidence to support the nonmoving party’s case.” Celotex\\n\\nCorp. v. Catrett, 477 U.S. 317, 325 (1986); Jeffery v. Sarasota White Sox, Inc., 64\\n\\nF.3d 590, 593 (11th Cir. 1995). In its motion for summary judgment, NCL argued\\n\\nthat there was no evidence in the record establishing “a condition requiring\\n\\nmaintenance or inspection of the subject deck or light fixtures, that [NCL] failed to\\n\\nmaintain or inspect the subject deck or lighting fixtures, or that [NCL’s] alleged\\n\\nfailure to maintain or inspect the subject deck or lighting fixtures caused\\n\\n[Guevara’s] injuries.”\\n\\n Guevara has failed to adduce evidence proving that NCL had actual or\\n\\nconstructive notice that the subject lightbulb was out on the night that Guevara fell.\\n\\nGuevara does not point to any prior passenger complaints or reported issues about\\n\\nthe ship’s lighting that would alert NCL to any potential safety concern. See\\n\\nCohen v. Carnival Corp., 945 F. Supp. 2d 1351, 1355 (S.D. Fla. 2013) (finding no\\n\\nevidence of notice where plaintiff cannot offer “any accident reports, passenger\\n\\ncomment reviews or forms, or reports from safety inspections”); see also Klein v.\\n\\n 22\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 23 of 37\\n\\n\\nSeven Seas Cruises S. DE R.L., No. 16-21981, 2017 WL 3405531, at *4 (S.D. Fla.\\n\\nAug. 7, 2017). Moreover, the record indicates that NCL retained four electrical\\n\\nengineers who were responsible for inspecting the lighting on the Spirit at 8:00\\n\\na.m. and 7:00 or 8:00 p.m. each day. Given these routine inspections,8 and that\\n\\nGuevara cannot identify when the light went out, he has failed to make a sufficient\\n\\nshowing that the dangerous condition was “present for a period of time so lengthy\\n\\nas to invite corrective measures.” Keefe, 867 F.2d at 1322 (citing Monteleone, 838\\n\\nF.2d at 65). Accordingly, the district court did not err in concluding that Guevara\\n\\nfailed to create a triable issue of fact on whether NCL had notice of the allegedly\\n\\ndangerous condition posed by the unilluminated lightbulb.\\n\\n IV. Conclusion\\n\\n We affirm in part and reverse in part the district court’s ruling granting\\n\\nsummary judgment in favor of NCL. We affirm the district court’s orders (1)\\n\\nstriking Dr. Zollo’s supplemental reports and (2) granting summary judgment on\\n\\nGuevara’s negligent maintenance claim. But we reverse and vacate the grant of\\n\\nsummary judgment on Guevara’s failure to warn claim. We remand for further\\n\\nproceedings consistent with this opinion.\\n\\n AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\\n\\n\\n\\n8\\n NCL’s regular inspections weigh against a finding of constructive notice. See Monteleone, 838\\nF.2d at 66.\\n 23\\n\\n Case: 17-14889 Date Filed: 04/01/2019 Page: 24 of 37\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1874,"cells":{"id":{"kind":"number","value":4606258,"string":"4,606,258"},"name":{"kind":"string","value":"Bonny Edward TAYLOR, as the Personal Representative and Administrator of the Estate of Almus Reed Taylor, Plaintiff - Appellant, v. Henry P. HUGHES, in His Individual Capacity, Bill Blue, in His Individual Capacity, Et Al., Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Bonny Edward Taylor v. Henry P. Hughes"},"decision_date":{"kind":"string","value":"2019-04-03"},"docket_number":{"kind":"string","value":"17-14772"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Newsom, Gilman\", \"parties\": \"\", \"opinions\": [{\"author\": \"GILMAN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-14772 Date Filed: 04/03/2019 Page: 1 of 11\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14772\\n ________________________\\n\\n\\n D.C. Docket No. 2:14-cv-01163-KS-WC\\n\\n\\nBONNY EDWARD TAYLOR,\\nas the Personal Representative and Administrator\\nof the Estate of Almus Reed Taylor,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nHENRY P. HUGHES,\\nin his individual capacity,\\nBILL BLUE,\\nin his individual capacity, et al.\\n\\n Defendants – Appellees.\\n\\n ________________________\\n\\n Appeal from United States District Court\\n for the Middle District of Alabama\\n _______________________\\n\\n (April 3, 2019)\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 2 of 11\\n\\n\\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\\n\\nGILMAN, Circuit Judge:\\n\\n Almus Taylor died from internal bleeding after being kept in a jail holding\\n\\ncell overnight. Bonny Edward Taylor, Almus’s father and the Administrator of\\n\\nAlmus’s estate, sued the jail guards under 42 U.S.C. § 1983 and Alabama state\\n\\nlaw, alleging that they were deliberately indifferent to Almus’s serious medical\\n\\nneeds. The district court dismissed Bonny’s claims because of qualified immunity,\\n\\nstate-agent immunity, and Alabama Code § 14-6-1.\\n\\n This appeal raises two questions: (1) whether qualified immunity shields the\\n\\nguards from Bonny’s deliberate-indifference claim based on the U.S. Constitution,\\n\\nand (2) whether state-agent immunity and Alabama Code § 14-6-1 shield the\\n\\nguards from Bonny’s state-law claims. For the reasons set forth below, we\\n\\nREVERSE the judgment of the district court and REMAND the case for further\\n\\nproceedings consistent with this opinion.\\n\\nI. BACKGROUND\\n\\n Several material facts in this case are subject to genuine disputes, but we\\n\\nwill resolve such disputes in Bonny’s favor because his claims were dismissed on\\n\\n\\n\\n\\n*\\n Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\n 2\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 3 of 11\\n\\n\\nsummary judgment. With this understanding in mind, we will apply the law to the\\n\\nfollowing factual scenario:\\n\\n On November 16, 2013, Covington County Deputy Kyle Adams found\\n\\nAlmus in a battered pickup truck that was stopped in the middle of the road. The\\n\\ndriver-side door of the truck was in the truck’s bed. Almus was lying across the\\n\\nseat, had scratches on his arms, and was unable to walk on his own. Deputy\\n\\nAdams called Emergency Medical Services (EMS) and the Alabama Highway\\n\\nPatrol.\\n\\n An EMS team and Alabama State Trooper Chase Amis came to the scene.\\n\\nThe parties dispute whether EMS performed a medical evaluation. Although\\n\\nAlmus said that he had been in an accident, Trooper Amis claimed to have seen no\\n\\nevidence that an accident had actually occurred. Almus refused to take an\\n\\nambulance to the hospital unless he could bring his dogs. The EMS team refused\\n\\nto accommodate Almus’s request, so they asked him to sign a release stating that\\n\\nhe did not want to go to the hospital. Almus was unable to sign the release, but the\\n\\nEMS team accepted Almus making a mark on the form. Trooper Amis then\\n\\narrested Almus for driving under the influence and took him to the Covington\\n\\nCounty Jail.\\n\\n Defendants Ben Hunter, Bill Blue, and Roy Parker were the jail guards on\\n\\nduty. Almus arrived at 9:33 p.m., appeared highly intoxicated, and had to be\\n\\n\\n 3\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 4 of 11\\n\\n\\nassisted while walking to the holding cell. According to the guards, Trooper Amis\\n\\nsaid that Almus was “medically cleared” and “just drunk.” But the Booking\\n\\nMedical Log reflects Almus’s statement that “he [was] all busted up from [a] car\\n\\nwreck.”\\n\\n Also in dispute is whether Almus cried out for help during the night and\\n\\nwhether the guards heard Almus’s cries. According to several of Almus’s fellow\\n\\ndetainees, Almus spent several hours moaning and crying out in pain. They said\\n\\nthat Almus told the guards that he had been in an accident and was “dying” and\\n\\n“broke up” inside. The record further contains evidence that Almus begged for\\n\\nmedical attention, but was told by the guards to “shut up.” None of the guards\\n\\ncalled for medical help.\\n\\n According to jail guard Hunter, however, he checked on Almus at 5:00 a.m.\\n\\nand asked if Almus needed medical attention. Almus purportedly replied that he\\n\\nwas in pain but could wait until the nurse arrived a little later. Hunter’s deposition\\n\\ntestimony, however, is inconsistent with that from one of Almus’s fellow detainees\\n\\nand is not corroborated by other evidence.\\n\\n The jail’s nurse arrived at around 6:00 or 6:30 a.m. that morning. When the\\n\\nnurse tried to assess Almus’s condition, he slid onto the ground and spit up blood.\\n\\nAn officer called 911 and Almus was taken away in an ambulance. Almus died on\\n\\nhis way to the hospital from internal bleeding.\\n\\n\\n 4\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 5 of 11\\n\\n\\n Bonny sued the jail guards on behalf of Almus’s estate, alleging that the\\n\\nguards violated Almus’s rights under both the U.S. Constitution and state law. The\\n\\ndistrict court concluded that the guards were protected by qualified immunity,\\n\\nstate-agent immunity, Alabama Code § 14-6-1 (a statute that provides conditional\\n\\nimmunities to sheriffs and jail guards). As a result, the court granted summary\\n\\njudgment for the guards on all counts. Bonny then filed this timely appeal.\\n\\nII. ANALYSIS\\n\\n A. Standard of review\\n\\n Summary judgment is appropriate if the evidence before the court\\n\\ndemonstrates that “there is no genuine dispute of material fact and that the moving\\n\\nparty is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review\\n\\nde novo the district court’s grant of summary judgment. Pace v. CSX Transp.,\\n\\nInc., 613 F.3d 1066, 1068 (11th Cir. 2010) (reviewing state-law claims); Tinney v.\\n\\nShores, 77 F.3d 378, 380 (11th Cir. 1996) (reviewing federal claims).\\n\\n B. Constitutional claims and qualified immunity\\n\\n Qualified immunity shields “government officials ‘from liability for civil\\n\\ndamages insofar as their conduct does not violate clearly established statutory or\\n\\nconstitutional rights of which a reasonable person would have known.’” Pearson\\n\\nv. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.\\n\\n800, 818 (1982)). This doctrine “balances two important interests—the need to\\n\\n\\n 5\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 6 of 11\\n\\n\\nhold public officials accountable when they exercise power irresponsibly and the\\n\\nneed to shield officials from harassment, distraction, and liability when they\\n\\nperform their duties reasonably.” Id. There are two parts to the\\n\\nqualified-immunity analysis: (1) the relevant facts must set forth a violation of a\\n\\nconstitutional right, and (2) the defendant must have violated a constitutional right\\n\\nthat was clearly established at the time of defendant’s conduct. Id. at 232.\\n\\n Bonny contends that the guards violated Almus’s constitutional rights by\\n\\nbeing deliberately indifferent to his serious medical needs. Under the Eighth\\n\\nAmendment, prisoners have a right to receive medical treatment for their illnesses\\n\\nand injuries. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference\\n\\nto the serious medical needs of a prisoner is therefore a constitutional violation. Id.\\n\\nPretrial detainees like Almus are protected to the same extent as prisoners by the\\n\\nFourteenth Amendment’s due process clause. Cook ex rel. Estate of Tessier v.\\n\\nSheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).\\n\\n To establish a constitutional deliberate-indifference claim, Bonny must\\n\\ndemonstrate “(1) [that Almus had] a serious medical need; (2) the defendants’\\n\\ndeliberate indifference to that need; and (3) causation between that indifference\\n\\nand [Almus’s] injury.” See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07\\n\\n(11th Cir. 2009). The district court concluded that Bonny did not set forth\\n\\n\\n\\n\\n 6\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 7 of 11\\n\\n\\nsufficient evidence to raise a genuine dispute of material fact regarding the first\\n\\ntwo elements of that claim.\\n\\n 1. Serious medical need\\n\\n A serious medical need is “one that has been diagnosed by a physician as\\n\\nmandating treatment or one that is so obvious that even a lay person would easily\\n\\nrecognize the necessity for a doctor’s attention.” Id. at 1307 (quoting Hill v.\\n\\nDekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in\\n\\npart on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)). “[T]he medical\\n\\nneed must be one that, if left unattended, poses a substantial risk of serious harm.”\\n\\nFarrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citation and internal\\n\\nquotation marks omitted). Because Almus was not assessed by a physician, the\\n\\nquestion before us is whether Almus had a serious medical need that a reasonable\\n\\nlay person would have easily recognized as requiring a doctor’s attention. See\\n\\nMann, 588 F.3d at 1307. We also consider whether a delay in treatment\\n\\nexacerbated the medical need or caused additional complications. Hill, 40 F.3d at\\n\\n118–89.\\n\\n The guards were presented with conflicting information when Almus was\\n\\nbrought to the jail. Although Trooper Amis said that Almus was “medically\\n\\ncleared” and “just drunk,” Almus reported that he was “all busted up from [a] car\\n\\nwreck.” Regardless of this initial uncertainty, the facts presented by Bonny show\\n\\n\\n 7\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 8 of 11\\n\\n\\nthat a material adverse change occurred during the night. Other detainees reported\\n\\nthat Almus spent several hours moaning, crying out in pain, and begging for\\n\\nmedical help. Almus was allegedly told by the guards to “shut up.” The guards,\\n\\nhowever, claim that Almus seemed fine and was just breathing heavily and\\n\\nmoaning.\\n\\n This conflict in testimony presents a genuine dispute of material fact as to\\n\\nwhether Almus had a serious medical need, thus precluding summary judgment in\\n\\nthe guards’ favor. See Fed. R. Civ. P. 56(a); see also Kuhne v. Florida Dep’t of\\n\\nCorr., 745 F.3d 1091, 1096–97 (11th Cir. 2014) (concluding that, in a prisoner’s\\n\\ndeliberate-indifference claim, a factual dispute about whether the prisoner signed a\\n\\nform refusing treatment precluded summary judgment). If Almus was begging for\\n\\nmedical help, crying out in pain, and informing the guards that he was dying, then\\n\\na reasonable jury could conclude that a lay person would recognize the need for a\\n\\ndoctor’s attention.\\n\\n 2. Deliberate indifference\\n\\n Deliberate indifference to a serious need is a constitutional violation because\\n\\nit “constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the\\n\\nEighth Amendment.” Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428\\n\\nU.S. 153, 173 (1976) (plurality opinion)). And “[c]hoosing to deliberately\\n\\ndisregard” an inmate’s complaints of pain “without any investigation or inquiry” is\\n\\n\\n 8\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 9 of 11\\n\\n\\nbeing willfully blind to pain. Goebert v. Lee County, 510 F.3d 1312, 1328 (11th\\n\\nCir. 2007).\\n\\n A reasonable jury could conclude that the guards were not entitled to rely on\\n\\nTrooper Amis’s statement that Almus was “just drunk,” particularly because\\n\\nAlmus reported that he was “all busted up from [a] car wreck.” In addition, a jury\\n\\ncould conclude that the guards’ willful disregard of what they heard and observed\\n\\nduring the night made them deliberately indifferent to Almus’s serious medical\\n\\nneeds.\\n\\n The district court also erred by requiring Bonny to present evidence that the\\n\\nguards knew the cause of Almus’s injury and the specific nature of Almus’s\\n\\nmedical problem. It concluded that “[e]ven if Defendants were aware of the cries\\n\\nof pain that [the other detainees] testify [that Almus] made during the night, the\\n\\nrisk of internal bleeding was not ‘so obvious that even a lay person would easily\\n\\nrecognize the necessity for a doctor’s attention.’”\\n\\n But a guard does not need to know a detainee’s specific medical condition to\\n\\nbe deliberately indifferent to his or her serious medical need. M.D. by Stukenberg\\n\\nv. Abbott, 907 F.3d 237, 252 (5th Cir. 2018) (concluding that courts do not require\\n\\nstate officials to be warned of a “specific danger” to be held liable for deliberate\\n\\nindifference to a serious medical need (emphasis in original)). Liability can attach\\n\\n\\n\\n\\n 9\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 10 of 11\\n\\n\\neven if a prison official knows only that, if no action is taken, the detainee faces a\\n\\n“substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).\\n\\n Almus’s guards could therefore have been liable for deliberate indifference\\n\\nif Almus had been suffering from, say, appendicitis or another condition that was\\n\\ntotally unrelated to the car crash if they ignored Almus’s cries for help and medical\\n\\nattention. In other words, a jury could find that a reasonable lay person, witnessing\\n\\nan individual crying out in pain for several hours and stating that he was “dying”\\n\\nand “broke up” inside, would recognize that a doctor’s attention was necessary to\\n\\naddress whatever health problem the individual might be experiencing.\\n\\n C. State-law claims and state-agent immunity\\n\\n The guards next claim immunity under Alabama state law. Section 14-6-1\\n\\nof the Alabama Code provides immunity for jail guards “as long as such persons\\n\\nare acting within the line and scope of their duties and are acting in compliance\\n\\nwith the law.” Ala. Code § 14-6-1. In addition, Alabama state-agent immunity\\n\\nshields state employees from tort liability regarding discretionary acts unless they\\n\\nacted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or\\n\\nunder a mistaken interpretation of the law; violated federal or constitutional law; or\\n\\ndid not comply with Alabama laws, rules, or regulations. Hollis v. City of\\n\\nBrighton, 950 So. 2d 300, 307–08 (Ala. 2006).\\n\\n\\n\\n\\n 10\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 11 of 11\\n\\n\\n As discussed in the prior section, the guards potentially violated Almus’s\\n\\nconstitutional rights by being deliberately indifferent to his serious medical needs.\\n\\nAnd § 14-6-1 and state-agent immunity do not immunize the guards from liability\\n\\nunder state law if they violated Almus’s constitutional rights. See Ala. Code\\n\\n§ 14-6-1; Ex parte Rizk, 791 So. 2d 911, 913–14 (Ala. 2000) (stating that\\n\\nstate-agent immunity does not protect state agents “when the Constitution or laws\\n\\nof the United States . . . require otherwise . . . .” (quoting Ex parte Cranman, 792\\n\\nSo. 2d 392, 405 (Ala. 2000)). The district court thus erred in granting summary\\n\\njudgment to the guards on Almus’s state-law claims.\\n\\nIII. CONCLUSION\\n\\n For all the reasons set forth above, we REVERSE the judgment of the\\n\\ndistrict court and REMAND the case for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 11\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383511/\", \"author_raw\": \"GILMAN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"GILMAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4606258/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Bonny Edward TAYLOR, as the Personal Representative and Administrator of the Estate of Almus Reed Taylor, Plaintiff - Appellant, v. Henry P. HUGHES, in His Individual Capacity, Bill Blue, in His Individual Capacity, Et Al., Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-03\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14772 Date Filed: 04/03/2019 Page: 1 of 11\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14772\n ________________________\n\n\n D.C. Docket No. 2:14-cv-01163-KS-WC\n\n\nBONNY EDWARD TAYLOR,\nas the Personal Representative and Administrator\nof the Estate of Almus Reed Taylor,\n\n Plaintiff - Appellant,\n\n versus\n\nHENRY P. HUGHES,\nin his individual capacity,\nBILL BLUE,\nin his individual capacity, et al.\n\n Defendants – Appellees.\n\n ________________________\n\n Appeal from United States District Court\n for the Middle District of Alabama\n _______________________\n\n (April 3, 2019)\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 2 of 11\n\n\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\n\nGILMAN, Circuit Judge:\n\n Almus Taylor died from internal bleeding after being kept in a jail holding\n\ncell overnight. Bonny Edward Taylor, Almus’s father and the Administrator of\n\nAlmus’s estate, sued the jail guards under 42 U.S.C. § 1983 and Alabama state\n\nlaw, alleging that they were deliberately indifferent to Almus’s serious medical\n\nneeds. The district court dismissed Bonny’s claims because of qualified immunity,\n\nstate-agent immunity, and Alabama Code § 14-6-1.\n\n This appeal raises two questions: (1) whether qualified immunity shields the\n\nguards from Bonny’s deliberate-indifference claim based on the U.S. Constitution,\n\nand (2) whether state-agent immunity and Alabama Code § 14-6-1 shield the\n\nguards from Bonny’s state-law claims. For the reasons set forth below, we\n\nREVERSE the judgment of the district court and REMAND the case for further\n\nproceedings consistent with this opinion.\n\nI. BACKGROUND\n\n Several material facts in this case are subject to genuine disputes, but we\n\nwill resolve such disputes in Bonny’s favor because his claims were dismissed on\n\n\n\n\n*\n Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\n 2\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 3 of 11\n\n\nsummary judgment. With this understanding in mind, we will apply the law to the\n\nfollowing factual scenario:\n\n On November 16, 2013, Covington County Deputy Kyle Adams found\n\nAlmus in a battered pickup truck that was stopped in the middle of the road. The\n\ndriver-side door of the truck was in the truck’s bed. Almus was lying across the\n\nseat, had scratches on his arms, and was unable to walk on his own. Deputy\n\nAdams called Emergency Medical Services (EMS) and the Alabama Highway\n\nPatrol.\n\n An EMS team and Alabama State Trooper Chase Amis came to the scene.\n\nThe parties dispute whether EMS performed a medical evaluation. Although\n\nAlmus said that he had been in an accident, Trooper Amis claimed to have seen no\n\nevidence that an accident had actually occurred. Almus refused to take an\n\nambulance to the hospital unless he could bring his dogs. The EMS team refused\n\nto accommodate Almus’s request, so they asked him to sign a release stating that\n\nhe did not want to go to the hospital. Almus was unable to sign the release, but the\n\nEMS team accepted Almus making a mark on the form. Trooper Amis then\n\narrested Almus for driving under the influence and took him to the Covington\n\nCounty Jail.\n\n Defendants Ben Hunter, Bill Blue, and Roy Parker were the jail guards on\n\nduty. Almus arrived at 9:33 p.m., appeared highly intoxicated, and had to be\n\n\n 3\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 4 of 11\n\n\nassisted while walking to the holding cell. According to the guards, Trooper Amis\n\nsaid that Almus was “medically cleared” and “just drunk.” But the Booking\n\nMedical Log reflects Almus’s statement that “he [was] all busted up from [a] car\n\nwreck.”\n\n Also in dispute is whether Almus cried out for help during the night and\n\nwhether the guards heard Almus’s cries. According to several of Almus’s fellow\n\ndetainees, Almus spent several hours moaning and crying out in pain. They said\n\nthat Almus told the guards that he had been in an accident and was “dying” and\n\n“broke up” inside. The record further contains evidence that Almus begged for\n\nmedical attention, but was told by the guards to “shut up.” None of the guards\n\ncalled for medical help.\n\n According to jail guard Hunter, however, he checked on Almus at 5:00 a.m.\n\nand asked if Almus needed medical attention. Almus purportedly replied that he\n\nwas in pain but could wait until the nurse arrived a little later. Hunter’s deposition\n\ntestimony, however, is inconsistent with that from one of Almus’s fellow detainees\n\nand is not corroborated by other evidence.\n\n The jail’s nurse arrived at around 6:00 or 6:30 a.m. that morning. When the\n\nnurse tried to assess Almus’s condition, he slid onto the ground and spit up blood.\n\nAn officer called 911 and Almus was taken away in an ambulance. Almus died on\n\nhis way to the hospital from internal bleeding.\n\n\n 4\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 5 of 11\n\n\n Bonny sued the jail guards on behalf of Almus’s estate, alleging that the\n\nguards violated Almus’s rights under both the U.S. Constitution and state law. The\n\ndistrict court concluded that the guards were protected by qualified immunity,\n\nstate-agent immunity, Alabama Code § 14-6-1 (a statute that provides conditional\n\nimmunities to sheriffs and jail guards). As a result, the court granted summary\n\njudgment for the guards on all counts. Bonny then filed this timely appeal.\n\nII. ANALYSIS\n\n A. Standard of review\n\n Summary judgment is appropriate if the evidence before the court\n\ndemonstrates that “there is no genuine dispute of material fact and that the moving\n\nparty is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review\n\nde novo the district court’s grant of summary judgment. Pace v. CSX Transp.,\n\nInc., 613 F.3d 1066, 1068 (11th Cir. 2010) (reviewing state-law claims); Tinney v.\n\nShores, 77 F.3d 378, 380 (11th Cir. 1996) (reviewing federal claims).\n\n B. Constitutional claims and qualified immunity\n\n Qualified immunity shields “government officials ‘from liability for civil\n\ndamages insofar as their conduct does not violate clearly established statutory or\n\nconstitutional rights of which a reasonable person would have known.’” Pearson\n\nv. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.\n\n800, 818 (1982)). This doctrine “balances two important interests—the need to\n\n\n 5\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 6 of 11\n\n\nhold public officials accountable when they exercise power irresponsibly and the\n\nneed to shield officials from harassment, distraction, and liability when they\n\nperform their duties reasonably.” Id. There are two parts to the\n\nqualified-immunity analysis: (1) the relevant facts must set forth a violation of a\n\nconstitutional right, and (2) the defendant must have violated a constitutional right\n\nthat was clearly established at the time of defendant’s conduct. Id. at 232.\n\n Bonny contends that the guards violated Almus’s constitutional rights by\n\nbeing deliberately indifferent to his serious medical needs. Under the Eighth\n\nAmendment, prisoners have a right to receive medical treatment for their illnesses\n\nand injuries. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference\n\nto the serious medical needs of a prisoner is therefore a constitutional violation. Id.\n\nPretrial detainees like Almus are protected to the same extent as prisoners by the\n\nFourteenth Amendment’s due process clause. Cook ex rel. Estate of Tessier v.\n\nSheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).\n\n To establish a constitutional deliberate-indifference claim, Bonny must\n\ndemonstrate “(1) [that Almus had] a serious medical need; (2) the defendants’\n\ndeliberate indifference to that need; and (3) causation between that indifference\n\nand [Almus’s] injury.” See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07\n\n(11th Cir. 2009). The district court concluded that Bonny did not set forth\n\n\n\n\n 6\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 7 of 11\n\n\nsufficient evidence to raise a genuine dispute of material fact regarding the first\n\ntwo elements of that claim.\n\n 1. Serious medical need\n\n A serious medical need is “one that has been diagnosed by a physician as\n\nmandating treatment or one that is so obvious that even a lay person would easily\n\nrecognize the necessity for a doctor’s attention.” Id. at 1307 (quoting Hill v.\n\nDekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in\n\npart on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)). “[T]he medical\n\nneed must be one that, if left unattended, poses a substantial risk of serious harm.”\n\nFarrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citation and internal\n\nquotation marks omitted). Because Almus was not assessed by a physician, the\n\nquestion before us is whether Almus had a serious medical need that a reasonable\n\nlay person would have easily recognized as requiring a doctor’s attention. See\n\nMann, 588 F.3d at 1307. We also consider whether a delay in treatment\n\nexacerbated the medical need or caused additional complications. Hill, 40 F.3d at\n\n118–89.\n\n The guards were presented with conflicting information when Almus was\n\nbrought to the jail. Although Trooper Amis said that Almus was “medically\n\ncleared” and “just drunk,” Almus reported that he was “all busted up from [a] car\n\nwreck.” Regardless of this initial uncertainty, the facts presented by Bonny show\n\n\n 7\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 8 of 11\n\n\nthat a material adverse change occurred during the night. Other detainees reported\n\nthat Almus spent several hours moaning, crying out in pain, and begging for\n\nmedical help. Almus was allegedly told by the guards to “shut up.” The guards,\n\nhowever, claim that Almus seemed fine and was just breathing heavily and\n\nmoaning.\n\n This conflict in testimony presents a genuine dispute of material fact as to\n\nwhether Almus had a serious medical need, thus precluding summary judgment in\n\nthe guards’ favor. See Fed. R. Civ. P. 56(a); see also Kuhne v. Florida Dep’t of\n\nCorr., 745 F.3d 1091, 1096–97 (11th Cir. 2014) (concluding that, in a prisoner’s\n\ndeliberate-indifference claim, a factual dispute about whether the prisoner signed a\n\nform refusing treatment precluded summary judgment). If Almus was begging for\n\nmedical help, crying out in pain, and informing the guards that he was dying, then\n\na reasonable jury could conclude that a lay person would recognize the need for a\n\ndoctor’s attention.\n\n 2. Deliberate indifference\n\n Deliberate indifference to a serious need is a constitutional violation because\n\nit “constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the\n\nEighth Amendment.” Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428\n\nU.S. 153, 173 (1976) (plurality opinion)). And “[c]hoosing to deliberately\n\ndisregard” an inmate’s complaints of pain “without any investigation or inquiry” is\n\n\n 8\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 9 of 11\n\n\nbeing willfully blind to pain. Goebert v. Lee County, 510 F.3d 1312, 1328 (11th\n\nCir. 2007).\n\n A reasonable jury could conclude that the guards were not entitled to rely on\n\nTrooper Amis’s statement that Almus was “just drunk,” particularly because\n\nAlmus reported that he was “all busted up from [a] car wreck.” In addition, a jury\n\ncould conclude that the guards’ willful disregard of what they heard and observed\n\nduring the night made them deliberately indifferent to Almus’s serious medical\n\nneeds.\n\n The district court also erred by requiring Bonny to present evidence that the\n\nguards knew the cause of Almus’s injury and the specific nature of Almus’s\n\nmedical problem. It concluded that “[e]ven if Defendants were aware of the cries\n\nof pain that [the other detainees] testify [that Almus] made during the night, the\n\nrisk of internal bleeding was not ‘so obvious that even a lay person would easily\n\nrecognize the necessity for a doctor’s attention.’”\n\n But a guard does not need to know a detainee’s specific medical condition to\n\nbe deliberately indifferent to his or her serious medical need. M.D. by Stukenberg\n\nv. Abbott, 907 F.3d 237, 252 (5th Cir. 2018) (concluding that courts do not require\n\nstate officials to be warned of a “specific danger” to be held liable for deliberate\n\nindifference to a serious medical need (emphasis in original)). Liability can attach\n\n\n\n\n 9\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 10 of 11\n\n\neven if a prison official knows only that, if no action is taken, the detainee faces a\n\n“substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).\n\n Almus’s guards could therefore have been liable for deliberate indifference\n\nif Almus had been suffering from, say, appendicitis or another condition that was\n\ntotally unrelated to the car crash if they ignored Almus’s cries for help and medical\n\nattention. In other words, a jury could find that a reasonable lay person, witnessing\n\nan individual crying out in pain for several hours and stating that he was “dying”\n\nand “broke up” inside, would recognize that a doctor’s attention was necessary to\n\naddress whatever health problem the individual might be experiencing.\n\n C. State-law claims and state-agent immunity\n\n The guards next claim immunity under Alabama state law. Section 14-6-1\n\nof the Alabama Code provides immunity for jail guards “as long as such persons\n\nare acting within the line and scope of their duties and are acting in compliance\n\nwith the law.” Ala. Code § 14-6-1. In addition, Alabama state-agent immunity\n\nshields state employees from tort liability regarding discretionary acts unless they\n\nacted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or\n\nunder a mistaken interpretation of the law; violated federal or constitutional law; or\n\ndid not comply with Alabama laws, rules, or regulations. Hollis v. City of\n\nBrighton, 950 So. 2d 300, 307–08 (Ala. 2006).\n\n\n\n\n 10\n\f Case: 17-14772 Date Filed: 04/03/2019 Page: 11 of 11\n\n\n As discussed in the prior section, the guards potentially violated Almus’s\n\nconstitutional rights by being deliberately indifferent to his serious medical needs.\n\nAnd § 14-6-1 and state-agent immunity do not immunize the guards from liability\n\nunder state law if they violated Almus’s constitutional rights. See Ala. Code\n\n§ 14-6-1; Ex parte Rizk, 791 So. 2d 911, 913–14 (Ala. 2000) (stating that\n\nstate-agent immunity does not protect state agents “when the Constitution or laws\n\nof the United States . . . require otherwise . . . .” (quoting Ex parte Cranman, 792\n\nSo. 2d 392, 405 (Ala. 2000)). The district court thus erred in granting summary\n\njudgment to the guards on Almus’s state-law claims.\n\nIII. CONCLUSION\n\n For all the reasons set forth above, we REVERSE the judgment of the\n\ndistrict court and REMAND the case for further proceedings consistent with this\n\nopinion.\n\n\n\n\n 11\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Bonny Edward TAYLOR, as the Personal Representative and Administrator of the Estate of Almus Reed Taylor, Plaintiff - Appellant, v. Henry P. HUGHES, in His Individual Capacity, Bill Blue, in His Individual Capacity, Et Al., Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-03\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14772 Date Filed: 04/03/2019 Page: 1 of 11\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14772\\n ________________________\\n\\n\\n D.C. Docket No. 2:14-cv-01163-KS-WC\\n\\n\\nBONNY EDWARD TAYLOR,\\nas the Personal Representative and Administrator\\nof the Estate of Almus Reed Taylor,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nHENRY P. HUGHES,\\nin his individual capacity,\\nBILL BLUE,\\nin his individual capacity, et al.\\n\\n Defendants – Appellees.\\n\\n ________________________\\n\\n Appeal from United States District Court\\n for the Middle District of Alabama\\n _______________________\\n\\n (April 3, 2019)\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 2 of 11\\n\\n\\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\\n\\nGILMAN, Circuit Judge:\\n\\n Almus Taylor died from internal bleeding after being kept in a jail holding\\n\\ncell overnight. Bonny Edward Taylor, Almus’s father and the Administrator of\\n\\nAlmus’s estate, sued the jail guards under 42 U.S.C. § 1983 and Alabama state\\n\\nlaw, alleging that they were deliberately indifferent to Almus’s serious medical\\n\\nneeds. The district court dismissed Bonny’s claims because of qualified immunity,\\n\\nstate-agent immunity, and Alabama Code § 14-6-1.\\n\\n This appeal raises two questions: (1) whether qualified immunity shields the\\n\\nguards from Bonny’s deliberate-indifference claim based on the U.S. Constitution,\\n\\nand (2) whether state-agent immunity and Alabama Code § 14-6-1 shield the\\n\\nguards from Bonny’s state-law claims. For the reasons set forth below, we\\n\\nREVERSE the judgment of the district court and REMAND the case for further\\n\\nproceedings consistent with this opinion.\\n\\nI. BACKGROUND\\n\\n Several material facts in this case are subject to genuine disputes, but we\\n\\nwill resolve such disputes in Bonny’s favor because his claims were dismissed on\\n\\n\\n\\n\\n*\\n Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\n 2\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 3 of 11\\n\\n\\nsummary judgment. With this understanding in mind, we will apply the law to the\\n\\nfollowing factual scenario:\\n\\n On November 16, 2013, Covington County Deputy Kyle Adams found\\n\\nAlmus in a battered pickup truck that was stopped in the middle of the road. The\\n\\ndriver-side door of the truck was in the truck’s bed. Almus was lying across the\\n\\nseat, had scratches on his arms, and was unable to walk on his own. Deputy\\n\\nAdams called Emergency Medical Services (EMS) and the Alabama Highway\\n\\nPatrol.\\n\\n An EMS team and Alabama State Trooper Chase Amis came to the scene.\\n\\nThe parties dispute whether EMS performed a medical evaluation. Although\\n\\nAlmus said that he had been in an accident, Trooper Amis claimed to have seen no\\n\\nevidence that an accident had actually occurred. Almus refused to take an\\n\\nambulance to the hospital unless he could bring his dogs. The EMS team refused\\n\\nto accommodate Almus’s request, so they asked him to sign a release stating that\\n\\nhe did not want to go to the hospital. Almus was unable to sign the release, but the\\n\\nEMS team accepted Almus making a mark on the form. Trooper Amis then\\n\\narrested Almus for driving under the influence and took him to the Covington\\n\\nCounty Jail.\\n\\n Defendants Ben Hunter, Bill Blue, and Roy Parker were the jail guards on\\n\\nduty. Almus arrived at 9:33 p.m., appeared highly intoxicated, and had to be\\n\\n\\n 3\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 4 of 11\\n\\n\\nassisted while walking to the holding cell. According to the guards, Trooper Amis\\n\\nsaid that Almus was “medically cleared” and “just drunk.” But the Booking\\n\\nMedical Log reflects Almus’s statement that “he [was] all busted up from [a] car\\n\\nwreck.”\\n\\n Also in dispute is whether Almus cried out for help during the night and\\n\\nwhether the guards heard Almus’s cries. According to several of Almus’s fellow\\n\\ndetainees, Almus spent several hours moaning and crying out in pain. They said\\n\\nthat Almus told the guards that he had been in an accident and was “dying” and\\n\\n“broke up” inside. The record further contains evidence that Almus begged for\\n\\nmedical attention, but was told by the guards to “shut up.” None of the guards\\n\\ncalled for medical help.\\n\\n According to jail guard Hunter, however, he checked on Almus at 5:00 a.m.\\n\\nand asked if Almus needed medical attention. Almus purportedly replied that he\\n\\nwas in pain but could wait until the nurse arrived a little later. Hunter’s deposition\\n\\ntestimony, however, is inconsistent with that from one of Almus’s fellow detainees\\n\\nand is not corroborated by other evidence.\\n\\n The jail’s nurse arrived at around 6:00 or 6:30 a.m. that morning. When the\\n\\nnurse tried to assess Almus’s condition, he slid onto the ground and spit up blood.\\n\\nAn officer called 911 and Almus was taken away in an ambulance. Almus died on\\n\\nhis way to the hospital from internal bleeding.\\n\\n\\n 4\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 5 of 11\\n\\n\\n Bonny sued the jail guards on behalf of Almus’s estate, alleging that the\\n\\nguards violated Almus’s rights under both the U.S. Constitution and state law. The\\n\\ndistrict court concluded that the guards were protected by qualified immunity,\\n\\nstate-agent immunity, Alabama Code § 14-6-1 (a statute that provides conditional\\n\\nimmunities to sheriffs and jail guards). As a result, the court granted summary\\n\\njudgment for the guards on all counts. Bonny then filed this timely appeal.\\n\\nII. ANALYSIS\\n\\n A. Standard of review\\n\\n Summary judgment is appropriate if the evidence before the court\\n\\ndemonstrates that “there is no genuine dispute of material fact and that the moving\\n\\nparty is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review\\n\\nde novo the district court’s grant of summary judgment. Pace v. CSX Transp.,\\n\\nInc., 613 F.3d 1066, 1068 (11th Cir. 2010) (reviewing state-law claims); Tinney v.\\n\\nShores, 77 F.3d 378, 380 (11th Cir. 1996) (reviewing federal claims).\\n\\n B. Constitutional claims and qualified immunity\\n\\n Qualified immunity shields “government officials ‘from liability for civil\\n\\ndamages insofar as their conduct does not violate clearly established statutory or\\n\\nconstitutional rights of which a reasonable person would have known.’” Pearson\\n\\nv. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.\\n\\n800, 818 (1982)). This doctrine “balances two important interests—the need to\\n\\n\\n 5\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 6 of 11\\n\\n\\nhold public officials accountable when they exercise power irresponsibly and the\\n\\nneed to shield officials from harassment, distraction, and liability when they\\n\\nperform their duties reasonably.” Id. There are two parts to the\\n\\nqualified-immunity analysis: (1) the relevant facts must set forth a violation of a\\n\\nconstitutional right, and (2) the defendant must have violated a constitutional right\\n\\nthat was clearly established at the time of defendant’s conduct. Id. at 232.\\n\\n Bonny contends that the guards violated Almus’s constitutional rights by\\n\\nbeing deliberately indifferent to his serious medical needs. Under the Eighth\\n\\nAmendment, prisoners have a right to receive medical treatment for their illnesses\\n\\nand injuries. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference\\n\\nto the serious medical needs of a prisoner is therefore a constitutional violation. Id.\\n\\nPretrial detainees like Almus are protected to the same extent as prisoners by the\\n\\nFourteenth Amendment’s due process clause. Cook ex rel. Estate of Tessier v.\\n\\nSheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005).\\n\\n To establish a constitutional deliberate-indifference claim, Bonny must\\n\\ndemonstrate “(1) [that Almus had] a serious medical need; (2) the defendants’\\n\\ndeliberate indifference to that need; and (3) causation between that indifference\\n\\nand [Almus’s] injury.” See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07\\n\\n(11th Cir. 2009). The district court concluded that Bonny did not set forth\\n\\n\\n\\n\\n 6\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 7 of 11\\n\\n\\nsufficient evidence to raise a genuine dispute of material fact regarding the first\\n\\ntwo elements of that claim.\\n\\n 1. Serious medical need\\n\\n A serious medical need is “one that has been diagnosed by a physician as\\n\\nmandating treatment or one that is so obvious that even a lay person would easily\\n\\nrecognize the necessity for a doctor’s attention.” Id. at 1307 (quoting Hill v.\\n\\nDekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in\\n\\npart on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)). “[T]he medical\\n\\nneed must be one that, if left unattended, poses a substantial risk of serious harm.”\\n\\nFarrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citation and internal\\n\\nquotation marks omitted). Because Almus was not assessed by a physician, the\\n\\nquestion before us is whether Almus had a serious medical need that a reasonable\\n\\nlay person would have easily recognized as requiring a doctor’s attention. See\\n\\nMann, 588 F.3d at 1307. We also consider whether a delay in treatment\\n\\nexacerbated the medical need or caused additional complications. Hill, 40 F.3d at\\n\\n118–89.\\n\\n The guards were presented with conflicting information when Almus was\\n\\nbrought to the jail. Although Trooper Amis said that Almus was “medically\\n\\ncleared” and “just drunk,” Almus reported that he was “all busted up from [a] car\\n\\nwreck.” Regardless of this initial uncertainty, the facts presented by Bonny show\\n\\n\\n 7\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 8 of 11\\n\\n\\nthat a material adverse change occurred during the night. Other detainees reported\\n\\nthat Almus spent several hours moaning, crying out in pain, and begging for\\n\\nmedical help. Almus was allegedly told by the guards to “shut up.” The guards,\\n\\nhowever, claim that Almus seemed fine and was just breathing heavily and\\n\\nmoaning.\\n\\n This conflict in testimony presents a genuine dispute of material fact as to\\n\\nwhether Almus had a serious medical need, thus precluding summary judgment in\\n\\nthe guards’ favor. See Fed. R. Civ. P. 56(a); see also Kuhne v. Florida Dep’t of\\n\\nCorr., 745 F.3d 1091, 1096–97 (11th Cir. 2014) (concluding that, in a prisoner’s\\n\\ndeliberate-indifference claim, a factual dispute about whether the prisoner signed a\\n\\nform refusing treatment precluded summary judgment). If Almus was begging for\\n\\nmedical help, crying out in pain, and informing the guards that he was dying, then\\n\\na reasonable jury could conclude that a lay person would recognize the need for a\\n\\ndoctor’s attention.\\n\\n 2. Deliberate indifference\\n\\n Deliberate indifference to a serious need is a constitutional violation because\\n\\nit “constitutes the ‘unnecessary and wanton infliction of pain’ . . . proscribed by the\\n\\nEighth Amendment.” Estelle, 429 U.S. at 104 (quoting Gregg v. Georgia, 428\\n\\nU.S. 153, 173 (1976) (plurality opinion)). And “[c]hoosing to deliberately\\n\\ndisregard” an inmate’s complaints of pain “without any investigation or inquiry” is\\n\\n\\n 8\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 9 of 11\\n\\n\\nbeing willfully blind to pain. Goebert v. Lee County, 510 F.3d 1312, 1328 (11th\\n\\nCir. 2007).\\n\\n A reasonable jury could conclude that the guards were not entitled to rely on\\n\\nTrooper Amis’s statement that Almus was “just drunk,” particularly because\\n\\nAlmus reported that he was “all busted up from [a] car wreck.” In addition, a jury\\n\\ncould conclude that the guards’ willful disregard of what they heard and observed\\n\\nduring the night made them deliberately indifferent to Almus’s serious medical\\n\\nneeds.\\n\\n The district court also erred by requiring Bonny to present evidence that the\\n\\nguards knew the cause of Almus’s injury and the specific nature of Almus’s\\n\\nmedical problem. It concluded that “[e]ven if Defendants were aware of the cries\\n\\nof pain that [the other detainees] testify [that Almus] made during the night, the\\n\\nrisk of internal bleeding was not ‘so obvious that even a lay person would easily\\n\\nrecognize the necessity for a doctor’s attention.’”\\n\\n But a guard does not need to know a detainee’s specific medical condition to\\n\\nbe deliberately indifferent to his or her serious medical need. M.D. by Stukenberg\\n\\nv. Abbott, 907 F.3d 237, 252 (5th Cir. 2018) (concluding that courts do not require\\n\\nstate officials to be warned of a “specific danger” to be held liable for deliberate\\n\\nindifference to a serious medical need (emphasis in original)). Liability can attach\\n\\n\\n\\n\\n 9\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 10 of 11\\n\\n\\neven if a prison official knows only that, if no action is taken, the detainee faces a\\n\\n“substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).\\n\\n Almus’s guards could therefore have been liable for deliberate indifference\\n\\nif Almus had been suffering from, say, appendicitis or another condition that was\\n\\ntotally unrelated to the car crash if they ignored Almus’s cries for help and medical\\n\\nattention. In other words, a jury could find that a reasonable lay person, witnessing\\n\\nan individual crying out in pain for several hours and stating that he was “dying”\\n\\nand “broke up” inside, would recognize that a doctor’s attention was necessary to\\n\\naddress whatever health problem the individual might be experiencing.\\n\\n C. State-law claims and state-agent immunity\\n\\n The guards next claim immunity under Alabama state law. Section 14-6-1\\n\\nof the Alabama Code provides immunity for jail guards “as long as such persons\\n\\nare acting within the line and scope of their duties and are acting in compliance\\n\\nwith the law.” Ala. Code § 14-6-1. In addition, Alabama state-agent immunity\\n\\nshields state employees from tort liability regarding discretionary acts unless they\\n\\nacted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or\\n\\nunder a mistaken interpretation of the law; violated federal or constitutional law; or\\n\\ndid not comply with Alabama laws, rules, or regulations. Hollis v. City of\\n\\nBrighton, 950 So. 2d 300, 307–08 (Ala. 2006).\\n\\n\\n\\n\\n 10\\n\\f Case: 17-14772 Date Filed: 04/03/2019 Page: 11 of 11\\n\\n\\n As discussed in the prior section, the guards potentially violated Almus’s\\n\\nconstitutional rights by being deliberately indifferent to his serious medical needs.\\n\\nAnd § 14-6-1 and state-agent immunity do not immunize the guards from liability\\n\\nunder state law if they violated Almus’s constitutional rights. See Ala. Code\\n\\n§ 14-6-1; Ex parte Rizk, 791 So. 2d 911, 913–14 (Ala. 2000) (stating that\\n\\nstate-agent immunity does not protect state agents “when the Constitution or laws\\n\\nof the United States . . . require otherwise . . . .” (quoting Ex parte Cranman, 792\\n\\nSo. 2d 392, 405 (Ala. 2000)). The district court thus erred in granting summary\\n\\njudgment to the guards on Almus’s state-law claims.\\n\\nIII. CONCLUSION\\n\\n For all the reasons set forth above, we REVERSE the judgment of the\\n\\ndistrict court and REMAND the case for further proceedings consistent with this\\n\\nopinion.\\n\\n\\n\\n\\n 11\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1875,"cells":{"id":{"kind":"number","value":4606450,"string":"4,606,450"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff - Appellee, v. Willie Lee COOKS, A.K.A. Little Man, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Willie Lee Cooks"},"decision_date":{"kind":"string","value":"2019-04-03"},"docket_number":{"kind":"string","value":"18-10080"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Newsom, Gilman\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888304/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888305/\", \"author_raw\": \"\"}, {\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10080 Date Filed: 04/03/2019 Page: 1 of 35\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10080\\n ________________________\\n\\n D.C. Docket No. 2:16-cr-00323-SLB-JHE-1\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n versus\\n\\nWILLIE LEE COOKS,\\na.k.a. Little Man,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Alabama\\n ________________________\\n\\n (April 3, 2019)\\n\\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n\\n\\n*\\n Honorable Ronald Lee Gilman, United States Circuit Judge for the United States Court of\\nAppeals for the Sixth Circuit, sitting by designation.\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 2 of 35\\n\\n\\n In the ordinary case, an arrest warrant doesn’t automatically authorize police\\n\\nto search the arrestee’s residence—the home search requires its own warrant. This\\n\\nisn’t the ordinary case.\\n\\n The question here is whether police violated the Fourth Amendment when\\n\\nthey conducted a warrantless search of the crawlspace in Willie Lee Cooks’s home\\n\\nfollowing a four-hour standoff that the responding officers deemed a hostage\\n\\nsituation and that culminated in Cooks’s arrest. Here’s the short version: Rather\\n\\nthan submitting to arrest, Cooks barricaded himself in his house, thereby\\n\\npreventing at least two occupants from leaving. Shortly after the police arrived,\\n\\nand as they were trying to coax Cooks out of the residence, they heard what\\n\\nsounded like a power drill being used inside. The officers were able to make\\n\\ncontact with one of the occupants, who told them that Cooks was “doing\\n\\nsomething in a hole in the floor.” When the standoff ended and the officers\\n\\nentered the house several hours later, they found the hole, which had been covered\\n\\nby a piece of plywood that was screwed down from the outside. They pried it up,\\n\\nfound that it led to a crawlspace, and discovered there an arsenal of firearms.\\n\\n As in all Fourth Amendment cases, we must determine the reasonableness of\\n\\nthe officers’ actions by reference to what they knew at the time. Just as important\\n\\nhere is what the officers didn’t know—specifically, how many additional\\n\\nindividuals might be in the house. Although the government has presented several\\n\\n\\n 2\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 3 of 35\\n\\n\\ntheories to justify the search in light of the officers’ uncertainty, we need address\\n\\nonly one here. We hold that the warrantless search of Cooks’s crawlspace was\\n\\nlawful under the exigent-circumstances doctrine, as the officers had probable cause\\n\\nto believe that the hole might contain additional hostages.\\n\\n I\\n\\n A\\n\\n The events underlying this case began when a team of officers from the U.S.\\n\\nMarshals Service’s Gulf Coast Regional Fugitive Task Force and Counter Gang\\n\\nUnit sought to arrest Cooks at his home. Cooks, a member of the “Bloods” street\\n\\ngang, was wanted for second-degree assault by the Birmingham Police\\n\\nDepartment. The officers initially knocked on his door, but when no one\\n\\nanswered, they entered the house by force. They left after a brief survey of the\\n\\nresidence revealed that it was empty.\\n\\n The team returned at around 10:30 a.m. the next day. While surveilling\\n\\nCooks’s home, the officers saw a car leave the residence twice, and when it\\n\\nreturned the second time at about 12:30 p.m., they ordered the driver—Precious\\n\\nClemens—to stop. Clemens apparently had no interest in talking to them, as she\\n\\nran inside the house and locked the door. Although attempts to communicate with\\n\\nClemens through the door were unsuccessful, two of the home’s other occupants—\\n\\nPamela Price and Everstein Johnson—were more cooperative. When Officer\\n\\n\\n 3\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 4 of 35\\n\\n\\nCrendal Deramus asked Price and Johnson to open the door, they told him that they\\n\\ncouldn’t because the door had been barricaded and locked from the inside using a\\n\\ndeadbolt for which they didn’t have a key.\\n\\n It was around that time that officers started hearing what they would later\\n\\ndescribe as “sounds similar to a power drill” coming from inside the house. As\\n\\nbest they could tell, the sounds came from “the immediate area of the front door.”\\n\\nThey couldn’t see inside, though, because the residence had tinted windows\\n\\nthroughout. Shortly thereafter, Price was able to exit the house briefly, and before\\n\\ngoing back inside she told the officers that Cooks was armed. Concluding that\\n\\nthey were facing a potential hostage situation, the officers decided to call the\\n\\nJefferson County SWAT team. When the SWAT team arrived, a hostage\\n\\nnegotiator made contact with Price and another unknown occupant, both of whom\\n\\nreiterated that they wanted to leave but couldn’t, and one of whom stated—without\\n\\nfurther explanation—that Cooks was “doing something in a hole in the floor” of\\n\\nthe house.1 When the negotiations to open the barricaded front door failed, the\\n\\nSWAT team deployed tear gas.\\n\\n\\n\\n\\n1\\n Presumably reflecting the chaos of the scene, the officers had different recollections about who\\nmentioned Cooks’s work on the hole in the floor. Deramus thought that the second individual\\nwas Johnson, a male. SWAT Sergeant Billy Watts, by contrast, thought that he had spoken to\\n“two different females.”\\n\\n 4\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 5 of 35\\n\\n\\n At 4:30 p.m.—roughly an hour later, and four hours after the initial contact\\n\\nwith Clemens—the standoff came to an end. The SWAT team broke a window\\n\\nand extracted Price and Johnson from the house, at which point Price reiterated\\n\\nthat Cooks was “doing something in the floor.” This time, though, she elaborated\\n\\nthat Cooks had put multiple guns in a hole in the floor. The barricade sealing the\\n\\nfront door was removed, and the SWAT team swarmed the house and took Cooks\\n\\nand Clemens into custody.\\n\\n After arresting Cooks, the officers performed an initial 30-second sweep,\\n\\nfollowed by a three- to five-minute secondary sweep. In the process, they found a\\n\\nfour-by-four-foot hole covered by plywood that, they later explained, had been\\n\\n“hastily” “nailed down with screws.” According to Deramus, they hadn’t seen the\\n\\nhole during the prior day’s entry. The officers used a crow bar to remove the\\n\\nplywood covering and found that it led to the home’s crawlspace. SWAT Deputy\\n\\nDouglas Lawson—described as “one of the smaller members of the SWAT team\\n\\nwho was often called upon to go into small spaces”—entered the hole. As he put\\n\\nhis hand down to brace himself, he felt a plastic tarp move and, under it, saw the\\n\\nbutt of a gun in plain view. When Lawson shined his flashlight around the\\n\\ncrawlspace, he saw more guns sticking out from underneath the plastic.\\n\\n Thirty minutes to an hour after the initial sweep—and still without a search\\n\\nwarrant—the officers called Special Agent Steve Owens with the Alabama Law\\n\\n\\n 5\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 6 of 35\\n\\n\\nEnforcement Agency to the scene to inventory the guns that they had discovered in\\n\\nthe crawlspace. Owens found several pistols and long guns both underneath and\\n\\nprotruding from the tarp, along with several pieces of unopened luggage that\\n\\nofficers later determined contained additional firearms. At this point, the officers\\n\\ndecided to seek, and thereafter obtained, a search warrant for Cooks’s home. All\\n\\ntold, the officers seized nine pistols and 22 long guns from the crawlspace.\\n\\n B\\n\\n The Government later charged Cooks with two counts of unlawful\\n\\npossession of a firearm under 18 U.S.C. § 922(g)(1). Because the officers initially\\n\\nsearched the crawlspace without a warrant, Cooks moved to suppress the guns,\\n\\ncontending that even if the officers could lawfully sweep part of the house,\\n\\n“pulling up floor boards and crawling under the house . . . was overbroad for a\\n\\nprotective sweep.” The government responded to Cooks’s protective-sweep\\n\\narguments, and further countered that the search was justified under the exigent-\\n\\ncircumstances doctrine because the officers didn’t know “if anyone else was inside\\n\\nthe residence or inside the hole in the floor.” In the officers’ minds, the\\n\\ngovernment explained, the crawlspace could have contained individuals “injured\\n\\nfrom the effects of the tear gas . . . [or] by actions of the defendant himself.”\\n\\n The government’s exigent-circumstances theory was thus largely predicated\\n\\non the idea that the house could have contained other individuals besides the four\\n\\n\\n 6\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 7 of 35\\n\\n\\nknown occupants—Cooks, Clemens, Johnson, and Price. 2 The officers candidly\\n\\nacknowledged that they weren’t quite sure who might have remained. Lawson, for\\n\\ninstance, testified at the suppression hearing that they entered the hole in order “to\\n\\nsecure it and make sure there wasn’t anybody hiding down there that could harm\\n\\nus.” Slightly differently, Deramus said that although he personally believed that\\n\\nall of the house’s occupants had been accounted for, he couldn’t rule out the\\n\\npossibility that either additional “bad guy[s]” or “potential hostages” remained.\\n\\nFor his part, SWAT Sergeant Billy Watts explained that the officers “had no idea\\n\\nhow many were [in the house],” elaborating that while they “believed there to be\\n\\nfour people in the house from the conversations” that they had with the occupants,\\n\\nthey “were still not sure at that point.”\\n\\n The magistrate judge charged with deciding Cooks’s suppression motion in\\n\\nthe first instance rejected the government’s protective-sweep justification,\\n\\nconcluding that although a limited sweep of the house was justified, it couldn’t\\n\\nlawfully extend to a search of the crawlspace. Specifically, he emphasized that\\n\\nthere was “no evidence that any officer observed anything about the . . . hole that\\n\\nwould indicate that a dangerous person was inside,” and that although the officers’\\n\\nthreat assessment was conceivable, “conceivability does not suffice for\\n\\n\\n\\n2\\n The government separately argued that Price’s statement “that [Cooks] had placed guns in a\\nhole in the floor . . . created another exigent circumstance which the police could not ignore.”\\n\\n 7\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 8 of 35\\n\\n\\nreasonableness.” The fact that the plywood was nailed down from the outside, the\\n\\nmagistrate judge explained, undermined the case for opening it as part of a\\n\\nprotective sweep because any hypothetical assailant “would have been effectively\\n\\nlocked in.” Moreover, the magistrate questioned the extent of the intrusion, as “the\\n\\ngovernment offer[ed] neither authority nor argument for why prying up the nailed-\\n\\ndown plywood covering the hole suffices for a cursory visual inspection,” as\\n\\nrequired of a protective sweep under Maryland v. Buie, 494 U.S. 325 (1990).\\n\\n Even so, the magistrate judge recommended that the district court deny\\n\\nCooks’s motion to suppress on the ground that the officers’ search was lawful\\n\\nunder the exigent-circumstances doctrine. While for protective-sweep purposes it\\n\\nwas “not reasonable for the officers to conclude the . . . hole contained a person\\n\\nready and able to launch on attack,” the magistrate determined that “a reasonable\\n\\nofficer could have believed a hostage could be underneath the plywood covering.”\\n\\nThat was so, the magistrate judge reasoned, because the “officers already had a\\n\\nbasis to conclude that people had been kept inside the house against their will.”\\n\\nUnder the exigent-circumstances doctrine, the magistrate judge concluded, no\\n\\nwarrant was necessary here because “a hostage should not have to wait for a\\n\\nwarrant to be freed.”\\n\\n The district court adopted the magistrate judge’s report and recommendation\\n\\nin full. Thereafter, Cooks pleaded guilty to both counts under § 922(g)(1) but\\n\\n\\n 8\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 9 of 35\\n\\n\\nreserved the right to challenge the denial of his motion to suppress. This appeal\\n\\nfollowed.3\\n\\n II\\n\\n Let’s start with the basics. The Fourth Amendment provides as follows:\\n\\n The right of the people to be secure in their persons, houses, papers,\\n and effects, against unreasonable searches and seizures, shall not be\\n violated, and no Warrants shall issue, but upon probable cause,\\n supported by Oath or affirmation, and particularly describing the place\\n to be searched, and the persons or things to be seized.\\n\\nU.S. Const. amend IV. Whether in light or in spite of that language, Fourth\\n\\nAmendment cases have come to be governed by the principle that warrantless\\n\\nsearches are presumptively unreasonable, “subject only to a few specifically\\n\\nestablished and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,\\n\\n357 (1967). Nowhere is this more true, and important, than in the context of the\\n\\nsearch of a “home”—the “first among equals” in Fourth Amendment land. See\\n\\nFlorida v. Jardines, 569 U.S. 1, 6 (2013). Given this privileged status, warrantless\\n\\nsearches of homes “bear heightened scrutiny.” Kentucky v. King, 563 U.S. 452,\\n\\n474 (2011) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).\\n\\n\\n\\n3\\n Our review of the district court’s denial of Cooks’s motion to suppress involves mixed\\nquestions of law and fact. “[W]e review the district court’s factual findings for clear error, and\\nits application of the law to the facts de novo.” United States v. Williams, 871 F.3d 1197, 1199\\nn.2 (11th Cir. 2017) (quotation marks omitted). We “may consider any evidence that appears in\\nthe record” and must construe the facts “in the light most favorable to the prevailing party”—\\nhere, the government. United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013).\\n\\n 9\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 10 of 35\\n\\n\\n One of the “well-delineated exceptions” to the presumptive warrant\\n\\nrequirement is undisputed here. Cooks doesn’t deny that once the officers were in\\n\\nthe crawlspace the firearms were in plain view and, therefore, were seizable so\\n\\nlong as the officers were lawfully there. See Horton v. California, 496 U.S. 128,\\n\\n136–37 (1990). Cooks does deny, though, that the officers were lawfully in the\\n\\ncrawlspace—arguing that they violated the Fourth Amendment by prying open the\\n\\ncrawlspace’s plywood hatch. If he’s right, the search of the crawlspace—and the\\n\\nensuing seizure of the firearms—was invalid. See id. at 136 (“It is, of course, an\\n\\nessential predicate to any valid warrantless seizure of incriminating evidence that\\n\\nthe officer did not violate the Fourth Amendment in arriving at the place from\\n\\nwhich the evidence could be plainly viewed.”). Accordingly, whether the officers\\n\\nwere justified in searching the crawlspace without a warrant is the sole and\\n\\ndispositive question before us.\\n\\n A\\n\\n On appeal, the government makes the same arguments that it made to the\\n\\nmagistrate judge to justify the crawlspace search—along with a few new ones.\\n\\nFirst, the government reiterates that the crawlspace might have contained\\n\\nadditional captives, adding that “Cooks—the person keeping [the hostages]—had\\n\\nbeen doing something mysterious with the hole.” Second, and for the first time on\\n\\nappeal, the government contends that Cooks could have placed a “confederate” in\\n\\n\\n 10\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 11 of 35\\n\\n\\nthe hole “for the purpose of ensuring the confederate’s escape, possibly with\\n\\nevidence, or for the purpose of destroying evidence.” Third, the government\\n\\nasserts—also for the first time on appeal—that “Cooks might have placed\\n\\nsomething dangerous under the floor, such as an explosive device.” Finally, the\\n\\ngovernment renews its position that the search of the crawlspace was within the\\n\\npermissible scope of a lawful protective sweep.\\n\\n We needn’t reach the question whether the search can be justified as a part\\n\\nof a protective sweep or based on either of the government’s newly articulated\\n\\ntheories. As explained below, we agree with the district court that the search was\\n\\njustified under what has come to be known as the “emergency-aid” aspect of the\\n\\nexigent-circumstances doctrine.\\n\\n B\\n\\n The exigency umbrella “encompasses several common situations where\\n\\nresort to a magistrate for a search warrant is not feasible or advisable, including:\\n\\ndanger of flight or escape, loss or destruction of evidence, risk of harm to the\\n\\npublic or the police, mobility of a vehicle, and hot pursuit.” United States v.\\n\\nHolloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We are principally concerned\\n\\nhere with “risk of harm to the public”—sometimes called the “emergency-aid”\\n\\naspect of the exigent-circumstances doctrine. See, e.g., King, 563 U.S. at 460.\\n\\n\\n\\n\\n 11\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 12 of 35\\n\\n\\n In order to justify an exigent-circumstances search, the government bears the\\n\\nburden of “demonstrat[ing] both exigency and probable cause.” Id. at 1337. In the\\n\\nemergency-aid context, “the probable cause element may be satisfied where\\n\\nofficers reasonably believe a person is in danger.” Id. at 1338; see also United\\n\\nStates v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013) (probable cause satisfied\\n\\nwhere officers reasonably believe that someone “is seriously injured or threatened\\n\\nwith such injury, and is in need of immediate aid” (quotation marks omitted)).\\n\\nSeparately, the government must also demonstrate that the resulting search was\\n\\n“‘strictly circumscribed’ by the nature of the exigency that authorized it” and\\n\\n“limited to the areas where a person reasonably could be found.” Montanez v.\\n\\nCarvajal, 889 F.3d 1202, 1209 n.4 (11th Cir. 2018) (quoting Mincey v. Arizona,\\n\\n437 U.S. 385, 393 (1978)).\\n\\n The officers here, Cooks contends, “exceeded the scope of a warrantless\\n\\nsearch” by “forcefully break[ing] into spaces in [his] home”—namely, the hole and\\n\\nconnected crawlspace—“without providing specific and articulable facts as to why\\n\\nthey believed an individual was in the space.” Br. of Appellant at 12. We will\\n\\naddress, in turn, whether the search was justified and, if so, whether it was\\n\\nappropriately circumscribed.\\n\\n\\n\\n\\n 12\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 13 of 35\\n\\n\\n 1\\n\\n It’s clear that the hostage situation at Cooks’s residence—which is how the\\n\\npolice perceived the situation—created an exigency of the sort that would justify a\\n\\nwarrantless search. See United States v. Mancinas-Flores, 588 F.3d 677, 687 (9th\\n\\nCir. 2009) (collecting decisions that “have recognized that an ongoing hostage\\n\\nsituation presents exigent circumstances”). The real question here is whether the\\n\\nexigency remained ongoing during the officers’ search of the crawlspace—in\\n\\nparticular, that they could have reasonably believed that the hole could have\\n\\ncontained someone who was “in danger,” Holloway, 290 F.3d at 1338, or “in need\\n\\nof immediate aid,” Timmann, 741 F.3d at 1178.\\n\\n To be fair, there are arrows pointing in both directions. Before the\\n\\nmagistrate judge, for instance, the government argued that Pamela Price had\\n\\n“informed police that [Cooks] had placed guns in a hole in the floor,” thereby\\n\\n“creat[ing an] exigent circumstance which the police could not ignore.” But while\\n\\nPrice’s statement may provide some support for the government’s protective-\\n\\nsweep theory—which hinges on the risk of a hidden assailant or other danger to\\n\\npolice—it arguably cuts against its emergency-aid position. If Cooks really had\\n\\nadditional hostages in the house, why would he have stashed them in the vicinity of\\n\\nweapons? Doing so would seem to be counterproductive to the aim of holding\\n\\nsomeone against his will.\\n\\n\\n 13\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 14 of 35\\n\\n\\n But it’s not our role to armchair quarterback the officers’ decision, and other\\n\\nconsiderations strongly support the government’s emergency-aid argument. In\\n\\nassessing the reasonableness of officers’ actions, we cannot indulge “the 20/20\\n\\nvision of hindsight,” but instead must adopt the “perspective of a reasonable officer\\n\\non the scene”—which, here, entailed an armed standoff with a gang-member\\n\\nfugitive that had evolved into a hostage situation. Graham v. Connor, 490 U.S.\\n\\n386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). We can’t get\\n\\ncaught up in facts that the officers couldn’t have known at the time—namely that,\\n\\nas it turned out, there weren’t any additional captives in Cooks’s hole or\\n\\ncrawlspace. Rather, we must be mindful that the police “must act quickly, based\\n\\non hurried and incomplete information.” Holloway, 290 F.3d at 1339. Put simply,\\n\\nthe Fourth Amendment’s reasonableness requirement gives officers facing exigent\\n\\ncircumstances ample “breathing space to do the best they could with the\\n\\ninformation they had.” Montanez, 889 F.3d at 1210.\\n\\n Nowhere is this “breathing space” more crucial than in situations where life\\n\\nand limb may be in jeopardy. The “most urgent” of exigent circumstances, we\\n\\nhave said, is “the need to protect or preserve life in an emergency situation.”\\n\\nTimmann, 741 F.3d at 1178. In the same way, we have emphasized that “[i]t is\\n\\ndifficult to imagine a scenario in which immediate police action is more justified\\n\\nthan when a human life hangs in the balance.” Holloway, 290 F.3d at 1337.\\n\\n\\n 14\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 15 of 35\\n\\n\\nAccordingly, where the exigencies demand it, “the sanctity of the home . . . must\\n\\ngive way to the sanctity of human life.” Id. Of course, the officers must still have\\n\\nprobable cause—i.e., a “reasonabl[e] belie[f that] a person is in danger,” id. at\\n\\n1338—but if they do, they needn’t hesitate. As we stressed in Holloway—quoting\\n\\nthen-Judge Warren Burger—“[p]eople could well die in emergencies if police tried\\n\\nto act with the calm deliberation associated with the judicial process.” Id. at 1340\\n\\n(quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).\\n\\nAccordingly, officers “must be given the authority and flexibility to act quickly,\\n\\nbased on limited information, when human life is at stake.” Id. at 1339–40.\\n\\n Given the weight that our precedent places on the need to protect human life,\\n\\nwas it reasonable for the officers here to believe that Cooks’s hole might have\\n\\ncontained additional hostages? We think it was. For starters, in adopting, the\\n\\nmagistrate judge’s R&R, the district court found that “the officers believed there\\n\\nwere four people in the house but were not sure whether there were others.”\\n\\nTestimony at the suppression hearing amply supported that finding; several\\n\\nofficers said that they thought that the house might contain additional occupants—\\n\\nor, at the very least, couldn’t rule out that possibility. Watts, for instance, said that\\n\\nthe officers “had no idea” how many people were in the house. Deramus, too,\\n\\nexplained that the SWAT team cleared the house to “make sure no one else was in\\n\\n\\n\\n\\n 15\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 16 of 35\\n\\n\\nthere, either [a] bad guy or any other potential hostages.”4 The Fourth\\n\\nAmendment’s reasonableness criterion gave the officers the “breathing space” they\\n\\nneeded to test their hypothesis, lest a possible injured innocent be further imperiled\\n\\nby the delay inherent in securing a search warrant.\\n\\n Moreover, the drilling that the officers heard surely heightened concerns. A\\n\\nreasonable officer, we think, could rule out innocent explanations for the sounds—\\n\\nit was exceedingly unlikely that Cooks was simply trying to finish up a home-\\n\\nimprovement project before the police whisked him away. That the drilling sounds\\n\\nstarted shortly after the police arrived, and seemed to come from behind a\\n\\nbarricaded door, suggested two possibilities, neither good: Cooks was trying to\\n\\nhide either something or someone that he didn’t want the police to find. The\\n\\n\\n\\n\\n4\\n Cooks emphasizes Deramus’s testimony that he personally believed—and that the task force\\nofficers “were still on the same understanding”—that the house contained only four people.\\nDeramus was far less certain than Cooks suggests, however, as evidenced by this colloquy at the\\nsuppression hearing:\\n\\n Question: At that point, when Ms. Price, Ms. Clemons, Mr. Johnson, and the\\n defendant were secured, did you know if there was anybody else in the house?\\n Deramus: No, I did not.\\n Question: Could there have been additional people, hostages, or people who\\n wanted to hurt the police?\\n Deramus: Yes, sir.\\n\\nIn any event, the question is not whether Deramus or any other particular officer subjectively\\nbelieved that there were additional hostages. Rather, we are limited to determining whether “the\\ncircumstances, viewed objectively, justify the [officers’] action[s].” Brigham City v. Stuart, 547\\nU.S. 398, 404 (2006) (emphasis added and quotation marks omitted).\\n\\n 16\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 17 of 35\\n\\n\\nofficers couldn’t be sure which it was unless and until they searched the hole,\\n\\nespecially given that the house’s tinted windows rendered it one big blind spot.\\n\\n Cooks responds that the “officers had not been informed,” and “did not hear\\n\\nor otherwise detect signs,” that a “hostage was being kept in the crawlspace.” Br.\\n\\nof Appellant at 14. The dissent agrees, emphasizing that “the officers did not\\n\\nobserve anything to indicate that someone was in the crawlspace, let alone that\\n\\nsomeone there was in immediate danger.” Dissenting Op. at 26. But police don’t\\n\\n“need ironclad proof of a likely serious, life-threatening injury to invoke the\\n\\nemergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 49 (2009) (quotation\\n\\nomitted). Given the length of the standoff, the fact that Cooks already held two\\n\\npeople against their will, the uncertainty about other occupants, and the bizarre\\n\\ndrilling sounds, we think it clear that the officers here acted within the zone of\\n\\nreasonableness.5\\n\\n5\\n The dissent takes issue with the fact that the officers didn’t “call down into the crawlspace to\\ninquire whether anyone was there.” Dissenting Op. at 27. Their failure to do so, the dissent\\nsays, suggests that the ‘“hostage in the crawlspace’ explanation was an after-the-fact justification\\nfor the illegal search concocted by the government.” Id. at 27–28. The Supreme Court has long\\nrecognized, however, that speculation about the government’s true motives has no place in the\\nassessment of objective reasonableness. See, e.g., Whren v. United States, 517 U.S. 806, 812–13\\n(1996). Along the same lines, the Court has explained in the emergency-aid context, in\\nparticular, that “even if the failure to summon medical personnel conclusively established” that\\nthe officers did not believe that someone was injured, the test, as already noted, “is not what\\n[they] believed, but whether there was an objectively reasonable basis for believing that medical\\nassistance was needed, or persons were in danger.” Fisher, 558 U.S. at 49 (quotation omitted).\\n Moreover, and in any event, our task is not to opine—with the benefit of hindsight—on\\nthe optimal path that the officers could have taken, but rather to assess the reasonableness of the\\npath that they took. As the Supreme Court has said in another context, a “creative judge engaged\\nin post hoc evaluation of police conduct can almost always imagine some alternative means by\\n 17\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 18 of 35\\n\\n\\n Indeed, searches under the emergency-aid exception have been upheld in\\n\\ncircumstances that would seem to be far less ominous than those here. In Fisher,\\n\\nfor example, officers arrived at a scene to find, among other red flags, a truck\\n\\n“with its front smashed,” a house with broken windows, and drops of blood in\\n\\nseveral places. 558 U.S. at 45–46. And though the officers saw the defendant\\n\\n“screaming and throwing things” in the house, they apparently couldn’t tell—from\\n\\ntheir vantage point—if another person bore the brunt of his anger. Id. at 46. The\\n\\nSupreme Court found the application of the emergency-aid exception to be\\n\\n“straightforward” because, among other reasons, “[it] would be objectively\\n\\nreasonable to believe that [the defendant’s] projectiles might have a human target\\n\\n(perhaps a spouse or a child).” Id. at 48.\\n\\n Moreover, in Johnson v. City of Memphis, the Sixth Circuit held that the\\n\\n“combination of a 911 hang-up call, an unanswered return call, and an open door\\n\\nwith no response from within the residence”—without more— sufficed to justify\\n\\nan exigent-circumstances search. 617 F.3d 864, 869 (6th Cir. 2010). Notably, in\\n\\nso holding, the court based its conclusion not only on “the information [that the\\n\\nofficers] had,” but also—and just as we do here—on “the importance in these\\n\\nsituations of the information the responding officers d[id] not have.” Id. at 871 &\\n\\n\\nwhich the objectives of the police might have been accomplished.” United States v. Sharpe, 470\\nU.S. 675, 686–87 (1985). The dissent’s preferred “alternative means” of searching for hostages\\ndoes nothing to undermine the reasonableness of the officers’ actions here.\\n\\n 18\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 19 of 35\\n\\n\\nn.2. We break no new ground in concluding that reasonable inferences based on\\n\\nboth knowns and known unknowns—rather than concrete evidence of harm\\n\\nalone—can establish probable cause to believe that an innocent is in danger and “in\\n\\nneed of immediate aid.” Timmann, 741 F.3d at 1178.\\n\\n Our recent decision in Montanez v. Carvajal further reinforces our\\n\\nconclusion that the officers here acted reasonably. The police in Montanez\\n\\ninterrupted what they thought was a residential burglary and detained two suspects\\n\\noutside the house. See 889 F.3d at 1205. Into an open door, an officer shouted,\\n\\n“Sheriff’s office, come out if anybody’s in there,” but he got no response. Id. at\\n\\n1206. Soon after discovering that the door had been pried open, the officers\\n\\nentered the home to search “for additional perpetrators and victims” and found\\n\\ncontraband in plain view. Id. Although the district court in that case found that the\\n\\nofficers “had no reason to believe anyone else was involved,” we emphasized that\\n\\n“a responding officer will rarely know (or have any real way of knowing) whether\\n\\nhe’s rounded up everybody.” Id. at 1209. “[P]erhaps more importantly,” we\\n\\nfurther observed, “[t]here could be victims in [the house] too, and in light of the\\n\\nviolence that often accompanies home invasions, it’s not unreasonable to think that\\n\\nthose victims might be incapacitated, unconscious, or otherwise in need of\\n\\nassistance.” Id. Accordingly, and “[g]iven the immediacy of a potential victim’s\\n\\n\\n\\n\\n 19\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 20 of 35\\n\\n\\nneeds,” we held that “the Fourth Amendment permit[ted] a limited warrantless\\n\\nsweep of the home to search for both perpetrators and potential victims.” Id.\\n\\n That’s not to say that Montanez is on all fours. Inherent in a residential\\n\\nburglary is the risk that the homeowner will catch the perp in the act and wind up a\\n\\nvictim. Executing an arrest warrant doesn’t necessarily carry with it a\\n\\ncorresponding risk—say, that the arrestee will hold individuals against their will in\\n\\na hidden compartment. Even so, the same concerns regarding the uncertainty\\n\\nabout potential victims and the immediacy of their needs are equally (if not more)\\n\\npressing in the context of a four-hour hostage standoff. Just as in a burglary gone\\n\\nwrong, Cooks’s hostages could have been “incapacitated, unconscious, or\\n\\notherwise in need of assistance.” Id. Here, as in Montanez, swift action could\\n\\nhave been the difference between life and death for an injured innocent;\\n\\naccordingly, here, as there, “[i]t would make no sense to compel an officer . . . to\\n\\nquit the scene to procure a warrant, thereby jeopardizing . . . the safety of potential\\n\\nvictims inside the house.” 6 Id. at 1210.\\n\\n\\n\\n6\\n To be clear, we are not sanctioning what Cooks calls a “general crime scene exception.” Supp.\\nBr. of Appellant at 3. The circumstances here are more dramatic than, and by no means\\nrepresentative of, the “general crime scene.” We think it fair to assume that it will be the rare\\ncase in which the target of an arrest warrant barricades himself inside a house and holds other\\noccupants captive, and the even rarer case in which that individual sets about to conceal a secret\\nroom with plywood and power tools. Given the uniqueness of the circumstances here—this was,\\nafter all, a hostage situation—we think that the dissent overstates matters when it suggests that\\nour holding gives officers carte blanche “to search any crawlspace, closet, shed, or other\\nenclosed space not covered by a lawful protective sweep.” Dissenting Op. at 30.\\n\\n 20\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 21 of 35\\n\\n\\n 2\\n\\n Given that the officers had probable cause to believe that the crawlspace\\n\\ncontained additional hostages, the final question is whether the search was\\n\\nproportional to that exigency. Mincey, 437 U.S. at 393. Cooks contends that it\\n\\nwasn’t; he says that the search—specifically, the officers’ use of a crow bar to\\n\\nbreak open the “locked” plywood “door”—was more intrusive than necessary. Br.\\n\\nof Appellant at 12.\\n\\n We disagree. Even the most intrusive of government actions may be\\n\\nwarranted where the preservation of human life is at stake. Cf. Fisher, 558 U.S. at\\n\\n46 (upholding the entry of a house under the emergency-aid exception where “[t]he\\n\\nback door was locked, and a couch had been placed to block the front door”). The\\n\\n“immediacy of a potential victim’s needs,” Montanez, 889 F.3d at 1209, doesn’t\\n\\nbecome any less pressing when she is behind a door locked from the outside. In\\n\\nfact, the opposite would seem to be true—assuming she is conscious, she can’t\\n\\nopen the “door” to call for help. Accordingly, the fact that the plywood plank here\\n\\nwas screwed down—while potentially undermining the case for a protective\\n\\nsweep—strongly supports the government’s emergency-aid argument.\\n\\n The ultimate question is whether the intrusion was “strictly circumscribed”\\n\\nand “limited to the areas where a person reasonably could be found.” Id. at 1209\\n\\nn.4. It was. The hole and crawlspace were big enough to stash a person—a child\\n\\n\\n 21\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 22 of 35\\n\\n\\nor a small adult (as Lawson’s entry indicates). The search, moreover, took no\\n\\nlonger than necessary to verify that the crawlspace was empty. We therefore reject\\n\\nCooks’s argument that the officers exceeded the scope of a lawful exigent-\\n\\ncircumstances search by prying open the plywood “door.”\\n\\n III\\n\\n For the foregoing reasons, we hold (1) that it was reasonable to believe that\\n\\nCooks’s crawlspace—which was covered by a makeshift plywood “door”—might\\n\\nhave contained hostages, and (2) that the officers were therefore justified in\\n\\nremoving the plywood cover and briefly searching the crawlspace without a\\n\\nwarrant. Because we conclude that the search was lawful under the emergency-aid\\n\\naspect of the exigent-circumstances doctrine, we needn’t reach the question\\n\\nwhether the search was justified under any other theory. Accordingly, we affirm\\n\\nthe district court’s decision to deny Cooks’s motion to suppress.\\n\\nAFFIRMED.\\n\\n\\n\\n\\n 22\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 23 of 35\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383703/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}, {\"author\": \"GILMAN, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"GILMAN, Circuit Judge, dissenting:\\n\\n I respectfully disagree with the majority’s conclusion that the warrantless\\n\\nsearch of Willie Lee Cooks’s covered crawlspace was lawful under the\\n\\nexigent-circumstances exception to the search-warrant requirement. Nothing in the\\n\\nrecord suggests that the officers who arrived at Cooks’s home to arrest him\\n\\nbelieved that Cooks was hiding hostages in the crawlspace or, more importantly,\\n\\nthat the situation presented an objective reason to so believe. To the contrary, two\\n\\nofficers explicitly testified at the suppression hearing that they had no information\\n\\nwhatsoever indicating that there were any people remaining inside Cooks’s home,\\n\\nlet alone inside of the covered crawlspace, after they removed the four persons of\\n\\nwhom they were aware. The government’s after-the-fact attempt to justify the\\n\\nofficers’ search with varying theories presented for the first time on appeal further\\n\\nundermines its position.\\n\\n Rather than focusing on what information was available to the officers at the\\n\\ntime of the warrantless search at issue, the majority focuses on what the officers\\n\\ncould not “rule out.” See, e.g., Maj. Op. at 15. This court, however, has held that,\\n\\nin applying the exigent-circumstances exception, “speculation, without any factual\\n\\nsupport, will not suffice to overcome the warrant requirement.” United States\\n\\nv. Lynch, 934 F.2d 1226, 1233 (11th Cir. 1991).\\n\\n\\n\\n\\n 23\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 24 of 35\\n\\n\\n Law-enforcement officers might never be able to positively “rule out” the\\n\\npotential of danger to the public when executing an arrest warrant in a residence.\\n\\nBut for the exigent-circumstances exception to apply and render a warrantless\\n\\nsearch lawful, the “officers must have an objectively reasonable belief that\\n\\nsomeone inside is seriously injured or threatened with such injury, and is in need of\\n\\nimmediate aid.” United States v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013)\\n\\n(internal quotation marks omitted). The fact that Cooks’s crawlspace “might have\\n\\ncontained additional hostages,” see Maj. Op. at 15, did not give the officers\\n\\nauthority to enter that enclosed space without a warrant in the absence of any\\n\\nobjective fact suggesting that a hostage was likely inside. I therefore respectfully\\n\\ndissent.\\n\\n I.\\n\\n Warrantless searches and seizures inside a person’s home are\\n\\n“presumptively unreasonable” under the Fourth Amendment. Payton v. New York,\\n\\n445 U.S. 573, 586 (1980). But there are certain exceptions to the warrant\\n\\nrequirement, with the government bearing the heavy burden of proving that an\\n\\nexception applies and that probable cause existed. United States v. Blasco, 702\\n\\nF.2d 1315, 1325 (11th Cir. 1983) (“Because the protections of the [F]ourth\\n\\n[A]mendment are crucial to a free and viable society, the government shoulders a\\n\\nheavy burden of justifying the failure to obtain a warrant prior to the intrusion.”).\\n\\n\\n 24\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 25 of 35\\n\\n\\nOne such exception to the warrant requirement is the “exigent-circumstances\\n\\nexception,” which recognizes that a “warrantless entry by criminal law\\n\\nenforcement officials may be legal when there is compelling need for official\\n\\naction and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509\\n\\n(1978).\\n\\n “The most urgent of these [exigent circumstances] is the need to protect or\\n\\npreserve life in an emergency situation.” Timmann, 741 F.3d at 1178 (internal\\n\\nquotation marks omitted). In order for the exception to apply, the officers must\\n\\nhave probable cause to believe that an exigent circumstance exists. United States\\n\\nv. Franklin, 694 F.3d 1, 7 (11th Cir. 2012). The standard is an objective one, and\\n\\nthe officers’ subjective motivations are irrelevant. Timmann, 741 F.3d at 1178.\\n\\n Accordingly, various courts have found exigent circumstances to enter\\n\\nsomeone’s home or an enclosed space within the home without a warrant in\\n\\npotential hostage situations. But the officers in those cases have had articulable,\\n\\nobjective reasons to believe that hostages were likely present in the space being\\n\\nsearched. See, e.g., United States v. Ibarra-Zelaya, 465 F.3d 596, 605 (5th Cir.\\n\\n2006) (holding that exigent circumstances existed to search an apartment without a\\n\\nwarrant when officers received a tip that hostages were being held there and the\\n\\nofficers could hear multiple people moving around inside); Satchell v. Cardwell,\\n\\n653 F.2d 408, 411 (9th Cir. 1981) (holding that exigent circumstances existed to\\n\\n\\n 25\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 26 of 35\\n\\n\\nsearch a trailer without a warrant when officers received a tip that two women\\n\\nwere being held at the address and one of the officers heard voices coming from\\n\\ninside the trailer).\\n\\n During the officers’ standoff with Cooks in the present case, they learned\\n\\nthat Cooks was armed, that there were four people in Cooks’s home (including\\n\\nCooks), and that Cooks had been “doing something in a hole in the floor.” The\\n\\nofficers had also heard sounds “similar to a power drill” coming from inside the\\n\\nresidence. But the officers had already removed the four people of whom they\\n\\naware from Cooks’s home at the time the crawlspace was searched. After the\\n\\nhostages had been secured and Cooks and Clemons had been taken into custody,\\n\\nthe officers did not observe anything to indicate that someone was in the\\n\\ncrawlspace, let alone that someone there was in immediate danger.\\n\\n And once the officers had removed Price from Cooks’s home, Price\\n\\nexplained that what Cooks was doing “in the floor” was putting guns in the\\n\\ncrawlspace. Price’s statement weighs heavily against a finding that the officers\\n\\nhad probable cause to believe that someone was in danger in the crawlspace, as the\\n\\nmajority frankly concedes. Maj. Op. at 13. This is especially so because the\\n\\nofficers knew that Cooks was a “gang-member fugitive.” Maj. Op. at 14. That\\n\\nknowledge would have (or certainly should have) caused the officers to realize\\n\\n\\n\\n\\n 26\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 27 of 35\\n\\n\\nhow unlikely the possibility that Cooks would have placed hostages and guns in\\n\\nthe same location.\\n\\n In addition, the officers explicitly testified that they had no reason to believe\\n\\nthat any additional people were inside of Cooks’s home, much less inside of the\\n\\nenclosed crawlspace. Officer Deramus testified that he knew that there were four\\n\\npeople in the home based on “voice communication” and who he “actually saw,”\\n\\nand that his belief that only four people were in the home never changed. Sergeant\\n\\nWatts also testified that he did not “have any information whatsoever that more\\n\\nthan four [people] were in” the home. Simply put, the officers provided no\\n\\narticulable fact at the evidentiary hearing that would support an objective belief\\n\\nthat there were any hostages in the crawlspace. See United States v. Johnson, 22\\n\\nF.3d 674 (6th Cir. 1994) (holding that although the discovery of a kidnap victim\\n\\nlocked in an apartment provided exigency for entry, there was no exigency to\\n\\nsearch for and remove weapons from a closet once the victim was located).\\n\\n Finally, if the officers had a reason to believe that there were additional\\n\\nhostages in Cooks’s home, then they could have asked any of the four people they\\n\\nhad removed whether anyone else was inside. Officer Deramus testified that he\\n\\nnever so asked. Nor did any officer call down into the crawlspace to inquire\\n\\nwhether anyone was there. The fact that no officer thought to ask whether anyone\\n\\nelse was inside the home or in the crawlspace further supports the conclusion that\\n\\n\\n 27\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 28 of 35\\n\\n\\nthere was no objective reason to believe that a hostage was inside. This absence of\\n\\ninquiry also supports the conclusion that the “hostage in the crawlspace”\\n\\nexplanation was an after-the-fact justification for the illegal search concocted by\\n\\nthe government. Along the same lines, the various (and outlandish) additional\\n\\njustifications offered by the government for the first time on appeal—that the\\n\\nofficers could have reasonably believed that a confederate was in the crawlspace\\n\\nescaping with evidence or that Cooks placed an explosive device in the floor—\\n\\nsupport that conclusion as well.\\n\\n The main testimony that the majority points to as affirmatively supporting\\n\\nthe possibility of a hostage being in Cooks’s crawlspace is that the officers heard\\n\\ndrilling coming from inside his home. Maj. Op. at 16. From this, the majority\\n\\nsuggests one of two possibilities: that Cooks was hiding either something or\\n\\nsomeone in the crawlspace. Maj. Op. at 16. But, again, Price told the officers\\n\\nexactly what Cooks was doing—he was hiding guns, not a hostage.\\n\\n In sum, the government failed to carry its burden of proving that the officers\\n\\nhad “an objectively reasonable belief” that someone was in danger in Cooks’s\\n\\ncrawlspace. See United States v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013).\\n\\nThat scenario might have been within the realm of possibility, but “[s]uch\\n\\nspeculation, without any factual support, will not suffice to overcome the warrant\\n\\nrequirement.” See United States v. Lynch, 934 F.2d 1226, 1233 (11th Cir. 1991).\\n\\n\\n 28\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 29 of 35\\n\\n\\n II.\\n\\n In an attempt to find objective facts supporting the exigent-circumstances\\n\\nexception, the majority improperly focuses on what the officers did not know at the\\n\\ntime of the warrantless search, rather than what facts existed to support an\\n\\nobjectively reasonable belief that a hostage was inside the crawlspace. See, e.g.,\\n\\nMaj. Op. at 2 (“Just as important here is what the officers didn’t know . . . .”).\\n\\nPointing out that the officers “were not sure whether there were others” in Cooks’s\\n\\nhome and that the officers “at the very least, couldn’t rule out” the possibility of\\n\\nhostages in the crawlspace, Maj. Op. at 15 (emphasis omitted), turns the\\n\\nprobable-cause inquiry on its head.\\n\\n The concept of probable cause depends on objective facts and circumstances\\n\\npresent at the time of the officers’ conduct. See, e.g., Florida v. Harris, 568 U.S.\\n\\n237, 243 (2013) (holding that, in the Fourth Amendment context, an officer “has\\n\\nprobable cause to conduct a search when the facts available to [him] would warrant\\n\\na [person] of reasonable caution in the belief that contraband or evidence of a\\n\\ncrime is present” (internal quotation marks omitted)); Beck v. Ohio, 379 U.S. 89,\\n\\n91 (1964) (explaining that probable cause turns on “the facts and circumstances\\n\\nwithin [the officers’] knowledge and of which they had reasonably trustworthy\\n\\ninformation”). It does not depend on what officers cannot “rule out” or on what is\\n\\nwithin the realm of possibility. See Illinois v. Wardlow, 528 U.S. 119, 123 (2000)\\n\\n\\n 29\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 30 of 35\\n\\n\\n(“‘[R]easonable suspicion’ is a less demanding standard than probable cause.”);\\n\\nLynch, 934 F.2d at 1233 (“[S]peculation, without any factual support, will not\\n\\nsuffice to overcome the warrant requirement.”).\\n\\n The analysis of probable cause in the exigent-circumstances context should\\n\\nbe no different. Demonstrating that the officers had probable cause to believe that\\n\\nan exigent circumstance existed is a burden borne by the government. United\\n\\nStates v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002). In the present case, the\\n\\ngovernment pointed to no fact or circumstance “within [the officers’] knowledge\\n\\nand of which they had reasonably trustworthy information” to warrant a reasonable\\n\\nbelief that there was a hostage in Cooks’s crawlspace. See Beck, 379 U.S. at 91;\\n\\nsee also Harris, 568 U.S. at 243. Nor did the government point to anything more\\n\\nthan unparticularized speculation to support such a belief. See Lynch, 934 F.2d at\\n\\n1233.\\n\\n Although there could have been a hostage in the crawlspace, the officers\\n\\nlacked probable cause to believe that to be the case. If the exigent-circumstances\\n\\ninquiry turned on whether such a circumstance could exist, rather than on whether\\n\\nthe officers had probable cause to believe that it did in fact exist, then officers\\n\\nwould have license to search any crawlspace, closet, shed, or other enclosed space\\n\\nnot covered by a lawful protective sweep by simply claiming that they could not\\n\\n“rule out” the possibility that someone was inside.\\n\\n\\n 30\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 31 of 35\\n\\n\\n The majority’s response to the officers’ lack of probable cause to believe\\n\\nthat a hostage was in the crawlspace is that the officers did not “need ironclad\\n\\nproof of a likely serious, life-threatening injury to invoke the emergency aid\\n\\nexception.” Maj. Op. at 17 (quoting Michigan v. Fisher, 558 U.S. 45, 49 (2009)).\\n\\nThat, of course, is true. See Illinois v. Gates, 462 U.S. 213, 235 (1983)\\n\\n(“[S]tandards such as proof beyond a reasonable doubt or by a preponderance of\\n\\nthe evidence . . . have no place in the [probable-cause] decision.”). But the\\n\\ngovernment still must demonstrate that such probable cause—“an objectively\\n\\nreasonable basis for believing” that someone was in danger, see Brigham City\\n\\nv. Stuart, 547 U.S. 398, 406 (2006)—existed. It failed to do so in the present case.\\n\\n The majority also contends that this court cannot “armchair quarterback the\\n\\nofficers’ decision” because the police must act quickly when exigent circumstances\\n\\nexist. Maj. Op. at 14. But this contention begs the question of whether exigent\\n\\ncircumstances actually existed in the present case. Our role as an appellate court\\n\\nindeed requires us to “armchair quarterback” that issue.\\n\\n Here, the facts and circumstances do not support a finding that the officers\\n\\nhad probable cause to believe that a hostage was in the crawlspace. Once the\\n\\nofficers had secured Cooks and removed the only other known occupants from the\\n\\nhome, they had no objective reason to immediately conduct a warrantless search of\\n\\nthe crawlspace, a space that one of the occupants had already told them contained\\n\\n\\n 31\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 32 of 35\\n\\n\\nmultiple guns. They thus had plenty of time to attain a search warrant, as they in\\n\\nfact eventually did.\\n\\n III.\\n\\n I now turn to the cases that the majority cites to support its proposition that\\n\\n“searches under the emergency-aid exception have been upheld in circumstances\\n\\nthat would seem to be far less ominous than those here.” Maj. Op. at 18. Contrary\\n\\nto the majority’s characterizations, those cases actually involve circumstances far\\n\\nmore ominous than in the present case. In Michigan v. Fisher, 558 U.S. 45 (2009),\\n\\nfor example, the Supreme Court upheld a warrantless search under the exigent-\\n\\ncircumstances doctrine where,\\n\\n [u]pon their arrival, the officers found a household in considerable\\n chaos: a pickup truck in the driveway with its front smashed, damaged\\n fenceposts along the side of the property, and three broken house\\n windows, the glass still on the ground outside. The officers also\\n noticed blood on the hood of the pickup and on clothes inside of it, as\\n well as on one of the doors to the house. . . . Through a window, the\\n officers could see [the defendant] inside the house, screaming and\\n throwing things. The back door was locked, and a couch had been\\n placed to block the front door.\\n\\nId. at 45–46.\\n\\n The exigent-circumstances exception was found applicable in Fisher\\n\\nbecause, when the officers arrived, they “found signs of a recent injury, perhaps\\n\\nfrom a car accident, outside” and “could see violent behavior inside.” Id. at 48.\\n\\nAnd, importantly, the officers were responding to a report of a disturbance when\\n\\n\\n 32\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 33 of 35\\n\\n\\nthey arrived at the defendant’s home. Id. Fisher’s circumstances were thus far\\n\\nmore ominous than the circumstances surrounding the warrantless search here,\\n\\nwhich provided no objective indication of recent injury or violence in Cooks’s\\n\\ncrawlspace.\\n\\n The majority also cites Johnson v. City of Memphis, 617 F.3d 864 (6th Cir.\\n\\n2010), as another case in which the exigent-circumstances exception was applied\\n\\nto what the majority inexplicably characterizes as “far less ominous”\\n\\ncircumstances. Maj. Op. at 18. In Johnson, the Sixth Circuit held “that the\\n\\ncombination of a 911 hang [up] call, an unanswered return call, and an open door\\n\\nwith no response from within the residence is sufficient to satisfy the exigency\\n\\nrequirement.” Johnson, 617 F.3d at 869. But, as the court noted,\\n\\n [t]he whole point of the 911 system is to provide people in need of\\n emergency assistance an expeditious way to request it. . . . Because a\\n 911 call is by its nature an appeal for help in an emergency, the\\n emergency aid exception best fits the attitude of police responding to\\n a 911 call under the circumstances present here.\\n\\nId. at 870.\\n\\n In contrast to Fisher and Johnson, the present case does not involve\\n\\ncircumstances in which a reasonable officer would similarly infer that someone\\n\\nwas in Cooks’s crawlspace and in need of immediate aid. Neither Fisher nor\\n\\nJohnson, furthermore, analyzed whether entry into an enclosed space (such as a\\n\\n\\n\\n\\n 33\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 34 of 35\\n\\n\\ncrawlspace) within a defendant’s home would have been justified under the\\n\\ncircumstances of those cases.\\n\\n Finally, I disagree with the majority’s contention that this court’s recent\\n\\nholding in Montanez v. Carvajal, 889 F.3d 1202 (11th Cir. 2018), supports the\\n\\nmajority’s conclusion. See Maj. Op. at 19. First, the holding of Montanez is\\n\\nrelatively narrow. The court held that “if police have probable cause to suspect a\\n\\nresidential burglary[,] . . . they may, without further justification, conduct a brief\\n\\nwarrantless search of the home to look for suspects and potential victims.”\\n\\nMontanez, 889 F.3d at 1208–09. And, as the majority recognizes, executing an\\n\\narrest warrant does not carry the same risks inherent in responding to a residential\\n\\nburglary. Maj. Op. at 20.\\n\\n More significantly, in conducting the search at issue in Montanez, the\\n\\nofficers entered the home and discovered marijuana and drug paraphernalia in\\n\\nplain view. Montanez, 889 F.3d at 1206. The Montanez court accordingly limited\\n\\nits holding to allow only “a brief warrantless search of the home.” Id. at 1209\\n\\n(emphasis added). In the present case, the challenged evidence was not discovered\\n\\nin plain view, but rather by physically removing a screwed-down plywood\\n\\ncovering from the crawlspace. Montanez is therefore inapposite.\\n\\n\\n\\n\\n 34\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 35 of 35\\n\\n\\n IV.\\n\\n For all of the foregoing reasons, I believe that the exigent-circumstances\\n\\nexception did not justify the officers’ warrantless search of the covered crawlspace\\n\\nin Cooks’s home. I also fully agree with the district court’s conclusion that the\\n\\nofficers exceeded the scope of an otherwise lawful protective sweep when they\\n\\npried open the crawlspace cover and searched the space inside. Accordingly, I\\n\\nwould reverse the judgment of the district court and remand this case for further\\n\\nproceedings consistent with my dissent.\\n\\n\\n\\n\\n 35\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4383703/\", \"author_raw\": \"GILMAN, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"GILMAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4606450/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":1,"string":"1"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Willie Lee COOKS, A.K.A. Little Man, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-03\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10080 Date Filed: 04/03/2019 Page: 1 of 35\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-10080\n ________________________\n\n D.C. Docket No. 2:16-cr-00323-SLB-JHE-1\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n versus\n\nWILLIE LEE COOKS,\na.k.a. Little Man,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n (April 3, 2019)\n\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n\n\n*\n Honorable Ronald Lee Gilman, United States Circuit Judge for the United States Court of\nAppeals for the Sixth Circuit, sitting by designation.\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 2 of 35\n\n\n In the ordinary case, an arrest warrant doesn’t automatically authorize police\n\nto search the arrestee’s residence—the home search requires its own warrant. This\n\nisn’t the ordinary case.\n\n The question here is whether police violated the Fourth Amendment when\n\nthey conducted a warrantless search of the crawlspace in Willie Lee Cooks’s home\n\nfollowing a four-hour standoff that the responding officers deemed a hostage\n\nsituation and that culminated in Cooks’s arrest. Here’s the short version: Rather\n\nthan submitting to arrest, Cooks barricaded himself in his house, thereby\n\npreventing at least two occupants from leaving. Shortly after the police arrived,\n\nand as they were trying to coax Cooks out of the residence, they heard what\n\nsounded like a power drill being used inside. The officers were able to make\n\ncontact with one of the occupants, who told them that Cooks was “doing\n\nsomething in a hole in the floor.” When the standoff ended and the officers\n\nentered the house several hours later, they found the hole, which had been covered\n\nby a piece of plywood that was screwed down from the outside. They pried it up,\n\nfound that it led to a crawlspace, and discovered there an arsenal of firearms.\n\n As in all Fourth Amendment cases, we must determine the reasonableness of\n\nthe officers’ actions by reference to what they knew at the time. Just as important\n\nhere is what the officers didn’t know—specifically, how many additional\n\nindividuals might be in the house. Although the government has presented several\n\n\n 2\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 3 of 35\n\n\ntheories to justify the search in light of the officers’ uncertainty, we need address\n\nonly one here. We hold that the warrantless search of Cooks’s crawlspace was\n\nlawful under the exigent-circumstances doctrine, as the officers had probable cause\n\nto believe that the hole might contain additional hostages.\n\n I\n\n A\n\n The events underlying this case began when a team of officers from the U.S.\n\nMarshals Service’s Gulf Coast Regional Fugitive Task Force and Counter Gang\n\nUnit sought to arrest Cooks at his home. Cooks, a member of the “Bloods” street\n\ngang, was wanted for second-degree assault by the Birmingham Police\n\nDepartment. The officers initially knocked on his door, but when no one\n\nanswered, they entered the house by force. They left after a brief survey of the\n\nresidence revealed that it was empty.\n\n The team returned at around 10:30 a.m. the next day. While surveilling\n\nCooks’s home, the officers saw a car leave the residence twice, and when it\n\nreturned the second time at about 12:30 p.m., they ordered the driver—Precious\n\nClemens—to stop. Clemens apparently had no interest in talking to them, as she\n\nran inside the house and locked the door. Although attempts to communicate with\n\nClemens through the door were unsuccessful, two of the home’s other occupants—\n\nPamela Price and Everstein Johnson—were more cooperative. When Officer\n\n\n 3\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 4 of 35\n\n\nCrendal Deramus asked Price and Johnson to open the door, they told him that they\n\ncouldn’t because the door had been barricaded and locked from the inside using a\n\ndeadbolt for which they didn’t have a key.\n\n It was around that time that officers started hearing what they would later\n\ndescribe as “sounds similar to a power drill” coming from inside the house. As\n\nbest they could tell, the sounds came from “the immediate area of the front door.”\n\nThey couldn’t see inside, though, because the residence had tinted windows\n\nthroughout. Shortly thereafter, Price was able to exit the house briefly, and before\n\ngoing back inside she told the officers that Cooks was armed. Concluding that\n\nthey were facing a potential hostage situation, the officers decided to call the\n\nJefferson County SWAT team. When the SWAT team arrived, a hostage\n\nnegotiator made contact with Price and another unknown occupant, both of whom\n\nreiterated that they wanted to leave but couldn’t, and one of whom stated—without\n\nfurther explanation—that Cooks was “doing something in a hole in the floor” of\n\nthe house.1 When the negotiations to open the barricaded front door failed, the\n\nSWAT team deployed tear gas.\n\n\n\n\n1\n Presumably reflecting the chaos of the scene, the officers had different recollections about who\nmentioned Cooks’s work on the hole in the floor. Deramus thought that the second individual\nwas Johnson, a male. SWAT Sergeant Billy Watts, by contrast, thought that he had spoken to\n“two different females.”\n\n 4\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 5 of 35\n\n\n At 4:30 p.m.—roughly an hour later, and four hours after the initial contact\n\nwith Clemens—the standoff came to an end. The SWAT team broke a window\n\nand extracted Price and Johnson from the house, at which point Price reiterated\n\nthat Cooks was “doing something in the floor.” This time, though, she elaborated\n\nthat Cooks had put multiple guns in a hole in the floor. The barricade sealing the\n\nfront door was removed, and the SWAT team swarmed the house and took Cooks\n\nand Clemens into custody.\n\n After arresting Cooks, the officers performed an initial 30-second sweep,\n\nfollowed by a three- to five-minute secondary sweep. In the process, they found a\n\nfour-by-four-foot hole covered by plywood that, they later explained, had been\n\n“hastily” “nailed down with screws.” According to Deramus, they hadn’t seen the\n\nhole during the prior day’s entry. The officers used a crow bar to remove the\n\nplywood covering and found that it led to the home’s crawlspace. SWAT Deputy\n\nDouglas Lawson—described as “one of the smaller members of the SWAT team\n\nwho was often called upon to go into small spaces”—entered the hole. As he put\n\nhis hand down to brace himself, he felt a plastic tarp move and, under it, saw the\n\nbutt of a gun in plain view. When Lawson shined his flashlight around the\n\ncrawlspace, he saw more guns sticking out from underneath the plastic.\n\n Thirty minutes to an hour after the initial sweep—and still without a search\n\nwarrant—the officers called Special Agent Steve Owens with the Alabama Law\n\n\n 5\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 6 of 35\n\n\nEnforcement Agency to the scene to inventory the guns that they had discovered in\n\nthe crawlspace. Owens found several pistols and long guns both underneath and\n\nprotruding from the tarp, along with several pieces of unopened luggage that\n\nofficers later determined contained additional firearms. At this point, the officers\n\ndecided to seek, and thereafter obtained, a search warrant for Cooks’s home. All\n\ntold, the officers seized nine pistols and 22 long guns from the crawlspace.\n\n B\n\n The Government later charged Cooks with two counts of unlawful\n\npossession of a firearm under 18 U.S.C. § 922(g)(1). Because the officers initially\n\nsearched the crawlspace without a warrant, Cooks moved to suppress the guns,\n\ncontending that even if the officers could lawfully sweep part of the house,\n\n“pulling up floor boards and crawling under the house . . . was overbroad for a\n\nprotective sweep.” The government responded to Cooks’s protective-sweep\n\narguments, and further countered that the search was justified under the exigent-\n\ncircumstances doctrine because the officers didn’t know “if anyone else was inside\n\nthe residence or inside the hole in the floor.” In the officers’ minds, the\n\ngovernment explained, the crawlspace could have contained individuals “injured\n\nfrom the effects of the tear gas . . . [or] by actions of the defendant himself.”\n\n The government’s exigent-circumstances theory was thus largely predicated\n\non the idea that the house could have contained other individuals besides the four\n\n\n 6\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 7 of 35\n\n\nknown occupants—Cooks, Clemens, Johnson, and Price. 2 The officers candidly\n\nacknowledged that they weren’t quite sure who might have remained. Lawson, for\n\ninstance, testified at the suppression hearing that they entered the hole in order “to\n\nsecure it and make sure there wasn’t anybody hiding down there that could harm\n\nus.” Slightly differently, Deramus said that although he personally believed that\n\nall of the house’s occupants had been accounted for, he couldn’t rule out the\n\npossibility that either additional “bad guy[s]” or “potential hostages” remained.\n\nFor his part, SWAT Sergeant Billy Watts explained that the officers “had no idea\n\nhow many were [in the house],” elaborating that while they “believed there to be\n\nfour people in the house from the conversations” that they had with the occupants,\n\nthey “were still not sure at that point.”\n\n The magistrate judge charged with deciding Cooks’s suppression motion in\n\nthe first instance rejected the government’s protective-sweep justification,\n\nconcluding that although a limited sweep of the house was justified, it couldn’t\n\nlawfully extend to a search of the crawlspace. Specifically, he emphasized that\n\nthere was “no evidence that any officer observed anything about the . . . hole that\n\nwould indicate that a dangerous person was inside,” and that although the officers’\n\nthreat assessment was conceivable, “conceivability does not suffice for\n\n\n\n2\n The government separately argued that Price’s statement “that [Cooks] had placed guns in a\nhole in the floor . . . created another exigent circumstance which the police could not ignore.”\n\n 7\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 8 of 35\n\n\nreasonableness.” The fact that the plywood was nailed down from the outside, the\n\nmagistrate judge explained, undermined the case for opening it as part of a\n\nprotective sweep because any hypothetical assailant “would have been effectively\n\nlocked in.” Moreover, the magistrate questioned the extent of the intrusion, as “the\n\ngovernment offer[ed] neither authority nor argument for why prying up the nailed-\n\ndown plywood covering the hole suffices for a cursory visual inspection,” as\n\nrequired of a protective sweep under Maryland v. Buie, 494 U.S. 325 (1990).\n\n Even so, the magistrate judge recommended that the district court deny\n\nCooks’s motion to suppress on the ground that the officers’ search was lawful\n\nunder the exigent-circumstances doctrine. While for protective-sweep purposes it\n\nwas “not reasonable for the officers to conclude the . . . hole contained a person\n\nready and able to launch on attack,” the magistrate determined that “a reasonable\n\nofficer could have believed a hostage could be underneath the plywood covering.”\n\nThat was so, the magistrate judge reasoned, because the “officers already had a\n\nbasis to conclude that people had been kept inside the house against their will.”\n\nUnder the exigent-circumstances doctrine, the magistrate judge concluded, no\n\nwarrant was necessary here because “a hostage should not have to wait for a\n\nwarrant to be freed.”\n\n The district court adopted the magistrate judge’s report and recommendation\n\nin full. Thereafter, Cooks pleaded guilty to both counts under § 922(g)(1) but\n\n\n 8\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 9 of 35\n\n\nreserved the right to challenge the denial of his motion to suppress. This appeal\n\nfollowed.3\n\n II\n\n Let’s start with the basics. The Fourth Amendment provides as follows:\n\n The right of the people to be secure in their persons, houses, papers,\n and effects, against unreasonable searches and seizures, shall not be\n violated, and no Warrants shall issue, but upon probable cause,\n supported by Oath or affirmation, and particularly describing the place\n to be searched, and the persons or things to be seized.\n\nU.S. Const. amend IV. Whether in light or in spite of that language, Fourth\n\nAmendment cases have come to be governed by the principle that warrantless\n\nsearches are presumptively unreasonable, “subject only to a few specifically\n\nestablished and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,\n\n357 (1967). Nowhere is this more true, and important, than in the context of the\n\nsearch of a “home”—the “first among equals” in Fourth Amendment land. See\n\nFlorida v. Jardines, 569 U.S. 1, 6 (2013). Given this privileged status, warrantless\n\nsearches of homes “bear heightened scrutiny.” Kentucky v. King, 563 U.S. 452,\n\n474 (2011) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).\n\n\n\n3\n Our review of the district court’s denial of Cooks’s motion to suppress involves mixed\nquestions of law and fact. “[W]e review the district court’s factual findings for clear error, and\nits application of the law to the facts de novo.” United States v. Williams, 871 F.3d 1197, 1199\nn.2 (11th Cir. 2017) (quotation marks omitted). We “may consider any evidence that appears in\nthe record” and must construe the facts “in the light most favorable to the prevailing party”—\nhere, the government. United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013).\n\n 9\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 10 of 35\n\n\n One of the “well-delineated exceptions” to the presumptive warrant\n\nrequirement is undisputed here. Cooks doesn’t deny that once the officers were in\n\nthe crawlspace the firearms were in plain view and, therefore, were seizable so\n\nlong as the officers were lawfully there. See Horton v. California, 496 U.S. 128,\n\n136–37 (1990). Cooks does deny, though, that the officers were lawfully in the\n\ncrawlspace—arguing that they violated the Fourth Amendment by prying open the\n\ncrawlspace’s plywood hatch. If he’s right, the search of the crawlspace—and the\n\nensuing seizure of the firearms—was invalid. See id. at 136 (“It is, of course, an\n\nessential predicate to any valid warrantless seizure of incriminating evidence that\n\nthe officer did not violate the Fourth Amendment in arriving at the place from\n\nwhich the evidence could be plainly viewed.”). Accordingly, whether the officers\n\nwere justified in searching the crawlspace without a warrant is the sole and\n\ndispositive question before us.\n\n A\n\n On appeal, the government makes the same arguments that it made to the\n\nmagistrate judge to justify the crawlspace search—along with a few new ones.\n\nFirst, the government reiterates that the crawlspace might have contained\n\nadditional captives, adding that “Cooks—the person keeping [the hostages]—had\n\nbeen doing something mysterious with the hole.” Second, and for the first time on\n\nappeal, the government contends that Cooks could have placed a “confederate” in\n\n\n 10\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 11 of 35\n\n\nthe hole “for the purpose of ensuring the confederate’s escape, possibly with\n\nevidence, or for the purpose of destroying evidence.” Third, the government\n\nasserts—also for the first time on appeal—that “Cooks might have placed\n\nsomething dangerous under the floor, such as an explosive device.” Finally, the\n\ngovernment renews its position that the search of the crawlspace was within the\n\npermissible scope of a lawful protective sweep.\n\n We needn’t reach the question whether the search can be justified as a part\n\nof a protective sweep or based on either of the government’s newly articulated\n\ntheories. As explained below, we agree with the district court that the search was\n\njustified under what has come to be known as the “emergency-aid” aspect of the\n\nexigent-circumstances doctrine.\n\n B\n\n The exigency umbrella “encompasses several common situations where\n\nresort to a magistrate for a search warrant is not feasible or advisable, including:\n\ndanger of flight or escape, loss or destruction of evidence, risk of harm to the\n\npublic or the police, mobility of a vehicle, and hot pursuit.” United States v.\n\nHolloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We are principally concerned\n\nhere with “risk of harm to the public”—sometimes called the “emergency-aid”\n\naspect of the exigent-circumstances doctrine. See, e.g., King, 563 U.S. at 460.\n\n\n\n\n 11\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 12 of 35\n\n\n In order to justify an exigent-circumstances search, the government bears the\n\nburden of “demonstrat[ing] both exigency and probable cause.” Id. at 1337. In the\n\nemergency-aid context, “the probable cause element may be satisfied where\n\nofficers reasonably believe a person is in danger.” Id. at 1338; see also United\n\nStates v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013) (probable cause satisfied\n\nwhere officers reasonably believe that someone “is seriously injured or threatened\n\nwith such injury, and is in need of immediate aid” (quotation marks omitted)).\n\nSeparately, the government must also demonstrate that the resulting search was\n\n“‘strictly circumscribed’ by the nature of the exigency that authorized it” and\n\n“limited to the areas where a person reasonably could be found.” Montanez v.\n\nCarvajal, 889 F.3d 1202, 1209 n.4 (11th Cir. 2018) (quoting Mincey v. Arizona,\n\n437 U.S. 385, 393 (1978)).\n\n The officers here, Cooks contends, “exceeded the scope of a warrantless\n\nsearch” by “forcefully break[ing] into spaces in [his] home”—namely, the hole and\n\nconnected crawlspace—“without providing specific and articulable facts as to why\n\nthey believed an individual was in the space.” Br. of Appellant at 12. We will\n\naddress, in turn, whether the search was justified and, if so, whether it was\n\nappropriately circumscribed.\n\n\n\n\n 12\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 13 of 35\n\n\n 1\n\n It’s clear that the hostage situation at Cooks’s residence—which is how the\n\npolice perceived the situation—created an exigency of the sort that would justify a\n\nwarrantless search. See United States v. Mancinas-Flores, 588 F.3d 677, 687 (9th\n\nCir. 2009) (collecting decisions that “have recognized that an ongoing hostage\n\nsituation presents exigent circumstances”). The real question here is whether the\n\nexigency remained ongoing during the officers’ search of the crawlspace—in\n\nparticular, that they could have reasonably believed that the hole could have\n\ncontained someone who was “in danger,” Holloway, 290 F.3d at 1338, or “in need\n\nof immediate aid,” Timmann, 741 F.3d at 1178.\n\n To be fair, there are arrows pointing in both directions. Before the\n\nmagistrate judge, for instance, the government argued that Pamela Price had\n\n“informed police that [Cooks] had placed guns in a hole in the floor,” thereby\n\n“creat[ing an] exigent circumstance which the police could not ignore.” But while\n\nPrice’s statement may provide some support for the government’s protective-\n\nsweep theory—which hinges on the risk of a hidden assailant or other danger to\n\npolice—it arguably cuts against its emergency-aid position. If Cooks really had\n\nadditional hostages in the house, why would he have stashed them in the vicinity of\n\nweapons? Doing so would seem to be counterproductive to the aim of holding\n\nsomeone against his will.\n\n\n 13\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 14 of 35\n\n\n But it’s not our role to armchair quarterback the officers’ decision, and other\n\nconsiderations strongly support the government’s emergency-aid argument. In\n\nassessing the reasonableness of officers’ actions, we cannot indulge “the 20/20\n\nvision of hindsight,” but instead must adopt the “perspective of a reasonable officer\n\non the scene”—which, here, entailed an armed standoff with a gang-member\n\nfugitive that had evolved into a hostage situation. Graham v. Connor, 490 U.S.\n\n386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). We can’t get\n\ncaught up in facts that the officers couldn’t have known at the time—namely that,\n\nas it turned out, there weren’t any additional captives in Cooks’s hole or\n\ncrawlspace. Rather, we must be mindful that the police “must act quickly, based\n\non hurried and incomplete information.” Holloway, 290 F.3d at 1339. Put simply,\n\nthe Fourth Amendment’s reasonableness requirement gives officers facing exigent\n\ncircumstances ample “breathing space to do the best they could with the\n\ninformation they had.” Montanez, 889 F.3d at 1210.\n\n Nowhere is this “breathing space” more crucial than in situations where life\n\nand limb may be in jeopardy. The “most urgent” of exigent circumstances, we\n\nhave said, is “the need to protect or preserve life in an emergency situation.”\n\nTimmann, 741 F.3d at 1178. In the same way, we have emphasized that “[i]t is\n\ndifficult to imagine a scenario in which immediate police action is more justified\n\nthan when a human life hangs in the balance.” Holloway, 290 F.3d at 1337.\n\n\n 14\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 15 of 35\n\n\nAccordingly, where the exigencies demand it, “the sanctity of the home . . . must\n\ngive way to the sanctity of human life.” Id. Of course, the officers must still have\n\nprobable cause—i.e., a “reasonabl[e] belie[f that] a person is in danger,” id. at\n\n1338—but if they do, they needn’t hesitate. As we stressed in Holloway—quoting\n\nthen-Judge Warren Burger—“[p]eople could well die in emergencies if police tried\n\nto act with the calm deliberation associated with the judicial process.” Id. at 1340\n\n(quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).\n\nAccordingly, officers “must be given the authority and flexibility to act quickly,\n\nbased on limited information, when human life is at stake.” Id. at 1339–40.\n\n Given the weight that our precedent places on the need to protect human life,\n\nwas it reasonable for the officers here to believe that Cooks’s hole might have\n\ncontained additional hostages? We think it was. For starters, in adopting, the\n\nmagistrate judge’s R&R, the district court found that “the officers believed there\n\nwere four people in the house but were not sure whether there were others.”\n\nTestimony at the suppression hearing amply supported that finding; several\n\nofficers said that they thought that the house might contain additional occupants—\n\nor, at the very least, couldn’t rule out that possibility. Watts, for instance, said that\n\nthe officers “had no idea” how many people were in the house. Deramus, too,\n\nexplained that the SWAT team cleared the house to “make sure no one else was in\n\n\n\n\n 15\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 16 of 35\n\n\nthere, either [a] bad guy or any other potential hostages.”4 The Fourth\n\nAmendment’s reasonableness criterion gave the officers the “breathing space” they\n\nneeded to test their hypothesis, lest a possible injured innocent be further imperiled\n\nby the delay inherent in securing a search warrant.\n\n Moreover, the drilling that the officers heard surely heightened concerns. A\n\nreasonable officer, we think, could rule out innocent explanations for the sounds—\n\nit was exceedingly unlikely that Cooks was simply trying to finish up a home-\n\nimprovement project before the police whisked him away. That the drilling sounds\n\nstarted shortly after the police arrived, and seemed to come from behind a\n\nbarricaded door, suggested two possibilities, neither good: Cooks was trying to\n\nhide either something or someone that he didn’t want the police to find. The\n\n\n\n\n4\n Cooks emphasizes Deramus’s testimony that he personally believed—and that the task force\nofficers “were still on the same understanding”—that the house contained only four people.\nDeramus was far less certain than Cooks suggests, however, as evidenced by this colloquy at the\nsuppression hearing:\n\n Question: At that point, when Ms. Price, Ms. Clemons, Mr. Johnson, and the\n defendant were secured, did you know if there was anybody else in the house?\n Deramus: No, I did not.\n Question: Could there have been additional people, hostages, or people who\n wanted to hurt the police?\n Deramus: Yes, sir.\n\nIn any event, the question is not whether Deramus or any other particular officer subjectively\nbelieved that there were additional hostages. Rather, we are limited to determining whether “the\ncircumstances, viewed objectively, justify the [officers’] action[s].” Brigham City v. Stuart, 547\nU.S. 398, 404 (2006) (emphasis added and quotation marks omitted).\n\n 16\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 17 of 35\n\n\nofficers couldn’t be sure which it was unless and until they searched the hole,\n\nespecially given that the house’s tinted windows rendered it one big blind spot.\n\n Cooks responds that the “officers had not been informed,” and “did not hear\n\nor otherwise detect signs,” that a “hostage was being kept in the crawlspace.” Br.\n\nof Appellant at 14. The dissent agrees, emphasizing that “the officers did not\n\nobserve anything to indicate that someone was in the crawlspace, let alone that\n\nsomeone there was in immediate danger.” Dissenting Op. at 26. But police don’t\n\n“need ironclad proof of a likely serious, life-threatening injury to invoke the\n\nemergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 49 (2009) (quotation\n\nomitted). Given the length of the standoff, the fact that Cooks already held two\n\npeople against their will, the uncertainty about other occupants, and the bizarre\n\ndrilling sounds, we think it clear that the officers here acted within the zone of\n\nreasonableness.5\n\n5\n The dissent takes issue with the fact that the officers didn’t “call down into the crawlspace to\ninquire whether anyone was there.” Dissenting Op. at 27. Their failure to do so, the dissent\nsays, suggests that the ‘“hostage in the crawlspace’ explanation was an after-the-fact justification\nfor the illegal search concocted by the government.” Id. at 27–28. The Supreme Court has long\nrecognized, however, that speculation about the government’s true motives has no place in the\nassessment of objective reasonableness. See, e.g., Whren v. United States, 517 U.S. 806, 812–13\n(1996). Along the same lines, the Court has explained in the emergency-aid context, in\nparticular, that “even if the failure to summon medical personnel conclusively established” that\nthe officers did not believe that someone was injured, the test, as already noted, “is not what\n[they] believed, but whether there was an objectively reasonable basis for believing that medical\nassistance was needed, or persons were in danger.” Fisher, 558 U.S. at 49 (quotation omitted).\n Moreover, and in any event, our task is not to opine—with the benefit of hindsight—on\nthe optimal path that the officers could have taken, but rather to assess the reasonableness of the\npath that they took. As the Supreme Court has said in another context, a “creative judge engaged\nin post hoc evaluation of police conduct can almost always imagine some alternative means by\n 17\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 18 of 35\n\n\n Indeed, searches under the emergency-aid exception have been upheld in\n\ncircumstances that would seem to be far less ominous than those here. In Fisher,\n\nfor example, officers arrived at a scene to find, among other red flags, a truck\n\n“with its front smashed,” a house with broken windows, and drops of blood in\n\nseveral places. 558 U.S. at 45–46. And though the officers saw the defendant\n\n“screaming and throwing things” in the house, they apparently couldn’t tell—from\n\ntheir vantage point—if another person bore the brunt of his anger. Id. at 46. The\n\nSupreme Court found the application of the emergency-aid exception to be\n\n“straightforward” because, among other reasons, “[it] would be objectively\n\nreasonable to believe that [the defendant’s] projectiles might have a human target\n\n(perhaps a spouse or a child).” Id. at 48.\n\n Moreover, in Johnson v. City of Memphis, the Sixth Circuit held that the\n\n“combination of a 911 hang-up call, an unanswered return call, and an open door\n\nwith no response from within the residence”—without more— sufficed to justify\n\nan exigent-circumstances search. 617 F.3d 864, 869 (6th Cir. 2010). Notably, in\n\nso holding, the court based its conclusion not only on “the information [that the\n\nofficers] had,” but also—and just as we do here—on “the importance in these\n\nsituations of the information the responding officers d[id] not have.” Id. at 871 &\n\n\nwhich the objectives of the police might have been accomplished.” United States v. Sharpe, 470\nU.S. 675, 686–87 (1985). The dissent’s preferred “alternative means” of searching for hostages\ndoes nothing to undermine the reasonableness of the officers’ actions here.\n\n 18\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 19 of 35\n\n\nn.2. We break no new ground in concluding that reasonable inferences based on\n\nboth knowns and known unknowns—rather than concrete evidence of harm\n\nalone—can establish probable cause to believe that an innocent is in danger and “in\n\nneed of immediate aid.” Timmann, 741 F.3d at 1178.\n\n Our recent decision in Montanez v. Carvajal further reinforces our\n\nconclusion that the officers here acted reasonably. The police in Montanez\n\ninterrupted what they thought was a residential burglary and detained two suspects\n\noutside the house. See 889 F.3d at 1205. Into an open door, an officer shouted,\n\n“Sheriff’s office, come out if anybody’s in there,” but he got no response. Id. at\n\n1206. Soon after discovering that the door had been pried open, the officers\n\nentered the home to search “for additional perpetrators and victims” and found\n\ncontraband in plain view. Id. Although the district court in that case found that the\n\nofficers “had no reason to believe anyone else was involved,” we emphasized that\n\n“a responding officer will rarely know (or have any real way of knowing) whether\n\nhe’s rounded up everybody.” Id. at 1209. “[P]erhaps more importantly,” we\n\nfurther observed, “[t]here could be victims in [the house] too, and in light of the\n\nviolence that often accompanies home invasions, it’s not unreasonable to think that\n\nthose victims might be incapacitated, unconscious, or otherwise in need of\n\nassistance.” Id. Accordingly, and “[g]iven the immediacy of a potential victim’s\n\n\n\n\n 19\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 20 of 35\n\n\nneeds,” we held that “the Fourth Amendment permit[ted] a limited warrantless\n\nsweep of the home to search for both perpetrators and potential victims.” Id.\n\n That’s not to say that Montanez is on all fours. Inherent in a residential\n\nburglary is the risk that the homeowner will catch the perp in the act and wind up a\n\nvictim. Executing an arrest warrant doesn’t necessarily carry with it a\n\ncorresponding risk—say, that the arrestee will hold individuals against their will in\n\na hidden compartment. Even so, the same concerns regarding the uncertainty\n\nabout potential victims and the immediacy of their needs are equally (if not more)\n\npressing in the context of a four-hour hostage standoff. Just as in a burglary gone\n\nwrong, Cooks’s hostages could have been “incapacitated, unconscious, or\n\notherwise in need of assistance.” Id. Here, as in Montanez, swift action could\n\nhave been the difference between life and death for an injured innocent;\n\naccordingly, here, as there, “[i]t would make no sense to compel an officer . . . to\n\nquit the scene to procure a warrant, thereby jeopardizing . . . the safety of potential\n\nvictims inside the house.” 6 Id. at 1210.\n\n\n\n6\n To be clear, we are not sanctioning what Cooks calls a “general crime scene exception.” Supp.\nBr. of Appellant at 3. The circumstances here are more dramatic than, and by no means\nrepresentative of, the “general crime scene.” We think it fair to assume that it will be the rare\ncase in which the target of an arrest warrant barricades himself inside a house and holds other\noccupants captive, and the even rarer case in which that individual sets about to conceal a secret\nroom with plywood and power tools. Given the uniqueness of the circumstances here—this was,\nafter all, a hostage situation—we think that the dissent overstates matters when it suggests that\nour holding gives officers carte blanche “to search any crawlspace, closet, shed, or other\nenclosed space not covered by a lawful protective sweep.” Dissenting Op. at 30.\n\n 20\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 21 of 35\n\n\n 2\n\n Given that the officers had probable cause to believe that the crawlspace\n\ncontained additional hostages, the final question is whether the search was\n\nproportional to that exigency. Mincey, 437 U.S. at 393. Cooks contends that it\n\nwasn’t; he says that the search—specifically, the officers’ use of a crow bar to\n\nbreak open the “locked” plywood “door”—was more intrusive than necessary. Br.\n\nof Appellant at 12.\n\n We disagree. Even the most intrusive of government actions may be\n\nwarranted where the preservation of human life is at stake. Cf. Fisher, 558 U.S. at\n\n46 (upholding the entry of a house under the emergency-aid exception where “[t]he\n\nback door was locked, and a couch had been placed to block the front door”). The\n\n“immediacy of a potential victim’s needs,” Montanez, 889 F.3d at 1209, doesn’t\n\nbecome any less pressing when she is behind a door locked from the outside. In\n\nfact, the opposite would seem to be true—assuming she is conscious, she can’t\n\nopen the “door” to call for help. Accordingly, the fact that the plywood plank here\n\nwas screwed down—while potentially undermining the case for a protective\n\nsweep—strongly supports the government’s emergency-aid argument.\n\n The ultimate question is whether the intrusion was “strictly circumscribed”\n\nand “limited to the areas where a person reasonably could be found.” Id. at 1209\n\nn.4. It was. The hole and crawlspace were big enough to stash a person—a child\n\n\n 21\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 22 of 35\n\n\nor a small adult (as Lawson’s entry indicates). The search, moreover, took no\n\nlonger than necessary to verify that the crawlspace was empty. We therefore reject\n\nCooks’s argument that the officers exceeded the scope of a lawful exigent-\n\ncircumstances search by prying open the plywood “door.”\n\n III\n\n For the foregoing reasons, we hold (1) that it was reasonable to believe that\n\nCooks’s crawlspace—which was covered by a makeshift plywood “door”—might\n\nhave contained hostages, and (2) that the officers were therefore justified in\n\nremoving the plywood cover and briefly searching the crawlspace without a\n\nwarrant. Because we conclude that the search was lawful under the emergency-aid\n\naspect of the exigent-circumstances doctrine, we needn’t reach the question\n\nwhether the search was justified under any other theory. Accordingly, we affirm\n\nthe district court’s decision to deny Cooks’s motion to suppress.\n\nAFFIRMED.\n\n\n\n\n 22\n\n Case: 18-10080 Date Filed: 04/03/2019 Page: 23 of 35\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff - Appellee, v. Willie Lee COOKS, A.K.A. Little Man, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-03\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10080 Date Filed: 04/03/2019 Page: 1 of 35\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10080\\n ________________________\\n\\n D.C. Docket No. 2:16-cr-00323-SLB-JHE-1\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n versus\\n\\nWILLIE LEE COOKS,\\na.k.a. Little Man,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Alabama\\n ________________________\\n\\n (April 3, 2019)\\n\\nBefore TJOFLAT, NEWSOM, and GILMAN, * Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n\\n\\n*\\n Honorable Ronald Lee Gilman, United States Circuit Judge for the United States Court of\\nAppeals for the Sixth Circuit, sitting by designation.\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 2 of 35\\n\\n\\n In the ordinary case, an arrest warrant doesn’t automatically authorize police\\n\\nto search the arrestee’s residence—the home search requires its own warrant. This\\n\\nisn’t the ordinary case.\\n\\n The question here is whether police violated the Fourth Amendment when\\n\\nthey conducted a warrantless search of the crawlspace in Willie Lee Cooks’s home\\n\\nfollowing a four-hour standoff that the responding officers deemed a hostage\\n\\nsituation and that culminated in Cooks’s arrest. Here’s the short version: Rather\\n\\nthan submitting to arrest, Cooks barricaded himself in his house, thereby\\n\\npreventing at least two occupants from leaving. Shortly after the police arrived,\\n\\nand as they were trying to coax Cooks out of the residence, they heard what\\n\\nsounded like a power drill being used inside. The officers were able to make\\n\\ncontact with one of the occupants, who told them that Cooks was “doing\\n\\nsomething in a hole in the floor.” When the standoff ended and the officers\\n\\nentered the house several hours later, they found the hole, which had been covered\\n\\nby a piece of plywood that was screwed down from the outside. They pried it up,\\n\\nfound that it led to a crawlspace, and discovered there an arsenal of firearms.\\n\\n As in all Fourth Amendment cases, we must determine the reasonableness of\\n\\nthe officers’ actions by reference to what they knew at the time. Just as important\\n\\nhere is what the officers didn’t know—specifically, how many additional\\n\\nindividuals might be in the house. Although the government has presented several\\n\\n\\n 2\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 3 of 35\\n\\n\\ntheories to justify the search in light of the officers’ uncertainty, we need address\\n\\nonly one here. We hold that the warrantless search of Cooks’s crawlspace was\\n\\nlawful under the exigent-circumstances doctrine, as the officers had probable cause\\n\\nto believe that the hole might contain additional hostages.\\n\\n I\\n\\n A\\n\\n The events underlying this case began when a team of officers from the U.S.\\n\\nMarshals Service’s Gulf Coast Regional Fugitive Task Force and Counter Gang\\n\\nUnit sought to arrest Cooks at his home. Cooks, a member of the “Bloods” street\\n\\ngang, was wanted for second-degree assault by the Birmingham Police\\n\\nDepartment. The officers initially knocked on his door, but when no one\\n\\nanswered, they entered the house by force. They left after a brief survey of the\\n\\nresidence revealed that it was empty.\\n\\n The team returned at around 10:30 a.m. the next day. While surveilling\\n\\nCooks’s home, the officers saw a car leave the residence twice, and when it\\n\\nreturned the second time at about 12:30 p.m., they ordered the driver—Precious\\n\\nClemens—to stop. Clemens apparently had no interest in talking to them, as she\\n\\nran inside the house and locked the door. Although attempts to communicate with\\n\\nClemens through the door were unsuccessful, two of the home’s other occupants—\\n\\nPamela Price and Everstein Johnson—were more cooperative. When Officer\\n\\n\\n 3\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 4 of 35\\n\\n\\nCrendal Deramus asked Price and Johnson to open the door, they told him that they\\n\\ncouldn’t because the door had been barricaded and locked from the inside using a\\n\\ndeadbolt for which they didn’t have a key.\\n\\n It was around that time that officers started hearing what they would later\\n\\ndescribe as “sounds similar to a power drill” coming from inside the house. As\\n\\nbest they could tell, the sounds came from “the immediate area of the front door.”\\n\\nThey couldn’t see inside, though, because the residence had tinted windows\\n\\nthroughout. Shortly thereafter, Price was able to exit the house briefly, and before\\n\\ngoing back inside she told the officers that Cooks was armed. Concluding that\\n\\nthey were facing a potential hostage situation, the officers decided to call the\\n\\nJefferson County SWAT team. When the SWAT team arrived, a hostage\\n\\nnegotiator made contact with Price and another unknown occupant, both of whom\\n\\nreiterated that they wanted to leave but couldn’t, and one of whom stated—without\\n\\nfurther explanation—that Cooks was “doing something in a hole in the floor” of\\n\\nthe house.1 When the negotiations to open the barricaded front door failed, the\\n\\nSWAT team deployed tear gas.\\n\\n\\n\\n\\n1\\n Presumably reflecting the chaos of the scene, the officers had different recollections about who\\nmentioned Cooks’s work on the hole in the floor. Deramus thought that the second individual\\nwas Johnson, a male. SWAT Sergeant Billy Watts, by contrast, thought that he had spoken to\\n“two different females.”\\n\\n 4\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 5 of 35\\n\\n\\n At 4:30 p.m.—roughly an hour later, and four hours after the initial contact\\n\\nwith Clemens—the standoff came to an end. The SWAT team broke a window\\n\\nand extracted Price and Johnson from the house, at which point Price reiterated\\n\\nthat Cooks was “doing something in the floor.” This time, though, she elaborated\\n\\nthat Cooks had put multiple guns in a hole in the floor. The barricade sealing the\\n\\nfront door was removed, and the SWAT team swarmed the house and took Cooks\\n\\nand Clemens into custody.\\n\\n After arresting Cooks, the officers performed an initial 30-second sweep,\\n\\nfollowed by a three- to five-minute secondary sweep. In the process, they found a\\n\\nfour-by-four-foot hole covered by plywood that, they later explained, had been\\n\\n“hastily” “nailed down with screws.” According to Deramus, they hadn’t seen the\\n\\nhole during the prior day’s entry. The officers used a crow bar to remove the\\n\\nplywood covering and found that it led to the home’s crawlspace. SWAT Deputy\\n\\nDouglas Lawson—described as “one of the smaller members of the SWAT team\\n\\nwho was often called upon to go into small spaces”—entered the hole. As he put\\n\\nhis hand down to brace himself, he felt a plastic tarp move and, under it, saw the\\n\\nbutt of a gun in plain view. When Lawson shined his flashlight around the\\n\\ncrawlspace, he saw more guns sticking out from underneath the plastic.\\n\\n Thirty minutes to an hour after the initial sweep—and still without a search\\n\\nwarrant—the officers called Special Agent Steve Owens with the Alabama Law\\n\\n\\n 5\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 6 of 35\\n\\n\\nEnforcement Agency to the scene to inventory the guns that they had discovered in\\n\\nthe crawlspace. Owens found several pistols and long guns both underneath and\\n\\nprotruding from the tarp, along with several pieces of unopened luggage that\\n\\nofficers later determined contained additional firearms. At this point, the officers\\n\\ndecided to seek, and thereafter obtained, a search warrant for Cooks’s home. All\\n\\ntold, the officers seized nine pistols and 22 long guns from the crawlspace.\\n\\n B\\n\\n The Government later charged Cooks with two counts of unlawful\\n\\npossession of a firearm under 18 U.S.C. § 922(g)(1). Because the officers initially\\n\\nsearched the crawlspace without a warrant, Cooks moved to suppress the guns,\\n\\ncontending that even if the officers could lawfully sweep part of the house,\\n\\n“pulling up floor boards and crawling under the house . . . was overbroad for a\\n\\nprotective sweep.” The government responded to Cooks’s protective-sweep\\n\\narguments, and further countered that the search was justified under the exigent-\\n\\ncircumstances doctrine because the officers didn’t know “if anyone else was inside\\n\\nthe residence or inside the hole in the floor.” In the officers’ minds, the\\n\\ngovernment explained, the crawlspace could have contained individuals “injured\\n\\nfrom the effects of the tear gas . . . [or] by actions of the defendant himself.”\\n\\n The government’s exigent-circumstances theory was thus largely predicated\\n\\non the idea that the house could have contained other individuals besides the four\\n\\n\\n 6\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 7 of 35\\n\\n\\nknown occupants—Cooks, Clemens, Johnson, and Price. 2 The officers candidly\\n\\nacknowledged that they weren’t quite sure who might have remained. Lawson, for\\n\\ninstance, testified at the suppression hearing that they entered the hole in order “to\\n\\nsecure it and make sure there wasn’t anybody hiding down there that could harm\\n\\nus.” Slightly differently, Deramus said that although he personally believed that\\n\\nall of the house’s occupants had been accounted for, he couldn’t rule out the\\n\\npossibility that either additional “bad guy[s]” or “potential hostages” remained.\\n\\nFor his part, SWAT Sergeant Billy Watts explained that the officers “had no idea\\n\\nhow many were [in the house],” elaborating that while they “believed there to be\\n\\nfour people in the house from the conversations” that they had with the occupants,\\n\\nthey “were still not sure at that point.”\\n\\n The magistrate judge charged with deciding Cooks’s suppression motion in\\n\\nthe first instance rejected the government’s protective-sweep justification,\\n\\nconcluding that although a limited sweep of the house was justified, it couldn’t\\n\\nlawfully extend to a search of the crawlspace. Specifically, he emphasized that\\n\\nthere was “no evidence that any officer observed anything about the . . . hole that\\n\\nwould indicate that a dangerous person was inside,” and that although the officers’\\n\\nthreat assessment was conceivable, “conceivability does not suffice for\\n\\n\\n\\n2\\n The government separately argued that Price’s statement “that [Cooks] had placed guns in a\\nhole in the floor . . . created another exigent circumstance which the police could not ignore.”\\n\\n 7\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 8 of 35\\n\\n\\nreasonableness.” The fact that the plywood was nailed down from the outside, the\\n\\nmagistrate judge explained, undermined the case for opening it as part of a\\n\\nprotective sweep because any hypothetical assailant “would have been effectively\\n\\nlocked in.” Moreover, the magistrate questioned the extent of the intrusion, as “the\\n\\ngovernment offer[ed] neither authority nor argument for why prying up the nailed-\\n\\ndown plywood covering the hole suffices for a cursory visual inspection,” as\\n\\nrequired of a protective sweep under Maryland v. Buie, 494 U.S. 325 (1990).\\n\\n Even so, the magistrate judge recommended that the district court deny\\n\\nCooks’s motion to suppress on the ground that the officers’ search was lawful\\n\\nunder the exigent-circumstances doctrine. While for protective-sweep purposes it\\n\\nwas “not reasonable for the officers to conclude the . . . hole contained a person\\n\\nready and able to launch on attack,” the magistrate determined that “a reasonable\\n\\nofficer could have believed a hostage could be underneath the plywood covering.”\\n\\nThat was so, the magistrate judge reasoned, because the “officers already had a\\n\\nbasis to conclude that people had been kept inside the house against their will.”\\n\\nUnder the exigent-circumstances doctrine, the magistrate judge concluded, no\\n\\nwarrant was necessary here because “a hostage should not have to wait for a\\n\\nwarrant to be freed.”\\n\\n The district court adopted the magistrate judge’s report and recommendation\\n\\nin full. Thereafter, Cooks pleaded guilty to both counts under § 922(g)(1) but\\n\\n\\n 8\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 9 of 35\\n\\n\\nreserved the right to challenge the denial of his motion to suppress. This appeal\\n\\nfollowed.3\\n\\n II\\n\\n Let’s start with the basics. The Fourth Amendment provides as follows:\\n\\n The right of the people to be secure in their persons, houses, papers,\\n and effects, against unreasonable searches and seizures, shall not be\\n violated, and no Warrants shall issue, but upon probable cause,\\n supported by Oath or affirmation, and particularly describing the place\\n to be searched, and the persons or things to be seized.\\n\\nU.S. Const. amend IV. Whether in light or in spite of that language, Fourth\\n\\nAmendment cases have come to be governed by the principle that warrantless\\n\\nsearches are presumptively unreasonable, “subject only to a few specifically\\n\\nestablished and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,\\n\\n357 (1967). Nowhere is this more true, and important, than in the context of the\\n\\nsearch of a “home”—the “first among equals” in Fourth Amendment land. See\\n\\nFlorida v. Jardines, 569 U.S. 1, 6 (2013). Given this privileged status, warrantless\\n\\nsearches of homes “bear heightened scrutiny.” Kentucky v. King, 563 U.S. 452,\\n\\n474 (2011) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).\\n\\n\\n\\n3\\n Our review of the district court’s denial of Cooks’s motion to suppress involves mixed\\nquestions of law and fact. “[W]e review the district court’s factual findings for clear error, and\\nits application of the law to the facts de novo.” United States v. Williams, 871 F.3d 1197, 1199\\nn.2 (11th Cir. 2017) (quotation marks omitted). We “may consider any evidence that appears in\\nthe record” and must construe the facts “in the light most favorable to the prevailing party”—\\nhere, the government. United States v. Smith, 741 F.3d 1211, 1218 (11th Cir. 2013).\\n\\n 9\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 10 of 35\\n\\n\\n One of the “well-delineated exceptions” to the presumptive warrant\\n\\nrequirement is undisputed here. Cooks doesn’t deny that once the officers were in\\n\\nthe crawlspace the firearms were in plain view and, therefore, were seizable so\\n\\nlong as the officers were lawfully there. See Horton v. California, 496 U.S. 128,\\n\\n136–37 (1990). Cooks does deny, though, that the officers were lawfully in the\\n\\ncrawlspace—arguing that they violated the Fourth Amendment by prying open the\\n\\ncrawlspace’s plywood hatch. If he’s right, the search of the crawlspace—and the\\n\\nensuing seizure of the firearms—was invalid. See id. at 136 (“It is, of course, an\\n\\nessential predicate to any valid warrantless seizure of incriminating evidence that\\n\\nthe officer did not violate the Fourth Amendment in arriving at the place from\\n\\nwhich the evidence could be plainly viewed.”). Accordingly, whether the officers\\n\\nwere justified in searching the crawlspace without a warrant is the sole and\\n\\ndispositive question before us.\\n\\n A\\n\\n On appeal, the government makes the same arguments that it made to the\\n\\nmagistrate judge to justify the crawlspace search—along with a few new ones.\\n\\nFirst, the government reiterates that the crawlspace might have contained\\n\\nadditional captives, adding that “Cooks—the person keeping [the hostages]—had\\n\\nbeen doing something mysterious with the hole.” Second, and for the first time on\\n\\nappeal, the government contends that Cooks could have placed a “confederate” in\\n\\n\\n 10\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 11 of 35\\n\\n\\nthe hole “for the purpose of ensuring the confederate’s escape, possibly with\\n\\nevidence, or for the purpose of destroying evidence.” Third, the government\\n\\nasserts—also for the first time on appeal—that “Cooks might have placed\\n\\nsomething dangerous under the floor, such as an explosive device.” Finally, the\\n\\ngovernment renews its position that the search of the crawlspace was within the\\n\\npermissible scope of a lawful protective sweep.\\n\\n We needn’t reach the question whether the search can be justified as a part\\n\\nof a protective sweep or based on either of the government’s newly articulated\\n\\ntheories. As explained below, we agree with the district court that the search was\\n\\njustified under what has come to be known as the “emergency-aid” aspect of the\\n\\nexigent-circumstances doctrine.\\n\\n B\\n\\n The exigency umbrella “encompasses several common situations where\\n\\nresort to a magistrate for a search warrant is not feasible or advisable, including:\\n\\ndanger of flight or escape, loss or destruction of evidence, risk of harm to the\\n\\npublic or the police, mobility of a vehicle, and hot pursuit.” United States v.\\n\\nHolloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We are principally concerned\\n\\nhere with “risk of harm to the public”—sometimes called the “emergency-aid”\\n\\naspect of the exigent-circumstances doctrine. See, e.g., King, 563 U.S. at 460.\\n\\n\\n\\n\\n 11\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 12 of 35\\n\\n\\n In order to justify an exigent-circumstances search, the government bears the\\n\\nburden of “demonstrat[ing] both exigency and probable cause.” Id. at 1337. In the\\n\\nemergency-aid context, “the probable cause element may be satisfied where\\n\\nofficers reasonably believe a person is in danger.” Id. at 1338; see also United\\n\\nStates v. Timmann, 741 F.3d 1170, 1178 (11th Cir. 2013) (probable cause satisfied\\n\\nwhere officers reasonably believe that someone “is seriously injured or threatened\\n\\nwith such injury, and is in need of immediate aid” (quotation marks omitted)).\\n\\nSeparately, the government must also demonstrate that the resulting search was\\n\\n“‘strictly circumscribed’ by the nature of the exigency that authorized it” and\\n\\n“limited to the areas where a person reasonably could be found.” Montanez v.\\n\\nCarvajal, 889 F.3d 1202, 1209 n.4 (11th Cir. 2018) (quoting Mincey v. Arizona,\\n\\n437 U.S. 385, 393 (1978)).\\n\\n The officers here, Cooks contends, “exceeded the scope of a warrantless\\n\\nsearch” by “forcefully break[ing] into spaces in [his] home”—namely, the hole and\\n\\nconnected crawlspace—“without providing specific and articulable facts as to why\\n\\nthey believed an individual was in the space.” Br. of Appellant at 12. We will\\n\\naddress, in turn, whether the search was justified and, if so, whether it was\\n\\nappropriately circumscribed.\\n\\n\\n\\n\\n 12\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 13 of 35\\n\\n\\n 1\\n\\n It’s clear that the hostage situation at Cooks’s residence—which is how the\\n\\npolice perceived the situation—created an exigency of the sort that would justify a\\n\\nwarrantless search. See United States v. Mancinas-Flores, 588 F.3d 677, 687 (9th\\n\\nCir. 2009) (collecting decisions that “have recognized that an ongoing hostage\\n\\nsituation presents exigent circumstances”). The real question here is whether the\\n\\nexigency remained ongoing during the officers’ search of the crawlspace—in\\n\\nparticular, that they could have reasonably believed that the hole could have\\n\\ncontained someone who was “in danger,” Holloway, 290 F.3d at 1338, or “in need\\n\\nof immediate aid,” Timmann, 741 F.3d at 1178.\\n\\n To be fair, there are arrows pointing in both directions. Before the\\n\\nmagistrate judge, for instance, the government argued that Pamela Price had\\n\\n“informed police that [Cooks] had placed guns in a hole in the floor,” thereby\\n\\n“creat[ing an] exigent circumstance which the police could not ignore.” But while\\n\\nPrice’s statement may provide some support for the government’s protective-\\n\\nsweep theory—which hinges on the risk of a hidden assailant or other danger to\\n\\npolice—it arguably cuts against its emergency-aid position. If Cooks really had\\n\\nadditional hostages in the house, why would he have stashed them in the vicinity of\\n\\nweapons? Doing so would seem to be counterproductive to the aim of holding\\n\\nsomeone against his will.\\n\\n\\n 13\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 14 of 35\\n\\n\\n But it’s not our role to armchair quarterback the officers’ decision, and other\\n\\nconsiderations strongly support the government’s emergency-aid argument. In\\n\\nassessing the reasonableness of officers’ actions, we cannot indulge “the 20/20\\n\\nvision of hindsight,” but instead must adopt the “perspective of a reasonable officer\\n\\non the scene”—which, here, entailed an armed standoff with a gang-member\\n\\nfugitive that had evolved into a hostage situation. Graham v. Connor, 490 U.S.\\n\\n386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). We can’t get\\n\\ncaught up in facts that the officers couldn’t have known at the time—namely that,\\n\\nas it turned out, there weren’t any additional captives in Cooks’s hole or\\n\\ncrawlspace. Rather, we must be mindful that the police “must act quickly, based\\n\\non hurried and incomplete information.” Holloway, 290 F.3d at 1339. Put simply,\\n\\nthe Fourth Amendment’s reasonableness requirement gives officers facing exigent\\n\\ncircumstances ample “breathing space to do the best they could with the\\n\\ninformation they had.” Montanez, 889 F.3d at 1210.\\n\\n Nowhere is this “breathing space” more crucial than in situations where life\\n\\nand limb may be in jeopardy. The “most urgent” of exigent circumstances, we\\n\\nhave said, is “the need to protect or preserve life in an emergency situation.”\\n\\nTimmann, 741 F.3d at 1178. In the same way, we have emphasized that “[i]t is\\n\\ndifficult to imagine a scenario in which immediate police action is more justified\\n\\nthan when a human life hangs in the balance.” Holloway, 290 F.3d at 1337.\\n\\n\\n 14\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 15 of 35\\n\\n\\nAccordingly, where the exigencies demand it, “the sanctity of the home . . . must\\n\\ngive way to the sanctity of human life.” Id. Of course, the officers must still have\\n\\nprobable cause—i.e., a “reasonabl[e] belie[f that] a person is in danger,” id. at\\n\\n1338—but if they do, they needn’t hesitate. As we stressed in Holloway—quoting\\n\\nthen-Judge Warren Burger—“[p]eople could well die in emergencies if police tried\\n\\nto act with the calm deliberation associated with the judicial process.” Id. at 1340\\n\\n(quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)).\\n\\nAccordingly, officers “must be given the authority and flexibility to act quickly,\\n\\nbased on limited information, when human life is at stake.” Id. at 1339–40.\\n\\n Given the weight that our precedent places on the need to protect human life,\\n\\nwas it reasonable for the officers here to believe that Cooks’s hole might have\\n\\ncontained additional hostages? We think it was. For starters, in adopting, the\\n\\nmagistrate judge’s R&R, the district court found that “the officers believed there\\n\\nwere four people in the house but were not sure whether there were others.”\\n\\nTestimony at the suppression hearing amply supported that finding; several\\n\\nofficers said that they thought that the house might contain additional occupants—\\n\\nor, at the very least, couldn’t rule out that possibility. Watts, for instance, said that\\n\\nthe officers “had no idea” how many people were in the house. Deramus, too,\\n\\nexplained that the SWAT team cleared the house to “make sure no one else was in\\n\\n\\n\\n\\n 15\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 16 of 35\\n\\n\\nthere, either [a] bad guy or any other potential hostages.”4 The Fourth\\n\\nAmendment’s reasonableness criterion gave the officers the “breathing space” they\\n\\nneeded to test their hypothesis, lest a possible injured innocent be further imperiled\\n\\nby the delay inherent in securing a search warrant.\\n\\n Moreover, the drilling that the officers heard surely heightened concerns. A\\n\\nreasonable officer, we think, could rule out innocent explanations for the sounds—\\n\\nit was exceedingly unlikely that Cooks was simply trying to finish up a home-\\n\\nimprovement project before the police whisked him away. That the drilling sounds\\n\\nstarted shortly after the police arrived, and seemed to come from behind a\\n\\nbarricaded door, suggested two possibilities, neither good: Cooks was trying to\\n\\nhide either something or someone that he didn’t want the police to find. The\\n\\n\\n\\n\\n4\\n Cooks emphasizes Deramus’s testimony that he personally believed—and that the task force\\nofficers “were still on the same understanding”—that the house contained only four people.\\nDeramus was far less certain than Cooks suggests, however, as evidenced by this colloquy at the\\nsuppression hearing:\\n\\n Question: At that point, when Ms. Price, Ms. Clemons, Mr. Johnson, and the\\n defendant were secured, did you know if there was anybody else in the house?\\n Deramus: No, I did not.\\n Question: Could there have been additional people, hostages, or people who\\n wanted to hurt the police?\\n Deramus: Yes, sir.\\n\\nIn any event, the question is not whether Deramus or any other particular officer subjectively\\nbelieved that there were additional hostages. Rather, we are limited to determining whether “the\\ncircumstances, viewed objectively, justify the [officers’] action[s].” Brigham City v. Stuart, 547\\nU.S. 398, 404 (2006) (emphasis added and quotation marks omitted).\\n\\n 16\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 17 of 35\\n\\n\\nofficers couldn’t be sure which it was unless and until they searched the hole,\\n\\nespecially given that the house’s tinted windows rendered it one big blind spot.\\n\\n Cooks responds that the “officers had not been informed,” and “did not hear\\n\\nor otherwise detect signs,” that a “hostage was being kept in the crawlspace.” Br.\\n\\nof Appellant at 14. The dissent agrees, emphasizing that “the officers did not\\n\\nobserve anything to indicate that someone was in the crawlspace, let alone that\\n\\nsomeone there was in immediate danger.” Dissenting Op. at 26. But police don’t\\n\\n“need ironclad proof of a likely serious, life-threatening injury to invoke the\\n\\nemergency aid exception.” Michigan v. Fisher, 558 U.S. 45, 49 (2009) (quotation\\n\\nomitted). Given the length of the standoff, the fact that Cooks already held two\\n\\npeople against their will, the uncertainty about other occupants, and the bizarre\\n\\ndrilling sounds, we think it clear that the officers here acted within the zone of\\n\\nreasonableness.5\\n\\n5\\n The dissent takes issue with the fact that the officers didn’t “call down into the crawlspace to\\ninquire whether anyone was there.” Dissenting Op. at 27. Their failure to do so, the dissent\\nsays, suggests that the ‘“hostage in the crawlspace’ explanation was an after-the-fact justification\\nfor the illegal search concocted by the government.” Id. at 27–28. The Supreme Court has long\\nrecognized, however, that speculation about the government’s true motives has no place in the\\nassessment of objective reasonableness. See, e.g., Whren v. United States, 517 U.S. 806, 812–13\\n(1996). Along the same lines, the Court has explained in the emergency-aid context, in\\nparticular, that “even if the failure to summon medical personnel conclusively established” that\\nthe officers did not believe that someone was injured, the test, as already noted, “is not what\\n[they] believed, but whether there was an objectively reasonable basis for believing that medical\\nassistance was needed, or persons were in danger.” Fisher, 558 U.S. at 49 (quotation omitted).\\n Moreover, and in any event, our task is not to opine—with the benefit of hindsight—on\\nthe optimal path that the officers could have taken, but rather to assess the reasonableness of the\\npath that they took. As the Supreme Court has said in another context, a “creative judge engaged\\nin post hoc evaluation of police conduct can almost always imagine some alternative means by\\n 17\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 18 of 35\\n\\n\\n Indeed, searches under the emergency-aid exception have been upheld in\\n\\ncircumstances that would seem to be far less ominous than those here. In Fisher,\\n\\nfor example, officers arrived at a scene to find, among other red flags, a truck\\n\\n“with its front smashed,” a house with broken windows, and drops of blood in\\n\\nseveral places. 558 U.S. at 45–46. And though the officers saw the defendant\\n\\n“screaming and throwing things” in the house, they apparently couldn’t tell—from\\n\\ntheir vantage point—if another person bore the brunt of his anger. Id. at 46. The\\n\\nSupreme Court found the application of the emergency-aid exception to be\\n\\n“straightforward” because, among other reasons, “[it] would be objectively\\n\\nreasonable to believe that [the defendant’s] projectiles might have a human target\\n\\n(perhaps a spouse or a child).” Id. at 48.\\n\\n Moreover, in Johnson v. City of Memphis, the Sixth Circuit held that the\\n\\n“combination of a 911 hang-up call, an unanswered return call, and an open door\\n\\nwith no response from within the residence”—without more— sufficed to justify\\n\\nan exigent-circumstances search. 617 F.3d 864, 869 (6th Cir. 2010). Notably, in\\n\\nso holding, the court based its conclusion not only on “the information [that the\\n\\nofficers] had,” but also—and just as we do here—on “the importance in these\\n\\nsituations of the information the responding officers d[id] not have.” Id. at 871 &\\n\\n\\nwhich the objectives of the police might have been accomplished.” United States v. Sharpe, 470\\nU.S. 675, 686–87 (1985). The dissent’s preferred “alternative means” of searching for hostages\\ndoes nothing to undermine the reasonableness of the officers’ actions here.\\n\\n 18\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 19 of 35\\n\\n\\nn.2. We break no new ground in concluding that reasonable inferences based on\\n\\nboth knowns and known unknowns—rather than concrete evidence of harm\\n\\nalone—can establish probable cause to believe that an innocent is in danger and “in\\n\\nneed of immediate aid.” Timmann, 741 F.3d at 1178.\\n\\n Our recent decision in Montanez v. Carvajal further reinforces our\\n\\nconclusion that the officers here acted reasonably. The police in Montanez\\n\\ninterrupted what they thought was a residential burglary and detained two suspects\\n\\noutside the house. See 889 F.3d at 1205. Into an open door, an officer shouted,\\n\\n“Sheriff’s office, come out if anybody’s in there,” but he got no response. Id. at\\n\\n1206. Soon after discovering that the door had been pried open, the officers\\n\\nentered the home to search “for additional perpetrators and victims” and found\\n\\ncontraband in plain view. Id. Although the district court in that case found that the\\n\\nofficers “had no reason to believe anyone else was involved,” we emphasized that\\n\\n“a responding officer will rarely know (or have any real way of knowing) whether\\n\\nhe’s rounded up everybody.” Id. at 1209. “[P]erhaps more importantly,” we\\n\\nfurther observed, “[t]here could be victims in [the house] too, and in light of the\\n\\nviolence that often accompanies home invasions, it’s not unreasonable to think that\\n\\nthose victims might be incapacitated, unconscious, or otherwise in need of\\n\\nassistance.” Id. Accordingly, and “[g]iven the immediacy of a potential victim’s\\n\\n\\n\\n\\n 19\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 20 of 35\\n\\n\\nneeds,” we held that “the Fourth Amendment permit[ted] a limited warrantless\\n\\nsweep of the home to search for both perpetrators and potential victims.” Id.\\n\\n That’s not to say that Montanez is on all fours. Inherent in a residential\\n\\nburglary is the risk that the homeowner will catch the perp in the act and wind up a\\n\\nvictim. Executing an arrest warrant doesn’t necessarily carry with it a\\n\\ncorresponding risk—say, that the arrestee will hold individuals against their will in\\n\\na hidden compartment. Even so, the same concerns regarding the uncertainty\\n\\nabout potential victims and the immediacy of their needs are equally (if not more)\\n\\npressing in the context of a four-hour hostage standoff. Just as in a burglary gone\\n\\nwrong, Cooks’s hostages could have been “incapacitated, unconscious, or\\n\\notherwise in need of assistance.” Id. Here, as in Montanez, swift action could\\n\\nhave been the difference between life and death for an injured innocent;\\n\\naccordingly, here, as there, “[i]t would make no sense to compel an officer . . . to\\n\\nquit the scene to procure a warrant, thereby jeopardizing . . . the safety of potential\\n\\nvictims inside the house.” 6 Id. at 1210.\\n\\n\\n\\n6\\n To be clear, we are not sanctioning what Cooks calls a “general crime scene exception.” Supp.\\nBr. of Appellant at 3. The circumstances here are more dramatic than, and by no means\\nrepresentative of, the “general crime scene.” We think it fair to assume that it will be the rare\\ncase in which the target of an arrest warrant barricades himself inside a house and holds other\\noccupants captive, and the even rarer case in which that individual sets about to conceal a secret\\nroom with plywood and power tools. Given the uniqueness of the circumstances here—this was,\\nafter all, a hostage situation—we think that the dissent overstates matters when it suggests that\\nour holding gives officers carte blanche “to search any crawlspace, closet, shed, or other\\nenclosed space not covered by a lawful protective sweep.” Dissenting Op. at 30.\\n\\n 20\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 21 of 35\\n\\n\\n 2\\n\\n Given that the officers had probable cause to believe that the crawlspace\\n\\ncontained additional hostages, the final question is whether the search was\\n\\nproportional to that exigency. Mincey, 437 U.S. at 393. Cooks contends that it\\n\\nwasn’t; he says that the search—specifically, the officers’ use of a crow bar to\\n\\nbreak open the “locked” plywood “door”—was more intrusive than necessary. Br.\\n\\nof Appellant at 12.\\n\\n We disagree. Even the most intrusive of government actions may be\\n\\nwarranted where the preservation of human life is at stake. Cf. Fisher, 558 U.S. at\\n\\n46 (upholding the entry of a house under the emergency-aid exception where “[t]he\\n\\nback door was locked, and a couch had been placed to block the front door”). The\\n\\n“immediacy of a potential victim’s needs,” Montanez, 889 F.3d at 1209, doesn’t\\n\\nbecome any less pressing when she is behind a door locked from the outside. In\\n\\nfact, the opposite would seem to be true—assuming she is conscious, she can’t\\n\\nopen the “door” to call for help. Accordingly, the fact that the plywood plank here\\n\\nwas screwed down—while potentially undermining the case for a protective\\n\\nsweep—strongly supports the government’s emergency-aid argument.\\n\\n The ultimate question is whether the intrusion was “strictly circumscribed”\\n\\nand “limited to the areas where a person reasonably could be found.” Id. at 1209\\n\\nn.4. It was. The hole and crawlspace were big enough to stash a person—a child\\n\\n\\n 21\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 22 of 35\\n\\n\\nor a small adult (as Lawson’s entry indicates). The search, moreover, took no\\n\\nlonger than necessary to verify that the crawlspace was empty. We therefore reject\\n\\nCooks’s argument that the officers exceeded the scope of a lawful exigent-\\n\\ncircumstances search by prying open the plywood “door.”\\n\\n III\\n\\n For the foregoing reasons, we hold (1) that it was reasonable to believe that\\n\\nCooks’s crawlspace—which was covered by a makeshift plywood “door”—might\\n\\nhave contained hostages, and (2) that the officers were therefore justified in\\n\\nremoving the plywood cover and briefly searching the crawlspace without a\\n\\nwarrant. Because we conclude that the search was lawful under the emergency-aid\\n\\naspect of the exigent-circumstances doctrine, we needn’t reach the question\\n\\nwhether the search was justified under any other theory. Accordingly, we affirm\\n\\nthe district court’s decision to deny Cooks’s motion to suppress.\\n\\nAFFIRMED.\\n\\n\\n\\n\\n 22\\n\\n Case: 18-10080 Date Filed: 04/03/2019 Page: 23 of 35\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1876,"cells":{"id":{"kind":"number","value":4607012,"string":"4,607,012"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Terin MOSS, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Terin Moss"},"decision_date":{"kind":"string","value":"2019-04-04"},"docket_number":{"kind":"string","value":"17-10473"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Wilson, Branch, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-10473 Date Filed: 04/04/2019 Page: 1 of 14\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-10473\\n ________________________\\n\\n D.C. Docket No. 4:16-cr-00154-WTM-GRS-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nTERIN MOSS,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Georgia\\n ________________________\\n\\n (April 4, 2019)\\n\\nBefore WILSON, BRANCH, and ANDERSON, Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 2 of 14\\n\\n\\n Terin Moss pleaded guilty to being a felon in possession of ammunition, in\\n\\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on his prior Georgia\\n\\nconvictions for aggravated assault, possession of cocaine with intent to distribute,\\n\\nand felony obstruction of a law enforcement officer, Moss was sentenced under the\\n\\nArmed Career Criminal Act (ACCA) to serve 180 months in prison. On appeal,\\n\\nMoss argues that his sentence was erroneously enhanced because his prior Georgia\\n\\nconviction for aggravated assault does not qualify as a predicate “crime of\\n\\nviolence” under the ACCA or the Sentencing Guidelines.1 When based on a\\n\\nsimple assault under O.C.G.A. § 16-5-20(a)(2), Georgia’s aggravated assault\\n\\nstatute, O.C.G.A. § 16-5-21(a)(2), can be satisfied by a mens rea of recklessness.\\n\\nWhen this is the case, we hold that it does not qualify as a violent felony under the\\n\\nACCA. We therefore vacate and remand for resentencing.\\n\\n I. Factual and Procedural Background\\n\\n On October 8, 2015, officers from the Savannah-Chatham Metropolitan\\n\\nPolice Department responded to a request for assistance to recover a missing\\n\\nvehicle. Upon locating the missing vehicle, the officers found Moss asleep in the\\n\\ndriver’s seat. The officers woke Moss, who was largely incoherent, and removed\\n\\n\\n\\n1\\n Moss argues that Georgia’s aggravated assault statute does not qualify as a crime of violence\\nunder U.S.S.G. § 4B1.2’s enumerated offenses clause. That was not the basis, however, for his\\nenhanced base offense level. Instead, Moss received an enhanced base offense level under the\\nelements clause of the ACCA, pursuant to § 4B1.4(b)(3)(B). Accordingly, we do not address\\nMoss’s arguments under the Guidelines.\\n 2\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 3 of 14\\n\\n\\nhim from the car. The officers recovered a loaded firearm from the driver’s seat\\n\\nand a concealed carry holster from inside Moss’s waistband. An officer on the\\n\\nscene was familiar with Moss and knew he was a convicted felon. Moss was\\n\\narrested. Once at the detention center, the officers recovered additional\\n\\nammunition from the pocket of Moss’s pants.\\n\\n Moss was charged with being a felon in possession of a firearm, in violation\\n\\nof 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and being a felon in\\n\\npossession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)\\n\\n(Count Two). Moss pleaded guilty to Count Two pursuant to a written plea\\n\\nagreement.2\\n\\n According to the Presentence Investigation Report (PSI), Moss had been\\n\\nconvicted of two prior violent felony offenses and one felony drug offense. His\\n\\nfelony drug conviction was for possession of less than one ounce of marijuana and\\n\\npossession with intent to distribute cocaine, in violation of O.C.G.A. § 16-13-30.\\n\\nHis two prior violent felony offenses included two counts of aggravated assault on\\n\\na police officer, in violation of O.C.G.A. § 16-5-21(a)(2), and one count of felony\\n\\nobstruction of an officer, in violation of O.C.G.A § 16-10-24(b). The facts\\n\\nunderlying Moss’s aggravated assault conviction involved Moss fleeing from state\\n\\n\\n\\n\\n2\\n In return for Moss’s guilty plea, the government agreed to dismiss Count One.\\n 3\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 4 of 14\\n\\n\\npolice after being found in possession of an unknown substance and a set of scales.\\n\\nMoss assaulted the officers by biting them, drawing blood from the bite location.\\n\\n Because Moss had three prior convictions for a violent felony or felony drug\\n\\noffense, the U.S. Probation Officer concluded that Moss qualified as an armed\\n\\ncareer criminal under 18 U.S.C. § 924(e). Moss’s armed career criminal status\\n\\nresulted in a base offense level of 33 under U.S.S.G. § 4B1.4. Moss received a\\n\\nthree-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility.\\n\\nBased on a total offense level of 30 and a criminal history category of VI, the\\n\\nresulting Guideline range was 168 to 210 months’ imprisonment. But because\\n\\nMoss qualified as an armed career criminal, the ACCA mandated a 15-year\\n\\nminimum sentence. Accordingly, the Guideline range was 180 to 210 months.\\n\\n Moss objected to his status as an armed career criminal, arguing that his\\n\\nconviction for aggravated assault did not qualify as a predicate crime of violence\\n\\nunder the ACCA or U.S.S.G. § 4B1.4. He asserted that his prior aggravated\\n\\nassault conviction failed to meet the generic definition of an aggravated assault and\\n\\nfailed to satisfy the ACCA’s “use of force” requirement for a crime of violence.\\n\\n The Probation Officer responded that, according to the state indictment,\\n\\nMoss was charged with two counts of knowingly assaulting a police officer with\\n\\nhis mouth, an “instrument which, when used offensively against a person, is likely\\n\\nto result or does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). Thus,\\n\\n 4\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 5 of 14\\n\\n\\nMoss’s aggravated assault conviction had as an element the attempted use or\\n\\nthreatened use of physical force against the person of another, which met the\\n\\nACCA’s definition of violent felony. See 18 U.S.C. § 924(e)(2)(B).\\n\\n The district court rejected Moss’s objections to his armed career criminal\\n\\nstatus. Moss was sentenced to 180 months’ imprisonment, to be served concurrent\\n\\nwith Moss’s revoked probation terms, followed by 5 years’ supervised release.\\n\\nThis appeal followed.\\n\\n II. Discussion\\n\\n Moss challenges the district court’s determination that his prior Georgia\\n\\naggravated assault conviction qualifies as a predicate violent felony under the\\n\\nelements clause of the ACCA. He argues that Georgia’s statute (1) does not\\n\\nrequire a mens rea of specific intent and (2) its definition of “deadly weapon” is\\n\\noverbroad and unconstitutionally vague. His challenge ultimately contests the\\n\\nACCA enhancement.\\n\\n We review de novo a district court’s determination that a prior conviction\\n\\nqualifies as a violent felony under the ACCA. United States v. Howard, 742 F.3d\\n\\n1334, 1341 (11th Cir. 2014).\\n\\n A. The ACCA Enhancement\\n\\n The ACCA mandates a 15-year minimum sentence for a defendant who\\n\\ncommits an offense in violation of 18 U.S.C. § 922(g) and has three prior\\n\\n 5\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 6 of 14\\n\\n\\nconvictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).\\n\\nThe ACCA defines the term “violent felony” as any crime punishable by a term of\\n\\nimprisonment exceeding one year that:\\n\\n (i) has as an element the use, attempted use, or threatened\\n use of physical force against the person of another; or\\n\\n (ii) is burglary, arson, or extortion, involves use of\\n explosives, or otherwise involves conduct that presents a\\n serious potential risk of physical injury to another.\\n\\nId. § 924(e)(2)(B). This case involves only the first part of that definition,\\n\\n§ 924(e)(2)(B)(i), known as the elements clause. United States v. Owens, 672 F.3d\\n\\n966, 968 (11th Cir. 2012).\\n\\n To determine whether a prior conviction qualifies as a violent felony under\\n\\nthe elements clause, we employ a “categorical approach.” United States v. Davis,\\n\\n875 F.3d 592, 597 (11th Cir. 2017). In cases where the statute of conviction is\\n\\n“divisible” in that it “list[s] elements in the alternative, and thereby define[s]\\n\\nmultiple crimes,” we employ the “modified categorical approach.” Mathis v.\\n\\nUnited States, 136 S. Ct. 2243, 2249 (2016). The modified categorical approach\\n\\n“allows us to look at ‘a limited class of documents’—known as Shepard\\n\\ndocuments and including such items as the indictment, jury instructions, and plea\\n\\nagreement—‘to determine what crime, with what elements, a defendant was\\n\\nconvicted of.’” United States v. Morales-Alonso, 878 F.3d 1311, 1316 (11th Cir.\\n\\n2018) (quoting Mathis, 136 S. Ct. at 2249). Once we determine which divisible\\n 6\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 7 of 14\\n\\n\\nportion of the statute a defendant was convicted under, we then apply the\\n\\ncategorical approach to that statutory phrase. Davis, 875 F.3d at 598 (“If we can\\n\\ntell which statutory phrase the defendant was necessarily convicted under [using\\n\\nthe modified categorical approach], we return to the categorical approach and\\n\\napply it to that statutory phrase.” (internal quotation marks and citations omitted)).\\n\\n In applying the categorical approach, we look only at the statutory definition\\n\\nof the prior offense and not the facts underlying the conviction. Howard, 742 F.3d\\n\\nat 1342; see also Davis, 875 F.3d at 597 (“All that counts . . . are the elements of\\n\\nthe statute of conviction, not the specific conduct of a particular offender.”\\n\\n(quotation marks omitted)). Because an examination of the state conviction does\\n\\nnot involve an analysis of the facts underlying the case, we must presume that the\\n\\nconviction rested upon the “least of the acts criminalized.” Moncrieffe v. Holder,\\n\\n569 U.S. 184, 190–91 (2013). If the “least of the acts criminalized” in the statutory\\n\\nphrase has an element requiring “the use, attempted use, or threatened use of\\n\\nphysical force against the person of another,” then the offense categorically\\n\\nqualifies as a violent felony under the elements clause. See Davis, 875 F.3d at\\n\\n597–98; 18 U.S.C. § 924(e)(2)(B)(i).\\n\\n Under the elements clause, “use” requires active employment of physical\\n\\nforce. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “[T]he phrase ‘physical force’\\n\\nmeans violent force—that is, force capable of causing physical pain or injury to\\n\\n 7\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 8 of 14\\n\\n\\nanother person.” Johnson v. United States, 559 U.S. 133, 140 (2010). But active\\n\\nemployment of physical force “most naturally suggests a higher degree of intent\\n\\nthan negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. In Leocal,\\n\\nthe Supreme Court made clear that crimes of violence must be volitional, but also\\n\\nrepeatedly emphasized that such crimes cannot be “accidental.” See id. at 8–10.\\n\\nFollowing Leocal’s reasoning, we held that “a conviction predicated on a mens rea\\n\\nof recklessness does not satisfy the ‘use of physical force’ requirement.” United\\n\\nStates v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Rather, for a\\n\\nconviction to qualify as a predicate crime of violence under the elements clause, it\\n\\nmust require “the intentional use of force.” Id. Although Palomino Garcia’s\\n\\nholding addressed Sentencing Guideline § 2L1.2’s elements clause, it compels the\\n\\nconclusion that the ACCA’s elements clause likewise requires the intentional use\\n\\nof force. See United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017)\\n\\n(determining that a § 2L1.2 case “compels a conclusion that [the same] statute\\n\\nlikewise constitutes a violent felony under the elements clause of the ACCA”);\\n\\nUnited States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (“The\\n\\nelements clause of the ACCA is identical to the elements clause of § 2L1.2. Cases\\n\\nconstruing the ACCA’s elements clause are thus relevant to our inquiry here.”).\\n\\n Of course, reckless conduct, as generally defined, is not intentional. See\\n\\nBlack’s Law Dictionary (10th ed. 2014) (defining recklessness as “[c]onduct\\n\\n 8\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 9 of 14\\n\\n\\nwhereby the actor does not desire harmful consequences but nonetheless foresees\\n\\nthe possibility and consciously disregards the risk” (emphasis added)). Nor is\\n\\nreckless conduct, as defined by Georgia law, intentional. See O.C.G.A. § 16-5-60\\n\\n(defining reckless conduct as “consciously disregarding a substantial and\\n\\nunjustifiable risk that [the defendant’s] act or omission will cause harm or\\n\\nendanger the safety of the other person”). Because Georgia law defines\\n\\nrecklessness as nothing more than the conscious disregard of a substantial and\\n\\nunjustifiable risk, this is more akin to accidental conduct and cannot be said to\\n\\nrequire intent.\\n\\n With this framework in mind, we now consider whether a conviction for\\n\\naggravated assault under Georgia law qualifies as a crime of violence under the\\n\\nelements clause of the ACCA.\\n\\n B. Georgia’s Aggravated Assault Statute\\n\\n i. Divisibility of Georgia’s Simple and Aggravated Assault Statutes\\n\\n At the time of Moss’s conviction, Georgia’s aggravated assault statute\\n\\nprovided that a person commits the offense of aggravated assault when he commits\\n\\na simple assault:\\n\\n (1) With intent to murder, rape, or to rob; or\\n\\n (2) With a deadly weapon or with any object, device, or\\n instrument which, when used offensively against a person,\\n is likely to or actually does result in serious bodily injury.\\n\\n 9\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 10 of 14\\n\\n\\nO.C.G.A. § 16-5-21(a) (2000). Georgia’s aggravated assault statute therefore has\\n\\ntwo essential elements: (a) a simple assault as defined under O.C.G.A. §§ 16-5-\\n\\n20(a)(1) or (2), and (b) that the assault was aggravated by either (1) an intention to\\n\\nmurder, rape or rob, or (2) the use of a deadly weapon. See Smith v. Hardrick, 464\\n\\nS.E.2d 198, 200 (Ga. 1995). We have previously held that Georgia’s aggravated\\n\\nassault statute, O.C.G.A. § 16-5-21(a), is divisible as to the aggravator component\\n\\nof the statute, Morales-Alonso, 878 F.3d at 1316, but we have not addressed\\n\\nwhether Georgia’s simple assault statute, O.C.G.A. § 16-5-20(a), is divisible.\\n\\n At the time of Moss’s conviction, Georgia’s simple assault statute provided\\n\\nthat a person commits the offense of simple assault when he either:\\n\\n (1) Attempts to commit a violent injury to the person of\\n another; or\\n\\n (2) Commits an act which places another person in\\n reasonable apprehension of immediately receiving a\\n violent injury.\\n\\nO.C.G.A. § 16-5-20(a) (2000). Georgia’s simple assault statute is divisible. The\\n\\nface of the statute lists two separate crimes: (1) an attempt to commit a violent\\n\\ninjury to another person and (2) an act placing another in reasonable apprehension\\n\\nof receiving a violent injury. See Davis, 875 F.3d at 598 (finding a statute divisible\\n\\non its face because it clearly listed two distinct crimes). As a result, we apply the\\n\\nmodified categorical approach to determine which version of simple assault Moss\\n\\nwas convicted of committing. Id. In making this determination, we may look only\\n 10\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 11 of 14\\n\\n\\nto the indictment, jury instructions, and plea agreement. See Shepard v. United\\n\\nStates, 544 U.S. 13, 26 (2005).\\n\\n Because the Shepard documents do not indicate the portion of Georgia’s\\n\\nsimple assault statute under which Moss was convicted, we assume that he was\\n\\nconvicted under the “least of the acts criminalized” by the statute—here, § 16-5-\\n\\n20(a)(2). See Johnson, 559 U.S. at 137 (considering the least culpable prong of a\\n\\ndivisible statute where Shepard documents did not make clear under which version\\n\\nthe defendant was convicted).\\n\\n Similarly, Georgia’s aggravated assault statute is divisible. See Morales-\\n\\nAlonso, 878 F.3d at 1316. Review of the permitted Shepard documents is\\n\\ntherefore necessary to determine which of the multiple crimes listed in the\\n\\naggravated assault statute Moss was convicted under. See Davis, 875 F.3d at 597.\\n\\nThe state indictment indicates that Moss was convicted of aggravated assault under\\n\\nO.C.G.A. § 16-5-21(a)(2), which criminalizes an assault “[w]ith a deadly weapon\\n\\nor with any object, device, or instrument which, when used offensively against a\\n\\nperson, is likely to or actually does result in serious bodily injury.” O.C.G.A. § 16-\\n\\n5-21(a)(2) (2000).\\n\\n Accordingly, our analysis is limited an aggravated assault under O.C.G.A.\\n\\n§ 16-5-21(a)(2), which was predicated upon a simple assault under O.C.G.A. § 16-\\n\\n5-20(a)(2).\\n\\n 11\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 12 of 14\\n\\n\\n ii. Mens Rea Requirement\\n\\n To qualify as a violent felony under the elements clause, a conviction must\\n\\nbe predicated on the intentional use of physical force. See Palomino Garcia, 606\\n\\nF.3d at 1334–36. Georgia law holds that recklessness is a sufficient mens rea for\\n\\naggravated assault under O.C.G.A. § 16-5-21(a)(2), when based upon simple\\n\\nassault under O.C.G.A. § 16-5-20(a)(2). See Patterson v. State, 789 S.E.2d 175,\\n\\n176–78 (Ga. 2016). Therefore, a Georgia aggravated assault conviction cannot\\n\\nqualify as a violent felony under the elements clause of the ACCA when based on\\n\\nsimple assault under O.C.G.A. § 16-5-20(a)(2).\\n\\n The government incorrectly contends that our decision in Turner v. Warden\\n\\nColeman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), should control here. In\\n\\nTurner, we held that a conviction under Florida’s aggravated assault statute, which\\n\\nincorporates a similar simple assault statute, categorically qualified as a violent\\n\\nfelony under the ACCA. Id. at 1337–38. We reasoned that an aggravated assault\\n\\nconviction under Florida law necessarily included a simple assault, which was the\\n\\n“intentional, unlawful threat by word or act to do violence to the person of another,\\n\\ncoupled with an apparent ability to do so.” Id. at 1338 (quoting Fla. Stat.\\n\\n§ 784.011(1)). Florida’s assault statutes are distinguishable, however, from\\n\\nGeorgia’s assault statutes. Simply put, Florida requires the “intentional, unlawful\\n\\nthreat by word or act to do violence,” Fla. Stat. § 784.011(1) (emphasis added),\\n\\n 12\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 13 of 14\\n\\n\\nwhile Georgia unequivocally does not require such intent under § 16-5-20(a)(2).\\n\\nTurner therefore does not apply here.\\n\\n The Supreme Court of Georgia addressed the culpable mental state required\\n\\nunder Georgia’s simple assault and aggravated assault statutes in Patterson v.\\n\\nState, 789 S.E.2d 175 (Ga. 2016). In Patterson, the court concluded that “the\\n\\ncrime of simple assault as set forth in O.C.G.A. § 16-5-20(a)(2), does not require\\n\\nproof of specific intent.” Id. at 177. All that is required is that the assailant intends\\n\\nto commit the act which in fact places another in reasonable apprehension of\\n\\ninjury, not a specific intent to cause such apprehension. Id. “[T]his conclusion\\n\\nregarding the requirements of O.C.G.A. § 16-5-20(a)(2) is demanded by the simple\\n\\nfact that no requirement of a specific intent is set forth in O.C.G.A. § 16-5-\\n\\n20(a)(2).” Id.\\n\\n Nor does a Georgia conviction for aggravated assault with a deadly weapon,\\n\\nO.C.G.A. § 16-5-21(a)(2), require an intent to injure or an intent to place the victim\\n\\nin reasonable apprehension of injury when the underlying simple assault was based\\n\\non § 16-5-20(a)(2). Patterson, 789 S.E.2d at 178. Rather, a conviction under\\n\\nGeorgia’s aggravated assault statute can be predicated on a mens rea of\\n\\nrecklessness. See id. at 176–78 (explaining that trial court did not err by refusing\\n\\nto give jury instruction on a lesser included offense of reckless driving because the\\n\\ncharged crime of aggravated assault required the same mens rea as the lesser\\n\\n 13\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 14 of 14\\n\\n\\nincluded offense). Patterson is the law of Georgia, and Patterson must therefore\\n\\ncontrol here. See Davis, 875 F.3d at 597 (noting that we apply “federal law in\\n\\ninterpreting the ACCA, but state law in determining the elements of state offenses,\\n\\nkeeping in mind that state law is what the state supreme court says it is.”\\n\\n(emphasis added)). Because Georgia’s aggravated assault statute, O.C.G.A. § 16-\\n\\n5-21(a)(2) (2000), can be satisfied by a mens rea of recklessness when based on\\n\\nsimple assault under § 16-5-20(a)(2), it cannot qualify as a crime of violence under\\n\\nthe elements clause of the ACCA. See Palomino Garcia, 606 F.3d at 1336\\n\\n(holding that crimes involving the reckless use of force cannot qualify as crimes of\\n\\nviolence under the elements clause).\\n\\n III. Conclusion\\n\\n For the reasons stated, we hold that the district court erroneously applied an\\n\\nACCA enhancement because Moss’s prior aggravated assault conviction does not\\n\\nqualify as a “crime of violence” under the elements clause of the ACCA. We\\n\\nvacate his sentence and remand for resentencing consistent with this opinion.\\n\\n VACATED AND REMANDED FOR RESENTENCING.\\n\\n\\n\\n\\n 14\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4384265/\", \"author_raw\": \"WILSON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILSON"},"judge2":{"kind":"string","value":"BRANCH"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4607012/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Terin MOSS, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-04\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-10473 Date Filed: 04/04/2019 Page: 1 of 14\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-10473\n ________________________\n\n D.C. Docket No. 4:16-cr-00154-WTM-GRS-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\nversus\n\nTERIN MOSS,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Georgia\n ________________________\n\n (April 4, 2019)\n\nBefore WILSON, BRANCH, and ANDERSON, Circuit Judges.\n\nWILSON, Circuit Judge:\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 2 of 14\n\n\n Terin Moss pleaded guilty to being a felon in possession of ammunition, in\n\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on his prior Georgia\n\nconvictions for aggravated assault, possession of cocaine with intent to distribute,\n\nand felony obstruction of a law enforcement officer, Moss was sentenced under the\n\nArmed Career Criminal Act (ACCA) to serve 180 months in prison. On appeal,\n\nMoss argues that his sentence was erroneously enhanced because his prior Georgia\n\nconviction for aggravated assault does not qualify as a predicate “crime of\n\nviolence” under the ACCA or the Sentencing Guidelines.1 When based on a\n\nsimple assault under O.C.G.A. § 16-5-20(a)(2), Georgia’s aggravated assault\n\nstatute, O.C.G.A. § 16-5-21(a)(2), can be satisfied by a mens rea of recklessness.\n\nWhen this is the case, we hold that it does not qualify as a violent felony under the\n\nACCA. We therefore vacate and remand for resentencing.\n\n I. Factual and Procedural Background\n\n On October 8, 2015, officers from the Savannah-Chatham Metropolitan\n\nPolice Department responded to a request for assistance to recover a missing\n\nvehicle. Upon locating the missing vehicle, the officers found Moss asleep in the\n\ndriver’s seat. The officers woke Moss, who was largely incoherent, and removed\n\n\n\n1\n Moss argues that Georgia’s aggravated assault statute does not qualify as a crime of violence\nunder U.S.S.G. § 4B1.2’s enumerated offenses clause. That was not the basis, however, for his\nenhanced base offense level. Instead, Moss received an enhanced base offense level under the\nelements clause of the ACCA, pursuant to § 4B1.4(b)(3)(B). Accordingly, we do not address\nMoss’s arguments under the Guidelines.\n 2\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 3 of 14\n\n\nhim from the car. The officers recovered a loaded firearm from the driver’s seat\n\nand a concealed carry holster from inside Moss’s waistband. An officer on the\n\nscene was familiar with Moss and knew he was a convicted felon. Moss was\n\narrested. Once at the detention center, the officers recovered additional\n\nammunition from the pocket of Moss’s pants.\n\n Moss was charged with being a felon in possession of a firearm, in violation\n\nof 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and being a felon in\n\npossession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)\n\n(Count Two). Moss pleaded guilty to Count Two pursuant to a written plea\n\nagreement.2\n\n According to the Presentence Investigation Report (PSI), Moss had been\n\nconvicted of two prior violent felony offenses and one felony drug offense. His\n\nfelony drug conviction was for possession of less than one ounce of marijuana and\n\npossession with intent to distribute cocaine, in violation of O.C.G.A. § 16-13-30.\n\nHis two prior violent felony offenses included two counts of aggravated assault on\n\na police officer, in violation of O.C.G.A. § 16-5-21(a)(2), and one count of felony\n\nobstruction of an officer, in violation of O.C.G.A § 16-10-24(b). The facts\n\nunderlying Moss’s aggravated assault conviction involved Moss fleeing from state\n\n\n\n\n2\n In return for Moss’s guilty plea, the government agreed to dismiss Count One.\n 3\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 4 of 14\n\n\npolice after being found in possession of an unknown substance and a set of scales.\n\nMoss assaulted the officers by biting them, drawing blood from the bite location.\n\n Because Moss had three prior convictions for a violent felony or felony drug\n\noffense, the U.S. Probation Officer concluded that Moss qualified as an armed\n\ncareer criminal under 18 U.S.C. § 924(e). Moss’s armed career criminal status\n\nresulted in a base offense level of 33 under U.S.S.G. § 4B1.4. Moss received a\n\nthree-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility.\n\nBased on a total offense level of 30 and a criminal history category of VI, the\n\nresulting Guideline range was 168 to 210 months’ imprisonment. But because\n\nMoss qualified as an armed career criminal, the ACCA mandated a 15-year\n\nminimum sentence. Accordingly, the Guideline range was 180 to 210 months.\n\n Moss objected to his status as an armed career criminal, arguing that his\n\nconviction for aggravated assault did not qualify as a predicate crime of violence\n\nunder the ACCA or U.S.S.G. § 4B1.4. He asserted that his prior aggravated\n\nassault conviction failed to meet the generic definition of an aggravated assault and\n\nfailed to satisfy the ACCA’s “use of force” requirement for a crime of violence.\n\n The Probation Officer responded that, according to the state indictment,\n\nMoss was charged with two counts of knowingly assaulting a police officer with\n\nhis mouth, an “instrument which, when used offensively against a person, is likely\n\nto result or does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). Thus,\n\n 4\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 5 of 14\n\n\nMoss’s aggravated assault conviction had as an element the attempted use or\n\nthreatened use of physical force against the person of another, which met the\n\nACCA’s definition of violent felony. See 18 U.S.C. § 924(e)(2)(B).\n\n The district court rejected Moss’s objections to his armed career criminal\n\nstatus. Moss was sentenced to 180 months’ imprisonment, to be served concurrent\n\nwith Moss’s revoked probation terms, followed by 5 years’ supervised release.\n\nThis appeal followed.\n\n II. Discussion\n\n Moss challenges the district court’s determination that his prior Georgia\n\naggravated assault conviction qualifies as a predicate violent felony under the\n\nelements clause of the ACCA. He argues that Georgia’s statute (1) does not\n\nrequire a mens rea of specific intent and (2) its definition of “deadly weapon” is\n\noverbroad and unconstitutionally vague. His challenge ultimately contests the\n\nACCA enhancement.\n\n We review de novo a district court’s determination that a prior conviction\n\nqualifies as a violent felony under the ACCA. United States v. Howard, 742 F.3d\n\n1334, 1341 (11th Cir. 2014).\n\n A. The ACCA Enhancement\n\n The ACCA mandates a 15-year minimum sentence for a defendant who\n\ncommits an offense in violation of 18 U.S.C. § 922(g) and has three prior\n\n 5\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 6 of 14\n\n\nconvictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).\n\nThe ACCA defines the term “violent felony” as any crime punishable by a term of\n\nimprisonment exceeding one year that:\n\n (i) has as an element the use, attempted use, or threatened\n use of physical force against the person of another; or\n\n (ii) is burglary, arson, or extortion, involves use of\n explosives, or otherwise involves conduct that presents a\n serious potential risk of physical injury to another.\n\nId. § 924(e)(2)(B). This case involves only the first part of that definition,\n\n§ 924(e)(2)(B)(i), known as the elements clause. United States v. Owens, 672 F.3d\n\n966, 968 (11th Cir. 2012).\n\n To determine whether a prior conviction qualifies as a violent felony under\n\nthe elements clause, we employ a “categorical approach.” United States v. Davis,\n\n875 F.3d 592, 597 (11th Cir. 2017). In cases where the statute of conviction is\n\n“divisible” in that it “list[s] elements in the alternative, and thereby define[s]\n\nmultiple crimes,” we employ the “modified categorical approach.” Mathis v.\n\nUnited States, 136 S. Ct. 2243, 2249 (2016). The modified categorical approach\n\n“allows us to look at ‘a limited class of documents’—known as Shepard\n\ndocuments and including such items as the indictment, jury instructions, and plea\n\nagreement—‘to determine what crime, with what elements, a defendant was\n\nconvicted of.’” United States v. Morales-Alonso, 878 F.3d 1311, 1316 (11th Cir.\n\n2018) (quoting Mathis, 136 S. Ct. at 2249). Once we determine which divisible\n 6\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 7 of 14\n\n\nportion of the statute a defendant was convicted under, we then apply the\n\ncategorical approach to that statutory phrase. Davis, 875 F.3d at 598 (“If we can\n\ntell which statutory phrase the defendant was necessarily convicted under [using\n\nthe modified categorical approach], we return to the categorical approach and\n\napply it to that statutory phrase.” (internal quotation marks and citations omitted)).\n\n In applying the categorical approach, we look only at the statutory definition\n\nof the prior offense and not the facts underlying the conviction. Howard, 742 F.3d\n\nat 1342; see also Davis, 875 F.3d at 597 (“All that counts . . . are the elements of\n\nthe statute of conviction, not the specific conduct of a particular offender.”\n\n(quotation marks omitted)). Because an examination of the state conviction does\n\nnot involve an analysis of the facts underlying the case, we must presume that the\n\nconviction rested upon the “least of the acts criminalized.” Moncrieffe v. Holder,\n\n569 U.S. 184, 190–91 (2013). If the “least of the acts criminalized” in the statutory\n\nphrase has an element requiring “the use, attempted use, or threatened use of\n\nphysical force against the person of another,” then the offense categorically\n\nqualifies as a violent felony under the elements clause. See Davis, 875 F.3d at\n\n597–98; 18 U.S.C. § 924(e)(2)(B)(i).\n\n Under the elements clause, “use” requires active employment of physical\n\nforce. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “[T]he phrase ‘physical force’\n\nmeans violent force—that is, force capable of causing physical pain or injury to\n\n 7\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 8 of 14\n\n\nanother person.” Johnson v. United States, 559 U.S. 133, 140 (2010). But active\n\nemployment of physical force “most naturally suggests a higher degree of intent\n\nthan negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. In Leocal,\n\nthe Supreme Court made clear that crimes of violence must be volitional, but also\n\nrepeatedly emphasized that such crimes cannot be “accidental.” See id. at 8–10.\n\nFollowing Leocal’s reasoning, we held that “a conviction predicated on a mens rea\n\nof recklessness does not satisfy the ‘use of physical force’ requirement.” United\n\nStates v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Rather, for a\n\nconviction to qualify as a predicate crime of violence under the elements clause, it\n\nmust require “the intentional use of force.” Id. Although Palomino Garcia’s\n\nholding addressed Sentencing Guideline § 2L1.2’s elements clause, it compels the\n\nconclusion that the ACCA’s elements clause likewise requires the intentional use\n\nof force. See United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017)\n\n(determining that a § 2L1.2 case “compels a conclusion that [the same] statute\n\nlikewise constitutes a violent felony under the elements clause of the ACCA”);\n\nUnited States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (“The\n\nelements clause of the ACCA is identical to the elements clause of § 2L1.2. Cases\n\nconstruing the ACCA’s elements clause are thus relevant to our inquiry here.”).\n\n Of course, reckless conduct, as generally defined, is not intentional. See\n\nBlack’s Law Dictionary (10th ed. 2014) (defining recklessness as “[c]onduct\n\n 8\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 9 of 14\n\n\nwhereby the actor does not desire harmful consequences but nonetheless foresees\n\nthe possibility and consciously disregards the risk” (emphasis added)). Nor is\n\nreckless conduct, as defined by Georgia law, intentional. See O.C.G.A. § 16-5-60\n\n(defining reckless conduct as “consciously disregarding a substantial and\n\nunjustifiable risk that [the defendant’s] act or omission will cause harm or\n\nendanger the safety of the other person”). Because Georgia law defines\n\nrecklessness as nothing more than the conscious disregard of a substantial and\n\nunjustifiable risk, this is more akin to accidental conduct and cannot be said to\n\nrequire intent.\n\n With this framework in mind, we now consider whether a conviction for\n\naggravated assault under Georgia law qualifies as a crime of violence under the\n\nelements clause of the ACCA.\n\n B. Georgia’s Aggravated Assault Statute\n\n i. Divisibility of Georgia’s Simple and Aggravated Assault Statutes\n\n At the time of Moss’s conviction, Georgia’s aggravated assault statute\n\nprovided that a person commits the offense of aggravated assault when he commits\n\na simple assault:\n\n (1) With intent to murder, rape, or to rob; or\n\n (2) With a deadly weapon or with any object, device, or\n instrument which, when used offensively against a person,\n is likely to or actually does result in serious bodily injury.\n\n 9\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 10 of 14\n\n\nO.C.G.A. § 16-5-21(a) (2000). Georgia’s aggravated assault statute therefore has\n\ntwo essential elements: (a) a simple assault as defined under O.C.G.A. §§ 16-5-\n\n20(a)(1) or (2), and (b) that the assault was aggravated by either (1) an intention to\n\nmurder, rape or rob, or (2) the use of a deadly weapon. See Smith v. Hardrick, 464\n\nS.E.2d 198, 200 (Ga. 1995). We have previously held that Georgia’s aggravated\n\nassault statute, O.C.G.A. § 16-5-21(a), is divisible as to the aggravator component\n\nof the statute, Morales-Alonso, 878 F.3d at 1316, but we have not addressed\n\nwhether Georgia’s simple assault statute, O.C.G.A. § 16-5-20(a), is divisible.\n\n At the time of Moss’s conviction, Georgia’s simple assault statute provided\n\nthat a person commits the offense of simple assault when he either:\n\n (1) Attempts to commit a violent injury to the person of\n another; or\n\n (2) Commits an act which places another person in\n reasonable apprehension of immediately receiving a\n violent injury.\n\nO.C.G.A. § 16-5-20(a) (2000). Georgia’s simple assault statute is divisible. The\n\nface of the statute lists two separate crimes: (1) an attempt to commit a violent\n\ninjury to another person and (2) an act placing another in reasonable apprehension\n\nof receiving a violent injury. See Davis, 875 F.3d at 598 (finding a statute divisible\n\non its face because it clearly listed two distinct crimes). As a result, we apply the\n\nmodified categorical approach to determine which version of simple assault Moss\n\nwas convicted of committing. Id. In making this determination, we may look only\n 10\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 11 of 14\n\n\nto the indictment, jury instructions, and plea agreement. See Shepard v. United\n\nStates, 544 U.S. 13, 26 (2005).\n\n Because the Shepard documents do not indicate the portion of Georgia’s\n\nsimple assault statute under which Moss was convicted, we assume that he was\n\nconvicted under the “least of the acts criminalized” by the statute—here, § 16-5-\n\n20(a)(2). See Johnson, 559 U.S. at 137 (considering the least culpable prong of a\n\ndivisible statute where Shepard documents did not make clear under which version\n\nthe defendant was convicted).\n\n Similarly, Georgia’s aggravated assault statute is divisible. See Morales-\n\nAlonso, 878 F.3d at 1316. Review of the permitted Shepard documents is\n\ntherefore necessary to determine which of the multiple crimes listed in the\n\naggravated assault statute Moss was convicted under. See Davis, 875 F.3d at 597.\n\nThe state indictment indicates that Moss was convicted of aggravated assault under\n\nO.C.G.A. § 16-5-21(a)(2), which criminalizes an assault “[w]ith a deadly weapon\n\nor with any object, device, or instrument which, when used offensively against a\n\nperson, is likely to or actually does result in serious bodily injury.” O.C.G.A. § 16-\n\n5-21(a)(2) (2000).\n\n Accordingly, our analysis is limited an aggravated assault under O.C.G.A.\n\n§ 16-5-21(a)(2), which was predicated upon a simple assault under O.C.G.A. § 16-\n\n5-20(a)(2).\n\n 11\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 12 of 14\n\n\n ii. Mens Rea Requirement\n\n To qualify as a violent felony under the elements clause, a conviction must\n\nbe predicated on the intentional use of physical force. See Palomino Garcia, 606\n\nF.3d at 1334–36. Georgia law holds that recklessness is a sufficient mens rea for\n\naggravated assault under O.C.G.A. § 16-5-21(a)(2), when based upon simple\n\nassault under O.C.G.A. § 16-5-20(a)(2). See Patterson v. State, 789 S.E.2d 175,\n\n176–78 (Ga. 2016). Therefore, a Georgia aggravated assault conviction cannot\n\nqualify as a violent felony under the elements clause of the ACCA when based on\n\nsimple assault under O.C.G.A. § 16-5-20(a)(2).\n\n The government incorrectly contends that our decision in Turner v. Warden\n\nColeman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), should control here. In\n\nTurner, we held that a conviction under Florida’s aggravated assault statute, which\n\nincorporates a similar simple assault statute, categorically qualified as a violent\n\nfelony under the ACCA. Id. at 1337–38. We reasoned that an aggravated assault\n\nconviction under Florida law necessarily included a simple assault, which was the\n\n“intentional, unlawful threat by word or act to do violence to the person of another,\n\ncoupled with an apparent ability to do so.” Id. at 1338 (quoting Fla. Stat.\n\n§ 784.011(1)). Florida’s assault statutes are distinguishable, however, from\n\nGeorgia’s assault statutes. Simply put, Florida requires the “intentional, unlawful\n\nthreat by word or act to do violence,” Fla. Stat. § 784.011(1) (emphasis added),\n\n 12\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 13 of 14\n\n\nwhile Georgia unequivocally does not require such intent under § 16-5-20(a)(2).\n\nTurner therefore does not apply here.\n\n The Supreme Court of Georgia addressed the culpable mental state required\n\nunder Georgia’s simple assault and aggravated assault statutes in Patterson v.\n\nState, 789 S.E.2d 175 (Ga. 2016). In Patterson, the court concluded that “the\n\ncrime of simple assault as set forth in O.C.G.A. § 16-5-20(a)(2), does not require\n\nproof of specific intent.” Id. at 177. All that is required is that the assailant intends\n\nto commit the act which in fact places another in reasonable apprehension of\n\ninjury, not a specific intent to cause such apprehension. Id. “[T]his conclusion\n\nregarding the requirements of O.C.G.A. § 16-5-20(a)(2) is demanded by the simple\n\nfact that no requirement of a specific intent is set forth in O.C.G.A. § 16-5-\n\n20(a)(2).” Id.\n\n Nor does a Georgia conviction for aggravated assault with a deadly weapon,\n\nO.C.G.A. § 16-5-21(a)(2), require an intent to injure or an intent to place the victim\n\nin reasonable apprehension of injury when the underlying simple assault was based\n\non § 16-5-20(a)(2). Patterson, 789 S.E.2d at 178. Rather, a conviction under\n\nGeorgia’s aggravated assault statute can be predicated on a mens rea of\n\nrecklessness. See id. at 176–78 (explaining that trial court did not err by refusing\n\nto give jury instruction on a lesser included offense of reckless driving because the\n\ncharged crime of aggravated assault required the same mens rea as the lesser\n\n 13\n\f Case: 17-10473 Date Filed: 04/04/2019 Page: 14 of 14\n\n\nincluded offense). Patterson is the law of Georgia, and Patterson must therefore\n\ncontrol here. See Davis, 875 F.3d at 597 (noting that we apply “federal law in\n\ninterpreting the ACCA, but state law in determining the elements of state offenses,\n\nkeeping in mind that state law is what the state supreme court says it is.”\n\n(emphasis added)). Because Georgia’s aggravated assault statute, O.C.G.A. § 16-\n\n5-21(a)(2) (2000), can be satisfied by a mens rea of recklessness when based on\n\nsimple assault under § 16-5-20(a)(2), it cannot qualify as a crime of violence under\n\nthe elements clause of the ACCA. See Palomino Garcia, 606 F.3d at 1336\n\n(holding that crimes involving the reckless use of force cannot qualify as crimes of\n\nviolence under the elements clause).\n\n III. Conclusion\n\n For the reasons stated, we hold that the district court erroneously applied an\n\nACCA enhancement because Moss’s prior aggravated assault conviction does not\n\nqualify as a “crime of violence” under the elements clause of the ACCA. We\n\nvacate his sentence and remand for resentencing consistent with this opinion.\n\n VACATED AND REMANDED FOR RESENTENCING.\n\n\n\n\n 14\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Terin MOSS, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-04\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-10473 Date Filed: 04/04/2019 Page: 1 of 14\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-10473\\n ________________________\\n\\n D.C. Docket No. 4:16-cr-00154-WTM-GRS-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nTERIN MOSS,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Georgia\\n ________________________\\n\\n (April 4, 2019)\\n\\nBefore WILSON, BRANCH, and ANDERSON, Circuit Judges.\\n\\nWILSON, Circuit Judge:\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 2 of 14\\n\\n\\n Terin Moss pleaded guilty to being a felon in possession of ammunition, in\\n\\nviolation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on his prior Georgia\\n\\nconvictions for aggravated assault, possession of cocaine with intent to distribute,\\n\\nand felony obstruction of a law enforcement officer, Moss was sentenced under the\\n\\nArmed Career Criminal Act (ACCA) to serve 180 months in prison. On appeal,\\n\\nMoss argues that his sentence was erroneously enhanced because his prior Georgia\\n\\nconviction for aggravated assault does not qualify as a predicate “crime of\\n\\nviolence” under the ACCA or the Sentencing Guidelines.1 When based on a\\n\\nsimple assault under O.C.G.A. § 16-5-20(a)(2), Georgia’s aggravated assault\\n\\nstatute, O.C.G.A. § 16-5-21(a)(2), can be satisfied by a mens rea of recklessness.\\n\\nWhen this is the case, we hold that it does not qualify as a violent felony under the\\n\\nACCA. We therefore vacate and remand for resentencing.\\n\\n I. Factual and Procedural Background\\n\\n On October 8, 2015, officers from the Savannah-Chatham Metropolitan\\n\\nPolice Department responded to a request for assistance to recover a missing\\n\\nvehicle. Upon locating the missing vehicle, the officers found Moss asleep in the\\n\\ndriver’s seat. The officers woke Moss, who was largely incoherent, and removed\\n\\n\\n\\n1\\n Moss argues that Georgia’s aggravated assault statute does not qualify as a crime of violence\\nunder U.S.S.G. § 4B1.2’s enumerated offenses clause. That was not the basis, however, for his\\nenhanced base offense level. Instead, Moss received an enhanced base offense level under the\\nelements clause of the ACCA, pursuant to § 4B1.4(b)(3)(B). Accordingly, we do not address\\nMoss’s arguments under the Guidelines.\\n 2\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 3 of 14\\n\\n\\nhim from the car. The officers recovered a loaded firearm from the driver’s seat\\n\\nand a concealed carry holster from inside Moss’s waistband. An officer on the\\n\\nscene was familiar with Moss and knew he was a convicted felon. Moss was\\n\\narrested. Once at the detention center, the officers recovered additional\\n\\nammunition from the pocket of Moss’s pants.\\n\\n Moss was charged with being a felon in possession of a firearm, in violation\\n\\nof 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count One), and being a felon in\\n\\npossession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)\\n\\n(Count Two). Moss pleaded guilty to Count Two pursuant to a written plea\\n\\nagreement.2\\n\\n According to the Presentence Investigation Report (PSI), Moss had been\\n\\nconvicted of two prior violent felony offenses and one felony drug offense. His\\n\\nfelony drug conviction was for possession of less than one ounce of marijuana and\\n\\npossession with intent to distribute cocaine, in violation of O.C.G.A. § 16-13-30.\\n\\nHis two prior violent felony offenses included two counts of aggravated assault on\\n\\na police officer, in violation of O.C.G.A. § 16-5-21(a)(2), and one count of felony\\n\\nobstruction of an officer, in violation of O.C.G.A § 16-10-24(b). The facts\\n\\nunderlying Moss’s aggravated assault conviction involved Moss fleeing from state\\n\\n\\n\\n\\n2\\n In return for Moss’s guilty plea, the government agreed to dismiss Count One.\\n 3\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 4 of 14\\n\\n\\npolice after being found in possession of an unknown substance and a set of scales.\\n\\nMoss assaulted the officers by biting them, drawing blood from the bite location.\\n\\n Because Moss had three prior convictions for a violent felony or felony drug\\n\\noffense, the U.S. Probation Officer concluded that Moss qualified as an armed\\n\\ncareer criminal under 18 U.S.C. § 924(e). Moss’s armed career criminal status\\n\\nresulted in a base offense level of 33 under U.S.S.G. § 4B1.4. Moss received a\\n\\nthree-level reduction under §§ 3E1.1(a) and (b) for acceptance of responsibility.\\n\\nBased on a total offense level of 30 and a criminal history category of VI, the\\n\\nresulting Guideline range was 168 to 210 months’ imprisonment. But because\\n\\nMoss qualified as an armed career criminal, the ACCA mandated a 15-year\\n\\nminimum sentence. Accordingly, the Guideline range was 180 to 210 months.\\n\\n Moss objected to his status as an armed career criminal, arguing that his\\n\\nconviction for aggravated assault did not qualify as a predicate crime of violence\\n\\nunder the ACCA or U.S.S.G. § 4B1.4. He asserted that his prior aggravated\\n\\nassault conviction failed to meet the generic definition of an aggravated assault and\\n\\nfailed to satisfy the ACCA’s “use of force” requirement for a crime of violence.\\n\\n The Probation Officer responded that, according to the state indictment,\\n\\nMoss was charged with two counts of knowingly assaulting a police officer with\\n\\nhis mouth, an “instrument which, when used offensively against a person, is likely\\n\\nto result or does result in serious bodily injury.” O.C.G.A. § 16-5-21(a)(2). Thus,\\n\\n 4\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 5 of 14\\n\\n\\nMoss’s aggravated assault conviction had as an element the attempted use or\\n\\nthreatened use of physical force against the person of another, which met the\\n\\nACCA’s definition of violent felony. See 18 U.S.C. § 924(e)(2)(B).\\n\\n The district court rejected Moss’s objections to his armed career criminal\\n\\nstatus. Moss was sentenced to 180 months’ imprisonment, to be served concurrent\\n\\nwith Moss’s revoked probation terms, followed by 5 years’ supervised release.\\n\\nThis appeal followed.\\n\\n II. Discussion\\n\\n Moss challenges the district court’s determination that his prior Georgia\\n\\naggravated assault conviction qualifies as a predicate violent felony under the\\n\\nelements clause of the ACCA. He argues that Georgia’s statute (1) does not\\n\\nrequire a mens rea of specific intent and (2) its definition of “deadly weapon” is\\n\\noverbroad and unconstitutionally vague. His challenge ultimately contests the\\n\\nACCA enhancement.\\n\\n We review de novo a district court’s determination that a prior conviction\\n\\nqualifies as a violent felony under the ACCA. United States v. Howard, 742 F.3d\\n\\n1334, 1341 (11th Cir. 2014).\\n\\n A. The ACCA Enhancement\\n\\n The ACCA mandates a 15-year minimum sentence for a defendant who\\n\\ncommits an offense in violation of 18 U.S.C. § 922(g) and has three prior\\n\\n 5\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 6 of 14\\n\\n\\nconvictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1).\\n\\nThe ACCA defines the term “violent felony” as any crime punishable by a term of\\n\\nimprisonment exceeding one year that:\\n\\n (i) has as an element the use, attempted use, or threatened\\n use of physical force against the person of another; or\\n\\n (ii) is burglary, arson, or extortion, involves use of\\n explosives, or otherwise involves conduct that presents a\\n serious potential risk of physical injury to another.\\n\\nId. § 924(e)(2)(B). This case involves only the first part of that definition,\\n\\n§ 924(e)(2)(B)(i), known as the elements clause. United States v. Owens, 672 F.3d\\n\\n966, 968 (11th Cir. 2012).\\n\\n To determine whether a prior conviction qualifies as a violent felony under\\n\\nthe elements clause, we employ a “categorical approach.” United States v. Davis,\\n\\n875 F.3d 592, 597 (11th Cir. 2017). In cases where the statute of conviction is\\n\\n“divisible” in that it “list[s] elements in the alternative, and thereby define[s]\\n\\nmultiple crimes,” we employ the “modified categorical approach.” Mathis v.\\n\\nUnited States, 136 S. Ct. 2243, 2249 (2016). The modified categorical approach\\n\\n“allows us to look at ‘a limited class of documents’—known as Shepard\\n\\ndocuments and including such items as the indictment, jury instructions, and plea\\n\\nagreement—‘to determine what crime, with what elements, a defendant was\\n\\nconvicted of.’” United States v. Morales-Alonso, 878 F.3d 1311, 1316 (11th Cir.\\n\\n2018) (quoting Mathis, 136 S. Ct. at 2249). Once we determine which divisible\\n 6\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 7 of 14\\n\\n\\nportion of the statute a defendant was convicted under, we then apply the\\n\\ncategorical approach to that statutory phrase. Davis, 875 F.3d at 598 (“If we can\\n\\ntell which statutory phrase the defendant was necessarily convicted under [using\\n\\nthe modified categorical approach], we return to the categorical approach and\\n\\napply it to that statutory phrase.” (internal quotation marks and citations omitted)).\\n\\n In applying the categorical approach, we look only at the statutory definition\\n\\nof the prior offense and not the facts underlying the conviction. Howard, 742 F.3d\\n\\nat 1342; see also Davis, 875 F.3d at 597 (“All that counts . . . are the elements of\\n\\nthe statute of conviction, not the specific conduct of a particular offender.”\\n\\n(quotation marks omitted)). Because an examination of the state conviction does\\n\\nnot involve an analysis of the facts underlying the case, we must presume that the\\n\\nconviction rested upon the “least of the acts criminalized.” Moncrieffe v. Holder,\\n\\n569 U.S. 184, 190–91 (2013). If the “least of the acts criminalized” in the statutory\\n\\nphrase has an element requiring “the use, attempted use, or threatened use of\\n\\nphysical force against the person of another,” then the offense categorically\\n\\nqualifies as a violent felony under the elements clause. See Davis, 875 F.3d at\\n\\n597–98; 18 U.S.C. § 924(e)(2)(B)(i).\\n\\n Under the elements clause, “use” requires active employment of physical\\n\\nforce. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). “[T]he phrase ‘physical force’\\n\\nmeans violent force—that is, force capable of causing physical pain or injury to\\n\\n 7\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 8 of 14\\n\\n\\nanother person.” Johnson v. United States, 559 U.S. 133, 140 (2010). But active\\n\\nemployment of physical force “most naturally suggests a higher degree of intent\\n\\nthan negligent or merely accidental conduct.” Leocal, 543 U.S. at 9. In Leocal,\\n\\nthe Supreme Court made clear that crimes of violence must be volitional, but also\\n\\nrepeatedly emphasized that such crimes cannot be “accidental.” See id. at 8–10.\\n\\nFollowing Leocal’s reasoning, we held that “a conviction predicated on a mens rea\\n\\nof recklessness does not satisfy the ‘use of physical force’ requirement.” United\\n\\nStates v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Rather, for a\\n\\nconviction to qualify as a predicate crime of violence under the elements clause, it\\n\\nmust require “the intentional use of force.” Id. Although Palomino Garcia’s\\n\\nholding addressed Sentencing Guideline § 2L1.2’s elements clause, it compels the\\n\\nconclusion that the ACCA’s elements clause likewise requires the intentional use\\n\\nof force. See United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017)\\n\\n(determining that a § 2L1.2 case “compels a conclusion that [the same] statute\\n\\nlikewise constitutes a violent felony under the elements clause of the ACCA”);\\n\\nUnited States v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (“The\\n\\nelements clause of the ACCA is identical to the elements clause of § 2L1.2. Cases\\n\\nconstruing the ACCA’s elements clause are thus relevant to our inquiry here.”).\\n\\n Of course, reckless conduct, as generally defined, is not intentional. See\\n\\nBlack’s Law Dictionary (10th ed. 2014) (defining recklessness as “[c]onduct\\n\\n 8\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 9 of 14\\n\\n\\nwhereby the actor does not desire harmful consequences but nonetheless foresees\\n\\nthe possibility and consciously disregards the risk” (emphasis added)). Nor is\\n\\nreckless conduct, as defined by Georgia law, intentional. See O.C.G.A. § 16-5-60\\n\\n(defining reckless conduct as “consciously disregarding a substantial and\\n\\nunjustifiable risk that [the defendant’s] act or omission will cause harm or\\n\\nendanger the safety of the other person”). Because Georgia law defines\\n\\nrecklessness as nothing more than the conscious disregard of a substantial and\\n\\nunjustifiable risk, this is more akin to accidental conduct and cannot be said to\\n\\nrequire intent.\\n\\n With this framework in mind, we now consider whether a conviction for\\n\\naggravated assault under Georgia law qualifies as a crime of violence under the\\n\\nelements clause of the ACCA.\\n\\n B. Georgia’s Aggravated Assault Statute\\n\\n i. Divisibility of Georgia’s Simple and Aggravated Assault Statutes\\n\\n At the time of Moss’s conviction, Georgia’s aggravated assault statute\\n\\nprovided that a person commits the offense of aggravated assault when he commits\\n\\na simple assault:\\n\\n (1) With intent to murder, rape, or to rob; or\\n\\n (2) With a deadly weapon or with any object, device, or\\n instrument which, when used offensively against a person,\\n is likely to or actually does result in serious bodily injury.\\n\\n 9\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 10 of 14\\n\\n\\nO.C.G.A. § 16-5-21(a) (2000). Georgia’s aggravated assault statute therefore has\\n\\ntwo essential elements: (a) a simple assault as defined under O.C.G.A. §§ 16-5-\\n\\n20(a)(1) or (2), and (b) that the assault was aggravated by either (1) an intention to\\n\\nmurder, rape or rob, or (2) the use of a deadly weapon. See Smith v. Hardrick, 464\\n\\nS.E.2d 198, 200 (Ga. 1995). We have previously held that Georgia’s aggravated\\n\\nassault statute, O.C.G.A. § 16-5-21(a), is divisible as to the aggravator component\\n\\nof the statute, Morales-Alonso, 878 F.3d at 1316, but we have not addressed\\n\\nwhether Georgia’s simple assault statute, O.C.G.A. § 16-5-20(a), is divisible.\\n\\n At the time of Moss’s conviction, Georgia’s simple assault statute provided\\n\\nthat a person commits the offense of simple assault when he either:\\n\\n (1) Attempts to commit a violent injury to the person of\\n another; or\\n\\n (2) Commits an act which places another person in\\n reasonable apprehension of immediately receiving a\\n violent injury.\\n\\nO.C.G.A. § 16-5-20(a) (2000). Georgia’s simple assault statute is divisible. The\\n\\nface of the statute lists two separate crimes: (1) an attempt to commit a violent\\n\\ninjury to another person and (2) an act placing another in reasonable apprehension\\n\\nof receiving a violent injury. See Davis, 875 F.3d at 598 (finding a statute divisible\\n\\non its face because it clearly listed two distinct crimes). As a result, we apply the\\n\\nmodified categorical approach to determine which version of simple assault Moss\\n\\nwas convicted of committing. Id. In making this determination, we may look only\\n 10\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 11 of 14\\n\\n\\nto the indictment, jury instructions, and plea agreement. See Shepard v. United\\n\\nStates, 544 U.S. 13, 26 (2005).\\n\\n Because the Shepard documents do not indicate the portion of Georgia’s\\n\\nsimple assault statute under which Moss was convicted, we assume that he was\\n\\nconvicted under the “least of the acts criminalized” by the statute—here, § 16-5-\\n\\n20(a)(2). See Johnson, 559 U.S. at 137 (considering the least culpable prong of a\\n\\ndivisible statute where Shepard documents did not make clear under which version\\n\\nthe defendant was convicted).\\n\\n Similarly, Georgia’s aggravated assault statute is divisible. See Morales-\\n\\nAlonso, 878 F.3d at 1316. Review of the permitted Shepard documents is\\n\\ntherefore necessary to determine which of the multiple crimes listed in the\\n\\naggravated assault statute Moss was convicted under. See Davis, 875 F.3d at 597.\\n\\nThe state indictment indicates that Moss was convicted of aggravated assault under\\n\\nO.C.G.A. § 16-5-21(a)(2), which criminalizes an assault “[w]ith a deadly weapon\\n\\nor with any object, device, or instrument which, when used offensively against a\\n\\nperson, is likely to or actually does result in serious bodily injury.” O.C.G.A. § 16-\\n\\n5-21(a)(2) (2000).\\n\\n Accordingly, our analysis is limited an aggravated assault under O.C.G.A.\\n\\n§ 16-5-21(a)(2), which was predicated upon a simple assault under O.C.G.A. § 16-\\n\\n5-20(a)(2).\\n\\n 11\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 12 of 14\\n\\n\\n ii. Mens Rea Requirement\\n\\n To qualify as a violent felony under the elements clause, a conviction must\\n\\nbe predicated on the intentional use of physical force. See Palomino Garcia, 606\\n\\nF.3d at 1334–36. Georgia law holds that recklessness is a sufficient mens rea for\\n\\naggravated assault under O.C.G.A. § 16-5-21(a)(2), when based upon simple\\n\\nassault under O.C.G.A. § 16-5-20(a)(2). See Patterson v. State, 789 S.E.2d 175,\\n\\n176–78 (Ga. 2016). Therefore, a Georgia aggravated assault conviction cannot\\n\\nqualify as a violent felony under the elements clause of the ACCA when based on\\n\\nsimple assault under O.C.G.A. § 16-5-20(a)(2).\\n\\n The government incorrectly contends that our decision in Turner v. Warden\\n\\nColeman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013), should control here. In\\n\\nTurner, we held that a conviction under Florida’s aggravated assault statute, which\\n\\nincorporates a similar simple assault statute, categorically qualified as a violent\\n\\nfelony under the ACCA. Id. at 1337–38. We reasoned that an aggravated assault\\n\\nconviction under Florida law necessarily included a simple assault, which was the\\n\\n“intentional, unlawful threat by word or act to do violence to the person of another,\\n\\ncoupled with an apparent ability to do so.” Id. at 1338 (quoting Fla. Stat.\\n\\n§ 784.011(1)). Florida’s assault statutes are distinguishable, however, from\\n\\nGeorgia’s assault statutes. Simply put, Florida requires the “intentional, unlawful\\n\\nthreat by word or act to do violence,” Fla. Stat. § 784.011(1) (emphasis added),\\n\\n 12\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 13 of 14\\n\\n\\nwhile Georgia unequivocally does not require such intent under § 16-5-20(a)(2).\\n\\nTurner therefore does not apply here.\\n\\n The Supreme Court of Georgia addressed the culpable mental state required\\n\\nunder Georgia’s simple assault and aggravated assault statutes in Patterson v.\\n\\nState, 789 S.E.2d 175 (Ga. 2016). In Patterson, the court concluded that “the\\n\\ncrime of simple assault as set forth in O.C.G.A. § 16-5-20(a)(2), does not require\\n\\nproof of specific intent.” Id. at 177. All that is required is that the assailant intends\\n\\nto commit the act which in fact places another in reasonable apprehension of\\n\\ninjury, not a specific intent to cause such apprehension. Id. “[T]his conclusion\\n\\nregarding the requirements of O.C.G.A. § 16-5-20(a)(2) is demanded by the simple\\n\\nfact that no requirement of a specific intent is set forth in O.C.G.A. § 16-5-\\n\\n20(a)(2).” Id.\\n\\n Nor does a Georgia conviction for aggravated assault with a deadly weapon,\\n\\nO.C.G.A. § 16-5-21(a)(2), require an intent to injure or an intent to place the victim\\n\\nin reasonable apprehension of injury when the underlying simple assault was based\\n\\non § 16-5-20(a)(2). Patterson, 789 S.E.2d at 178. Rather, a conviction under\\n\\nGeorgia’s aggravated assault statute can be predicated on a mens rea of\\n\\nrecklessness. See id. at 176–78 (explaining that trial court did not err by refusing\\n\\nto give jury instruction on a lesser included offense of reckless driving because the\\n\\ncharged crime of aggravated assault required the same mens rea as the lesser\\n\\n 13\\n\\f Case: 17-10473 Date Filed: 04/04/2019 Page: 14 of 14\\n\\n\\nincluded offense). Patterson is the law of Georgia, and Patterson must therefore\\n\\ncontrol here. See Davis, 875 F.3d at 597 (noting that we apply “federal law in\\n\\ninterpreting the ACCA, but state law in determining the elements of state offenses,\\n\\nkeeping in mind that state law is what the state supreme court says it is.”\\n\\n(emphasis added)). Because Georgia’s aggravated assault statute, O.C.G.A. § 16-\\n\\n5-21(a)(2) (2000), can be satisfied by a mens rea of recklessness when based on\\n\\nsimple assault under § 16-5-20(a)(2), it cannot qualify as a crime of violence under\\n\\nthe elements clause of the ACCA. See Palomino Garcia, 606 F.3d at 1336\\n\\n(holding that crimes involving the reckless use of force cannot qualify as crimes of\\n\\nviolence under the elements clause).\\n\\n III. Conclusion\\n\\n For the reasons stated, we hold that the district court erroneously applied an\\n\\nACCA enhancement because Moss’s prior aggravated assault conviction does not\\n\\nqualify as a “crime of violence” under the elements clause of the ACCA. We\\n\\nvacate his sentence and remand for resentencing consistent with this opinion.\\n\\n VACATED AND REMANDED FOR RESENTENCING.\\n\\n\\n\\n\\n 14\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1877,"cells":{"id":{"kind":"number","value":4607254,"string":"4,607,254"},"name":{"kind":"string","value":"Stephen HOLZMAN, Plaintiff-Appellant, v. MALCOLM S. GERALD & ASSOCIATES, INC., LVNV Funding, LLC, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Stephen Holzman v. Malcolm S. Gerald & Associates, Inc."},"decision_date":{"kind":"string","value":"2019-04-05"},"docket_number":{"kind":"string","value":"16-16511"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Carnes, Kaplan\", \"parties\": \"\", \"opinions\": [{\"author\": \"JULIE CARNES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-16511 Date Filed: 04/05/2019 Page: 1 of 20\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16511\\n ________________________\\n\\n D.C. Docket No. 9:16-cv-80643-RLR\\n\\n\\n\\nSTEPHEN HOLZMAN,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\n\\n\\nMALCOLM S. GERALD & ASSOCIATES, INC.,\\nLVNV FUNDING, LLC,\\n\\n\\n\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 2 of 20\\n\\n\\nBefore TJOFLAT, JULIE CARNES, Circuit Judges, and KAPLAN, * District\\nJudge.\\n\\nJULIE CARNES, Circuit Judge:\\n\\n Plaintiff asserts claims under the federal Fair Debt Collection Practices Act\\n\\n(“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection\\n\\nPractices Act (“Florida Act”), Florida Statute § 559.55 et seq., arising from an\\n\\nattempt by Defendants to collect on Plaintiff’s time-barred consumer debt. As to\\n\\nhis federal claims, Plaintiff alleges in his complaint that (1) a collection letter he\\n\\nreceived from Defendants in connection with the debt was “false, deceptive, or\\n\\nmisleading” in violation of § 1692e of the FDCPA and (2) the general practice of\\n\\nattempting to collect on time-barred consumer debts is “unfair or unconscionable”\\n\\nin violation of § 1692f of the FDCPA. As to the claim under Florida law, Plaintiff\\n\\ncontends that by sending the collection letter, Defendants violated the Florida\\n\\nAct’s prohibition against asserting a legal right that is known not to exist.\\n\\n Defendants filed a motion to dismiss Plaintiff’s FDCPA claims pursuant to\\n\\nFederal Rule 12(b)(6). The district court granted the motion, agreeing with\\n\\nDefendants that their collection efforts did not violate either § 1692e or § 1692f of\\n\\nthat statute. Having dismissed Plaintiff’s federal claims, the court declined to\\n\\nexercise jurisdiction over Plaintiff’s Florida Act claims. After a careful review of\\n\\n*\\n Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of\\nNew York, sitting by designation.\\n\\n 2\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 3 of 20\\n\\n\\nthe record, and with the benefit of oral argument, we REVERSE the district\\n\\ncourt’s order dismissing Plaintiff’s claim under § 1692e of the FDCPA, but\\n\\nAFFIRM the court’s order dismissing Plaintiff’s claim under § 1692f of that same\\n\\nstatute. Given our ruling on Plaintiff’s § 1692e FDCPA claim, we reinstate\\n\\nPlaintiff’s Florida Act claim and REMAND the case to the district court for further\\n\\nproceedings consistent with this opinion.\\n\\n BACKGROUND\\n\\n Defendant LVNV Funding, LLC (“LVNV”) is a debt collector that\\n\\npurchases and attempts to collect on time-barred debts. In 2015, LVNV purchased\\n\\nsuch a debt, which had been incurred by Plaintiff on a personal credit card years\\n\\nprior and had subsequently been charged off by the original creditor in 2007.\\n\\nLVNV retained Defendant Malcolm Gerald & Associates (“Malcolm”) to collect\\n\\nthe debt on LVNV’s behalf. Like LVNV, Malcolm is a debt collector for purposes\\n\\nof the federal and state statutes at issue in this litigation.\\n\\n In connection with its collection efforts, Malcolm sent Plaintiff a collection\\n\\nletter that reads, in relevant part:\\n\\n Original Creditor: HSBC BANK NEVADA, N.A.\\n\\n BALANCE DUE: $869.51\\n\\n Charge Off Date: 07/31/2007\\n\\n Balance Itemization\\n\\n 3\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 4 of 20\\n\\n\\n\\n\\n Principal Balance: $615.41\\n\\n Interest Balance: $254.10\\n\\n Please be advised that LVNV FUNDING LLC, the Current\\n Creditor-Debt Purchaser has purchased the account referenced\\n above. LVNV FUNDING LLC has placed your account with us\\n for collection.\\n\\n Malcolm S. Gerald and Associates wants to help you resolve\\n your delinquent account with LVNV FUNDING LLC. We\\n would like to offer you a balance reduction to 30% of the balance\\n due listed above. We will be able to accept $260.85 as a reduced\\n payment in full on your account. To take advantage of this offer,\\n the reduced amount listed must be received in our office no later\\n than 05/31/2015. We are not obligated to renew this offer.\\n\\n This communication is from a debt collector. This is an attempt\\n to collect a debt. Any information obtained will be used for this\\n purpose.\\n\\n Make check payable to: Malcolm S. Gerald and Associates, Inc.\\n If you would like to pay online, you may do so at\\n https://msgpayments.com\\n\\n After receiving this collection letter, Plaintiff filed a putative class action\\n\\ncomplaint against Defendants asserting federal claims under the FDCPA, 15\\n\\nU.S.C. § 1692 et seq., and its state corollary, the Florida Consumer Collection\\n\\nPractices Act, Florida Statute § 559.55 et seq. In support of his FDCPA claims,\\n\\nPlaintiff alleged that (1) the letter was “false, deceptive, or misleading” in violation\\n\\nof § 1692e of the FDCPA because it could lead a consumer to believe that there\\n\\nwere legal consequences to not making the requested payment when, in fact, the\\n\\n 4\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 5 of 20\\n\\n\\nstatute of limitations barred legal enforcement of the debt and (2) attempting to\\n\\ncollect on Plaintiff’s time-barred debt via the letter constituted an “unfair or\\n\\nunconscionable” practice in violation of § 1692f of the FDCPA. Plaintiff further\\n\\nalleged that the letter violated the Florida Act because it falsely asserted a legal\\n\\nright that Defendants knew did not exist.\\n\\n Defendants moved to dismiss Plaintiff’s complaint pursuant to Federal Rule\\n\\n12(b)(6). In an oral ruling and following a hearing on the motion, the district court\\n\\ndismissed Plaintiff’s FDCPA claims with prejudice. In support of its ruling, the\\n\\ncourt cited Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767 (8th Cir.\\n\\n2001), Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011), and\\n\\nEhrich v. Convergent Outsourcing, Inc., 2015 WL 6470453 (S.D. Fla. Oct. 28,\\n\\n2015) for the legal principle that: “the FDCPA permits debt collector[s] to see[k]\\n\\nvoluntary repayment of . . . time-barred debt so long as the debt collector does not\\n\\ninitiate or threaten legal action in connection with its debt collection efforts.” The\\n\\ncourt determined that the letter Plaintiff received did not contain any language that\\n\\ncould be interpreted as initiating or threatening legal action. Thus, accepting the\\n\\nlegal principle announced in Freyermuth, Huertas, and Ehrich, the court concluded\\n\\nthat Plaintiff’s allegations did not assert a plausible violation of the FDCPA.\\n\\n In so ruling, the district court distinguished Daugherty v. Convergent\\n\\nOutsourcing, Inc., 836 F.3d 507 (5th Cir. 2016), Buchanan v. Northland Group.,\\n\\n 5\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 6 of 20\\n\\n\\nInc., 776 F.3d 393 (6th Cir. 2015), and McMahon v. LVNV Funding, LLC, 744\\n\\nF.3d 1010 (7th Cir. 2014), in which the Fifth, Sixth, and Seventh Circuits,\\n\\nrespectively, held that a collection letter offering to “settle” a time-barred debt, but\\n\\nnot threatening litigation, could nonetheless serve as the basis for an FDCPA\\n\\nclaim. The district court noted that the collection letter Plaintiff received offered to\\n\\n“resolve” his time-barred debt, not “settle” it. According to the court, the “settle”\\n\\nlanguage used in the letters at issue in Daugherty, Buchanan, and McMahon was\\n\\nmore akin to a threat of legal action than the “resolve” language used in the letter\\n\\nPlaintiff received. Consequently, the court determined that Plaintiff could not state\\n\\na viable FDCPA claim under the rationale of Daugherty, Buchanan, or McMahon.\\n\\n Having dismissed Plaintiff’s FDCPA claims, the district court declined to\\n\\nexercise pendant jurisdiction over Plaintiff’s Florida Act claim. The court thus\\n\\ndismissed this claim without prejudice.\\n\\n Plaintiff appeals the dismissal of his FDCPA and Florida Act claims. As\\n\\nnoted, Plaintiff argues that he has presented a plausible claim that the collection\\n\\nletter he received from Defendants was “false, deceptive, or misleading” in\\n\\nviolation of § 1692e of the FDCPA, given that the debt referenced in the letter was\\n\\nlegally unenforceable. In addition, Plaintiff argues that the general practice of\\n\\nattempting to collect time-barred consumer debts is per se “unfair or\\n\\nunconscionable” in violation of § 1692f of the FDCPA. Assuming his federal\\n\\n 6\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 7 of 20\\n\\n\\nclaims are revived pursuant to either argument, Plaintiff asserts that his state claim\\n\\nshould be reinstated and addressed on the merits.\\n\\n DISCUSSION\\n\\nI. Standard of Review\\n\\n We review the decision to dismiss Plaintiff’s complaint pursuant to Rule\\n\\n12(b)(6) de novo, applying the same standard as the district court. See West v.\\n\\nWarden, Comm’r, Ala. Dep’t of Corr., 869 F.3d 1289, 1296 (11th Cir. 2017). In\\n\\nconducting our review, we accept the allegations in Plaintiff’s complaint as true\\n\\nand we construe the facts in the light most favorable to his claims. See id.\\n\\nViewing the complaint in that manner, the relevant inquiry is whether Plaintiff has\\n\\nstated a “plausible claim for relief” under the FDCPA. Ashcroft v. Iqbal, 556 U.S.\\n\\n662, 679 (2009). If he has, then the district court’s order dismissing Plaintiff’s\\n\\nFDCPA claims must be reversed and the Florida Act claim must be reinstated. See\\n\\nid.; 28 U.S.C. § 1367(a) (granting district courts supplemental jurisdiction over all\\n\\nclaims that are “so related to claims in the action within [the] original jurisdiction\\n\\n[of the court] that they form part of the same case or controversy under Article\\n\\nIII”).\\n\\nII. Plaintiff’s FDCPA Claims\\n\\n The FDCPA protects consumers from abusive debt collection practices by\\n\\nregulating the conduct of debt collectors. See Crawford v. LVNV Funding LLC,\\n\\n 7\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 8 of 20\\n\\n\\n758 F.3d 1254, 1257 (11th Cir. 2014) (noting that “Congress passed the FDCPA in\\n\\n1977 to stop the use of abusive, deceptive, and unfair debt collection practices by\\n\\nmany debt collectors” (internal quotation marks omitted)). To enforce its\\n\\nprovisions, the FDCPA provides consumers with a private right of action against\\n\\ndebt collectors who violate the Act. See id. at 1258. Assuming Plaintiff’s\\n\\nallegations are true, Defendants qualify as debt collectors for purposes of the\\n\\nFDCPA and are thus subject to the Act’s regulations. See 15 U.S.C. § 1692a(6)\\n\\n(defining “debt collector” to include “any person who . . . regularly collects or\\n\\nattempts to collect, directly or indirectly, debts owed or due or asserted to be owed\\n\\nor due another”).\\n\\n As noted, Plaintiff alleges (1) that the collection letter he received from\\n\\nDefendants was “false, deceptive, or misleading” in violation of § 1692e of the\\n\\nFDCPA and (2) that attempting to collect on Plaintiff’s time-barred debt via the\\n\\nletter constituted an “unfair or unconscionable” debt collection practice in violation\\n\\nof § 1692f the FDCPA. The relevant inquiry at this stage of the litigation is\\n\\nwhether Plaintiff has alleged a plausible violation of either provision. See Iqbal,\\n\\n556 U.S. at 679. To determine whether that is so, we apply the “least-sophisticated\\n\\nconsumer” standard. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193,\\n\\n1201 (11th Cir. 2010) (explaining that the least-sophisticated consumer standard\\n\\napplies to determine whether a debt collector has violated §§ 1692e or 1692f of the\\n\\n 8\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 9 of 20\\n\\n\\nFDCPA). Under that standard, a debt collector violates § 1692e by making a\\n\\nrepresentation in a collection letter that would be deceptive or misleading to the\\n\\n“least sophisticated” recipient of the letter. See id. at 1193–95. Likewise, a\\n\\ncollection practice violates § 1692f if it would be unfair or unconscionable as\\n\\napplied to the “least sophisticated” debtor subjected to the practice. See id. at\\n\\n1201.\\n\\n The least-sophisticated consumer standard is intended to protect “all\\n\\nconsumers, the gullible as well as the shrewd.” Id. at 1194 (internal quotation\\n\\nmarks omitted). As such, the “least-sophisticated consumer” is presumed to have\\n\\nonly a “rudimentary amount of information about the world.” Id. Nevertheless, it\\n\\nis assumed that the least-sophisticated consumer will be “willing[] to read a\\n\\ncollection notice with some care.” LeBlanc, 601 F.3d at 1194 (internal quotation\\n\\nmarks omitted). Moreover, the least-sophisticated consumer standard “has an\\n\\nobjective component in that while protecting naive consumers, the standard also\\n\\nprevents liability for bizarre or idiosyncratic interpretations of collection notices by\\n\\npreserving a quotient of reasonableness.” Id. (internal quotation marks omitted).\\n\\nFinally, whether a representation made in a collection letter would be deceptive or\\n\\nmisleading to the least-sophisticated consumer, or a collection practice would be\\n\\nunfair or unconscionable when applied to the least-sophisticated consumer,\\n\\ngenerally is a question of fact to be decided by a jury. See id. at 1195, 1201.\\n\\n 9\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 10 of 20\\n\\n\\n A. The collection letter Plaintiff received plausibly could be\\n misleading or deceptive to the “least sophisticated consumer” in\\n violation of § 1692e.\\n\\n Section 1692e of the FDCPA states that: “A debt collector may not use any\\n\\nfalse, deceptive, or misleading representation or means in connection with the\\n\\ncollection of any debt.” 15 U.S.C. § 1692e. It then provides a non-exhaustive list\\n\\nof specific conduct that is prohibited, including: (1) falsely representing “the\\n\\ncharacter, amount, or legal status of any debt” and (2) threatening “any action that\\n\\ncannot legally be taken or that is not intended to be taken.” Id. § 1692e(2)(A), (5).\\n\\nThere is no question that these provisions prohibit a debt collector from suing or\\n\\nthreatening to sue on a time-barred debt, and federal courts have uniformly so held.\\n\\nSee Crawford, 758 F.3d at 1259 (collecting cases). The question presented by this\\n\\ncase asks more specifically: to what extent does the above prohibition extend\\n\\nbeyond a threat to sue on a time-barred debt and encompass a potentially—albeit\\n\\nmore subtly—misleading offer to “resolve” such a debt when there is no\\n\\naccompanying disclosure that the debt is time-barred.\\n\\n This Court has not ruled on the above issue, and the appellate courts that\\n\\nhave done so have taken different approaches. In a case factually similar to this\\n\\none, the Third Circuit suggested that a threat of litigation is necessary to state a\\n\\nclaim under § 1692e. See Huertas, 641 F.3d at 33. The plaintiff in Huertas had\\n\\nreceived a collection letter notifying him that his defaulted debt had been\\n\\n 10\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 11 of 20\\n\\n\\nreassigned and requesting him to call the debt collector to “resolve this issue.” See\\n\\nid. Although the letter did not make any overtly false representations, the plaintiff\\n\\nargued that it was misleading as to the legal enforceability of the referenced debt,\\n\\nthus violating § 1692e of the FDCPA. See id. at 32–33. The Huertas Court\\n\\ndismissed Plaintiff’s § 1692e claim, noting that the FDCPA generally permits a\\n\\ndebt collector to seek voluntary repayment of a time-barred debt so long as it does\\n\\nnot threaten legal action and concluding that “[e]ven the least sophisticated\\n\\nconsumer would not understand” the letter to “threaten litigation.” Id. at 33. The\\n\\nEighth Circuit similarly has indicated that a threat to sue is necessary to establish a\\n\\nviolation of § 1692e in this scenario. See Freyermuth, 248 F.3d at 771 (“[I]n the\\n\\nabsence of a threat of litigation or actual litigation, no violation of the FDCPA has\\n\\noccurred when a debt collector attempts to collect on a potentially time-barred debt\\n\\nthat is otherwise valid.”).\\n\\n In contrast to Huertas and Freyermuth, the Fifth, Sixth, and Seventh Circuits\\n\\ndisagree that a collection letter referencing a time-barred debt cannot violate the\\n\\nFDCPA absent an express threat of litigation. See Daugherty, 836 F.3d at 509;\\n\\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. In each of these\\n\\ncases, a debt collector sent a letter offering to “settle” the debtor’s account for a\\n\\npercentage of the total balance. Although technically accurate in every other\\n\\nrespect, each of these collection letters failed to disclose that the referenced debt\\n\\n 11\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 12 of 20\\n\\n\\nwas, in fact, time-barred and thus legally unenforceable. Contrary to the result\\n\\nreached in Huertas and Freyermuth, the appellate courts in Daugherty, Buchanan,\\n\\nand McMahon held that the debtors had stated a claim under § 1692e of the\\n\\nFDCPA because an offer to “settle” a time-barred debt, without an accompanying\\n\\ndisclosure that the debt is judicially unenforceable, plausibly could mislead an\\n\\nunsophisticated consumer as to the legal unenforceability of the debt. See\\n\\nDaugherty, 836 F.3d at 511; Buchanan, 776 F.3d at 398–400; McMahon, 744 F.3d\\n\\nat 1020–21.\\n\\n In reaching this conclusion, the courts in Daugherty, Buchanan, and\\n\\nMcMahon recognized that, as a general matter, a creditor can seek voluntary\\n\\npayment of a time-barred debt. See Daugherty, 836 F.3d at 509 (observing that “it\\n\\nis not automatically unlawful for a debt collector to seek payment of a time-barred\\n\\ndebt”); Buchanan, 776 F.3d at 397 (“There . . . is nothing wrong with informing\\n\\ndebtors that a debt remains unpaid or . . . allowing them to satisfy the debt at a\\n\\ndiscount.”); McMahon, 744 F.3d at 1020 (“[S]ome people might consider full debt\\n\\nre-payment a moral obligation, even though the legal remedy for the debt has been\\n\\nextinguished.”). Nevertheless, a right to seek repayment does not confer a right to\\n\\nmislead. And each of these courts held that a collection letter offering to “settle” a\\n\\ntime-barred debt could give rise to a claim under § 1692e of the FDCPA, even in\\n\\nthe absence of an express threat of litigation. See Daugherty, 836 F.3d at 511;\\n\\n 12\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 13 of 20\\n\\n\\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. Their reasoning is\\n\\nsummed up by the Fifth Circuit’s statement in Daugherty that:\\n\\n While it is not automatically unlawful for a debt collector to seek\\n payment of a time-barred debt, a collection letter violates the FDCPA\\n when its statements could mislead an unsophisticated consumer to\\n believe that her time-barred debt is legally enforceable, regardless of\\n whether litigation is threatened.\\n\\nDaugherty, 836 F.3d at 509.\\n\\n Further, notwithstanding its prior decision in Huertas, the Third Circuit\\n\\nrecently has adopted the rationale of Daugherty, Buchanan, and McMahon. See\\n\\nTatis v. Allied Interstate, LLC, 882 F.3d 422, 428–30 (3d Cir. 2018). The plaintiff\\n\\nin Tatis asserted a claim under § 1692e of the FDCPA based on a letter she\\n\\nreceived from a debt collector offering to settle a time-barred consumer debt, but\\n\\nfailing to disclose that the debt was legally unenforceable. See id. at 425. Relying\\n\\nprimarily on Huertas, the district court dismissed the claim pursuant to Rule\\n\\n12(b)(6) because the letter did not include a threat of legal action. See id. at 426.\\n\\nReversing and ruling based on the reasoning set forth in Daugherty, Buchanan, and\\n\\nMcMahon, the Third Circuit held that a collection letter “may run afoul of the\\n\\nFDCPA by misleading or deceiving debtors into believing they have a legal\\n\\nobligation to repay time-barred debts even when the letters do not threaten legal\\n\\naction.” Id. at 428. Explaining its implicit disavowal of Huertas, the Tatis court\\n\\nstated:\\n\\n 13\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 14 of 20\\n\\n\\n Huertas stands for the proposition that debt collectors do not violate\\n [the specific prohibition found in] 15 U.S.C. § 1692e(2)(A) when they\\n seek voluntary repayment of stale debts, so long as they do not threaten\\n or take legal action. But the FDCPA sweeps far more broadly than the\\n specific provision found in § 1692e(2)(A). It prohibits “any false,\\n deceptive, or misleading representation” associated with debt-\\n collection practices.\\n\\nId. (emphasis in original). As to the FDCPA’s general prohibition of any false,\\n\\ndeceptive, or misleading representation, Tatis held that the plaintiff had established\\n\\na plausible violation by pleading that she had received a collection letter offering to\\n\\nsettle her debt but failing to disclose that this time-barred debt was legally\\n\\nunenforceable. Tatis, 882 F.3d at 430.\\n\\n We are persuaded by the reasoning of Daugherty, Buchanan, and\\n\\nMcMahon—and, most recently, Tatis. We likewise conclude that with regard to a\\n\\ncollection letter seeking payment on a time-barred debt, an express threat of\\n\\nlitigation is not required to state a claim for relief under § 1692e so long as one can\\n\\nreasonably infer an implicit threat. This holding finds support both in the plain\\n\\nlanguage of § 1692e and in a common-sense application of the least-sophisticated\\n\\nconsumer standard in the Rule 12(b)(6) context. See Tatis, 882 F.3d at 429\\n\\n(observing that “[c]ommon sense, our case law, and traditional tools of statutory\\n\\ninterpretation foreclose” a construction of the FDCPA to “require a threat of legal\\n\\naction” under these circumstances). As quoted above, § 1692e specifically\\n\\nprohibits a debt collector not only from threatening to take any action “that cannot\\n\\n 14\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 15 of 20\\n\\n\\nlegally be taken” (i.e., threatening litigation on a time-barred debt) but also from\\n\\nmisrepresenting the “legal status” of a debt. 15 U.S.C. § 1692e(2)(A), (5). More\\n\\nbroadly, § 1692e prohibits a debt collector from making “any false, deceptive, or\\n\\nmisleading representation” in a collection letter. Id. § 1692e (emphasis added).\\n\\n In their motion to dismiss under Rule 12(b)(6), Defendants argue that, as a\\n\\nmatter of law, the particular representation at issue in the collection letter would\\n\\nnot mislead or deceive an unsophisticated consumer as to the legal status of, or the\\n\\nlegal ramifications of non-payment on, a time-barred debt. In examining this\\n\\nargument in a motion to dismiss context, the question is whether it is plausible that\\n\\na reasonable jury could find that this representation would so mislead an\\n\\nunsophisticated consumer. See Iqbal, 556 U.S. at 678 (“To survive a motion to\\n\\ndismiss, a complaint must contain sufficient factual matter, accepted as true, to\\n\\nstate a claim to relief that is plausible on its face.” (internal quotation marks\\n\\nomitted)); LeBlanc, 601 F.3d at 1195–97 (a court may decide this question as a\\n\\nmatter of law only if there is no basis for a reasonable jury to conclude that a\\n\\nconsumer would be deceived or misled). The language of the present collection\\n\\nletter contains an offer to “resolve” a time-barred debt, combined with a deadline\\n\\nto accept the reduced-payment offer and a warning that the offer might not be\\n\\nrenewed if payment is not timely made. We conclude that this language, taken in\\n\\n\\n\\n\\n 15\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 16 of 20\\n\\n\\nits entirety, could plausibly deceive or mislead an unsophisticated consumer as to\\n\\nthe legal status of the debt, even in the absence of an express threat of litigation.\\n\\n Further, we are not persuaded that this case is materially distinguishable\\n\\nfrom Daugherty, Buchanan, and McMahon merely because the letter Plaintiff\\n\\nreceived offers to “resolve” the referenced time-barred debt rather than “settle” it.\\n\\nDespite the slight semantic difference, it still is plausible that the letter Plaintiff\\n\\nreceived would leave an unsophisticated consumer with the same general—and\\n\\ninaccurate—impression as did the letters at issue in Daugherty, McMahon, and\\n\\nBuchanan. That is, by urging the debtor to “take advantage” of the offer, the letter\\n\\nmight have caused an unsophisticated consumer to mistakenly believe that the debt\\n\\nwas legally enforceable and that he had something to gain by accepting the offer,\\n\\nor to lose by declining it. In fact, the letter reinforces this impression by\\n\\nannouncing a deadline, thus creating some urgency for the debtor to accept the\\n\\noffered terms by making payment. In this regard, the letter states that payment\\n\\n“must be received in our office no later than 5/31/2015” and that Defendants are\\n\\n“not obligated to renew” the offer. As Plaintiff points out, an unsophisticated\\n\\nreader might conclude from this language that he is being presented with an\\n\\nultimatum, and that failure to make payment within the required time frame would\\n\\nresult in negative consequences, such as legal action.\\n\\n\\n\\n\\n 16\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 17 of 20\\n\\n\\n Finally, we disagree that our holding in this case will require debt collectors\\n\\nto give legal advice to debtors, as Defendants argue. Essentially, Defendants argue\\n\\nthat by permitting Plaintiff’s case to go beyond the pleading stage, we put debt\\n\\ncollectors in the untenable position of having to analyze and advise debtors as to\\n\\nthe merits of any potential statute of limitations defense. Whether or not that\\n\\nconcern might be valid in some situations, the suggestion that Defendants would\\n\\nhave had to conduct any legal analysis to determine whether the debt in this case\\n\\nwas time-barred seems a bit disingenuous. After all, Defendants were aware of the\\n\\nstatus of Plaintiff’s debt when they purchased it, presumably at a heavily\\n\\ndiscounted price that accounted for the fact that its legal enforcement is barred by\\n\\nthe statute of limitations. But in any event, the court in Buchanan specifically and\\n\\nadequately addressed the concern raised by Defendants, explaining that:\\n\\n [I]f a debt collector is unsure about the applicable statute of limitations,\\n it would be easy to include general language about that possibility,\\n correcting any possible misimpression by unsophisticated consumers\\n without venturing into the realm of legal advice.\\n\\nBuchanan, 776 F.3d at 400 (internal quotation marks and citation omitted). And in\\n\\nfact, Defendant LVNV has, subsequent to the letter it sent to Plaintiff in this case,\\n\\nincorporated such language into its collection letters. See Shields v. J.C.\\n\\nChristensen & Assoc., Inc., 2017 WL 1106085, at *1 (S.D. Ind. Mar. 24, 2017)\\n\\n(quoting the following language from a recent LVNV collection letter: “The law\\n\\nlimits how long you can be sued on a debt. Because of the age of your debt,\\n 17\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 18 of 20\\n\\n\\nLVNV Funding LLC will not sue you for it, and LVNV Funding LLC will not\\n\\nreport it to any credit reporting agency.” (internal quotation marks omitted)).\\n\\n In short, it is at least plausible that the collection letter Defendants sent to\\n\\nPlaintiff would have been “false, deceptive, or misleading” to the “least\\n\\nsophisticated” recipient of the letter, in violation of § 1692e of the FDCPA. As\\n\\nPlaintiff has thus stated a claim for relief under § 1692e of the FDCPA, the district\\n\\ncourt’s order dismissing Plaintiff’s § 1692e claim pursuant to Rule 12(b)(6) is\\n\\nREVERSED.\\n\\n B. Attempting to collect on time-barred debt is not a per se unfair or\\n unconscionable practice that automatically violates § 1692f of the\\n FDCPA.\\n\\n Although we find that Plaintiff has stated a plausible claim that Defendants’\\n\\ncollection letter was misleading under § 1692e, we reject Plaintiff’s claim that the\\n\\ngeneral practice of attempting to collect on time-barred debt is per se unfair or\\n\\nunconscionable in violation of 1692f of the FDCPA. The only legal support\\n\\nPlaintiff offers for this argument is the Seventh Circuit’s recent opinion in Pantoja\\n\\nv. Portfolio Recovery Associates, LLC, 852 F.3d 679, 684 (7th Cir. 2017). In\\n\\nPantoja, the Seventh Circuit reiterated its decision in McMahon that an\\n\\nunsophisticated consumer could potentially be misled by a letter seeking collection\\n\\non a time-barred debt. See id. Then, thinking out loud, the court briefly expressed\\n\\nsome thoughts about the practice of collecting on time-barred debt, observing that:\\n\\n 18\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 19 of 20\\n\\n\\n [T]he opportunities for mischief and deception, particularly when\\n sophisticated parties aim carefully crafted messages at unsophisticated\\n consumers, may well be so great that the better approach is simply to\\n find that any such efforts violate the FDCPA’s prohibitions on\\n deceptive or misleading means to collect debts, § 1692e, and on “unfair\\n or unconscionable means” to attempt to collect debts, § 1692f.\\n\\nId. Ultimately, however, the Pantoja Court never articulated such a general\\n\\nprohibition, noting that: (1) the plaintiff had not argued for it and (2) the case\\n\\ncould be decided on narrower grounds. Id.\\n\\n The Seventh Circuit’s observations in Pantoja notwithstanding, courts\\n\\ngenerally have recognized that the FDCPA does not impose a bright-line rule\\n\\nprohibiting debt collectors from attempting to collect on time-barred debt. See\\n\\nDaugherty, 836 F.3d at 509 (noting that “it is not automatically unlawful for a debt\\n\\ncollector to seek payment of a time-barred debt”); Buchanan, 776 F.3d at 397\\n\\n(“Legal defenses are not moral defenses, however. And a creditor remains free, in\\n\\nthe absence of a bankruptcy order or something comparable preventing it from\\n\\ntrying to collect the debt, to let the debtor know what the debt is and to ask her to\\n\\npay it.”). Pantoja does not offer adequate justification for upending that general\\n\\nrule, nor does Plaintiff suggest any alternative ground for finding that Defendants\\n\\nengaged in an “unfair or unconscionable” debt collection practice in violation of\\n\\n§ 1692f of the FDCPA. Accordingly, the Court affirms the district court’s\\n\\ndismissal of Plaintiff’s claim under § 1692f.\\n\\n\\n\\n 19\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 20 of 20\\n\\n\\nIII. Plaintiff’s Florida Act Claim\\n\\n The district court did not dismiss Plaintiff’s Florida claim on substantive\\n\\ngrounds, but rather declined to exercise pendent jurisdiction over it after\\n\\ndismissing Plaintiff’s federal FDCPA claims. In light of the Court’s reversal of the\\n\\nruling as to Plaintiff’s claim under § 1692e of the FDCPA, Plaintiff’s Florida claim\\n\\nshould be reinstated for consideration on the merits. See 28 U.S.C. § 1367(a)\\n\\n(“[T]he district courts shall have supplemental jurisdiction over all other claims\\n\\nthat are so related to claims in the action within such original jurisdiction that they\\n\\nform part of the same case or controversy under Article III of the United States\\n\\nConstitution.”).\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM in part and REVERSE in part the\\n\\ndistrict court’s ruling dismissing Plaintiff’s FDCPA claims pursuant to Rule\\n\\n12(b)(6) and declining to exercise jurisdiction over Plaintiff’s Florida Act claim.\\n\\nThe case is REMANDED to the district court for further proceedings consistent\\n\\nwith this opinion.\\n\\n\\n\\n\\n 20\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4384507/\", \"author_raw\": \"JULIE CARNES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"CARNES"},"judge3":{"kind":"string","value":"KAPLAN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4607254/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Stephen HOLZMAN, Plaintiff-Appellant, v. MALCOLM S. GERALD & ASSOCIATES, INC., LVNV Funding, LLC, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-16511 Date Filed: 04/05/2019 Page: 1 of 20\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16511\n ________________________\n\n D.C. Docket No. 9:16-cv-80643-RLR\n\n\n\nSTEPHEN HOLZMAN,\n\n Plaintiff-Appellant,\n\nversus\n\n\n\nMALCOLM S. GERALD & ASSOCIATES, INC.,\nLVNV FUNDING, LLC,\n\n\n\n\n Defendants-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 5, 2019)\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 2 of 20\n\n\nBefore TJOFLAT, JULIE CARNES, Circuit Judges, and KAPLAN, * District\nJudge.\n\nJULIE CARNES, Circuit Judge:\n\n Plaintiff asserts claims under the federal Fair Debt Collection Practices Act\n\n(“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection\n\nPractices Act (“Florida Act”), Florida Statute § 559.55 et seq., arising from an\n\nattempt by Defendants to collect on Plaintiff’s time-barred consumer debt. As to\n\nhis federal claims, Plaintiff alleges in his complaint that (1) a collection letter he\n\nreceived from Defendants in connection with the debt was “false, deceptive, or\n\nmisleading” in violation of § 1692e of the FDCPA and (2) the general practice of\n\nattempting to collect on time-barred consumer debts is “unfair or unconscionable”\n\nin violation of § 1692f of the FDCPA. As to the claim under Florida law, Plaintiff\n\ncontends that by sending the collection letter, Defendants violated the Florida\n\nAct’s prohibition against asserting a legal right that is known not to exist.\n\n Defendants filed a motion to dismiss Plaintiff’s FDCPA claims pursuant to\n\nFederal Rule 12(b)(6). The district court granted the motion, agreeing with\n\nDefendants that their collection efforts did not violate either § 1692e or § 1692f of\n\nthat statute. Having dismissed Plaintiff’s federal claims, the court declined to\n\nexercise jurisdiction over Plaintiff’s Florida Act claims. After a careful review of\n\n*\n Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of\nNew York, sitting by designation.\n\n 2\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 3 of 20\n\n\nthe record, and with the benefit of oral argument, we REVERSE the district\n\ncourt’s order dismissing Plaintiff’s claim under § 1692e of the FDCPA, but\n\nAFFIRM the court’s order dismissing Plaintiff’s claim under § 1692f of that same\n\nstatute. Given our ruling on Plaintiff’s § 1692e FDCPA claim, we reinstate\n\nPlaintiff’s Florida Act claim and REMAND the case to the district court for further\n\nproceedings consistent with this opinion.\n\n BACKGROUND\n\n Defendant LVNV Funding, LLC (“LVNV”) is a debt collector that\n\npurchases and attempts to collect on time-barred debts. In 2015, LVNV purchased\n\nsuch a debt, which had been incurred by Plaintiff on a personal credit card years\n\nprior and had subsequently been charged off by the original creditor in 2007.\n\nLVNV retained Defendant Malcolm Gerald & Associates (“Malcolm”) to collect\n\nthe debt on LVNV’s behalf. Like LVNV, Malcolm is a debt collector for purposes\n\nof the federal and state statutes at issue in this litigation.\n\n In connection with its collection efforts, Malcolm sent Plaintiff a collection\n\nletter that reads, in relevant part:\n\n Original Creditor: HSBC BANK NEVADA, N.A.\n\n BALANCE DUE: $869.51\n\n Charge Off Date: 07/31/2007\n\n Balance Itemization\n\n 3\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 4 of 20\n\n\n\n\n Principal Balance: $615.41\n\n Interest Balance: $254.10\n\n Please be advised that LVNV FUNDING LLC, the Current\n Creditor-Debt Purchaser has purchased the account referenced\n above. LVNV FUNDING LLC has placed your account with us\n for collection.\n\n Malcolm S. Gerald and Associates wants to help you resolve\n your delinquent account with LVNV FUNDING LLC. We\n would like to offer you a balance reduction to 30% of the balance\n due listed above. We will be able to accept $260.85 as a reduced\n payment in full on your account. To take advantage of this offer,\n the reduced amount listed must be received in our office no later\n than 05/31/2015. We are not obligated to renew this offer.\n\n This communication is from a debt collector. This is an attempt\n to collect a debt. Any information obtained will be used for this\n purpose.\n\n Make check payable to: Malcolm S. Gerald and Associates, Inc.\n If you would like to pay online, you may do so at\n https://msgpayments.com\n\n After receiving this collection letter, Plaintiff filed a putative class action\n\ncomplaint against Defendants asserting federal claims under the FDCPA, 15\n\nU.S.C. § 1692 et seq., and its state corollary, the Florida Consumer Collection\n\nPractices Act, Florida Statute § 559.55 et seq. In support of his FDCPA claims,\n\nPlaintiff alleged that (1) the letter was “false, deceptive, or misleading” in violation\n\nof § 1692e of the FDCPA because it could lead a consumer to believe that there\n\nwere legal consequences to not making the requested payment when, in fact, the\n\n 4\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 5 of 20\n\n\nstatute of limitations barred legal enforcement of the debt and (2) attempting to\n\ncollect on Plaintiff’s time-barred debt via the letter constituted an “unfair or\n\nunconscionable” practice in violation of § 1692f of the FDCPA. Plaintiff further\n\nalleged that the letter violated the Florida Act because it falsely asserted a legal\n\nright that Defendants knew did not exist.\n\n Defendants moved to dismiss Plaintiff’s complaint pursuant to Federal Rule\n\n12(b)(6). In an oral ruling and following a hearing on the motion, the district court\n\ndismissed Plaintiff’s FDCPA claims with prejudice. In support of its ruling, the\n\ncourt cited Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767 (8th Cir.\n\n2001), Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011), and\n\nEhrich v. Convergent Outsourcing, Inc., 2015 WL 6470453 (S.D. Fla. Oct. 28,\n\n2015) for the legal principle that: “the FDCPA permits debt collector[s] to see[k]\n\nvoluntary repayment of . . . time-barred debt so long as the debt collector does not\n\ninitiate or threaten legal action in connection with its debt collection efforts.” The\n\ncourt determined that the letter Plaintiff received did not contain any language that\n\ncould be interpreted as initiating or threatening legal action. Thus, accepting the\n\nlegal principle announced in Freyermuth, Huertas, and Ehrich, the court concluded\n\nthat Plaintiff’s allegations did not assert a plausible violation of the FDCPA.\n\n In so ruling, the district court distinguished Daugherty v. Convergent\n\nOutsourcing, Inc., 836 F.3d 507 (5th Cir. 2016), Buchanan v. Northland Group.,\n\n 5\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 6 of 20\n\n\nInc., 776 F.3d 393 (6th Cir. 2015), and McMahon v. LVNV Funding, LLC, 744\n\nF.3d 1010 (7th Cir. 2014), in which the Fifth, Sixth, and Seventh Circuits,\n\nrespectively, held that a collection letter offering to “settle” a time-barred debt, but\n\nnot threatening litigation, could nonetheless serve as the basis for an FDCPA\n\nclaim. The district court noted that the collection letter Plaintiff received offered to\n\n“resolve” his time-barred debt, not “settle” it. According to the court, the “settle”\n\nlanguage used in the letters at issue in Daugherty, Buchanan, and McMahon was\n\nmore akin to a threat of legal action than the “resolve” language used in the letter\n\nPlaintiff received. Consequently, the court determined that Plaintiff could not state\n\na viable FDCPA claim under the rationale of Daugherty, Buchanan, or McMahon.\n\n Having dismissed Plaintiff’s FDCPA claims, the district court declined to\n\nexercise pendant jurisdiction over Plaintiff’s Florida Act claim. The court thus\n\ndismissed this claim without prejudice.\n\n Plaintiff appeals the dismissal of his FDCPA and Florida Act claims. As\n\nnoted, Plaintiff argues that he has presented a plausible claim that the collection\n\nletter he received from Defendants was “false, deceptive, or misleading” in\n\nviolation of § 1692e of the FDCPA, given that the debt referenced in the letter was\n\nlegally unenforceable. In addition, Plaintiff argues that the general practice of\n\nattempting to collect time-barred consumer debts is per se “unfair or\n\nunconscionable” in violation of § 1692f of the FDCPA. Assuming his federal\n\n 6\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 7 of 20\n\n\nclaims are revived pursuant to either argument, Plaintiff asserts that his state claim\n\nshould be reinstated and addressed on the merits.\n\n DISCUSSION\n\nI. Standard of Review\n\n We review the decision to dismiss Plaintiff’s complaint pursuant to Rule\n\n12(b)(6) de novo, applying the same standard as the district court. See West v.\n\nWarden, Comm’r, Ala. Dep’t of Corr., 869 F.3d 1289, 1296 (11th Cir. 2017). In\n\nconducting our review, we accept the allegations in Plaintiff’s complaint as true\n\nand we construe the facts in the light most favorable to his claims. See id.\n\nViewing the complaint in that manner, the relevant inquiry is whether Plaintiff has\n\nstated a “plausible claim for relief” under the FDCPA. Ashcroft v. Iqbal, 556 U.S.\n\n662, 679 (2009). If he has, then the district court’s order dismissing Plaintiff’s\n\nFDCPA claims must be reversed and the Florida Act claim must be reinstated. See\n\nid.; 28 U.S.C. § 1367(a) (granting district courts supplemental jurisdiction over all\n\nclaims that are “so related to claims in the action within [the] original jurisdiction\n\n[of the court] that they form part of the same case or controversy under Article\n\nIII”).\n\nII. Plaintiff’s FDCPA Claims\n\n The FDCPA protects consumers from abusive debt collection practices by\n\nregulating the conduct of debt collectors. See Crawford v. LVNV Funding LLC,\n\n 7\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 8 of 20\n\n\n758 F.3d 1254, 1257 (11th Cir. 2014) (noting that “Congress passed the FDCPA in\n\n1977 to stop the use of abusive, deceptive, and unfair debt collection practices by\n\nmany debt collectors” (internal quotation marks omitted)). To enforce its\n\nprovisions, the FDCPA provides consumers with a private right of action against\n\ndebt collectors who violate the Act. See id. at 1258. Assuming Plaintiff’s\n\nallegations are true, Defendants qualify as debt collectors for purposes of the\n\nFDCPA and are thus subject to the Act’s regulations. See 15 U.S.C. § 1692a(6)\n\n(defining “debt collector” to include “any person who . . . regularly collects or\n\nattempts to collect, directly or indirectly, debts owed or due or asserted to be owed\n\nor due another”).\n\n As noted, Plaintiff alleges (1) that the collection letter he received from\n\nDefendants was “false, deceptive, or misleading” in violation of § 1692e of the\n\nFDCPA and (2) that attempting to collect on Plaintiff’s time-barred debt via the\n\nletter constituted an “unfair or unconscionable” debt collection practice in violation\n\nof § 1692f the FDCPA. The relevant inquiry at this stage of the litigation is\n\nwhether Plaintiff has alleged a plausible violation of either provision. See Iqbal,\n\n556 U.S. at 679. To determine whether that is so, we apply the “least-sophisticated\n\nconsumer” standard. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193,\n\n1201 (11th Cir. 2010) (explaining that the least-sophisticated consumer standard\n\napplies to determine whether a debt collector has violated §§ 1692e or 1692f of the\n\n 8\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 9 of 20\n\n\nFDCPA). Under that standard, a debt collector violates § 1692e by making a\n\nrepresentation in a collection letter that would be deceptive or misleading to the\n\n“least sophisticated” recipient of the letter. See id. at 1193–95. Likewise, a\n\ncollection practice violates § 1692f if it would be unfair or unconscionable as\n\napplied to the “least sophisticated” debtor subjected to the practice. See id. at\n\n1201.\n\n The least-sophisticated consumer standard is intended to protect “all\n\nconsumers, the gullible as well as the shrewd.” Id. at 1194 (internal quotation\n\nmarks omitted). As such, the “least-sophisticated consumer” is presumed to have\n\nonly a “rudimentary amount of information about the world.” Id. Nevertheless, it\n\nis assumed that the least-sophisticated consumer will be “willing[] to read a\n\ncollection notice with some care.” LeBlanc, 601 F.3d at 1194 (internal quotation\n\nmarks omitted). Moreover, the least-sophisticated consumer standard “has an\n\nobjective component in that while protecting naive consumers, the standard also\n\nprevents liability for bizarre or idiosyncratic interpretations of collection notices by\n\npreserving a quotient of reasonableness.” Id. (internal quotation marks omitted).\n\nFinally, whether a representation made in a collection letter would be deceptive or\n\nmisleading to the least-sophisticated consumer, or a collection practice would be\n\nunfair or unconscionable when applied to the least-sophisticated consumer,\n\ngenerally is a question of fact to be decided by a jury. See id. at 1195, 1201.\n\n 9\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 10 of 20\n\n\n A. The collection letter Plaintiff received plausibly could be\n misleading or deceptive to the “least sophisticated consumer” in\n violation of § 1692e.\n\n Section 1692e of the FDCPA states that: “A debt collector may not use any\n\nfalse, deceptive, or misleading representation or means in connection with the\n\ncollection of any debt.” 15 U.S.C. § 1692e. It then provides a non-exhaustive list\n\nof specific conduct that is prohibited, including: (1) falsely representing “the\n\ncharacter, amount, or legal status of any debt” and (2) threatening “any action that\n\ncannot legally be taken or that is not intended to be taken.” Id. § 1692e(2)(A), (5).\n\nThere is no question that these provisions prohibit a debt collector from suing or\n\nthreatening to sue on a time-barred debt, and federal courts have uniformly so held.\n\nSee Crawford, 758 F.3d at 1259 (collecting cases). The question presented by this\n\ncase asks more specifically: to what extent does the above prohibition extend\n\nbeyond a threat to sue on a time-barred debt and encompass a potentially—albeit\n\nmore subtly—misleading offer to “resolve” such a debt when there is no\n\naccompanying disclosure that the debt is time-barred.\n\n This Court has not ruled on the above issue, and the appellate courts that\n\nhave done so have taken different approaches. In a case factually similar to this\n\none, the Third Circuit suggested that a threat of litigation is necessary to state a\n\nclaim under § 1692e. See Huertas, 641 F.3d at 33. The plaintiff in Huertas had\n\nreceived a collection letter notifying him that his defaulted debt had been\n\n 10\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 11 of 20\n\n\nreassigned and requesting him to call the debt collector to “resolve this issue.” See\n\nid. Although the letter did not make any overtly false representations, the plaintiff\n\nargued that it was misleading as to the legal enforceability of the referenced debt,\n\nthus violating § 1692e of the FDCPA. See id. at 32–33. The Huertas Court\n\ndismissed Plaintiff’s § 1692e claim, noting that the FDCPA generally permits a\n\ndebt collector to seek voluntary repayment of a time-barred debt so long as it does\n\nnot threaten legal action and concluding that “[e]ven the least sophisticated\n\nconsumer would not understand” the letter to “threaten litigation.” Id. at 33. The\n\nEighth Circuit similarly has indicated that a threat to sue is necessary to establish a\n\nviolation of § 1692e in this scenario. See Freyermuth, 248 F.3d at 771 (“[I]n the\n\nabsence of a threat of litigation or actual litigation, no violation of the FDCPA has\n\noccurred when a debt collector attempts to collect on a potentially time-barred debt\n\nthat is otherwise valid.”).\n\n In contrast to Huertas and Freyermuth, the Fifth, Sixth, and Seventh Circuits\n\ndisagree that a collection letter referencing a time-barred debt cannot violate the\n\nFDCPA absent an express threat of litigation. See Daugherty, 836 F.3d at 509;\n\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. In each of these\n\ncases, a debt collector sent a letter offering to “settle” the debtor’s account for a\n\npercentage of the total balance. Although technically accurate in every other\n\nrespect, each of these collection letters failed to disclose that the referenced debt\n\n 11\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 12 of 20\n\n\nwas, in fact, time-barred and thus legally unenforceable. Contrary to the result\n\nreached in Huertas and Freyermuth, the appellate courts in Daugherty, Buchanan,\n\nand McMahon held that the debtors had stated a claim under § 1692e of the\n\nFDCPA because an offer to “settle” a time-barred debt, without an accompanying\n\ndisclosure that the debt is judicially unenforceable, plausibly could mislead an\n\nunsophisticated consumer as to the legal unenforceability of the debt. See\n\nDaugherty, 836 F.3d at 511; Buchanan, 776 F.3d at 398–400; McMahon, 744 F.3d\n\nat 1020–21.\n\n In reaching this conclusion, the courts in Daugherty, Buchanan, and\n\nMcMahon recognized that, as a general matter, a creditor can seek voluntary\n\npayment of a time-barred debt. See Daugherty, 836 F.3d at 509 (observing that “it\n\nis not automatically unlawful for a debt collector to seek payment of a time-barred\n\ndebt”); Buchanan, 776 F.3d at 397 (“There . . . is nothing wrong with informing\n\ndebtors that a debt remains unpaid or . . . allowing them to satisfy the debt at a\n\ndiscount.”); McMahon, 744 F.3d at 1020 (“[S]ome people might consider full debt\n\nre-payment a moral obligation, even though the legal remedy for the debt has been\n\nextinguished.”). Nevertheless, a right to seek repayment does not confer a right to\n\nmislead. And each of these courts held that a collection letter offering to “settle” a\n\ntime-barred debt could give rise to a claim under § 1692e of the FDCPA, even in\n\nthe absence of an express threat of litigation. See Daugherty, 836 F.3d at 511;\n\n 12\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 13 of 20\n\n\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. Their reasoning is\n\nsummed up by the Fifth Circuit’s statement in Daugherty that:\n\n While it is not automatically unlawful for a debt collector to seek\n payment of a time-barred debt, a collection letter violates the FDCPA\n when its statements could mislead an unsophisticated consumer to\n believe that her time-barred debt is legally enforceable, regardless of\n whether litigation is threatened.\n\nDaugherty, 836 F.3d at 509.\n\n Further, notwithstanding its prior decision in Huertas, the Third Circuit\n\nrecently has adopted the rationale of Daugherty, Buchanan, and McMahon. See\n\nTatis v. Allied Interstate, LLC, 882 F.3d 422, 428–30 (3d Cir. 2018). The plaintiff\n\nin Tatis asserted a claim under § 1692e of the FDCPA based on a letter she\n\nreceived from a debt collector offering to settle a time-barred consumer debt, but\n\nfailing to disclose that the debt was legally unenforceable. See id. at 425. Relying\n\nprimarily on Huertas, the district court dismissed the claim pursuant to Rule\n\n12(b)(6) because the letter did not include a threat of legal action. See id. at 426.\n\nReversing and ruling based on the reasoning set forth in Daugherty, Buchanan, and\n\nMcMahon, the Third Circuit held that a collection letter “may run afoul of the\n\nFDCPA by misleading or deceiving debtors into believing they have a legal\n\nobligation to repay time-barred debts even when the letters do not threaten legal\n\naction.” Id. at 428. Explaining its implicit disavowal of Huertas, the Tatis court\n\nstated:\n\n 13\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 14 of 20\n\n\n Huertas stands for the proposition that debt collectors do not violate\n [the specific prohibition found in] 15 U.S.C. § 1692e(2)(A) when they\n seek voluntary repayment of stale debts, so long as they do not threaten\n or take legal action. But the FDCPA sweeps far more broadly than the\n specific provision found in § 1692e(2)(A). It prohibits “any false,\n deceptive, or misleading representation” associated with debt-\n collection practices.\n\nId. (emphasis in original). As to the FDCPA’s general prohibition of any false,\n\ndeceptive, or misleading representation, Tatis held that the plaintiff had established\n\na plausible violation by pleading that she had received a collection letter offering to\n\nsettle her debt but failing to disclose that this time-barred debt was legally\n\nunenforceable. Tatis, 882 F.3d at 430.\n\n We are persuaded by the reasoning of Daugherty, Buchanan, and\n\nMcMahon—and, most recently, Tatis. We likewise conclude that with regard to a\n\ncollection letter seeking payment on a time-barred debt, an express threat of\n\nlitigation is not required to state a claim for relief under § 1692e so long as one can\n\nreasonably infer an implicit threat. This holding finds support both in the plain\n\nlanguage of § 1692e and in a common-sense application of the least-sophisticated\n\nconsumer standard in the Rule 12(b)(6) context. See Tatis, 882 F.3d at 429\n\n(observing that “[c]ommon sense, our case law, and traditional tools of statutory\n\ninterpretation foreclose” a construction of the FDCPA to “require a threat of legal\n\naction” under these circumstances). As quoted above, § 1692e specifically\n\nprohibits a debt collector not only from threatening to take any action “that cannot\n\n 14\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 15 of 20\n\n\nlegally be taken” (i.e., threatening litigation on a time-barred debt) but also from\n\nmisrepresenting the “legal status” of a debt. 15 U.S.C. § 1692e(2)(A), (5). More\n\nbroadly, § 1692e prohibits a debt collector from making “any false, deceptive, or\n\nmisleading representation” in a collection letter. Id. § 1692e (emphasis added).\n\n In their motion to dismiss under Rule 12(b)(6), Defendants argue that, as a\n\nmatter of law, the particular representation at issue in the collection letter would\n\nnot mislead or deceive an unsophisticated consumer as to the legal status of, or the\n\nlegal ramifications of non-payment on, a time-barred debt. In examining this\n\nargument in a motion to dismiss context, the question is whether it is plausible that\n\na reasonable jury could find that this representation would so mislead an\n\nunsophisticated consumer. See Iqbal, 556 U.S. at 678 (“To survive a motion to\n\ndismiss, a complaint must contain sufficient factual matter, accepted as true, to\n\nstate a claim to relief that is plausible on its face.” (internal quotation marks\n\nomitted)); LeBlanc, 601 F.3d at 1195–97 (a court may decide this question as a\n\nmatter of law only if there is no basis for a reasonable jury to conclude that a\n\nconsumer would be deceived or misled). The language of the present collection\n\nletter contains an offer to “resolve” a time-barred debt, combined with a deadline\n\nto accept the reduced-payment offer and a warning that the offer might not be\n\nrenewed if payment is not timely made. We conclude that this language, taken in\n\n\n\n\n 15\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 16 of 20\n\n\nits entirety, could plausibly deceive or mislead an unsophisticated consumer as to\n\nthe legal status of the debt, even in the absence of an express threat of litigation.\n\n Further, we are not persuaded that this case is materially distinguishable\n\nfrom Daugherty, Buchanan, and McMahon merely because the letter Plaintiff\n\nreceived offers to “resolve” the referenced time-barred debt rather than “settle” it.\n\nDespite the slight semantic difference, it still is plausible that the letter Plaintiff\n\nreceived would leave an unsophisticated consumer with the same general—and\n\ninaccurate—impression as did the letters at issue in Daugherty, McMahon, and\n\nBuchanan. That is, by urging the debtor to “take advantage” of the offer, the letter\n\nmight have caused an unsophisticated consumer to mistakenly believe that the debt\n\nwas legally enforceable and that he had something to gain by accepting the offer,\n\nor to lose by declining it. In fact, the letter reinforces this impression by\n\nannouncing a deadline, thus creating some urgency for the debtor to accept the\n\noffered terms by making payment. In this regard, the letter states that payment\n\n“must be received in our office no later than 5/31/2015” and that Defendants are\n\n“not obligated to renew” the offer. As Plaintiff points out, an unsophisticated\n\nreader might conclude from this language that he is being presented with an\n\nultimatum, and that failure to make payment within the required time frame would\n\nresult in negative consequences, such as legal action.\n\n\n\n\n 16\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 17 of 20\n\n\n Finally, we disagree that our holding in this case will require debt collectors\n\nto give legal advice to debtors, as Defendants argue. Essentially, Defendants argue\n\nthat by permitting Plaintiff’s case to go beyond the pleading stage, we put debt\n\ncollectors in the untenable position of having to analyze and advise debtors as to\n\nthe merits of any potential statute of limitations defense. Whether or not that\n\nconcern might be valid in some situations, the suggestion that Defendants would\n\nhave had to conduct any legal analysis to determine whether the debt in this case\n\nwas time-barred seems a bit disingenuous. After all, Defendants were aware of the\n\nstatus of Plaintiff’s debt when they purchased it, presumably at a heavily\n\ndiscounted price that accounted for the fact that its legal enforcement is barred by\n\nthe statute of limitations. But in any event, the court in Buchanan specifically and\n\nadequately addressed the concern raised by Defendants, explaining that:\n\n [I]f a debt collector is unsure about the applicable statute of limitations,\n it would be easy to include general language about that possibility,\n correcting any possible misimpression by unsophisticated consumers\n without venturing into the realm of legal advice.\n\nBuchanan, 776 F.3d at 400 (internal quotation marks and citation omitted). And in\n\nfact, Defendant LVNV has, subsequent to the letter it sent to Plaintiff in this case,\n\nincorporated such language into its collection letters. See Shields v. J.C.\n\nChristensen & Assoc., Inc., 2017 WL 1106085, at *1 (S.D. Ind. Mar. 24, 2017)\n\n(quoting the following language from a recent LVNV collection letter: “The law\n\nlimits how long you can be sued on a debt. Because of the age of your debt,\n 17\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 18 of 20\n\n\nLVNV Funding LLC will not sue you for it, and LVNV Funding LLC will not\n\nreport it to any credit reporting agency.” (internal quotation marks omitted)).\n\n In short, it is at least plausible that the collection letter Defendants sent to\n\nPlaintiff would have been “false, deceptive, or misleading” to the “least\n\nsophisticated” recipient of the letter, in violation of § 1692e of the FDCPA. As\n\nPlaintiff has thus stated a claim for relief under § 1692e of the FDCPA, the district\n\ncourt’s order dismissing Plaintiff’s § 1692e claim pursuant to Rule 12(b)(6) is\n\nREVERSED.\n\n B. Attempting to collect on time-barred debt is not a per se unfair or\n unconscionable practice that automatically violates § 1692f of the\n FDCPA.\n\n Although we find that Plaintiff has stated a plausible claim that Defendants’\n\ncollection letter was misleading under § 1692e, we reject Plaintiff’s claim that the\n\ngeneral practice of attempting to collect on time-barred debt is per se unfair or\n\nunconscionable in violation of 1692f of the FDCPA. The only legal support\n\nPlaintiff offers for this argument is the Seventh Circuit’s recent opinion in Pantoja\n\nv. Portfolio Recovery Associates, LLC, 852 F.3d 679, 684 (7th Cir. 2017). In\n\nPantoja, the Seventh Circuit reiterated its decision in McMahon that an\n\nunsophisticated consumer could potentially be misled by a letter seeking collection\n\non a time-barred debt. See id. Then, thinking out loud, the court briefly expressed\n\nsome thoughts about the practice of collecting on time-barred debt, observing that:\n\n 18\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 19 of 20\n\n\n [T]he opportunities for mischief and deception, particularly when\n sophisticated parties aim carefully crafted messages at unsophisticated\n consumers, may well be so great that the better approach is simply to\n find that any such efforts violate the FDCPA’s prohibitions on\n deceptive or misleading means to collect debts, § 1692e, and on “unfair\n or unconscionable means” to attempt to collect debts, § 1692f.\n\nId. Ultimately, however, the Pantoja Court never articulated such a general\n\nprohibition, noting that: (1) the plaintiff had not argued for it and (2) the case\n\ncould be decided on narrower grounds. Id.\n\n The Seventh Circuit’s observations in Pantoja notwithstanding, courts\n\ngenerally have recognized that the FDCPA does not impose a bright-line rule\n\nprohibiting debt collectors from attempting to collect on time-barred debt. See\n\nDaugherty, 836 F.3d at 509 (noting that “it is not automatically unlawful for a debt\n\ncollector to seek payment of a time-barred debt”); Buchanan, 776 F.3d at 397\n\n(“Legal defenses are not moral defenses, however. And a creditor remains free, in\n\nthe absence of a bankruptcy order or something comparable preventing it from\n\ntrying to collect the debt, to let the debtor know what the debt is and to ask her to\n\npay it.”). Pantoja does not offer adequate justification for upending that general\n\nrule, nor does Plaintiff suggest any alternative ground for finding that Defendants\n\nengaged in an “unfair or unconscionable” debt collection practice in violation of\n\n§ 1692f of the FDCPA. Accordingly, the Court affirms the district court’s\n\ndismissal of Plaintiff’s claim under § 1692f.\n\n\n\n 19\n\f Case: 16-16511 Date Filed: 04/05/2019 Page: 20 of 20\n\n\nIII. Plaintiff’s Florida Act Claim\n\n The district court did not dismiss Plaintiff’s Florida claim on substantive\n\ngrounds, but rather declined to exercise pendent jurisdiction over it after\n\ndismissing Plaintiff’s federal FDCPA claims. In light of the Court’s reversal of the\n\nruling as to Plaintiff’s claim under § 1692e of the FDCPA, Plaintiff’s Florida claim\n\nshould be reinstated for consideration on the merits. See 28 U.S.C. § 1367(a)\n\n(“[T]he district courts shall have supplemental jurisdiction over all other claims\n\nthat are so related to claims in the action within such original jurisdiction that they\n\nform part of the same case or controversy under Article III of the United States\n\nConstitution.”).\n\n CONCLUSION\n\n For the foregoing reasons, we AFFIRM in part and REVERSE in part the\n\ndistrict court’s ruling dismissing Plaintiff’s FDCPA claims pursuant to Rule\n\n12(b)(6) and declining to exercise jurisdiction over Plaintiff’s Florida Act claim.\n\nThe case is REMANDED to the district court for further proceedings consistent\n\nwith this opinion.\n\n\n\n\n 20\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Stephen HOLZMAN, Plaintiff-Appellant, v. MALCOLM S. GERALD & ASSOCIATES, INC., LVNV Funding, LLC, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-16511 Date Filed: 04/05/2019 Page: 1 of 20\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16511\\n ________________________\\n\\n D.C. Docket No. 9:16-cv-80643-RLR\\n\\n\\n\\nSTEPHEN HOLZMAN,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\n\\n\\nMALCOLM S. GERALD & ASSOCIATES, INC.,\\nLVNV FUNDING, LLC,\\n\\n\\n\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 2 of 20\\n\\n\\nBefore TJOFLAT, JULIE CARNES, Circuit Judges, and KAPLAN, * District\\nJudge.\\n\\nJULIE CARNES, Circuit Judge:\\n\\n Plaintiff asserts claims under the federal Fair Debt Collection Practices Act\\n\\n(“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection\\n\\nPractices Act (“Florida Act”), Florida Statute § 559.55 et seq., arising from an\\n\\nattempt by Defendants to collect on Plaintiff’s time-barred consumer debt. As to\\n\\nhis federal claims, Plaintiff alleges in his complaint that (1) a collection letter he\\n\\nreceived from Defendants in connection with the debt was “false, deceptive, or\\n\\nmisleading” in violation of § 1692e of the FDCPA and (2) the general practice of\\n\\nattempting to collect on time-barred consumer debts is “unfair or unconscionable”\\n\\nin violation of § 1692f of the FDCPA. As to the claim under Florida law, Plaintiff\\n\\ncontends that by sending the collection letter, Defendants violated the Florida\\n\\nAct’s prohibition against asserting a legal right that is known not to exist.\\n\\n Defendants filed a motion to dismiss Plaintiff’s FDCPA claims pursuant to\\n\\nFederal Rule 12(b)(6). The district court granted the motion, agreeing with\\n\\nDefendants that their collection efforts did not violate either § 1692e or § 1692f of\\n\\nthat statute. Having dismissed Plaintiff’s federal claims, the court declined to\\n\\nexercise jurisdiction over Plaintiff’s Florida Act claims. After a careful review of\\n\\n*\\n Honorable Lewis A. Kaplan, Senior United States District Judge for the Southern District of\\nNew York, sitting by designation.\\n\\n 2\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 3 of 20\\n\\n\\nthe record, and with the benefit of oral argument, we REVERSE the district\\n\\ncourt’s order dismissing Plaintiff’s claim under § 1692e of the FDCPA, but\\n\\nAFFIRM the court’s order dismissing Plaintiff’s claim under § 1692f of that same\\n\\nstatute. Given our ruling on Plaintiff’s § 1692e FDCPA claim, we reinstate\\n\\nPlaintiff’s Florida Act claim and REMAND the case to the district court for further\\n\\nproceedings consistent with this opinion.\\n\\n BACKGROUND\\n\\n Defendant LVNV Funding, LLC (“LVNV”) is a debt collector that\\n\\npurchases and attempts to collect on time-barred debts. In 2015, LVNV purchased\\n\\nsuch a debt, which had been incurred by Plaintiff on a personal credit card years\\n\\nprior and had subsequently been charged off by the original creditor in 2007.\\n\\nLVNV retained Defendant Malcolm Gerald & Associates (“Malcolm”) to collect\\n\\nthe debt on LVNV’s behalf. Like LVNV, Malcolm is a debt collector for purposes\\n\\nof the federal and state statutes at issue in this litigation.\\n\\n In connection with its collection efforts, Malcolm sent Plaintiff a collection\\n\\nletter that reads, in relevant part:\\n\\n Original Creditor: HSBC BANK NEVADA, N.A.\\n\\n BALANCE DUE: $869.51\\n\\n Charge Off Date: 07/31/2007\\n\\n Balance Itemization\\n\\n 3\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 4 of 20\\n\\n\\n\\n\\n Principal Balance: $615.41\\n\\n Interest Balance: $254.10\\n\\n Please be advised that LVNV FUNDING LLC, the Current\\n Creditor-Debt Purchaser has purchased the account referenced\\n above. LVNV FUNDING LLC has placed your account with us\\n for collection.\\n\\n Malcolm S. Gerald and Associates wants to help you resolve\\n your delinquent account with LVNV FUNDING LLC. We\\n would like to offer you a balance reduction to 30% of the balance\\n due listed above. We will be able to accept $260.85 as a reduced\\n payment in full on your account. To take advantage of this offer,\\n the reduced amount listed must be received in our office no later\\n than 05/31/2015. We are not obligated to renew this offer.\\n\\n This communication is from a debt collector. This is an attempt\\n to collect a debt. Any information obtained will be used for this\\n purpose.\\n\\n Make check payable to: Malcolm S. Gerald and Associates, Inc.\\n If you would like to pay online, you may do so at\\n https://msgpayments.com\\n\\n After receiving this collection letter, Plaintiff filed a putative class action\\n\\ncomplaint against Defendants asserting federal claims under the FDCPA, 15\\n\\nU.S.C. § 1692 et seq., and its state corollary, the Florida Consumer Collection\\n\\nPractices Act, Florida Statute § 559.55 et seq. In support of his FDCPA claims,\\n\\nPlaintiff alleged that (1) the letter was “false, deceptive, or misleading” in violation\\n\\nof § 1692e of the FDCPA because it could lead a consumer to believe that there\\n\\nwere legal consequences to not making the requested payment when, in fact, the\\n\\n 4\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 5 of 20\\n\\n\\nstatute of limitations barred legal enforcement of the debt and (2) attempting to\\n\\ncollect on Plaintiff’s time-barred debt via the letter constituted an “unfair or\\n\\nunconscionable” practice in violation of § 1692f of the FDCPA. Plaintiff further\\n\\nalleged that the letter violated the Florida Act because it falsely asserted a legal\\n\\nright that Defendants knew did not exist.\\n\\n Defendants moved to dismiss Plaintiff’s complaint pursuant to Federal Rule\\n\\n12(b)(6). In an oral ruling and following a hearing on the motion, the district court\\n\\ndismissed Plaintiff’s FDCPA claims with prejudice. In support of its ruling, the\\n\\ncourt cited Freyermuth v. Credit Bureau Services, Inc., 248 F.3d 767 (8th Cir.\\n\\n2001), Huertas v. Galaxy Asset Management, 641 F.3d 28 (3d Cir. 2011), and\\n\\nEhrich v. Convergent Outsourcing, Inc., 2015 WL 6470453 (S.D. Fla. Oct. 28,\\n\\n2015) for the legal principle that: “the FDCPA permits debt collector[s] to see[k]\\n\\nvoluntary repayment of . . . time-barred debt so long as the debt collector does not\\n\\ninitiate or threaten legal action in connection with its debt collection efforts.” The\\n\\ncourt determined that the letter Plaintiff received did not contain any language that\\n\\ncould be interpreted as initiating or threatening legal action. Thus, accepting the\\n\\nlegal principle announced in Freyermuth, Huertas, and Ehrich, the court concluded\\n\\nthat Plaintiff’s allegations did not assert a plausible violation of the FDCPA.\\n\\n In so ruling, the district court distinguished Daugherty v. Convergent\\n\\nOutsourcing, Inc., 836 F.3d 507 (5th Cir. 2016), Buchanan v. Northland Group.,\\n\\n 5\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 6 of 20\\n\\n\\nInc., 776 F.3d 393 (6th Cir. 2015), and McMahon v. LVNV Funding, LLC, 744\\n\\nF.3d 1010 (7th Cir. 2014), in which the Fifth, Sixth, and Seventh Circuits,\\n\\nrespectively, held that a collection letter offering to “settle” a time-barred debt, but\\n\\nnot threatening litigation, could nonetheless serve as the basis for an FDCPA\\n\\nclaim. The district court noted that the collection letter Plaintiff received offered to\\n\\n“resolve” his time-barred debt, not “settle” it. According to the court, the “settle”\\n\\nlanguage used in the letters at issue in Daugherty, Buchanan, and McMahon was\\n\\nmore akin to a threat of legal action than the “resolve” language used in the letter\\n\\nPlaintiff received. Consequently, the court determined that Plaintiff could not state\\n\\na viable FDCPA claim under the rationale of Daugherty, Buchanan, or McMahon.\\n\\n Having dismissed Plaintiff’s FDCPA claims, the district court declined to\\n\\nexercise pendant jurisdiction over Plaintiff’s Florida Act claim. The court thus\\n\\ndismissed this claim without prejudice.\\n\\n Plaintiff appeals the dismissal of his FDCPA and Florida Act claims. As\\n\\nnoted, Plaintiff argues that he has presented a plausible claim that the collection\\n\\nletter he received from Defendants was “false, deceptive, or misleading” in\\n\\nviolation of § 1692e of the FDCPA, given that the debt referenced in the letter was\\n\\nlegally unenforceable. In addition, Plaintiff argues that the general practice of\\n\\nattempting to collect time-barred consumer debts is per se “unfair or\\n\\nunconscionable” in violation of § 1692f of the FDCPA. Assuming his federal\\n\\n 6\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 7 of 20\\n\\n\\nclaims are revived pursuant to either argument, Plaintiff asserts that his state claim\\n\\nshould be reinstated and addressed on the merits.\\n\\n DISCUSSION\\n\\nI. Standard of Review\\n\\n We review the decision to dismiss Plaintiff’s complaint pursuant to Rule\\n\\n12(b)(6) de novo, applying the same standard as the district court. See West v.\\n\\nWarden, Comm’r, Ala. Dep’t of Corr., 869 F.3d 1289, 1296 (11th Cir. 2017). In\\n\\nconducting our review, we accept the allegations in Plaintiff’s complaint as true\\n\\nand we construe the facts in the light most favorable to his claims. See id.\\n\\nViewing the complaint in that manner, the relevant inquiry is whether Plaintiff has\\n\\nstated a “plausible claim for relief” under the FDCPA. Ashcroft v. Iqbal, 556 U.S.\\n\\n662, 679 (2009). If he has, then the district court’s order dismissing Plaintiff’s\\n\\nFDCPA claims must be reversed and the Florida Act claim must be reinstated. See\\n\\nid.; 28 U.S.C. § 1367(a) (granting district courts supplemental jurisdiction over all\\n\\nclaims that are “so related to claims in the action within [the] original jurisdiction\\n\\n[of the court] that they form part of the same case or controversy under Article\\n\\nIII”).\\n\\nII. Plaintiff’s FDCPA Claims\\n\\n The FDCPA protects consumers from abusive debt collection practices by\\n\\nregulating the conduct of debt collectors. See Crawford v. LVNV Funding LLC,\\n\\n 7\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 8 of 20\\n\\n\\n758 F.3d 1254, 1257 (11th Cir. 2014) (noting that “Congress passed the FDCPA in\\n\\n1977 to stop the use of abusive, deceptive, and unfair debt collection practices by\\n\\nmany debt collectors” (internal quotation marks omitted)). To enforce its\\n\\nprovisions, the FDCPA provides consumers with a private right of action against\\n\\ndebt collectors who violate the Act. See id. at 1258. Assuming Plaintiff’s\\n\\nallegations are true, Defendants qualify as debt collectors for purposes of the\\n\\nFDCPA and are thus subject to the Act’s regulations. See 15 U.S.C. § 1692a(6)\\n\\n(defining “debt collector” to include “any person who . . . regularly collects or\\n\\nattempts to collect, directly or indirectly, debts owed or due or asserted to be owed\\n\\nor due another”).\\n\\n As noted, Plaintiff alleges (1) that the collection letter he received from\\n\\nDefendants was “false, deceptive, or misleading” in violation of § 1692e of the\\n\\nFDCPA and (2) that attempting to collect on Plaintiff’s time-barred debt via the\\n\\nletter constituted an “unfair or unconscionable” debt collection practice in violation\\n\\nof § 1692f the FDCPA. The relevant inquiry at this stage of the litigation is\\n\\nwhether Plaintiff has alleged a plausible violation of either provision. See Iqbal,\\n\\n556 U.S. at 679. To determine whether that is so, we apply the “least-sophisticated\\n\\nconsumer” standard. See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193,\\n\\n1201 (11th Cir. 2010) (explaining that the least-sophisticated consumer standard\\n\\napplies to determine whether a debt collector has violated §§ 1692e or 1692f of the\\n\\n 8\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 9 of 20\\n\\n\\nFDCPA). Under that standard, a debt collector violates § 1692e by making a\\n\\nrepresentation in a collection letter that would be deceptive or misleading to the\\n\\n“least sophisticated” recipient of the letter. See id. at 1193–95. Likewise, a\\n\\ncollection practice violates § 1692f if it would be unfair or unconscionable as\\n\\napplied to the “least sophisticated” debtor subjected to the practice. See id. at\\n\\n1201.\\n\\n The least-sophisticated consumer standard is intended to protect “all\\n\\nconsumers, the gullible as well as the shrewd.” Id. at 1194 (internal quotation\\n\\nmarks omitted). As such, the “least-sophisticated consumer” is presumed to have\\n\\nonly a “rudimentary amount of information about the world.” Id. Nevertheless, it\\n\\nis assumed that the least-sophisticated consumer will be “willing[] to read a\\n\\ncollection notice with some care.” LeBlanc, 601 F.3d at 1194 (internal quotation\\n\\nmarks omitted). Moreover, the least-sophisticated consumer standard “has an\\n\\nobjective component in that while protecting naive consumers, the standard also\\n\\nprevents liability for bizarre or idiosyncratic interpretations of collection notices by\\n\\npreserving a quotient of reasonableness.” Id. (internal quotation marks omitted).\\n\\nFinally, whether a representation made in a collection letter would be deceptive or\\n\\nmisleading to the least-sophisticated consumer, or a collection practice would be\\n\\nunfair or unconscionable when applied to the least-sophisticated consumer,\\n\\ngenerally is a question of fact to be decided by a jury. See id. at 1195, 1201.\\n\\n 9\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 10 of 20\\n\\n\\n A. The collection letter Plaintiff received plausibly could be\\n misleading or deceptive to the “least sophisticated consumer” in\\n violation of § 1692e.\\n\\n Section 1692e of the FDCPA states that: “A debt collector may not use any\\n\\nfalse, deceptive, or misleading representation or means in connection with the\\n\\ncollection of any debt.” 15 U.S.C. § 1692e. It then provides a non-exhaustive list\\n\\nof specific conduct that is prohibited, including: (1) falsely representing “the\\n\\ncharacter, amount, or legal status of any debt” and (2) threatening “any action that\\n\\ncannot legally be taken or that is not intended to be taken.” Id. § 1692e(2)(A), (5).\\n\\nThere is no question that these provisions prohibit a debt collector from suing or\\n\\nthreatening to sue on a time-barred debt, and federal courts have uniformly so held.\\n\\nSee Crawford, 758 F.3d at 1259 (collecting cases). The question presented by this\\n\\ncase asks more specifically: to what extent does the above prohibition extend\\n\\nbeyond a threat to sue on a time-barred debt and encompass a potentially—albeit\\n\\nmore subtly—misleading offer to “resolve” such a debt when there is no\\n\\naccompanying disclosure that the debt is time-barred.\\n\\n This Court has not ruled on the above issue, and the appellate courts that\\n\\nhave done so have taken different approaches. In a case factually similar to this\\n\\none, the Third Circuit suggested that a threat of litigation is necessary to state a\\n\\nclaim under § 1692e. See Huertas, 641 F.3d at 33. The plaintiff in Huertas had\\n\\nreceived a collection letter notifying him that his defaulted debt had been\\n\\n 10\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 11 of 20\\n\\n\\nreassigned and requesting him to call the debt collector to “resolve this issue.” See\\n\\nid. Although the letter did not make any overtly false representations, the plaintiff\\n\\nargued that it was misleading as to the legal enforceability of the referenced debt,\\n\\nthus violating § 1692e of the FDCPA. See id. at 32–33. The Huertas Court\\n\\ndismissed Plaintiff’s § 1692e claim, noting that the FDCPA generally permits a\\n\\ndebt collector to seek voluntary repayment of a time-barred debt so long as it does\\n\\nnot threaten legal action and concluding that “[e]ven the least sophisticated\\n\\nconsumer would not understand” the letter to “threaten litigation.” Id. at 33. The\\n\\nEighth Circuit similarly has indicated that a threat to sue is necessary to establish a\\n\\nviolation of § 1692e in this scenario. See Freyermuth, 248 F.3d at 771 (“[I]n the\\n\\nabsence of a threat of litigation or actual litigation, no violation of the FDCPA has\\n\\noccurred when a debt collector attempts to collect on a potentially time-barred debt\\n\\nthat is otherwise valid.”).\\n\\n In contrast to Huertas and Freyermuth, the Fifth, Sixth, and Seventh Circuits\\n\\ndisagree that a collection letter referencing a time-barred debt cannot violate the\\n\\nFDCPA absent an express threat of litigation. See Daugherty, 836 F.3d at 509;\\n\\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. In each of these\\n\\ncases, a debt collector sent a letter offering to “settle” the debtor’s account for a\\n\\npercentage of the total balance. Although technically accurate in every other\\n\\nrespect, each of these collection letters failed to disclose that the referenced debt\\n\\n 11\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 12 of 20\\n\\n\\nwas, in fact, time-barred and thus legally unenforceable. Contrary to the result\\n\\nreached in Huertas and Freyermuth, the appellate courts in Daugherty, Buchanan,\\n\\nand McMahon held that the debtors had stated a claim under § 1692e of the\\n\\nFDCPA because an offer to “settle” a time-barred debt, without an accompanying\\n\\ndisclosure that the debt is judicially unenforceable, plausibly could mislead an\\n\\nunsophisticated consumer as to the legal unenforceability of the debt. See\\n\\nDaugherty, 836 F.3d at 511; Buchanan, 776 F.3d at 398–400; McMahon, 744 F.3d\\n\\nat 1020–21.\\n\\n In reaching this conclusion, the courts in Daugherty, Buchanan, and\\n\\nMcMahon recognized that, as a general matter, a creditor can seek voluntary\\n\\npayment of a time-barred debt. See Daugherty, 836 F.3d at 509 (observing that “it\\n\\nis not automatically unlawful for a debt collector to seek payment of a time-barred\\n\\ndebt”); Buchanan, 776 F.3d at 397 (“There . . . is nothing wrong with informing\\n\\ndebtors that a debt remains unpaid or . . . allowing them to satisfy the debt at a\\n\\ndiscount.”); McMahon, 744 F.3d at 1020 (“[S]ome people might consider full debt\\n\\nre-payment a moral obligation, even though the legal remedy for the debt has been\\n\\nextinguished.”). Nevertheless, a right to seek repayment does not confer a right to\\n\\nmislead. And each of these courts held that a collection letter offering to “settle” a\\n\\ntime-barred debt could give rise to a claim under § 1692e of the FDCPA, even in\\n\\nthe absence of an express threat of litigation. See Daugherty, 836 F.3d at 511;\\n\\n 12\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 13 of 20\\n\\n\\nBuchanan, 776 F.3d at 399–400; McMahon, 744 F.3d at 1020. Their reasoning is\\n\\nsummed up by the Fifth Circuit’s statement in Daugherty that:\\n\\n While it is not automatically unlawful for a debt collector to seek\\n payment of a time-barred debt, a collection letter violates the FDCPA\\n when its statements could mislead an unsophisticated consumer to\\n believe that her time-barred debt is legally enforceable, regardless of\\n whether litigation is threatened.\\n\\nDaugherty, 836 F.3d at 509.\\n\\n Further, notwithstanding its prior decision in Huertas, the Third Circuit\\n\\nrecently has adopted the rationale of Daugherty, Buchanan, and McMahon. See\\n\\nTatis v. Allied Interstate, LLC, 882 F.3d 422, 428–30 (3d Cir. 2018). The plaintiff\\n\\nin Tatis asserted a claim under § 1692e of the FDCPA based on a letter she\\n\\nreceived from a debt collector offering to settle a time-barred consumer debt, but\\n\\nfailing to disclose that the debt was legally unenforceable. See id. at 425. Relying\\n\\nprimarily on Huertas, the district court dismissed the claim pursuant to Rule\\n\\n12(b)(6) because the letter did not include a threat of legal action. See id. at 426.\\n\\nReversing and ruling based on the reasoning set forth in Daugherty, Buchanan, and\\n\\nMcMahon, the Third Circuit held that a collection letter “may run afoul of the\\n\\nFDCPA by misleading or deceiving debtors into believing they have a legal\\n\\nobligation to repay time-barred debts even when the letters do not threaten legal\\n\\naction.” Id. at 428. Explaining its implicit disavowal of Huertas, the Tatis court\\n\\nstated:\\n\\n 13\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 14 of 20\\n\\n\\n Huertas stands for the proposition that debt collectors do not violate\\n [the specific prohibition found in] 15 U.S.C. § 1692e(2)(A) when they\\n seek voluntary repayment of stale debts, so long as they do not threaten\\n or take legal action. But the FDCPA sweeps far more broadly than the\\n specific provision found in § 1692e(2)(A). It prohibits “any false,\\n deceptive, or misleading representation” associated with debt-\\n collection practices.\\n\\nId. (emphasis in original). As to the FDCPA’s general prohibition of any false,\\n\\ndeceptive, or misleading representation, Tatis held that the plaintiff had established\\n\\na plausible violation by pleading that she had received a collection letter offering to\\n\\nsettle her debt but failing to disclose that this time-barred debt was legally\\n\\nunenforceable. Tatis, 882 F.3d at 430.\\n\\n We are persuaded by the reasoning of Daugherty, Buchanan, and\\n\\nMcMahon—and, most recently, Tatis. We likewise conclude that with regard to a\\n\\ncollection letter seeking payment on a time-barred debt, an express threat of\\n\\nlitigation is not required to state a claim for relief under § 1692e so long as one can\\n\\nreasonably infer an implicit threat. This holding finds support both in the plain\\n\\nlanguage of § 1692e and in a common-sense application of the least-sophisticated\\n\\nconsumer standard in the Rule 12(b)(6) context. See Tatis, 882 F.3d at 429\\n\\n(observing that “[c]ommon sense, our case law, and traditional tools of statutory\\n\\ninterpretation foreclose” a construction of the FDCPA to “require a threat of legal\\n\\naction” under these circumstances). As quoted above, § 1692e specifically\\n\\nprohibits a debt collector not only from threatening to take any action “that cannot\\n\\n 14\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 15 of 20\\n\\n\\nlegally be taken” (i.e., threatening litigation on a time-barred debt) but also from\\n\\nmisrepresenting the “legal status” of a debt. 15 U.S.C. § 1692e(2)(A), (5). More\\n\\nbroadly, § 1692e prohibits a debt collector from making “any false, deceptive, or\\n\\nmisleading representation” in a collection letter. Id. § 1692e (emphasis added).\\n\\n In their motion to dismiss under Rule 12(b)(6), Defendants argue that, as a\\n\\nmatter of law, the particular representation at issue in the collection letter would\\n\\nnot mislead or deceive an unsophisticated consumer as to the legal status of, or the\\n\\nlegal ramifications of non-payment on, a time-barred debt. In examining this\\n\\nargument in a motion to dismiss context, the question is whether it is plausible that\\n\\na reasonable jury could find that this representation would so mislead an\\n\\nunsophisticated consumer. See Iqbal, 556 U.S. at 678 (“To survive a motion to\\n\\ndismiss, a complaint must contain sufficient factual matter, accepted as true, to\\n\\nstate a claim to relief that is plausible on its face.” (internal quotation marks\\n\\nomitted)); LeBlanc, 601 F.3d at 1195–97 (a court may decide this question as a\\n\\nmatter of law only if there is no basis for a reasonable jury to conclude that a\\n\\nconsumer would be deceived or misled). The language of the present collection\\n\\nletter contains an offer to “resolve” a time-barred debt, combined with a deadline\\n\\nto accept the reduced-payment offer and a warning that the offer might not be\\n\\nrenewed if payment is not timely made. We conclude that this language, taken in\\n\\n\\n\\n\\n 15\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 16 of 20\\n\\n\\nits entirety, could plausibly deceive or mislead an unsophisticated consumer as to\\n\\nthe legal status of the debt, even in the absence of an express threat of litigation.\\n\\n Further, we are not persuaded that this case is materially distinguishable\\n\\nfrom Daugherty, Buchanan, and McMahon merely because the letter Plaintiff\\n\\nreceived offers to “resolve” the referenced time-barred debt rather than “settle” it.\\n\\nDespite the slight semantic difference, it still is plausible that the letter Plaintiff\\n\\nreceived would leave an unsophisticated consumer with the same general—and\\n\\ninaccurate—impression as did the letters at issue in Daugherty, McMahon, and\\n\\nBuchanan. That is, by urging the debtor to “take advantage” of the offer, the letter\\n\\nmight have caused an unsophisticated consumer to mistakenly believe that the debt\\n\\nwas legally enforceable and that he had something to gain by accepting the offer,\\n\\nor to lose by declining it. In fact, the letter reinforces this impression by\\n\\nannouncing a deadline, thus creating some urgency for the debtor to accept the\\n\\noffered terms by making payment. In this regard, the letter states that payment\\n\\n“must be received in our office no later than 5/31/2015” and that Defendants are\\n\\n“not obligated to renew” the offer. As Plaintiff points out, an unsophisticated\\n\\nreader might conclude from this language that he is being presented with an\\n\\nultimatum, and that failure to make payment within the required time frame would\\n\\nresult in negative consequences, such as legal action.\\n\\n\\n\\n\\n 16\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 17 of 20\\n\\n\\n Finally, we disagree that our holding in this case will require debt collectors\\n\\nto give legal advice to debtors, as Defendants argue. Essentially, Defendants argue\\n\\nthat by permitting Plaintiff’s case to go beyond the pleading stage, we put debt\\n\\ncollectors in the untenable position of having to analyze and advise debtors as to\\n\\nthe merits of any potential statute of limitations defense. Whether or not that\\n\\nconcern might be valid in some situations, the suggestion that Defendants would\\n\\nhave had to conduct any legal analysis to determine whether the debt in this case\\n\\nwas time-barred seems a bit disingenuous. After all, Defendants were aware of the\\n\\nstatus of Plaintiff’s debt when they purchased it, presumably at a heavily\\n\\ndiscounted price that accounted for the fact that its legal enforcement is barred by\\n\\nthe statute of limitations. But in any event, the court in Buchanan specifically and\\n\\nadequately addressed the concern raised by Defendants, explaining that:\\n\\n [I]f a debt collector is unsure about the applicable statute of limitations,\\n it would be easy to include general language about that possibility,\\n correcting any possible misimpression by unsophisticated consumers\\n without venturing into the realm of legal advice.\\n\\nBuchanan, 776 F.3d at 400 (internal quotation marks and citation omitted). And in\\n\\nfact, Defendant LVNV has, subsequent to the letter it sent to Plaintiff in this case,\\n\\nincorporated such language into its collection letters. See Shields v. J.C.\\n\\nChristensen & Assoc., Inc., 2017 WL 1106085, at *1 (S.D. Ind. Mar. 24, 2017)\\n\\n(quoting the following language from a recent LVNV collection letter: “The law\\n\\nlimits how long you can be sued on a debt. Because of the age of your debt,\\n 17\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 18 of 20\\n\\n\\nLVNV Funding LLC will not sue you for it, and LVNV Funding LLC will not\\n\\nreport it to any credit reporting agency.” (internal quotation marks omitted)).\\n\\n In short, it is at least plausible that the collection letter Defendants sent to\\n\\nPlaintiff would have been “false, deceptive, or misleading” to the “least\\n\\nsophisticated” recipient of the letter, in violation of § 1692e of the FDCPA. As\\n\\nPlaintiff has thus stated a claim for relief under § 1692e of the FDCPA, the district\\n\\ncourt’s order dismissing Plaintiff’s § 1692e claim pursuant to Rule 12(b)(6) is\\n\\nREVERSED.\\n\\n B. Attempting to collect on time-barred debt is not a per se unfair or\\n unconscionable practice that automatically violates § 1692f of the\\n FDCPA.\\n\\n Although we find that Plaintiff has stated a plausible claim that Defendants’\\n\\ncollection letter was misleading under § 1692e, we reject Plaintiff’s claim that the\\n\\ngeneral practice of attempting to collect on time-barred debt is per se unfair or\\n\\nunconscionable in violation of 1692f of the FDCPA. The only legal support\\n\\nPlaintiff offers for this argument is the Seventh Circuit’s recent opinion in Pantoja\\n\\nv. Portfolio Recovery Associates, LLC, 852 F.3d 679, 684 (7th Cir. 2017). In\\n\\nPantoja, the Seventh Circuit reiterated its decision in McMahon that an\\n\\nunsophisticated consumer could potentially be misled by a letter seeking collection\\n\\non a time-barred debt. See id. Then, thinking out loud, the court briefly expressed\\n\\nsome thoughts about the practice of collecting on time-barred debt, observing that:\\n\\n 18\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 19 of 20\\n\\n\\n [T]he opportunities for mischief and deception, particularly when\\n sophisticated parties aim carefully crafted messages at unsophisticated\\n consumers, may well be so great that the better approach is simply to\\n find that any such efforts violate the FDCPA’s prohibitions on\\n deceptive or misleading means to collect debts, § 1692e, and on “unfair\\n or unconscionable means” to attempt to collect debts, § 1692f.\\n\\nId. Ultimately, however, the Pantoja Court never articulated such a general\\n\\nprohibition, noting that: (1) the plaintiff had not argued for it and (2) the case\\n\\ncould be decided on narrower grounds. Id.\\n\\n The Seventh Circuit’s observations in Pantoja notwithstanding, courts\\n\\ngenerally have recognized that the FDCPA does not impose a bright-line rule\\n\\nprohibiting debt collectors from attempting to collect on time-barred debt. See\\n\\nDaugherty, 836 F.3d at 509 (noting that “it is not automatically unlawful for a debt\\n\\ncollector to seek payment of a time-barred debt”); Buchanan, 776 F.3d at 397\\n\\n(“Legal defenses are not moral defenses, however. And a creditor remains free, in\\n\\nthe absence of a bankruptcy order or something comparable preventing it from\\n\\ntrying to collect the debt, to let the debtor know what the debt is and to ask her to\\n\\npay it.”). Pantoja does not offer adequate justification for upending that general\\n\\nrule, nor does Plaintiff suggest any alternative ground for finding that Defendants\\n\\nengaged in an “unfair or unconscionable” debt collection practice in violation of\\n\\n§ 1692f of the FDCPA. Accordingly, the Court affirms the district court’s\\n\\ndismissal of Plaintiff’s claim under § 1692f.\\n\\n\\n\\n 19\\n\\f Case: 16-16511 Date Filed: 04/05/2019 Page: 20 of 20\\n\\n\\nIII. Plaintiff’s Florida Act Claim\\n\\n The district court did not dismiss Plaintiff’s Florida claim on substantive\\n\\ngrounds, but rather declined to exercise pendent jurisdiction over it after\\n\\ndismissing Plaintiff’s federal FDCPA claims. In light of the Court’s reversal of the\\n\\nruling as to Plaintiff’s claim under § 1692e of the FDCPA, Plaintiff’s Florida claim\\n\\nshould be reinstated for consideration on the merits. See 28 U.S.C. § 1367(a)\\n\\n(“[T]he district courts shall have supplemental jurisdiction over all other claims\\n\\nthat are so related to claims in the action within such original jurisdiction that they\\n\\nform part of the same case or controversy under Article III of the United States\\n\\nConstitution.”).\\n\\n CONCLUSION\\n\\n For the foregoing reasons, we AFFIRM in part and REVERSE in part the\\n\\ndistrict court’s ruling dismissing Plaintiff’s FDCPA claims pursuant to Rule\\n\\n12(b)(6) and declining to exercise jurisdiction over Plaintiff’s Florida Act claim.\\n\\nThe case is REMANDED to the district court for further proceedings consistent\\n\\nwith this opinion.\\n\\n\\n\\n\\n 20\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1878,"cells":{"id":{"kind":"number","value":4607481,"string":"4,607,481"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Ernest VEREEN, Jr., Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Ernest Vereen, Jr."},"decision_date":{"kind":"string","value":"2019-04-05"},"docket_number":{"kind":"string","value":"17-11147"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Newsom, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"MARCUS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-11147 Date Filed: 04/05/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-11147\\n ________________________\\n\\n D.C. Docket No. 8:15-cr-00474-RAL-TBM-1\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nERNEST VEREEN, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\nBefore MARCUS, NEWSOM and ANDERSON, Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\n Ernest Vereen, Jr. appeals his conviction and sentence for possession of a\\n\\nfirearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e).\\n\\nVereen challenges the district court’s decision not to give a jury instruction on\\n\\nwhat Vereen terms the innocent transitory possession (“ITP”) defense, through\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 2 of 31\\n\\n\\nwhich he sought to argue that his faultless and brief possession of a firearm did not\\n\\nconstitute “possession” under § 922(g)(1). He adds that the failure of our Court to\\n\\nclarify whether the ITP defense is available in firearms offenses has created\\n\\nunconstitutional ambiguity. Vereen also raises three arguments foreclosed by our\\n\\nprecedent -- that the government failed to establish that his prior aggravated battery\\n\\nconvictions qualified as violent felonies under the Armed Career Criminal Act\\n\\n(“ACCA”); that his sentence violates the Fifth and Sixth Amendments because it\\n\\nwas enhanced based on facts not charged in the indictment or proven to a jury\\n\\nbeyond a reasonable doubt; and that § 922(g) is unconstitutional, facially and as\\n\\napplied to him. Finally, Vereen claims that his felony battery conviction does not\\n\\nqualify as a violent felony under the ACCA.\\n\\n After careful review, we affirm.\\n\\n I.\\n\\n Vereen was charged by a federal grand jury sitting in the Middle District of\\n\\nFlorida in a single-count indictment with possession of a firearm by a convicted\\n\\nfelon. The indictment listed several prior Florida felony convictions, including one\\n\\nfor child abuse, two aggravated battery convictions, and a felony battery\\n\\nconviction.\\n\\n The essential facts adduced at trial were these. Samuel South, a letter carrier\\n\\nfor the United States Postal Service who delivered mail to a residential housing\\n\\n\\n 2\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 3 of 31\\n\\n\\ncomplex in Tampa where Vereen lived, testified that on September 19, 2015, while\\n\\ndelivering mail he noticed a gun in the mailbox of Apartment 43. Apparently\\n\\nstartled by a firearm that was pointed outward, and concerned that the mailbox\\n\\nmight be booby-trapped, South notified his supervisor and locked the mailbox\\n\\ndoor. Shortly thereafter, he met with two police officers and provided them with\\n\\nkeys to open the mailbox.\\n\\n Three police officers from the Tampa Police Department, Michael Hinson,\\n\\nTaylor Hart and Sergeant Eric Defelice, testified in turn about the events leading\\n\\nup to Vereen’s arrest. All three said they had observed Vereen exit Apartment 43\\n\\nand walk quickly to the mailbox while looking all around. After watching Vereen\\n\\nstruggle with the lock, Officers Hinson and Defelice saw Vereen open the box.\\n\\nDefelice could see Vereen reach in and retrieve a firearm from the box, close the\\n\\nbox and place the gun in his right back pocket. Vereen then began walking\\n\\ntowards his apartment complex. Upon seeing a signal from another officer,\\n\\nOfficers Hinson and Hart -- who were in plainclothes, but wearing tactical vests\\n\\nthat said “police” across the chest -- emerged and took Vereen into custody.\\n\\nOfficer Hinson identified himself as a police officer and ordered Vereen to put his\\n\\nhands in the air and get on the ground. According to Officers Hinson and Hart,\\n\\nVereen did not immediately comply with the command, but rather hesitated.\\n\\nHinson related that “[b]oth hands went into the air and his right hand went slowly\\n\\n\\n 3\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 4 of 31\\n\\n\\nback to his right pocket.” Eventually Vereen complied with the officer’s\\n\\ncommand. Officer Hinson testified that he subsequently recovered a firearm from\\n\\nthat pocket and a cellphone from Vereen’s person.\\n\\n Vereen testified on his own behalf. He described how, on the day in\\n\\nquestion, he left his condominium apartment to walk to the mailbox. He had to try\\n\\nseveral keys until finally he found the working key and the lock opened, revealing\\n\\nto his surprise, a firearm. He claimed he thought, “I’m in trouble. This is crazy.\\n\\nWhat can you do?,” and removed the gun with the tips of his fingers and looked at\\n\\nit. He explained that when he walked back to the condo, he decided he did not\\n\\nwant his children to see him with a gun in his hand, and so he placed the firearm in\\n\\nhis back pocket. Vereen offered that his intention was to take the gun and report it\\n\\nto the police, but, as soon as he walked across the street, law enforcement officers\\n\\ncame running at him. He said he immediately put his hands up and tried to tell\\n\\nthem that he found the gun in his mailbox and was planning to report it. Although\\n\\nhe had a cellphone on him at the time he discovered the firearm, he reasoned that\\n\\nhe did not want to stand at the mailbox and call the police because when\\n\\n“[s]omebody was bold enough to put a gun in your mailbox, you ain’t going to\\n\\nstand there and try to call no police. You are going to get someplace safe before\\n\\nsomeone come and try to shoot you.” Vereen also testified that, when the police\\n\\n\\n\\n\\n 4\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 5 of 31\\n\\n\\napproached him, he put his hands up and told them “look, this is what I found in\\n\\nmy mailbox.”\\n\\n Vereen agreed that he was a convicted felon, that he took the firearm out of\\n\\nthe mailbox and placed it in his back pocket, and that the firearm had crossed state\\n\\nlines. Vereen also conceded on cross-examination that initially he told law\\n\\nenforcement officers he had “received a mysterious call that there was a gun in\\n\\n[his] mailbox,” but he couldn’t identify the call in his cellphone records. He also\\n\\nadmitted that initially he told the police “that somebody named Furquan Hubbard\\n\\nhad set [him] up.”\\n\\n As part of its rebuttal, the government re-called Officer Hinson, who\\n\\ntestified that, after Vereen’s arrest, he participated in a search of Apartment 43,\\n\\nwhich was about 500 square feet in all and had one bedroom. Hinson detailed that\\n\\nofficers had recovered from the bedroom closet a black shotgun, as well as men’s\\n\\nand women’s clothes. Hinson added that officers also recovered from the closet a\\n\\nbox of ammunition matching the caliber of the firearm taken by Vereen from the\\n\\nmailbox.\\n\\n During a charging conference, Vereen requested an “innocent transitory\\n\\npossession” instruction. The district court declined to give one, noting that Vereen\\n\\ncould have locked the gun in the mailbox or used his cellphone to call the police.\\n\\nThe jury found Vereen guilty.\\n\\n\\n 5\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 6 of 31\\n\\n\\n Before sentencing, the probation office prepared a presentence investigation\\n\\nreport (“PSI”) using the 2016 United States Sentencing Guidelines Manual. The\\n\\nPSI assigned Vereen a base offense level of 24, pursuant to U.S.S.G.\\n\\n§ 2K2.1(a)(2), because Vereen committed the instant offense after sustaining at\\n\\nleast two felony convictions for crimes of violence. Vereen received a two-level\\n\\nincrease under § 2K2.1(b)(4)(A) because the firearm was stolen, bringing his total\\n\\noffense level to 26. The probation officer further determined that Vereen qualified\\n\\nas an armed career criminal under the Armed Career Criminal Act, relying on\\n\\nseveral prior Florida felony convictions, including one for child abuse, two\\n\\naggravated battery convictions, and a felony battery conviction. All of this yielded\\n\\na total offense level of 33, which, when combined with a criminal history category\\n\\nof VI, resulted in an advisory guideline range of 235-293 months’ imprisonment.\\n\\n During the sentencing hearing, the district court overruled Vereen’s\\n\\nobjections to the PSI, concluding that, among other things, the PSI correctly scored\\n\\nthe guidelines and that all four prior convictions qualified as ACCA predicates.\\n\\nThe district court sentenced Vereen to 293 months’ imprisonment, followed by\\n\\nfive years’ supervised release.\\n\\n This timely appeal follows.\\n\\n\\n\\n\\n 6\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 7 of 31\\n\\n\\n II.\\n\\n First, Vereen argues that the district court abused its discretion in refusing\\n\\nhis request for a jury instruction on the innocent transitory possession defense,\\n\\nalthough he acknowledges that our Court has never approved or foreclosed this\\n\\ndefense. We review a district court’s refusal to give a defendant’s requested jury\\n\\ninstruction for abuse of discretion. United States v. Hill, 799 F.3d 1318, 1320\\n\\n(11th Cir. 2015). We examine whether a proposed instruction misstates the law or\\n\\nmisleads the jury to the prejudice of the objecting party de novo. United States v.\\n\\nChandler, 996 F.2d 1073, 1085 (11th Cir. 1993).1\\n\\n In order for the denial of a requested instruction to constitute reversible\\n\\nerror, a defendant must establish three things: that the request correctly stated the\\n\\nlaw; that the charge given did not substantially cover the proposed instruction; and,\\n\\nfinally, that the denial substantially impaired the defendant’s ability to present an\\n\\neffective defense. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008).\\n\\n\\n1\\n The government says that we should review Vereen’s argument only for plain error because\\nVereen did not argue at the charging conference for an instruction on the ITP defense, but asked\\nonly for an instruction that he possessed the firearm “solely so he could call law enforcement.”\\nApp’ee Br. at 8 (quoting Doc. 160 at 48); see United States v. Guerrero, 935 F.2d 189, 193 (11th\\nCir. 1991) (holding that the Court reviews unpreserved arguments for plain error only).\\nNevertheless, the government recognizes that Vereen filed a supplemental jury instruction before\\ntrial that sought the same ITP defense he describes on appeal. App’ee Br. at 8 (citing Doc. 29 at\\n3). Because the record reveals that Vereen argued extensively to the district court that he was\\nentitled to a jury instruction on the innocent transitory possession defense, and the district court\\nexpressly noted that he had adequately preserved the issue, we reject the government’s argument.\\nThe standard of review, however, has no effect on the disposition of this appeal, because\\nVereen’s arguments fail under either test.\\n\\n 7\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 8 of 31\\n\\n\\nAlthough a district court has broad discretion in formulating its instructions, a\\n\\ndefendant is entitled to an instruction relating to a theory of defense so long as\\n\\nthere is some evidential foundation, even if the evidence was weak, inconsistent, or\\n\\nof doubtful credibility. Id. In making this determination, we take the evidence in a\\n\\nlight most favorable to the accused. Id.\\n\\n Vereen claims that the district court should have instructed the jury about his\\n\\n“innocent” and “transitory” possession of a firearm. We remain unpersuaded,\\n\\nhowever, having carefully considered the language of the statute and the way other\\n\\ncourts have interpreted it. Most critically, we can find nothing in the text to\\n\\nsuggest the availability of an ITP defense to a § 922(g)(1) charge. The statute does\\n\\nnot invite any kind of inquiry into the purpose or the timespan of a defendant’s\\n\\npossession of the firearm. Allowing for this kind of defense would effectively\\n\\ncause us to rewrite the text of § 922(g) and the statutory scheme, so we have little\\n\\ndifficulty concluding that innocent transitory possession is not available as a\\n\\ndefense against § 922(g).\\n\\n Starting with the plain language of the statute, there is no “innocent” or\\n\\n“transitory” exception. The statute itself simply prohibits the possession of a\\n\\nfirearm by a convicted felon. It provides, in relevant part, that:\\n\\n It shall be unlawful for any person . . . who has been convicted in any\\n court of[ ] a crime punishable by imprisonment for a term exceeding\\n one year . . . to ship or transport in interstate or foreign commerce, or\\n possess in or affecting commerce, any firearm or ammunition; or to\\n 8\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 9 of 31\\n\\n\\n receive any firearm or ammunition which has been shipped or\\n transported in interstate or foreign commerce.\\n\\n18 U.S.C. § 922(g)(1). By its own terms, § 922(g) does not contain a mens rea\\n\\nrequirement, let alone the requirement that the defendant acted willfully or\\n\\nintentionally. Instead, this Court has long held that the applicable mens rea is set\\n\\nout in § 924(a)(2), which, in turn, provides that “[w]hoever knowingly violates\\n\\nsubsection . . . (g) . . . of section 922 shall be fined as provided in this title,\\n\\nimprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2) (emphasis\\n\\nadded). We have read the two statutory provisions together to require only that a\\n\\n§ 922(g) defendant “knowingly possessed” the firearm. United States v. Rehaif,\\n\\n888 F.3d 1138, 1143 (11th Cir. 2018); United States v. Deleveaux, 205 F.3d 1292,\\n\\n1296–97 (11th Cir. 2000); United States v. Billue, 994 F.2d 1562, 1565 (11th Cir.\\n\\n1993); United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990).\\n\\n Notably, § 924(a)(2) does not require that a violation of § 922(g)(1) be done\\n\\n“willfully” or “intentionally,” in sharp contrast to other violations covered by\\n\\n§ 924. Indeed, § 924(a)(1)(D) is a catch-all provision that specifies a “willful”\\n\\nmens rea for certain remaining violations of the chapter: “Whoever . . . willfully\\n\\nviolates any other provision of this chapter . . . .” 18 U.S.C. § 924(a) (emphasis\\n\\nadded); see also United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir. 1988)\\n\\n(Congress “added a set of mens rea requirements by amending section 924(a)(1) to\\n\\npunish certain violations only if they are committed ‘willfully’ and others only if\\n 9\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 10 of 31\\n\\n\\nthey are committed ‘knowingly.’”). As we’ve said many times, when “Congress\\n\\nincludes particular language in one section of a statute but omits it in another\\n\\nsection of the same Act, it is generally presumed that Congress acts intentionally\\n\\nand purposely” in its exclusion. United States v. Alabama, 778 F.3d 926, 933\\n\\n(11th Cir. 2015); see also United States v. Green, 904 F.2d 654, 655 (11th Cir.\\n\\n1990) (applying this general rule to another portion of § 924 and reasoning that\\n\\n“[t]he fact that the former ‘Dangerous Special Offender’ statute, 18 U.S.C.\\n\\n§ 3575(d) provided a time limit for the felonies underlying an enhancement\\n\\nsuggests that Congress knew what it was doing when it omitted such a limit from\\n\\nsection 924(e)(1)”); Antonin Scalia & Bryan A. Garner, Reading Law 107 (2012)\\n\\n(“The expression of one thing implies the exclusion of others (expression unius est\\n\\nexclusion alterius).”). It is abundantly clear that Congress deliberately chose\\n\\nwhich violations of § 922 would require knowing conduct and which would\\n\\ninclude the element of willfulness too.\\n\\n The mens rea associated with “knowing” conduct, the Supreme Court has\\n\\nexplained, “[i]n a general sense . . . corresponds loosely with the concept of\\n\\ngeneral intent.” United States v. Bailey, 444 U.S. 394, 405 (1980); H.R. Rep. 495,\\n\\n99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1351–52 (“It is\\n\\nthe Committee’s intent, that unless otherwise specified, the knowing state of mind\\n\\nshall apply to circumstances and results. This comports with the usual\\n\\n\\n 10\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 11 of 31\\n\\n\\ninterpretations of the general intent requirements of current law.”). More\\n\\nspecifically, a “knowing” mens rea “merely requires proof of knowledge of the\\n\\nfacts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193\\n\\n(1998); see also United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir. 1994),\\n\\namended, 59 F.3d 1095 (11th Cir. 1995) (“[A] defendant need not intend to violate\\n\\nthe law to commit a general intent crime, but he must actually intend to do the act\\n\\nthat the law proscribes.”). Willfulness, on the other hand, typically requires that\\n\\n“the defendant acted with knowledge that his conduct was unlawful,” Ratzlaf v.\\n\\nUnited States, 510 U.S. 135, 137 (1994), and that the defendant acted with “a ‘bad\\n\\npurpose’” and a “culpable state of mind.” Bryan, 524 U.S. at 191 (quotation\\n\\nomitted); Dixon v. United States, 548 U.S. 1, 5 (2006); see also Phillips, 19 F.3d at\\n\\n1577 (defining “willfully” as meaning “that the act was committed voluntarily and\\n\\npurposely, with the specific intent to do something the law forbids; that is with bad\\n\\npurpose either to disobey or disregard the law”) (quotation omitted).\\n\\n Because, as we see it, § 922(g)(1)’s felon-in-possession-of-a-firearm offense\\n\\nonly requires that the possession be knowing, it is a general intent crime. See\\n\\nPalma, 511 F.3d at 1315. This means that a defendant need not have specifically\\n\\nintended to violate the law and that the defendant’s motive or purpose behind his\\n\\npossession is irrelevant. See id.; United States v. Sistrunk, 622 F.3d 1328, 1332\\n\\n(11th Cir. 2010); see also United States v. Reynolds, 215 F.3d 1210, 1214 (11th\\n\\n\\n 11\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 12 of 31\\n\\n\\nCir. 2000) (rejecting Reynolds’ Eighth Amendment claim because even if his\\n\\nrecent possession of the firearm was for an innocent reason, § 922(g) does not\\n\\n“focus on the motive or purpose of the current possession of firearms, but rather on\\n\\nthe fact that a person with three or more violent felony or serious drug convictions\\n\\ncurrently possesses a firearm”). It also means that by prohibiting only knowing\\n\\npossession, “the statute does not invite inquiry into the reason the defendant\\n\\npossessed the [firearm], as long as the defendant knew it was [a firearm] he\\n\\npossessed.” United States v. Baker, 508 F.3d 1321, 1325 (10th Cir. 2007); United\\n\\nStates v. Johnson, 459 F.3d 990, 996 (9th Cir. 2006). Indeed, by omitting the\\n\\nelement of willfulness from § 922(g)(1), Congress necessarily foreclosed the\\n\\navailability of the innocent transitory possession defense. Without willfulness, any\\n\\ndefense that the defendant possessed the firearm for a good or innocent purpose\\n\\nbecomes irrelevant. See United States v. Gilbert, 430 F.3d 215, 219 (4th Cir.\\n\\n2005) (holding that if Congress had intended for a defendant to offer an ITP\\n\\ndefense, “it would have required a willful violation of the statute, rather than\\n\\nmerely a knowing one,” yet it “deliberately decided to do otherwise”). Nor does\\n\\nthe statute permit any inquiry into how long the defendant’s possession lasted.\\n\\n“The statute explicitly punishes ‘possess[ion],’ not retention, and thus ‘in no way\\n\\ninvites investigation into why the defendant possessed a firearm or how long that\\n\\npossession lasted.’” Johnson, 459 F.3d at 996 (quoting Gilbert, 430 F.3d at 218).\\n\\n\\n 12\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 13 of 31\\n\\n\\n Not only is an innocent transitory possession defense incompatible with the\\n\\ntext, it would also be extremely difficult to administer. In this kind of case, only\\n\\nthe defendant “truly knows of the nature and extent of his gun possession.” Id. at\\n\\n997. As the Ninth Circuit has said, “[w]e will not require the government to\\n\\ncontest motive in every § 922 case where the facts will bear an uncorroborated\\n\\nassertion by the defendant that he innocently came upon a firearm and was\\n\\npreparing to turn it over to the authorities when, alas, he was arrested.” Id. This is\\n\\nespecially true since Congress promulgated the statute to keep guns out of the\\n\\nhands of convicted felons and offered no exception to this general prohibition. Id.\\n\\nat 998. “The statute is precautionary; society deems the risk posed by felon-\\n\\nfirearm possession too great even to entertain the possibility that some felons may\\n\\ninnocently and temporarily possess such a weapon.” Id.\\n\\n In short, under the statute and the developed case law, the purpose behind a\\n\\ndefendant’s possession is irrelevant, which means that he cannot defend against the\\n\\ncrime based on the “innocent” or “transitory” nature of his possession. We now\\n\\njoin the overwhelming majority of our sister circuits that have declined to\\n\\nrecognize the theory of “temporary innocent possession.”2 Baker, 508 F.3d at\\n\\n\\n2\\n In Palma, the only published case we have that addressed the issue at all, we declined to decide\\nthe availability of the defense to a § 922(g) charge, concluding that even if the defense were\\navailable, it was not supported by the evidence. 511 F.3d at 1316. There, the government had\\npresented uncontroverted evidence that Palma had entered a gun shop and shooting range on two\\noccasions; he physically picked up a firearm; he repeatedly referred to the firearm as “my gun”;\\n\\n\\n 13\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 14 of 31\\n\\n\\n1325 (10th Cir.) (rejecting the ITP defense because § 922(g) prohibits “knowing,\\n\\nas opposed to willful, possession of ammunition”); Johnson, 459 F.3d at 997–98\\n\\n(9th Cir.) (holding that the ITP defense would undermine the statutory design of\\n\\n§ 922(g)); United States v. Teemer, 394 F.3d 59, 62–65 (1st Cir. 2005) (rejecting\\n\\nthe ITP defense and affirming district court’s refusal to give jury instruction on\\n\\n“fleeting” or “transitory” possession); United States v. Mercado, 412 F.3d 243,\\n\\n250–52 (1st Cir. 2005) (rejecting the ITP defense and holding that even momentary\\n\\nor fleeting possession of a firearm is sufficient under the statute); Gilbert, 430 F.3d\\n\\nat 218 (4th Cir.) (rejecting the proposal of an exception to § 922(g)(1) when the\\n\\ndefendant had no illicit motive and attempted to quickly rid himself of the firearm);\\n\\nUnited States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003) (holding that only\\n\\njustification defenses would be recognized); see also United States v. Adkins, 196\\n\\nF.3d 1112, 1115 (10th Cir. 1999), overruled on other grounds by Chambers v.\\n\\nUnited States, 555 U.S. 122 (2009) (rejecting claim that knowledgeable and\\n\\nunjustified possession for “a mere second or two” falls outside § 922(g)); United\\n\\nStates v. Rutledge, 33 F.3d 671, 673 (6th Cir. 1994) (rejecting claim that\\n\\n\\n\\n\\nand he requested, purchased, and carried away ammunition for the firearm. Id. The only reason\\nhis possession had been short or transitory was because he was arrested upon exiting the store,\\nand Palma had presented no affirmative evidence that he attempted to rid himself of the\\nammunition. Id. We held that on this evidential foundation, the district court did not abuse its\\ndiscretion in declining to give the instruction. Id. at 1317.\\n 14\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 15 of 31\\n\\n\\npossession of a firearm “for innocent purposes” was “a legitimate defense” to\\n\\n§ 922(g)).\\n\\n As far as we can tell, the D.C. Circuit is the only appellate court -- out of at\\n\\nleast half a dozen -- to have held otherwise. See United States v. Mason, 233 F.3d\\n\\n619, 624–25 (D.C. Cir. 2000) (defining and applying the transitory innocent\\n\\npossession defense). In Mason, the defendant had found a gun in a paper bag near\\n\\na school while he was working as a delivery truck driver, and said he took\\n\\npossession of the firearm only to keep it out of the reach of young children at the\\n\\nschool, fully intending to give the weapon to a police officer whom he expected to\\n\\nsee later that day on his truck delivery route. Id. at 620. The D.C. Circuit\\n\\nnarrowly defined the limits of the defense to situations where the firearm was\\n\\nobtained by innocent means and for no illicit purpose and where the possession\\n\\nwas transitory. Id. at 624.\\n\\n We respectfully disagree. As we see it, the text of the statute answers the\\n\\nprecise question presented by the facts of our case: willfulness has been omitted\\n\\nfrom § 922(g)(1) and we are not free to rewrite the statute and include it. Our\\n\\nposition is consonant with the Supreme Court’s interpretation of the statute’s\\n\\npurpose: “Congress sought to keep guns out of the hands of those who have\\n\\ndemonstrated that they may not be trusted to possess a firearm without becoming a\\n\\nthreat to society.” Small v. United States, 544 U.S. 385, 393 (2005) (quotation\\n\\n\\n 15\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 16 of 31\\n\\n\\nomitted). Beyond that, the facts of Mason are peculiar, involving a firearm found\\n\\nin the open near a schoolyard where young children roam freely and could have\\n\\ndiscovered it. It’s possible that, under the facts in Mason, the defense of necessity\\n\\nor justification would have been available to the defendant. See Deleveaux, 205\\n\\nF.3d at 1295 (exploring the possibility of a defense to § 922(g) that would require\\n\\nthe government to prove beyond a reasonable doubt that the defendant did not act\\n\\nunder duress or by necessity in possessing the firearm). In any event, we’re bound\\n\\nby the unambiguous language contained in § 922(g)(1), and this leaves no room for\\n\\nan innocent or transitory exception, however narrowly the D.C. Circuit may have\\n\\ndrawn it.\\n\\n Moreover, as we see it, this reading of the statute -- one compelled by its\\n\\nunambiguous text -- in no way yields a result that is either unwavering or absurd.\\n\\nWe’ve expressly held that if, for example, a felon truly did not “know” that what\\n\\nhe possessed was a firearm, then § 922(g) could not impose criminal liability. To\\n\\nsatisfy the “knowing” requirement of § 922(g)(1), the government must prove that\\n\\nthe defendant had actual or constructive possession of a firearm. See United States\\n\\nv. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “To prove actual possession the\\n\\nevidence must show that the defendant either had physical possession of or\\n\\npersonal dominion over the [firearm].” United States v. Leonard, 138 F.3d 906,\\n\\n909 (11th Cir. 1998); see also United States v. Oscar, 877 F.3d 1270, 1280 (11th\\n\\n\\n 16\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 17 of 31\\n\\n\\nCir. 2017) (noting that the government must also show that the defendant\\n\\n“‘knowingly’ possess[ed] the firearm” to establish actual possession). “To\\n\\nestablish constructive possession, the government must show that the defendant\\n\\nexercised ownership, dominion, or control over the firearm or the [premises]\\n\\nconcealing the firearm.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.\\n\\n2004). Constructive possession can also be established by showing that the\\n\\ndefendant had “the power and intention to exercise dominion or control.” Id. at\\n\\n1235; United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“Constructive\\n\\npossession exists when a person ‘has knowledge of the thing possessed coupled\\n\\nwith the ability to maintain control over it or reduce it to his physical possession\\n\\neven though he does not have actual possession.’”). Thus, whether possession is\\n\\nactual or constructive, a defendant must have known that what he possessed was a\\n\\nfirearm in order to establish guilt under § 922(g)(1).\\n\\n Furthermore, this Court, like many others, has recognized that a necessity or\\n\\njustification defense may be available in § 922(g)(1) cases. See Deleveaux, 205\\n\\nF.3d at 1297–98 (agreeing with our sister circuits that “the defense of justification\\n\\nmay be available to a § 922(g)(1) charge” and listing cases). We reached this\\n\\nconclusion upon the observation that Congress legislated against the backdrop of\\n\\nthe common law, which has historically recognized a necessity defense. See id. at\\n\\n1297 (citing Bailey, 444 U.S. at 415 n.11 (“Congress in enacting criminal statutes\\n\\n\\n 17\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 18 of 31\\n\\n\\nlegislates against the background of Anglo–Saxon common law . . . .”)). We also\\n\\nstressed that we would allow this defense only in extraordinary circumstances. See\\n\\nid. As a result, a defendant must show four elements to establish a necessity\\n\\ndefense to a § 922(g)(1) charge:\\n\\n (1) that the defendant was under unlawful and present, imminent, and\\n impending threat of death or serious bodily injury; (2) that the\\n defendant did not negligently or recklessly place himself in a situation\\n where he would be forced to engage in criminal conduct; (3) that the\\n defendant had no reasonable legal alternative to violating the law; and\\n (4) that there was a direct causal relationship between the criminal\\n action and the avoidance of the threatened harm.\\n\\nSee id. (citing United States v. Wofford, 122 F.3d 787, 789–90 (9th Cir. 1997);\\n\\nUnited States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991); United States v.\\n\\nSingleton, 902 F.2d 471, 472 (6th Cir. 1990); and United States v. Gant, 691 F.2d\\n\\n1159, 1162–63 (5th Cir. 1982)); see also Pattern Jury Instructions, Criminal Cases,\\n\\nEleventh Circuit, Special Instruction Number 16, entitled “Duress and Coercion\\n\\n(Justification or Necessity).” We’ve emphasized that “[t]he first prong requires\\n\\nnothing less than an immediate emergency.” United States v. Rice, 214 F.3d 1295,\\n\\n1297 (11th Cir. 2000).\\n\\n So, to the extent Vereen could have claimed a true emergency -- say, if his\\n\\nchildren had found the gun in the mailbox -- the defense of necessity arguably\\n\\nwould have been available. But that is not what he asked for and that is not what\\n\\nthe facts established. Rather, Vereen explicitly declined to seek an instruction of\\n\\n\\n 18\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 19 of 31\\n\\n\\nnecessity, 3 and instead sought something different -- a defense that we’ve never\\n\\nrecognized, a defense that is contrary to the text, and a defense that would\\n\\nimpractically force the courts to delve into the purpose behind the possession of a\\n\\nfirearm. While the Supreme Court has recognized common-law defenses to\\n\\nfederal criminal firearm statutes, the Supreme Court has done so with common-law\\n\\ndefenses that have been “long-established” and that Congress would have been\\n\\nfamiliar with. See, e.g., Dixon, 548 U.S. at 13–14 (discussing the defense of\\n\\nduress). Vereen has given us no reason to think that the innocent transitory\\n\\npossession defense was long-established or that Congress would have been\\n\\nfamiliar with it.\\n\\n In short, the district court did not abuse its considerable discretion in\\n\\ndeclining to give the requested instruction. We add, however, that even if the\\n\\ninnocent transitory possession defense was somehow available in this Circuit (and\\n\\nit is not) the district court would not have abused its discretion in declining to give\\n\\nthe instruction in this case. It is plain from this record that Vereen did not rid\\n\\nhimself of possession of the firearm as promptly as reasonably possible. Vereen\\n\\ntestified that he had a cellphone on his person at the time that he saw the gun in the\\n\\n\\n\\n\\n3\\n In relevant part, defense counsel told the district court: “Judge, first of all, I want to make it\\nclear, if I didn’t before, I am not asking for a justification affirmative defense. I’m not. . . . This\\nis very clearly to me not a justification affirmative defense case. There is no evidence to support\\nthe four prongs of that.”\\n 19\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 20 of 31\\n\\n\\nmailbox. He could have left the gun in the mailbox and called the police to\\n\\nimmediately report the firearm. Indeed, he could have waited by the mailbox for\\n\\nthe police to arrive, without ever touching the gun. And if he was somehow\\n\\nreluctant to call the police in a public place while he stood at the box, Vereen could\\n\\nhave locked the gun back in the mailbox and returned to his apartment to make the\\n\\ncall. While he testified that he did not know how many keys to the mailbox there\\n\\nwere, he thought his family had one or two. Normally his girlfriend had the key;\\n\\nhe had one that day. It was altogether unclear from his testimony how his sons\\n\\nwould have gained access to the mailbox; he did not testify that they had keys.\\n\\nRegardless, if he was concerned that his children might have a key to the mailbox\\n\\nand might attempt to check the mailbox, after discovering the firearm he could\\n\\nhave kept his children away from the box or requested guidance from police.\\n\\n Finally, we cannot forget that Vereen’s possession of the firearm was short\\n\\nnot because he attempted to get rid of the weapon, but only because he was\\n\\narrested so soon (seconds) after placing the gun in his back pocket. See Palma,\\n\\n511 F.3d at 1316. Nor can we ignore that police found during a search of his\\n\\napartment a black shotgun, as well as a box of ammunition matching the caliber of\\n\\nthe firearm Vereen took from the mailbox. The district court did not abuse its\\n\\ndiscretion in declining to give an ITP instruction.\\n\\n\\n\\n\\n 20\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 21 of 31\\n\\n\\n III.\\n\\n We also reject Vereen’s claim, made for the first time on appeal, that the\\n\\nterm “unlawful possession” under § 922(g)(1) is unconstitutionally vague because\\n\\nwe have never before determined whether there is an ITP defense to the charge.\\n\\nObjections not raised in the district court are reviewed only for plain error. United\\n\\nStates v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). To establish plain error,\\n\\na defendant must show there is (1) error, (2) that is plain, and (3) that affects\\n\\nsubstantial rights. Id. at 1019. If all three conditions are met, we may exercise our\\n\\ndiscretion to recognize a forfeited error, but only if the error seriously affects the\\n\\nfairness, integrity, or public reputation of judicial proceedings. Id. When neither\\n\\nthis Court nor the Supreme Court have resolved an issue, there can be no plain\\n\\nerror in regard to that issue. Id.\\n\\n As an initial matter, plain error is the appropriate standard of review against\\n\\nwhich to measure this claim. The record reveals that Vereen argued before the\\n\\ndistrict court that he was entitled to an ITP jury instruction, not that the term\\n\\nunlawful possession was unconstitutionally vague because we had never addressed\\n\\nthe ITP defense. Vereen cannot show plain error. He has pointed to no precedent,\\n\\nand independent research has revealed none, from this Court or the Supreme Court\\n\\nholding that a court’s failure to affirmatively determine whether a defense is\\n\\n\\n\\n\\n 21\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 22 of 31\\n\\n\\navailable for a crime renders the underlying criminal statute unconstitutionally\\n\\nvague. See id. at 1019.\\n\\n IV.\\n\\n We are also unconvinced by Vereen’s claim that the government failed to\\n\\nestablish that his prior Florida convictions qualified as violent felonies under the\\n\\nArmed Career Criminal Act. We review de novo whether an offense qualifies as a\\n\\nviolent felony under the ACCA. United States v. Lockett, 810 F.3d 1262, 1266\\n\\n(11th Cir. 2016).\\n\\n Under the statute, a person who violates § 922(g) and has three previous\\n\\nconvictions for either violent felonies or serious drug offenses shall be imprisoned\\n\\nnot less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent\\n\\nfelony” as any of several enumerated crimes, or any crime punishable by a term of\\n\\nimprisonment exceeding one year that has as an element the use, attempted use, or\\n\\nthreatened use of physical force against the person of another.4 Id. § 924(e)(2)(B).\\n\\n\\n4\\n The statute reads:\\n\\n [T]he term “violent felony” means any crime punishable by imprisonment for a term\\n exceeding one year, or any act of juvenile delinquency involving the use or carrying of a\\n firearm, knife, or destructive device that would be punishable by imprisonment for such\\n term if committed by an adult, that --\\n (i) has as an element the use, attempted use, or threatened use of physical force\\n against the person of another; or\\n (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise\\n involves conduct that presents a serious potential risk of physical injury to\\n another.\\n\\n18 U.S.C. § 924(e)(2)(B).\\n 22\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 23 of 31\\n\\n\\n In determining whether a prior conviction qualifies as a violent felony under\\n\\nthe ACCA, sentencing courts look at the elements of the crime, not the underlying\\n\\nfacts of the conduct that led to the conviction. United States v. Braun, 801 F.3d\\n\\n1301, 1304 (11th Cir. 2015). In other words, all that matters are “the elements of\\n\\nthe statute of conviction.” Taylor v. United States, 495 U.S. 575, 601 (1990).\\n\\nWhen a statute “comprises multiple, alternative versions of a crime” -- that is,\\n\\nwhen a statute is “divisible” -- the court “must determine which version of the\\n\\ncrime the defendant was convicted of,” then determine whether that specific\\n\\noffense qualifies as an ACCA predicate. Braun, 801 F.3d at 1304 (quoting\\n\\nDescamps v. United States, 570 U.S. 254, 262 (2013)). A statute is divisible if it\\n\\nsets out one or more elements of the offense in the alternative, thereby defining\\n\\nmultiple crimes, and indivisible if it contains a single set of elements. Descamps,\\n\\n570 U.S. at 262–64. If the statute is divisible, then the sentencing court may\\n\\nconsult a limited class of documents to determine which alternative element\\n\\nformed the basis of the prior conviction. Id. at 257–58. That class of documents,\\n\\nknown as “Shepard” documents, includes: the terms of the charging document, the\\n\\nterms of a plea agreement or transcript of the colloquy between the judge and the\\n\\ndefendant in which the factual basis for the plea was confirmed by the defendant,\\n\\nor some comparable judicial record. Shepard v. United States, 544 U.S. 13, 26\\n\\n(2005). Guilty pleas may establish ACCA predicate offenses. Id. at 19.\\n\\n\\n 23\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 24 of 31\\n\\n\\n Vereen argues that his two prior aggravated battery offenses do not\\n\\nconstitute violent felonies under the ACCA. Florida law, at the time of Vereen’s\\n\\ntwo convictions, defined aggravated battery this way:\\n\\n (1)(a) A person commits aggravated battery who, in committing\\n battery:\\n\\n 1. Intentionally or knowingly causes great bodily harm,\\n permanent disability, or permanent disfigurement; or\\n\\n 2. Uses a deadly weapon.\\n\\n (b) A person commits aggravated battery if the person who was the\\n victim of the battery was pregnant at the time of the offense and the\\n offender knew or should have known that the victim was pregnant.\\n\\nFla. Stat. § 784.045. We’ve held that a Florida aggravated battery conviction\\n\\nqualifies as a violent felony under the elements clause under either of the first two\\n\\nalternatives in § 784.045. Turner v. Warden Coleman FCI (Medium), 709 F.3d\\n\\n1328, 1341 (11th Cir. 2013), abrogated on other grounds by Hill, 799 F.3d at 1321\\n\\nn.1.5 Based on Vereen’s Shepherd documents, his 2000 aggravated battery\\n\\n\\n\\n5\\n In Hill, a panel of this Court noted that it was no longer bound by the determination in Turner\\nthat battery on a law enforcement officer was a violent felony under the residual clause after\\nJohnson v. United States, 135 S. Ct. 2551 (2015). Hill, 799 F.3d at 1321 n.1. However, Johnson\\ndid not undermine the portion of Turner that relied on the elements clause to determine that\\naggravated battery can qualify as a violent felony. See Johnson, 135 S. Ct. at 2563 (“Today’s\\ndecision does not call into question application of the Act to the four enumerated offenses, or the\\nremainder of the Act’s definition of a violent felony.”). We have repeatedly cited the portions of\\nTurner that were unaffected by Johnson as good law after Hill. See, e.g., Hylor v. United States,\\n896 F.3d 1219, 1223 (11th Cir. 2018); United States v. Deshazior, 882 F.3d 1352, 1355 (11th\\nCir. 2018); United States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (per curiam)\\n(holding that the argument that a Florida conviction for aggravated assault is not a crime of\\nviolence was “foreclosed by our precedent” in Turner).\\n 24\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 25 of 31\\n\\n\\njudgment stated that he pled guilty to violating Florida Statutes § 784.045,\\n\\naggravated battery “(GBH/deadly weapon),” and the charging information alleged\\n\\nthat he intentionally caused great bodily harm, permanent disability, or permanent\\n\\ndisfigurement using a deadly weapon. Similarly, the 2011 aggravated battery\\n\\njudgment indicated that Vereen pled guilty to aggravated battery causing great\\n\\nbodily harm, in violation of Florida Statutes § 784.045(1)(A)(1), and the\\n\\ninformation charged that he intentionally caused great bodily harm, permanent\\n\\ndisability, or permanent disfigurement. Thus, the charging documents from both\\n\\nconvictions indicate that he was convicted of violating subsection (a) of the\\n\\naggravated battery statute, and we are bound by our holding in Turner that Florida\\n\\naggravated battery qualifies as an ACCA predicate. See United States v. Kaley,\\n\\n579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a prior\\n\\nopinion only where that holding is overruled by the Court sitting en banc or by the\\n\\nSupreme Court.”). 6\\n\\n\\n\\n\\n6\\n We’ve also rejected Vereen’s claim that injuries requiring medical attention are necessary to\\nestablish the requisite level of force for purposes of the ACCA. See United States v. Vail-\\nBailon, 868 F.3d 1293, 1299–1302 (11th Cir. 2017) (en banc). As we reiterated in Vail-Bailon,\\nthe proper standard is force “capable” of causing physical pain or injury. Id. at 1300–01. And as\\nfor his argument that the government failed to provide sufficient proof that he assented to the\\nunderlying facts of the offenses, Vereen is mistaken. Unlike a nolo contendere plea without an\\nadmission of guilt, see United States v. Diaz-Calderone, 716 F.3d 1345 (11th Cir. 2013),\\nVereen’s aggravated battery judgments indicate that he pled guilty, and a guilty plea is sufficient\\nto establish an ACCA predicate conviction. See Shepard, 544 U.S. at 19.\\n 25\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 26 of 31\\n\\n\\n Vereen also says his 2012 felony battery conviction does not constitute an\\n\\nACCA predicate. The Florida battery statute provided, at the relevant time, that:\\n\\n (1) (a) The offense of battery occurs when a person:\\n\\n 1. Actually and intentionally touches or strikes another person\\n against the will of the other; or\\n\\n 2. Intentionally causes bodily harm to another person.\\n\\n (b) Except as provided in subsection (2), a person who commits\\n battery commits a misdemeanor of the first degree . . .\\n\\n (2) A person who has one prior conviction for battery, aggravated\\n battery, or felony battery and who commits any second or\\n subsequent battery commits a felony of the third degree[.]\\n\\nFla. Stat. § 784.03. Because Vereen was convicted under § 784.03(2), we analyze\\n\\nthat subsection, which requires that Vereen committed a battery subsequently to a\\n\\nconviction for battery, aggravated battery, or felony battery. Curtis Johnson v.\\n\\nUnited States, 559 U.S. 133, 136 (2010). Battery, in turn, is defined in\\n\\n§ 784.03(1), which is divisible into at least two elements: (1) to intentionally cause\\n\\nbodily harm; or (2) actually and intentionally touch or strike the victim. Id. at 136–\\n\\n37. Florida courts interpreting § 784.03(1)(a) have treated these two divisible\\n\\nsubsections ((1) and (2)) as alternative elements of the crime of battery. See, e.g.,\\n\\nJaimes v. State, 51 So. 3d 445, 449–51 (Fla. 2010); State v. Weaver, 957 So. 2d\\n\\n586, 587–89 (Fla. 2007); Fla. Std. Jury Instr. (Crim.) 8.3.\\n\\n\\n\\n\\n 26\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 27 of 31\\n\\n\\n The district court was permitted, as it did, to look to Shepard documents to\\n\\ndetermine which of the alternative elements of the divisible statute Vereen was\\n\\nconvicted of violating. See Descamps, 570 U.S. at 260–61, 263. In providing the\\n\\nfactual basis during the plea colloquy for the § 784.03(2) charge, the prosecutor\\n\\ndetailed that Vereen had falsely imprisoned a woman he was in a domestic\\n\\nrelationship with for nine to ten hours, during which time he “repeatedly hit and\\n\\nstruck” her. The prosecutor added that the police had “observed injuries on [the\\n\\nvictim] consistent with the batteries that had been reported.” Reviewing these and\\n\\nother Shepard documents, we are satisfied that Vereen was convicted of a form of\\n\\nFlorida battery that is a violent felony -- the bodily harm prong. See Diaz-\\n\\nCalderone, 716 F.3d at 1350–51 (where charging instrument alleged that defendant\\n\\ndid “touch or strike [or] cause bodily harm,” district court properly relied on\\n\\nfactual basis and plea colloquy to determine whether he had pleaded to violent\\n\\nelement).\\n\\n We address the “bodily harm” prong of § 784.03 even though the\\n\\ngovernment did not fully flesh out the argument before the district court, 7 because\\n\\n\\n7\\n The government originally argued at Vereen’s sentencing that his Florida felony battery crime\\nqualified as a violent felony because the “touch or strike” prong of the Florida battery statute was\\ndivisible, and Vereen had struck the victim, committing a violent felony. In so doing, it relied on\\nour opinion in United States v. Green, 842 F.3d 1299, 1324 (11th Cir. 2016), opinion vacated\\nand superseded on denial of reh’g, 873 F.3d 846 (11th Cir. Sept. 29, 2017), which had held that\\nthe touch or strike prong of the Florida statute was itself divisible, and that a conviction under the\\nstrike prong of § 784.03 qualified as a violent felony under the elements clause. Since Vereen’s\\n\\n\\n 27\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 28 of 31\\n\\n\\na change in our case law occurred after the appeals briefs were completed in this\\n\\ncase, so neither Vereen nor the government initially had the opportunity to focus\\n\\non the bodily harm prong in district court. However, since the change in law, both\\n\\nparties have filed two sets of supplemental authority raising the issue in this Court,\\n\\nand we’ve had oral argument addressing the issue. Moreover, the record makes it\\n\\nclear that the United States relied on both the striking and bodily harm prongs at\\n\\nsentencing, and that all of the necessary facts were before the district court: The\\n\\ngovernment informed the district court that Vereen’s Shepard documents\\n\\nestablished his guilty plea to having “repeatedly hit and struck” his victim, leaving\\n\\nvisible “injuries”; Vereen didn’t dispute that the plea colloquy stated facts that\\n\\nwould make it a violent predicate; and Vereen only challenged whether his assent\\n\\nby the entry of a guilty plea was sufficient to make the plea colloquy reliable, an\\n\\nobjection the district court overruled.\\n\\n We turn, then, to the application of these facts to the question before us,\\n\\nrecognizing that “in the context of a statutory definition of ‘violent felony,’ the\\n\\nphrase ‘physical force’ means violent force -- that is, force capable of causing\\n\\nphysical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140\\n\\n\\n\\nsentencing, however, the first Green opinion was vacated and superseded by a new opinion,\\nwhich did not reach the issue of whether the strike prong of § 784.03 qualified as an independent\\nviolent felony. Green, 873 F.3d at 868–69. Because Green was vacated, the government now\\nargues on appeal that Vereen’s Shepard documents establish that he was convicted under the\\n“bodily harm” prong of § 784.03, which still qualifies as a violent felony under the ACCA.\\n 28\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 29 of 31\\n\\n\\n(emphasis omitted). In United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir.\\n\\n2017) (en banc), we held that the test in Curtis Johnson for “determining whether\\n\\nan offense calls for the use of physical force . . . is whether the statute calls for\\n\\nviolent force that is capable of causing physical pain or injury to another.” Id. at\\n\\n1302. Using this test, we hold that Vereen’s conviction under Florida’s battery\\n\\nstatute, requiring a use of force that “intentionally cause[s] bodily harm,” qualifies\\n\\nas a violent felony under the elements clause, because force that in fact causes this\\n\\nlevel of harm “necessarily constitutes force that is capable of causing pain or\\n\\ninjury.” Id. at 1303; see also id. at 1304 (holding that Florida’s other felony-\\n\\nbattery statute, Fla. Stat. § 784.041, “which includes the additional element that the\\n\\ntouch or strike in fact cause significant physical injury, necessarily requires the use\\n\\nof force capable of causing pain or injury and therefore does” qualify as an ACCA\\n\\npredicate). As a result, Vereen’s prior conviction for felony battery under Florida\\n\\nStatutes § 784.03 qualified as a valid ACCA predicate offense. 8\\n\\n\\n8\\n In reaching this conclusion, we emphasize that Vereen conceded in district court that the facts\\nstated in the relevant plea colloquy would make this conviction a violent predicate, that all of the\\nrelevant Shepard documents concerning whether viewing Vereen’s crime through the “bodily\\nharm” prong would satisfy the ACCA were before the district court, and that the resolution of the\\nmatter is clear. Thus, even though the district court did not address this exact issue, we can\\naffirm on this ground. See Ovalles v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018)\\n(establishing a new test to determine whether a defendant’s prior conviction qualifies as a “crime\\nof violence” under 18 U.S.C. § 924(c), which uses a “conduct-based approach” that relies on the\\nactual facts and circumstances underlying a defendant’s offense, and applying that test in the first\\ninstance to admitted, “real-life” facts “embodied in a written plea agreement and detailed\\ncolloquy”); United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012) (“Because we can\\naffirm for any reason supported by the record, ‘[e]ven though the district court did not reach the\\n\\n\\n 29\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 30 of 31\\n\\n\\n With two prior convictions for Florida aggravated battery, and one prior\\n\\nconviction for Florida felony battery, Vereen had the requisite ACCA predicate\\n\\noffenses to qualify as a career offender. Because this satisfies the required number\\n\\nof predicate offenses, we need not reach the issue of whether child abuse qualifies.\\n\\n V.\\n\\n Vereen also claims that his Fifth and Sixth Amendment rights were violated\\n\\nbecause his sentence was increased based on the Armed Career Criminal Act\\n\\nwithout these requirements being charged in the indictment and proven to the\\n\\nsatisfaction of a jury beyond a reasonable doubt. Vereen concedes, however, that\\n\\nthis argument is barred by binding precedent. In Apprendi v. New Jersey, 530 U.S.\\n\\n\\nresidual clause issue, we can still decide it.’”); United States v. Taylor, 88 F.3d 938, 944 (11th\\nCir. 1996) (“Although the district court did not make individualized findings regarding the\\nobstruction of justice enhancement, the record clearly reflects the basis for the enhancement and\\nsupports it; a remand is not necessary.”); United States v. Jones, 52 F.3d 924, 927 (11th Cir.\\n1995) (“No remand is necessary in this case, however, because Jones is represented in this\\nappeal by conflict-free counsel, and the record is sufficient for us to determine that Jones’s\\nselective prosecution defense is clearly without merit. No additional facts need be developed,\\nand any district court decision of the issue would be reviewed de novo by this Court anyway.”);\\nsee also Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004)\\n(holding that issues raised for the first time on appeal are generally forfeited, unless: (1) the issue\\ninvolves a pure question of law and refusal to consider it would result in a miscarriage of justice;\\n(2) the party had no opportunity to raise the issue below; (3) the interest of substantial justice is\\nat stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant\\nquestions of general impact or of great public concern). This situation is nothing like the one in,\\nfor example, United States v. Petite, 703 F.3d 1290, (11th Cir. 2013), where we held that the\\ngovernment could not offer on appeal a new predicate conviction in support of an ACCA\\nenhancement. Id. at 1292 n.2. Not only is the language in Petite dicta, but the defendant in\\nPetite had objected at sentencing and on direct appeal that the vehicle flight offense did not count\\nsubstantively under the residual clause, which means that the government had the opportunity to\\nraise an alternate ground for affirmance but nevertheless chose not to. See id. at 1292. Here, the\\ngovernment had no opportunity to do so.\\n\\n\\n 30\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 31 of 31\\n\\n\\n466 (2000), the Supreme Court held that any fact that increases the penalty for a\\n\\ncrime beyond the prescribed statutory maximum must be submitted to a jury, and\\n\\nproven beyond a reasonable doubt, but it excepted the fact of a prior conviction\\n\\nfrom this rule. Id. at 490. Thus, Vereen’s claims fail.\\n\\n Finally, Vereen argues that § 922(g) is unconstitutional, facially and as\\n\\napplied, because it exceeds Congress’s constitutional power under the Commerce\\n\\nClause. Once again, Vereen concedes that this argument is barred by binding\\n\\nprecedent. In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), we held that\\n\\nUnited States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529\\n\\nU.S. 598 (2000), did not alter our previous holding that § 922(g) is constitutional.\\n\\nSee Scott, 263 F.3d at 1271–74; Kaley, 579 F.3d at 1255. Accordingly, this claim\\n\\nfails too.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4384734/\", \"author_raw\": \"MARCUS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4607481/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Ernest VEREEN, Jr., Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-11147 Date Filed: 04/05/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-11147\n ________________________\n\n D.C. Docket No. 8:15-cr-00474-RAL-TBM-1\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nERNEST VEREEN, JR.,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 5, 2019)\n\nBefore MARCUS, NEWSOM and ANDERSON, Circuit Judges.\n\nMARCUS, Circuit Judge:\n\n Ernest Vereen, Jr. appeals his conviction and sentence for possession of a\n\nfirearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e).\n\nVereen challenges the district court’s decision not to give a jury instruction on\n\nwhat Vereen terms the innocent transitory possession (“ITP”) defense, through\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 2 of 31\n\n\nwhich he sought to argue that his faultless and brief possession of a firearm did not\n\nconstitute “possession” under § 922(g)(1). He adds that the failure of our Court to\n\nclarify whether the ITP defense is available in firearms offenses has created\n\nunconstitutional ambiguity. Vereen also raises three arguments foreclosed by our\n\nprecedent -- that the government failed to establish that his prior aggravated battery\n\nconvictions qualified as violent felonies under the Armed Career Criminal Act\n\n(“ACCA”); that his sentence violates the Fifth and Sixth Amendments because it\n\nwas enhanced based on facts not charged in the indictment or proven to a jury\n\nbeyond a reasonable doubt; and that § 922(g) is unconstitutional, facially and as\n\napplied to him. Finally, Vereen claims that his felony battery conviction does not\n\nqualify as a violent felony under the ACCA.\n\n After careful review, we affirm.\n\n I.\n\n Vereen was charged by a federal grand jury sitting in the Middle District of\n\nFlorida in a single-count indictment with possession of a firearm by a convicted\n\nfelon. The indictment listed several prior Florida felony convictions, including one\n\nfor child abuse, two aggravated battery convictions, and a felony battery\n\nconviction.\n\n The essential facts adduced at trial were these. Samuel South, a letter carrier\n\nfor the United States Postal Service who delivered mail to a residential housing\n\n\n 2\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 3 of 31\n\n\ncomplex in Tampa where Vereen lived, testified that on September 19, 2015, while\n\ndelivering mail he noticed a gun in the mailbox of Apartment 43. Apparently\n\nstartled by a firearm that was pointed outward, and concerned that the mailbox\n\nmight be booby-trapped, South notified his supervisor and locked the mailbox\n\ndoor. Shortly thereafter, he met with two police officers and provided them with\n\nkeys to open the mailbox.\n\n Three police officers from the Tampa Police Department, Michael Hinson,\n\nTaylor Hart and Sergeant Eric Defelice, testified in turn about the events leading\n\nup to Vereen’s arrest. All three said they had observed Vereen exit Apartment 43\n\nand walk quickly to the mailbox while looking all around. After watching Vereen\n\nstruggle with the lock, Officers Hinson and Defelice saw Vereen open the box.\n\nDefelice could see Vereen reach in and retrieve a firearm from the box, close the\n\nbox and place the gun in his right back pocket. Vereen then began walking\n\ntowards his apartment complex. Upon seeing a signal from another officer,\n\nOfficers Hinson and Hart -- who were in plainclothes, but wearing tactical vests\n\nthat said “police” across the chest -- emerged and took Vereen into custody.\n\nOfficer Hinson identified himself as a police officer and ordered Vereen to put his\n\nhands in the air and get on the ground. According to Officers Hinson and Hart,\n\nVereen did not immediately comply with the command, but rather hesitated.\n\nHinson related that “[b]oth hands went into the air and his right hand went slowly\n\n\n 3\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 4 of 31\n\n\nback to his right pocket.” Eventually Vereen complied with the officer’s\n\ncommand. Officer Hinson testified that he subsequently recovered a firearm from\n\nthat pocket and a cellphone from Vereen’s person.\n\n Vereen testified on his own behalf. He described how, on the day in\n\nquestion, he left his condominium apartment to walk to the mailbox. He had to try\n\nseveral keys until finally he found the working key and the lock opened, revealing\n\nto his surprise, a firearm. He claimed he thought, “I’m in trouble. This is crazy.\n\nWhat can you do?,” and removed the gun with the tips of his fingers and looked at\n\nit. He explained that when he walked back to the condo, he decided he did not\n\nwant his children to see him with a gun in his hand, and so he placed the firearm in\n\nhis back pocket. Vereen offered that his intention was to take the gun and report it\n\nto the police, but, as soon as he walked across the street, law enforcement officers\n\ncame running at him. He said he immediately put his hands up and tried to tell\n\nthem that he found the gun in his mailbox and was planning to report it. Although\n\nhe had a cellphone on him at the time he discovered the firearm, he reasoned that\n\nhe did not want to stand at the mailbox and call the police because when\n\n“[s]omebody was bold enough to put a gun in your mailbox, you ain’t going to\n\nstand there and try to call no police. You are going to get someplace safe before\n\nsomeone come and try to shoot you.” Vereen also testified that, when the police\n\n\n\n\n 4\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 5 of 31\n\n\napproached him, he put his hands up and told them “look, this is what I found in\n\nmy mailbox.”\n\n Vereen agreed that he was a convicted felon, that he took the firearm out of\n\nthe mailbox and placed it in his back pocket, and that the firearm had crossed state\n\nlines. Vereen also conceded on cross-examination that initially he told law\n\nenforcement officers he had “received a mysterious call that there was a gun in\n\n[his] mailbox,” but he couldn’t identify the call in his cellphone records. He also\n\nadmitted that initially he told the police “that somebody named Furquan Hubbard\n\nhad set [him] up.”\n\n As part of its rebuttal, the government re-called Officer Hinson, who\n\ntestified that, after Vereen’s arrest, he participated in a search of Apartment 43,\n\nwhich was about 500 square feet in all and had one bedroom. Hinson detailed that\n\nofficers had recovered from the bedroom closet a black shotgun, as well as men’s\n\nand women’s clothes. Hinson added that officers also recovered from the closet a\n\nbox of ammunition matching the caliber of the firearm taken by Vereen from the\n\nmailbox.\n\n During a charging conference, Vereen requested an “innocent transitory\n\npossession” instruction. The district court declined to give one, noting that Vereen\n\ncould have locked the gun in the mailbox or used his cellphone to call the police.\n\nThe jury found Vereen guilty.\n\n\n 5\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 6 of 31\n\n\n Before sentencing, the probation office prepared a presentence investigation\n\nreport (“PSI”) using the 2016 United States Sentencing Guidelines Manual. The\n\nPSI assigned Vereen a base offense level of 24, pursuant to U.S.S.G.\n\n§ 2K2.1(a)(2), because Vereen committed the instant offense after sustaining at\n\nleast two felony convictions for crimes of violence. Vereen received a two-level\n\nincrease under § 2K2.1(b)(4)(A) because the firearm was stolen, bringing his total\n\noffense level to 26. The probation officer further determined that Vereen qualified\n\nas an armed career criminal under the Armed Career Criminal Act, relying on\n\nseveral prior Florida felony convictions, including one for child abuse, two\n\naggravated battery convictions, and a felony battery conviction. All of this yielded\n\na total offense level of 33, which, when combined with a criminal history category\n\nof VI, resulted in an advisory guideline range of 235-293 months’ imprisonment.\n\n During the sentencing hearing, the district court overruled Vereen’s\n\nobjections to the PSI, concluding that, among other things, the PSI correctly scored\n\nthe guidelines and that all four prior convictions qualified as ACCA predicates.\n\nThe district court sentenced Vereen to 293 months’ imprisonment, followed by\n\nfive years’ supervised release.\n\n This timely appeal follows.\n\n\n\n\n 6\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 7 of 31\n\n\n II.\n\n First, Vereen argues that the district court abused its discretion in refusing\n\nhis request for a jury instruction on the innocent transitory possession defense,\n\nalthough he acknowledges that our Court has never approved or foreclosed this\n\ndefense. We review a district court’s refusal to give a defendant’s requested jury\n\ninstruction for abuse of discretion. United States v. Hill, 799 F.3d 1318, 1320\n\n(11th Cir. 2015). We examine whether a proposed instruction misstates the law or\n\nmisleads the jury to the prejudice of the objecting party de novo. United States v.\n\nChandler, 996 F.2d 1073, 1085 (11th Cir. 1993).1\n\n In order for the denial of a requested instruction to constitute reversible\n\nerror, a defendant must establish three things: that the request correctly stated the\n\nlaw; that the charge given did not substantially cover the proposed instruction; and,\n\nfinally, that the denial substantially impaired the defendant’s ability to present an\n\neffective defense. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008).\n\n\n1\n The government says that we should review Vereen’s argument only for plain error because\nVereen did not argue at the charging conference for an instruction on the ITP defense, but asked\nonly for an instruction that he possessed the firearm “solely so he could call law enforcement.”\nApp’ee Br. at 8 (quoting Doc. 160 at 48); see United States v. Guerrero, 935 F.2d 189, 193 (11th\nCir. 1991) (holding that the Court reviews unpreserved arguments for plain error only).\nNevertheless, the government recognizes that Vereen filed a supplemental jury instruction before\ntrial that sought the same ITP defense he describes on appeal. App’ee Br. at 8 (citing Doc. 29 at\n3). Because the record reveals that Vereen argued extensively to the district court that he was\nentitled to a jury instruction on the innocent transitory possession defense, and the district court\nexpressly noted that he had adequately preserved the issue, we reject the government’s argument.\nThe standard of review, however, has no effect on the disposition of this appeal, because\nVereen’s arguments fail under either test.\n\n 7\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 8 of 31\n\n\nAlthough a district court has broad discretion in formulating its instructions, a\n\ndefendant is entitled to an instruction relating to a theory of defense so long as\n\nthere is some evidential foundation, even if the evidence was weak, inconsistent, or\n\nof doubtful credibility. Id. In making this determination, we take the evidence in a\n\nlight most favorable to the accused. Id.\n\n Vereen claims that the district court should have instructed the jury about his\n\n“innocent” and “transitory” possession of a firearm. We remain unpersuaded,\n\nhowever, having carefully considered the language of the statute and the way other\n\ncourts have interpreted it. Most critically, we can find nothing in the text to\n\nsuggest the availability of an ITP defense to a § 922(g)(1) charge. The statute does\n\nnot invite any kind of inquiry into the purpose or the timespan of a defendant’s\n\npossession of the firearm. Allowing for this kind of defense would effectively\n\ncause us to rewrite the text of § 922(g) and the statutory scheme, so we have little\n\ndifficulty concluding that innocent transitory possession is not available as a\n\ndefense against § 922(g).\n\n Starting with the plain language of the statute, there is no “innocent” or\n\n“transitory” exception. The statute itself simply prohibits the possession of a\n\nfirearm by a convicted felon. It provides, in relevant part, that:\n\n It shall be unlawful for any person . . . who has been convicted in any\n court of[ ] a crime punishable by imprisonment for a term exceeding\n one year . . . to ship or transport in interstate or foreign commerce, or\n possess in or affecting commerce, any firearm or ammunition; or to\n 8\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 9 of 31\n\n\n receive any firearm or ammunition which has been shipped or\n transported in interstate or foreign commerce.\n\n18 U.S.C. § 922(g)(1). By its own terms, § 922(g) does not contain a mens rea\n\nrequirement, let alone the requirement that the defendant acted willfully or\n\nintentionally. Instead, this Court has long held that the applicable mens rea is set\n\nout in § 924(a)(2), which, in turn, provides that “[w]hoever knowingly violates\n\nsubsection . . . (g) . . . of section 922 shall be fined as provided in this title,\n\nimprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2) (emphasis\n\nadded). We have read the two statutory provisions together to require only that a\n\n§ 922(g) defendant “knowingly possessed” the firearm. United States v. Rehaif,\n\n888 F.3d 1138, 1143 (11th Cir. 2018); United States v. Deleveaux, 205 F.3d 1292,\n\n1296–97 (11th Cir. 2000); United States v. Billue, 994 F.2d 1562, 1565 (11th Cir.\n\n1993); United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990).\n\n Notably, § 924(a)(2) does not require that a violation of § 922(g)(1) be done\n\n“willfully” or “intentionally,” in sharp contrast to other violations covered by\n\n§ 924. Indeed, § 924(a)(1)(D) is a catch-all provision that specifies a “willful”\n\nmens rea for certain remaining violations of the chapter: “Whoever . . . willfully\n\nviolates any other provision of this chapter . . . .” 18 U.S.C. § 924(a) (emphasis\n\nadded); see also United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir. 1988)\n\n(Congress “added a set of mens rea requirements by amending section 924(a)(1) to\n\npunish certain violations only if they are committed ‘willfully’ and others only if\n 9\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 10 of 31\n\n\nthey are committed ‘knowingly.’”). As we’ve said many times, when “Congress\n\nincludes particular language in one section of a statute but omits it in another\n\nsection of the same Act, it is generally presumed that Congress acts intentionally\n\nand purposely” in its exclusion. United States v. Alabama, 778 F.3d 926, 933\n\n(11th Cir. 2015); see also United States v. Green, 904 F.2d 654, 655 (11th Cir.\n\n1990) (applying this general rule to another portion of § 924 and reasoning that\n\n“[t]he fact that the former ‘Dangerous Special Offender’ statute, 18 U.S.C.\n\n§ 3575(d) provided a time limit for the felonies underlying an enhancement\n\nsuggests that Congress knew what it was doing when it omitted such a limit from\n\nsection 924(e)(1)”); Antonin Scalia & Bryan A. Garner, Reading Law 107 (2012)\n\n(“The expression of one thing implies the exclusion of others (expression unius est\n\nexclusion alterius).”). It is abundantly clear that Congress deliberately chose\n\nwhich violations of § 922 would require knowing conduct and which would\n\ninclude the element of willfulness too.\n\n The mens rea associated with “knowing” conduct, the Supreme Court has\n\nexplained, “[i]n a general sense . . . corresponds loosely with the concept of\n\ngeneral intent.” United States v. Bailey, 444 U.S. 394, 405 (1980); H.R. Rep. 495,\n\n99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1351–52 (“It is\n\nthe Committee’s intent, that unless otherwise specified, the knowing state of mind\n\nshall apply to circumstances and results. This comports with the usual\n\n\n 10\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 11 of 31\n\n\ninterpretations of the general intent requirements of current law.”). More\n\nspecifically, a “knowing” mens rea “merely requires proof of knowledge of the\n\nfacts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193\n\n(1998); see also United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir. 1994),\n\namended, 59 F.3d 1095 (11th Cir. 1995) (“[A] defendant need not intend to violate\n\nthe law to commit a general intent crime, but he must actually intend to do the act\n\nthat the law proscribes.”). Willfulness, on the other hand, typically requires that\n\n“the defendant acted with knowledge that his conduct was unlawful,” Ratzlaf v.\n\nUnited States, 510 U.S. 135, 137 (1994), and that the defendant acted with “a ‘bad\n\npurpose’” and a “culpable state of mind.” Bryan, 524 U.S. at 191 (quotation\n\nomitted); Dixon v. United States, 548 U.S. 1, 5 (2006); see also Phillips, 19 F.3d at\n\n1577 (defining “willfully” as meaning “that the act was committed voluntarily and\n\npurposely, with the specific intent to do something the law forbids; that is with bad\n\npurpose either to disobey or disregard the law”) (quotation omitted).\n\n Because, as we see it, § 922(g)(1)’s felon-in-possession-of-a-firearm offense\n\nonly requires that the possession be knowing, it is a general intent crime. See\n\nPalma, 511 F.3d at 1315. This means that a defendant need not have specifically\n\nintended to violate the law and that the defendant’s motive or purpose behind his\n\npossession is irrelevant. See id.; United States v. Sistrunk, 622 F.3d 1328, 1332\n\n(11th Cir. 2010); see also United States v. Reynolds, 215 F.3d 1210, 1214 (11th\n\n\n 11\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 12 of 31\n\n\nCir. 2000) (rejecting Reynolds’ Eighth Amendment claim because even if his\n\nrecent possession of the firearm was for an innocent reason, § 922(g) does not\n\n“focus on the motive or purpose of the current possession of firearms, but rather on\n\nthe fact that a person with three or more violent felony or serious drug convictions\n\ncurrently possesses a firearm”). It also means that by prohibiting only knowing\n\npossession, “the statute does not invite inquiry into the reason the defendant\n\npossessed the [firearm], as long as the defendant knew it was [a firearm] he\n\npossessed.” United States v. Baker, 508 F.3d 1321, 1325 (10th Cir. 2007); United\n\nStates v. Johnson, 459 F.3d 990, 996 (9th Cir. 2006). Indeed, by omitting the\n\nelement of willfulness from § 922(g)(1), Congress necessarily foreclosed the\n\navailability of the innocent transitory possession defense. Without willfulness, any\n\ndefense that the defendant possessed the firearm for a good or innocent purpose\n\nbecomes irrelevant. See United States v. Gilbert, 430 F.3d 215, 219 (4th Cir.\n\n2005) (holding that if Congress had intended for a defendant to offer an ITP\n\ndefense, “it would have required a willful violation of the statute, rather than\n\nmerely a knowing one,” yet it “deliberately decided to do otherwise”). Nor does\n\nthe statute permit any inquiry into how long the defendant’s possession lasted.\n\n“The statute explicitly punishes ‘possess[ion],’ not retention, and thus ‘in no way\n\ninvites investigation into why the defendant possessed a firearm or how long that\n\npossession lasted.’” Johnson, 459 F.3d at 996 (quoting Gilbert, 430 F.3d at 218).\n\n\n 12\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 13 of 31\n\n\n Not only is an innocent transitory possession defense incompatible with the\n\ntext, it would also be extremely difficult to administer. In this kind of case, only\n\nthe defendant “truly knows of the nature and extent of his gun possession.” Id. at\n\n997. As the Ninth Circuit has said, “[w]e will not require the government to\n\ncontest motive in every § 922 case where the facts will bear an uncorroborated\n\nassertion by the defendant that he innocently came upon a firearm and was\n\npreparing to turn it over to the authorities when, alas, he was arrested.” Id. This is\n\nespecially true since Congress promulgated the statute to keep guns out of the\n\nhands of convicted felons and offered no exception to this general prohibition. Id.\n\nat 998. “The statute is precautionary; society deems the risk posed by felon-\n\nfirearm possession too great even to entertain the possibility that some felons may\n\ninnocently and temporarily possess such a weapon.” Id.\n\n In short, under the statute and the developed case law, the purpose behind a\n\ndefendant’s possession is irrelevant, which means that he cannot defend against the\n\ncrime based on the “innocent” or “transitory” nature of his possession. We now\n\njoin the overwhelming majority of our sister circuits that have declined to\n\nrecognize the theory of “temporary innocent possession.”2 Baker, 508 F.3d at\n\n\n2\n In Palma, the only published case we have that addressed the issue at all, we declined to decide\nthe availability of the defense to a § 922(g) charge, concluding that even if the defense were\navailable, it was not supported by the evidence. 511 F.3d at 1316. There, the government had\npresented uncontroverted evidence that Palma had entered a gun shop and shooting range on two\noccasions; he physically picked up a firearm; he repeatedly referred to the firearm as “my gun”;\n\n\n 13\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 14 of 31\n\n\n1325 (10th Cir.) (rejecting the ITP defense because § 922(g) prohibits “knowing,\n\nas opposed to willful, possession of ammunition”); Johnson, 459 F.3d at 997–98\n\n(9th Cir.) (holding that the ITP defense would undermine the statutory design of\n\n§ 922(g)); United States v. Teemer, 394 F.3d 59, 62–65 (1st Cir. 2005) (rejecting\n\nthe ITP defense and affirming district court’s refusal to give jury instruction on\n\n“fleeting” or “transitory” possession); United States v. Mercado, 412 F.3d 243,\n\n250–52 (1st Cir. 2005) (rejecting the ITP defense and holding that even momentary\n\nor fleeting possession of a firearm is sufficient under the statute); Gilbert, 430 F.3d\n\nat 218 (4th Cir.) (rejecting the proposal of an exception to § 922(g)(1) when the\n\ndefendant had no illicit motive and attempted to quickly rid himself of the firearm);\n\nUnited States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003) (holding that only\n\njustification defenses would be recognized); see also United States v. Adkins, 196\n\nF.3d 1112, 1115 (10th Cir. 1999), overruled on other grounds by Chambers v.\n\nUnited States, 555 U.S. 122 (2009) (rejecting claim that knowledgeable and\n\nunjustified possession for “a mere second or two” falls outside § 922(g)); United\n\nStates v. Rutledge, 33 F.3d 671, 673 (6th Cir. 1994) (rejecting claim that\n\n\n\n\nand he requested, purchased, and carried away ammunition for the firearm. Id. The only reason\nhis possession had been short or transitory was because he was arrested upon exiting the store,\nand Palma had presented no affirmative evidence that he attempted to rid himself of the\nammunition. Id. We held that on this evidential foundation, the district court did not abuse its\ndiscretion in declining to give the instruction. Id. at 1317.\n 14\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 15 of 31\n\n\npossession of a firearm “for innocent purposes” was “a legitimate defense” to\n\n§ 922(g)).\n\n As far as we can tell, the D.C. Circuit is the only appellate court -- out of at\n\nleast half a dozen -- to have held otherwise. See United States v. Mason, 233 F.3d\n\n619, 624–25 (D.C. Cir. 2000) (defining and applying the transitory innocent\n\npossession defense). In Mason, the defendant had found a gun in a paper bag near\n\na school while he was working as a delivery truck driver, and said he took\n\npossession of the firearm only to keep it out of the reach of young children at the\n\nschool, fully intending to give the weapon to a police officer whom he expected to\n\nsee later that day on his truck delivery route. Id. at 620. The D.C. Circuit\n\nnarrowly defined the limits of the defense to situations where the firearm was\n\nobtained by innocent means and for no illicit purpose and where the possession\n\nwas transitory. Id. at 624.\n\n We respectfully disagree. As we see it, the text of the statute answers the\n\nprecise question presented by the facts of our case: willfulness has been omitted\n\nfrom § 922(g)(1) and we are not free to rewrite the statute and include it. Our\n\nposition is consonant with the Supreme Court’s interpretation of the statute’s\n\npurpose: “Congress sought to keep guns out of the hands of those who have\n\ndemonstrated that they may not be trusted to possess a firearm without becoming a\n\nthreat to society.” Small v. United States, 544 U.S. 385, 393 (2005) (quotation\n\n\n 15\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 16 of 31\n\n\nomitted). Beyond that, the facts of Mason are peculiar, involving a firearm found\n\nin the open near a schoolyard where young children roam freely and could have\n\ndiscovered it. It’s possible that, under the facts in Mason, the defense of necessity\n\nor justification would have been available to the defendant. See Deleveaux, 205\n\nF.3d at 1295 (exploring the possibility of a defense to § 922(g) that would require\n\nthe government to prove beyond a reasonable doubt that the defendant did not act\n\nunder duress or by necessity in possessing the firearm). In any event, we’re bound\n\nby the unambiguous language contained in § 922(g)(1), and this leaves no room for\n\nan innocent or transitory exception, however narrowly the D.C. Circuit may have\n\ndrawn it.\n\n Moreover, as we see it, this reading of the statute -- one compelled by its\n\nunambiguous text -- in no way yields a result that is either unwavering or absurd.\n\nWe’ve expressly held that if, for example, a felon truly did not “know” that what\n\nhe possessed was a firearm, then § 922(g) could not impose criminal liability. To\n\nsatisfy the “knowing” requirement of § 922(g)(1), the government must prove that\n\nthe defendant had actual or constructive possession of a firearm. See United States\n\nv. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “To prove actual possession the\n\nevidence must show that the defendant either had physical possession of or\n\npersonal dominion over the [firearm].” United States v. Leonard, 138 F.3d 906,\n\n909 (11th Cir. 1998); see also United States v. Oscar, 877 F.3d 1270, 1280 (11th\n\n\n 16\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 17 of 31\n\n\nCir. 2017) (noting that the government must also show that the defendant\n\n“‘knowingly’ possess[ed] the firearm” to establish actual possession). “To\n\nestablish constructive possession, the government must show that the defendant\n\nexercised ownership, dominion, or control over the firearm or the [premises]\n\nconcealing the firearm.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.\n\n2004). Constructive possession can also be established by showing that the\n\ndefendant had “the power and intention to exercise dominion or control.” Id. at\n\n1235; United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“Constructive\n\npossession exists when a person ‘has knowledge of the thing possessed coupled\n\nwith the ability to maintain control over it or reduce it to his physical possession\n\neven though he does not have actual possession.’”). Thus, whether possession is\n\nactual or constructive, a defendant must have known that what he possessed was a\n\nfirearm in order to establish guilt under § 922(g)(1).\n\n Furthermore, this Court, like many others, has recognized that a necessity or\n\njustification defense may be available in § 922(g)(1) cases. See Deleveaux, 205\n\nF.3d at 1297–98 (agreeing with our sister circuits that “the defense of justification\n\nmay be available to a § 922(g)(1) charge” and listing cases). We reached this\n\nconclusion upon the observation that Congress legislated against the backdrop of\n\nthe common law, which has historically recognized a necessity defense. See id. at\n\n1297 (citing Bailey, 444 U.S. at 415 n.11 (“Congress in enacting criminal statutes\n\n\n 17\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 18 of 31\n\n\nlegislates against the background of Anglo–Saxon common law . . . .”)). We also\n\nstressed that we would allow this defense only in extraordinary circumstances. See\n\nid. As a result, a defendant must show four elements to establish a necessity\n\ndefense to a § 922(g)(1) charge:\n\n (1) that the defendant was under unlawful and present, imminent, and\n impending threat of death or serious bodily injury; (2) that the\n defendant did not negligently or recklessly place himself in a situation\n where he would be forced to engage in criminal conduct; (3) that the\n defendant had no reasonable legal alternative to violating the law; and\n (4) that there was a direct causal relationship between the criminal\n action and the avoidance of the threatened harm.\n\nSee id. (citing United States v. Wofford, 122 F.3d 787, 789–90 (9th Cir. 1997);\n\nUnited States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991); United States v.\n\nSingleton, 902 F.2d 471, 472 (6th Cir. 1990); and United States v. Gant, 691 F.2d\n\n1159, 1162–63 (5th Cir. 1982)); see also Pattern Jury Instructions, Criminal Cases,\n\nEleventh Circuit, Special Instruction Number 16, entitled “Duress and Coercion\n\n(Justification or Necessity).” We’ve emphasized that “[t]he first prong requires\n\nnothing less than an immediate emergency.” United States v. Rice, 214 F.3d 1295,\n\n1297 (11th Cir. 2000).\n\n So, to the extent Vereen could have claimed a true emergency -- say, if his\n\nchildren had found the gun in the mailbox -- the defense of necessity arguably\n\nwould have been available. But that is not what he asked for and that is not what\n\nthe facts established. Rather, Vereen explicitly declined to seek an instruction of\n\n\n 18\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 19 of 31\n\n\nnecessity, 3 and instead sought something different -- a defense that we’ve never\n\nrecognized, a defense that is contrary to the text, and a defense that would\n\nimpractically force the courts to delve into the purpose behind the possession of a\n\nfirearm. While the Supreme Court has recognized common-law defenses to\n\nfederal criminal firearm statutes, the Supreme Court has done so with common-law\n\ndefenses that have been “long-established” and that Congress would have been\n\nfamiliar with. See, e.g., Dixon, 548 U.S. at 13–14 (discussing the defense of\n\nduress). Vereen has given us no reason to think that the innocent transitory\n\npossession defense was long-established or that Congress would have been\n\nfamiliar with it.\n\n In short, the district court did not abuse its considerable discretion in\n\ndeclining to give the requested instruction. We add, however, that even if the\n\ninnocent transitory possession defense was somehow available in this Circuit (and\n\nit is not) the district court would not have abused its discretion in declining to give\n\nthe instruction in this case. It is plain from this record that Vereen did not rid\n\nhimself of possession of the firearm as promptly as reasonably possible. Vereen\n\ntestified that he had a cellphone on his person at the time that he saw the gun in the\n\n\n\n\n3\n In relevant part, defense counsel told the district court: “Judge, first of all, I want to make it\nclear, if I didn’t before, I am not asking for a justification affirmative defense. I’m not. . . . This\nis very clearly to me not a justification affirmative defense case. There is no evidence to support\nthe four prongs of that.”\n 19\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 20 of 31\n\n\nmailbox. He could have left the gun in the mailbox and called the police to\n\nimmediately report the firearm. Indeed, he could have waited by the mailbox for\n\nthe police to arrive, without ever touching the gun. And if he was somehow\n\nreluctant to call the police in a public place while he stood at the box, Vereen could\n\nhave locked the gun back in the mailbox and returned to his apartment to make the\n\ncall. While he testified that he did not know how many keys to the mailbox there\n\nwere, he thought his family had one or two. Normally his girlfriend had the key;\n\nhe had one that day. It was altogether unclear from his testimony how his sons\n\nwould have gained access to the mailbox; he did not testify that they had keys.\n\nRegardless, if he was concerned that his children might have a key to the mailbox\n\nand might attempt to check the mailbox, after discovering the firearm he could\n\nhave kept his children away from the box or requested guidance from police.\n\n Finally, we cannot forget that Vereen’s possession of the firearm was short\n\nnot because he attempted to get rid of the weapon, but only because he was\n\narrested so soon (seconds) after placing the gun in his back pocket. See Palma,\n\n511 F.3d at 1316. Nor can we ignore that police found during a search of his\n\napartment a black shotgun, as well as a box of ammunition matching the caliber of\n\nthe firearm Vereen took from the mailbox. The district court did not abuse its\n\ndiscretion in declining to give an ITP instruction.\n\n\n\n\n 20\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 21 of 31\n\n\n III.\n\n We also reject Vereen’s claim, made for the first time on appeal, that the\n\nterm “unlawful possession” under § 922(g)(1) is unconstitutionally vague because\n\nwe have never before determined whether there is an ITP defense to the charge.\n\nObjections not raised in the district court are reviewed only for plain error. United\n\nStates v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). To establish plain error,\n\na defendant must show there is (1) error, (2) that is plain, and (3) that affects\n\nsubstantial rights. Id. at 1019. If all three conditions are met, we may exercise our\n\ndiscretion to recognize a forfeited error, but only if the error seriously affects the\n\nfairness, integrity, or public reputation of judicial proceedings. Id. When neither\n\nthis Court nor the Supreme Court have resolved an issue, there can be no plain\n\nerror in regard to that issue. Id.\n\n As an initial matter, plain error is the appropriate standard of review against\n\nwhich to measure this claim. The record reveals that Vereen argued before the\n\ndistrict court that he was entitled to an ITP jury instruction, not that the term\n\nunlawful possession was unconstitutionally vague because we had never addressed\n\nthe ITP defense. Vereen cannot show plain error. He has pointed to no precedent,\n\nand independent research has revealed none, from this Court or the Supreme Court\n\nholding that a court’s failure to affirmatively determine whether a defense is\n\n\n\n\n 21\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 22 of 31\n\n\navailable for a crime renders the underlying criminal statute unconstitutionally\n\nvague. See id. at 1019.\n\n IV.\n\n We are also unconvinced by Vereen’s claim that the government failed to\n\nestablish that his prior Florida convictions qualified as violent felonies under the\n\nArmed Career Criminal Act. We review de novo whether an offense qualifies as a\n\nviolent felony under the ACCA. United States v. Lockett, 810 F.3d 1262, 1266\n\n(11th Cir. 2016).\n\n Under the statute, a person who violates § 922(g) and has three previous\n\nconvictions for either violent felonies or serious drug offenses shall be imprisoned\n\nnot less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent\n\nfelony” as any of several enumerated crimes, or any crime punishable by a term of\n\nimprisonment exceeding one year that has as an element the use, attempted use, or\n\nthreatened use of physical force against the person of another.4 Id. § 924(e)(2)(B).\n\n\n4\n The statute reads:\n\n [T]he term “violent felony” means any crime punishable by imprisonment for a term\n exceeding one year, or any act of juvenile delinquency involving the use or carrying of a\n firearm, knife, or destructive device that would be punishable by imprisonment for such\n term if committed by an adult, that --\n (i) has as an element the use, attempted use, or threatened use of physical force\n against the person of another; or\n (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise\n involves conduct that presents a serious potential risk of physical injury to\n another.\n\n18 U.S.C. § 924(e)(2)(B).\n 22\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 23 of 31\n\n\n In determining whether a prior conviction qualifies as a violent felony under\n\nthe ACCA, sentencing courts look at the elements of the crime, not the underlying\n\nfacts of the conduct that led to the conviction. United States v. Braun, 801 F.3d\n\n1301, 1304 (11th Cir. 2015). In other words, all that matters are “the elements of\n\nthe statute of conviction.” Taylor v. United States, 495 U.S. 575, 601 (1990).\n\nWhen a statute “comprises multiple, alternative versions of a crime” -- that is,\n\nwhen a statute is “divisible” -- the court “must determine which version of the\n\ncrime the defendant was convicted of,” then determine whether that specific\n\noffense qualifies as an ACCA predicate. Braun, 801 F.3d at 1304 (quoting\n\nDescamps v. United States, 570 U.S. 254, 262 (2013)). A statute is divisible if it\n\nsets out one or more elements of the offense in the alternative, thereby defining\n\nmultiple crimes, and indivisible if it contains a single set of elements. Descamps,\n\n570 U.S. at 262–64. If the statute is divisible, then the sentencing court may\n\nconsult a limited class of documents to determine which alternative element\n\nformed the basis of the prior conviction. Id. at 257–58. That class of documents,\n\nknown as “Shepard” documents, includes: the terms of the charging document, the\n\nterms of a plea agreement or transcript of the colloquy between the judge and the\n\ndefendant in which the factual basis for the plea was confirmed by the defendant,\n\nor some comparable judicial record. Shepard v. United States, 544 U.S. 13, 26\n\n(2005). Guilty pleas may establish ACCA predicate offenses. Id. at 19.\n\n\n 23\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 24 of 31\n\n\n Vereen argues that his two prior aggravated battery offenses do not\n\nconstitute violent felonies under the ACCA. Florida law, at the time of Vereen’s\n\ntwo convictions, defined aggravated battery this way:\n\n (1)(a) A person commits aggravated battery who, in committing\n battery:\n\n 1. Intentionally or knowingly causes great bodily harm,\n permanent disability, or permanent disfigurement; or\n\n 2. Uses a deadly weapon.\n\n (b) A person commits aggravated battery if the person who was the\n victim of the battery was pregnant at the time of the offense and the\n offender knew or should have known that the victim was pregnant.\n\nFla. Stat. § 784.045. We’ve held that a Florida aggravated battery conviction\n\nqualifies as a violent felony under the elements clause under either of the first two\n\nalternatives in § 784.045. Turner v. Warden Coleman FCI (Medium), 709 F.3d\n\n1328, 1341 (11th Cir. 2013), abrogated on other grounds by Hill, 799 F.3d at 1321\n\nn.1.5 Based on Vereen’s Shepherd documents, his 2000 aggravated battery\n\n\n\n5\n In Hill, a panel of this Court noted that it was no longer bound by the determination in Turner\nthat battery on a law enforcement officer was a violent felony under the residual clause after\nJohnson v. United States, 135 S. Ct. 2551 (2015). Hill, 799 F.3d at 1321 n.1. However, Johnson\ndid not undermine the portion of Turner that relied on the elements clause to determine that\naggravated battery can qualify as a violent felony. See Johnson, 135 S. Ct. at 2563 (“Today’s\ndecision does not call into question application of the Act to the four enumerated offenses, or the\nremainder of the Act’s definition of a violent felony.”). We have repeatedly cited the portions of\nTurner that were unaffected by Johnson as good law after Hill. See, e.g., Hylor v. United States,\n896 F.3d 1219, 1223 (11th Cir. 2018); United States v. Deshazior, 882 F.3d 1352, 1355 (11th\nCir. 2018); United States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (per curiam)\n(holding that the argument that a Florida conviction for aggravated assault is not a crime of\nviolence was “foreclosed by our precedent” in Turner).\n 24\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 25 of 31\n\n\njudgment stated that he pled guilty to violating Florida Statutes § 784.045,\n\naggravated battery “(GBH/deadly weapon),” and the charging information alleged\n\nthat he intentionally caused great bodily harm, permanent disability, or permanent\n\ndisfigurement using a deadly weapon. Similarly, the 2011 aggravated battery\n\njudgment indicated that Vereen pled guilty to aggravated battery causing great\n\nbodily harm, in violation of Florida Statutes § 784.045(1)(A)(1), and the\n\ninformation charged that he intentionally caused great bodily harm, permanent\n\ndisability, or permanent disfigurement. Thus, the charging documents from both\n\nconvictions indicate that he was convicted of violating subsection (a) of the\n\naggravated battery statute, and we are bound by our holding in Turner that Florida\n\naggravated battery qualifies as an ACCA predicate. See United States v. Kaley,\n\n579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a prior\n\nopinion only where that holding is overruled by the Court sitting en banc or by the\n\nSupreme Court.”). 6\n\n\n\n\n6\n We’ve also rejected Vereen’s claim that injuries requiring medical attention are necessary to\nestablish the requisite level of force for purposes of the ACCA. See United States v. Vail-\nBailon, 868 F.3d 1293, 1299–1302 (11th Cir. 2017) (en banc). As we reiterated in Vail-Bailon,\nthe proper standard is force “capable” of causing physical pain or injury. Id. at 1300–01. And as\nfor his argument that the government failed to provide sufficient proof that he assented to the\nunderlying facts of the offenses, Vereen is mistaken. Unlike a nolo contendere plea without an\nadmission of guilt, see United States v. Diaz-Calderone, 716 F.3d 1345 (11th Cir. 2013),\nVereen’s aggravated battery judgments indicate that he pled guilty, and a guilty plea is sufficient\nto establish an ACCA predicate conviction. See Shepard, 544 U.S. at 19.\n 25\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 26 of 31\n\n\n Vereen also says his 2012 felony battery conviction does not constitute an\n\nACCA predicate. The Florida battery statute provided, at the relevant time, that:\n\n (1) (a) The offense of battery occurs when a person:\n\n 1. Actually and intentionally touches or strikes another person\n against the will of the other; or\n\n 2. Intentionally causes bodily harm to another person.\n\n (b) Except as provided in subsection (2), a person who commits\n battery commits a misdemeanor of the first degree . . .\n\n (2) A person who has one prior conviction for battery, aggravated\n battery, or felony battery and who commits any second or\n subsequent battery commits a felony of the third degree[.]\n\nFla. Stat. § 784.03. Because Vereen was convicted under § 784.03(2), we analyze\n\nthat subsection, which requires that Vereen committed a battery subsequently to a\n\nconviction for battery, aggravated battery, or felony battery. Curtis Johnson v.\n\nUnited States, 559 U.S. 133, 136 (2010). Battery, in turn, is defined in\n\n§ 784.03(1), which is divisible into at least two elements: (1) to intentionally cause\n\nbodily harm; or (2) actually and intentionally touch or strike the victim. Id. at 136–\n\n37. Florida courts interpreting § 784.03(1)(a) have treated these two divisible\n\nsubsections ((1) and (2)) as alternative elements of the crime of battery. See, e.g.,\n\nJaimes v. State, 51 So. 3d 445, 449–51 (Fla. 2010); State v. Weaver, 957 So. 2d\n\n586, 587–89 (Fla. 2007); Fla. Std. Jury Instr. (Crim.) 8.3.\n\n\n\n\n 26\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 27 of 31\n\n\n The district court was permitted, as it did, to look to Shepard documents to\n\ndetermine which of the alternative elements of the divisible statute Vereen was\n\nconvicted of violating. See Descamps, 570 U.S. at 260–61, 263. In providing the\n\nfactual basis during the plea colloquy for the § 784.03(2) charge, the prosecutor\n\ndetailed that Vereen had falsely imprisoned a woman he was in a domestic\n\nrelationship with for nine to ten hours, during which time he “repeatedly hit and\n\nstruck” her. The prosecutor added that the police had “observed injuries on [the\n\nvictim] consistent with the batteries that had been reported.” Reviewing these and\n\nother Shepard documents, we are satisfied that Vereen was convicted of a form of\n\nFlorida battery that is a violent felony -- the bodily harm prong. See Diaz-\n\nCalderone, 716 F.3d at 1350–51 (where charging instrument alleged that defendant\n\ndid “touch or strike [or] cause bodily harm,” district court properly relied on\n\nfactual basis and plea colloquy to determine whether he had pleaded to violent\n\nelement).\n\n We address the “bodily harm” prong of § 784.03 even though the\n\ngovernment did not fully flesh out the argument before the district court, 7 because\n\n\n7\n The government originally argued at Vereen’s sentencing that his Florida felony battery crime\nqualified as a violent felony because the “touch or strike” prong of the Florida battery statute was\ndivisible, and Vereen had struck the victim, committing a violent felony. In so doing, it relied on\nour opinion in United States v. Green, 842 F.3d 1299, 1324 (11th Cir. 2016), opinion vacated\nand superseded on denial of reh’g, 873 F.3d 846 (11th Cir. Sept. 29, 2017), which had held that\nthe touch or strike prong of the Florida statute was itself divisible, and that a conviction under the\nstrike prong of § 784.03 qualified as a violent felony under the elements clause. Since Vereen’s\n\n\n 27\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 28 of 31\n\n\na change in our case law occurred after the appeals briefs were completed in this\n\ncase, so neither Vereen nor the government initially had the opportunity to focus\n\non the bodily harm prong in district court. However, since the change in law, both\n\nparties have filed two sets of supplemental authority raising the issue in this Court,\n\nand we’ve had oral argument addressing the issue. Moreover, the record makes it\n\nclear that the United States relied on both the striking and bodily harm prongs at\n\nsentencing, and that all of the necessary facts were before the district court: The\n\ngovernment informed the district court that Vereen’s Shepard documents\n\nestablished his guilty plea to having “repeatedly hit and struck” his victim, leaving\n\nvisible “injuries”; Vereen didn’t dispute that the plea colloquy stated facts that\n\nwould make it a violent predicate; and Vereen only challenged whether his assent\n\nby the entry of a guilty plea was sufficient to make the plea colloquy reliable, an\n\nobjection the district court overruled.\n\n We turn, then, to the application of these facts to the question before us,\n\nrecognizing that “in the context of a statutory definition of ‘violent felony,’ the\n\nphrase ‘physical force’ means violent force -- that is, force capable of causing\n\nphysical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140\n\n\n\nsentencing, however, the first Green opinion was vacated and superseded by a new opinion,\nwhich did not reach the issue of whether the strike prong of § 784.03 qualified as an independent\nviolent felony. Green, 873 F.3d at 868–69. Because Green was vacated, the government now\nargues on appeal that Vereen’s Shepard documents establish that he was convicted under the\n“bodily harm” prong of § 784.03, which still qualifies as a violent felony under the ACCA.\n 28\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 29 of 31\n\n\n(emphasis omitted). In United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir.\n\n2017) (en banc), we held that the test in Curtis Johnson for “determining whether\n\nan offense calls for the use of physical force . . . is whether the statute calls for\n\nviolent force that is capable of causing physical pain or injury to another.” Id. at\n\n1302. Using this test, we hold that Vereen’s conviction under Florida’s battery\n\nstatute, requiring a use of force that “intentionally cause[s] bodily harm,” qualifies\n\nas a violent felony under the elements clause, because force that in fact causes this\n\nlevel of harm “necessarily constitutes force that is capable of causing pain or\n\ninjury.” Id. at 1303; see also id. at 1304 (holding that Florida’s other felony-\n\nbattery statute, Fla. Stat. § 784.041, “which includes the additional element that the\n\ntouch or strike in fact cause significant physical injury, necessarily requires the use\n\nof force capable of causing pain or injury and therefore does” qualify as an ACCA\n\npredicate). As a result, Vereen’s prior conviction for felony battery under Florida\n\nStatutes § 784.03 qualified as a valid ACCA predicate offense. 8\n\n\n8\n In reaching this conclusion, we emphasize that Vereen conceded in district court that the facts\nstated in the relevant plea colloquy would make this conviction a violent predicate, that all of the\nrelevant Shepard documents concerning whether viewing Vereen’s crime through the “bodily\nharm” prong would satisfy the ACCA were before the district court, and that the resolution of the\nmatter is clear. Thus, even though the district court did not address this exact issue, we can\naffirm on this ground. See Ovalles v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018)\n(establishing a new test to determine whether a defendant’s prior conviction qualifies as a “crime\nof violence” under 18 U.S.C. § 924(c), which uses a “conduct-based approach” that relies on the\nactual facts and circumstances underlying a defendant’s offense, and applying that test in the first\ninstance to admitted, “real-life” facts “embodied in a written plea agreement and detailed\ncolloquy”); United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012) (“Because we can\naffirm for any reason supported by the record, ‘[e]ven though the district court did not reach the\n\n\n 29\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 30 of 31\n\n\n With two prior convictions for Florida aggravated battery, and one prior\n\nconviction for Florida felony battery, Vereen had the requisite ACCA predicate\n\noffenses to qualify as a career offender. Because this satisfies the required number\n\nof predicate offenses, we need not reach the issue of whether child abuse qualifies.\n\n V.\n\n Vereen also claims that his Fifth and Sixth Amendment rights were violated\n\nbecause his sentence was increased based on the Armed Career Criminal Act\n\nwithout these requirements being charged in the indictment and proven to the\n\nsatisfaction of a jury beyond a reasonable doubt. Vereen concedes, however, that\n\nthis argument is barred by binding precedent. In Apprendi v. New Jersey, 530 U.S.\n\n\nresidual clause issue, we can still decide it.’”); United States v. Taylor, 88 F.3d 938, 944 (11th\nCir. 1996) (“Although the district court did not make individualized findings regarding the\nobstruction of justice enhancement, the record clearly reflects the basis for the enhancement and\nsupports it; a remand is not necessary.”); United States v. Jones, 52 F.3d 924, 927 (11th Cir.\n1995) (“No remand is necessary in this case, however, because Jones is represented in this\nappeal by conflict-free counsel, and the record is sufficient for us to determine that Jones’s\nselective prosecution defense is clearly without merit. No additional facts need be developed,\nand any district court decision of the issue would be reviewed de novo by this Court anyway.”);\nsee also Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004)\n(holding that issues raised for the first time on appeal are generally forfeited, unless: (1) the issue\ninvolves a pure question of law and refusal to consider it would result in a miscarriage of justice;\n(2) the party had no opportunity to raise the issue below; (3) the interest of substantial justice is\nat stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant\nquestions of general impact or of great public concern). This situation is nothing like the one in,\nfor example, United States v. Petite, 703 F.3d 1290, (11th Cir. 2013), where we held that the\ngovernment could not offer on appeal a new predicate conviction in support of an ACCA\nenhancement. Id. at 1292 n.2. Not only is the language in Petite dicta, but the defendant in\nPetite had objected at sentencing and on direct appeal that the vehicle flight offense did not count\nsubstantively under the residual clause, which means that the government had the opportunity to\nraise an alternate ground for affirmance but nevertheless chose not to. See id. at 1292. Here, the\ngovernment had no opportunity to do so.\n\n\n 30\n\f Case: 17-11147 Date Filed: 04/05/2019 Page: 31 of 31\n\n\n466 (2000), the Supreme Court held that any fact that increases the penalty for a\n\ncrime beyond the prescribed statutory maximum must be submitted to a jury, and\n\nproven beyond a reasonable doubt, but it excepted the fact of a prior conviction\n\nfrom this rule. Id. at 490. Thus, Vereen’s claims fail.\n\n Finally, Vereen argues that § 922(g) is unconstitutional, facially and as\n\napplied, because it exceeds Congress’s constitutional power under the Commerce\n\nClause. Once again, Vereen concedes that this argument is barred by binding\n\nprecedent. In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), we held that\n\nUnited States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529\n\nU.S. 598 (2000), did not alter our previous holding that § 922(g) is constitutional.\n\nSee Scott, 263 F.3d at 1271–74; Kaley, 579 F.3d at 1255. Accordingly, this claim\n\nfails too.\n\n AFFIRMED.\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Ernest VEREEN, Jr., Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-11147 Date Filed: 04/05/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-11147\\n ________________________\\n\\n D.C. Docket No. 8:15-cr-00474-RAL-TBM-1\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nERNEST VEREEN, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\nBefore MARCUS, NEWSOM and ANDERSON, Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\n Ernest Vereen, Jr. appeals his conviction and sentence for possession of a\\n\\nfirearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e).\\n\\nVereen challenges the district court’s decision not to give a jury instruction on\\n\\nwhat Vereen terms the innocent transitory possession (“ITP”) defense, through\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 2 of 31\\n\\n\\nwhich he sought to argue that his faultless and brief possession of a firearm did not\\n\\nconstitute “possession” under § 922(g)(1). He adds that the failure of our Court to\\n\\nclarify whether the ITP defense is available in firearms offenses has created\\n\\nunconstitutional ambiguity. Vereen also raises three arguments foreclosed by our\\n\\nprecedent -- that the government failed to establish that his prior aggravated battery\\n\\nconvictions qualified as violent felonies under the Armed Career Criminal Act\\n\\n(“ACCA”); that his sentence violates the Fifth and Sixth Amendments because it\\n\\nwas enhanced based on facts not charged in the indictment or proven to a jury\\n\\nbeyond a reasonable doubt; and that § 922(g) is unconstitutional, facially and as\\n\\napplied to him. Finally, Vereen claims that his felony battery conviction does not\\n\\nqualify as a violent felony under the ACCA.\\n\\n After careful review, we affirm.\\n\\n I.\\n\\n Vereen was charged by a federal grand jury sitting in the Middle District of\\n\\nFlorida in a single-count indictment with possession of a firearm by a convicted\\n\\nfelon. The indictment listed several prior Florida felony convictions, including one\\n\\nfor child abuse, two aggravated battery convictions, and a felony battery\\n\\nconviction.\\n\\n The essential facts adduced at trial were these. Samuel South, a letter carrier\\n\\nfor the United States Postal Service who delivered mail to a residential housing\\n\\n\\n 2\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 3 of 31\\n\\n\\ncomplex in Tampa where Vereen lived, testified that on September 19, 2015, while\\n\\ndelivering mail he noticed a gun in the mailbox of Apartment 43. Apparently\\n\\nstartled by a firearm that was pointed outward, and concerned that the mailbox\\n\\nmight be booby-trapped, South notified his supervisor and locked the mailbox\\n\\ndoor. Shortly thereafter, he met with two police officers and provided them with\\n\\nkeys to open the mailbox.\\n\\n Three police officers from the Tampa Police Department, Michael Hinson,\\n\\nTaylor Hart and Sergeant Eric Defelice, testified in turn about the events leading\\n\\nup to Vereen’s arrest. All three said they had observed Vereen exit Apartment 43\\n\\nand walk quickly to the mailbox while looking all around. After watching Vereen\\n\\nstruggle with the lock, Officers Hinson and Defelice saw Vereen open the box.\\n\\nDefelice could see Vereen reach in and retrieve a firearm from the box, close the\\n\\nbox and place the gun in his right back pocket. Vereen then began walking\\n\\ntowards his apartment complex. Upon seeing a signal from another officer,\\n\\nOfficers Hinson and Hart -- who were in plainclothes, but wearing tactical vests\\n\\nthat said “police” across the chest -- emerged and took Vereen into custody.\\n\\nOfficer Hinson identified himself as a police officer and ordered Vereen to put his\\n\\nhands in the air and get on the ground. According to Officers Hinson and Hart,\\n\\nVereen did not immediately comply with the command, but rather hesitated.\\n\\nHinson related that “[b]oth hands went into the air and his right hand went slowly\\n\\n\\n 3\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 4 of 31\\n\\n\\nback to his right pocket.” Eventually Vereen complied with the officer’s\\n\\ncommand. Officer Hinson testified that he subsequently recovered a firearm from\\n\\nthat pocket and a cellphone from Vereen’s person.\\n\\n Vereen testified on his own behalf. He described how, on the day in\\n\\nquestion, he left his condominium apartment to walk to the mailbox. He had to try\\n\\nseveral keys until finally he found the working key and the lock opened, revealing\\n\\nto his surprise, a firearm. He claimed he thought, “I’m in trouble. This is crazy.\\n\\nWhat can you do?,” and removed the gun with the tips of his fingers and looked at\\n\\nit. He explained that when he walked back to the condo, he decided he did not\\n\\nwant his children to see him with a gun in his hand, and so he placed the firearm in\\n\\nhis back pocket. Vereen offered that his intention was to take the gun and report it\\n\\nto the police, but, as soon as he walked across the street, law enforcement officers\\n\\ncame running at him. He said he immediately put his hands up and tried to tell\\n\\nthem that he found the gun in his mailbox and was planning to report it. Although\\n\\nhe had a cellphone on him at the time he discovered the firearm, he reasoned that\\n\\nhe did not want to stand at the mailbox and call the police because when\\n\\n“[s]omebody was bold enough to put a gun in your mailbox, you ain’t going to\\n\\nstand there and try to call no police. You are going to get someplace safe before\\n\\nsomeone come and try to shoot you.” Vereen also testified that, when the police\\n\\n\\n\\n\\n 4\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 5 of 31\\n\\n\\napproached him, he put his hands up and told them “look, this is what I found in\\n\\nmy mailbox.”\\n\\n Vereen agreed that he was a convicted felon, that he took the firearm out of\\n\\nthe mailbox and placed it in his back pocket, and that the firearm had crossed state\\n\\nlines. Vereen also conceded on cross-examination that initially he told law\\n\\nenforcement officers he had “received a mysterious call that there was a gun in\\n\\n[his] mailbox,” but he couldn’t identify the call in his cellphone records. He also\\n\\nadmitted that initially he told the police “that somebody named Furquan Hubbard\\n\\nhad set [him] up.”\\n\\n As part of its rebuttal, the government re-called Officer Hinson, who\\n\\ntestified that, after Vereen’s arrest, he participated in a search of Apartment 43,\\n\\nwhich was about 500 square feet in all and had one bedroom. Hinson detailed that\\n\\nofficers had recovered from the bedroom closet a black shotgun, as well as men’s\\n\\nand women’s clothes. Hinson added that officers also recovered from the closet a\\n\\nbox of ammunition matching the caliber of the firearm taken by Vereen from the\\n\\nmailbox.\\n\\n During a charging conference, Vereen requested an “innocent transitory\\n\\npossession” instruction. The district court declined to give one, noting that Vereen\\n\\ncould have locked the gun in the mailbox or used his cellphone to call the police.\\n\\nThe jury found Vereen guilty.\\n\\n\\n 5\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 6 of 31\\n\\n\\n Before sentencing, the probation office prepared a presentence investigation\\n\\nreport (“PSI”) using the 2016 United States Sentencing Guidelines Manual. The\\n\\nPSI assigned Vereen a base offense level of 24, pursuant to U.S.S.G.\\n\\n§ 2K2.1(a)(2), because Vereen committed the instant offense after sustaining at\\n\\nleast two felony convictions for crimes of violence. Vereen received a two-level\\n\\nincrease under § 2K2.1(b)(4)(A) because the firearm was stolen, bringing his total\\n\\noffense level to 26. The probation officer further determined that Vereen qualified\\n\\nas an armed career criminal under the Armed Career Criminal Act, relying on\\n\\nseveral prior Florida felony convictions, including one for child abuse, two\\n\\naggravated battery convictions, and a felony battery conviction. All of this yielded\\n\\na total offense level of 33, which, when combined with a criminal history category\\n\\nof VI, resulted in an advisory guideline range of 235-293 months’ imprisonment.\\n\\n During the sentencing hearing, the district court overruled Vereen’s\\n\\nobjections to the PSI, concluding that, among other things, the PSI correctly scored\\n\\nthe guidelines and that all four prior convictions qualified as ACCA predicates.\\n\\nThe district court sentenced Vereen to 293 months’ imprisonment, followed by\\n\\nfive years’ supervised release.\\n\\n This timely appeal follows.\\n\\n\\n\\n\\n 6\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 7 of 31\\n\\n\\n II.\\n\\n First, Vereen argues that the district court abused its discretion in refusing\\n\\nhis request for a jury instruction on the innocent transitory possession defense,\\n\\nalthough he acknowledges that our Court has never approved or foreclosed this\\n\\ndefense. We review a district court’s refusal to give a defendant’s requested jury\\n\\ninstruction for abuse of discretion. United States v. Hill, 799 F.3d 1318, 1320\\n\\n(11th Cir. 2015). We examine whether a proposed instruction misstates the law or\\n\\nmisleads the jury to the prejudice of the objecting party de novo. United States v.\\n\\nChandler, 996 F.2d 1073, 1085 (11th Cir. 1993).1\\n\\n In order for the denial of a requested instruction to constitute reversible\\n\\nerror, a defendant must establish three things: that the request correctly stated the\\n\\nlaw; that the charge given did not substantially cover the proposed instruction; and,\\n\\nfinally, that the denial substantially impaired the defendant’s ability to present an\\n\\neffective defense. United States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008).\\n\\n\\n1\\n The government says that we should review Vereen’s argument only for plain error because\\nVereen did not argue at the charging conference for an instruction on the ITP defense, but asked\\nonly for an instruction that he possessed the firearm “solely so he could call law enforcement.”\\nApp’ee Br. at 8 (quoting Doc. 160 at 48); see United States v. Guerrero, 935 F.2d 189, 193 (11th\\nCir. 1991) (holding that the Court reviews unpreserved arguments for plain error only).\\nNevertheless, the government recognizes that Vereen filed a supplemental jury instruction before\\ntrial that sought the same ITP defense he describes on appeal. App’ee Br. at 8 (citing Doc. 29 at\\n3). Because the record reveals that Vereen argued extensively to the district court that he was\\nentitled to a jury instruction on the innocent transitory possession defense, and the district court\\nexpressly noted that he had adequately preserved the issue, we reject the government’s argument.\\nThe standard of review, however, has no effect on the disposition of this appeal, because\\nVereen’s arguments fail under either test.\\n\\n 7\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 8 of 31\\n\\n\\nAlthough a district court has broad discretion in formulating its instructions, a\\n\\ndefendant is entitled to an instruction relating to a theory of defense so long as\\n\\nthere is some evidential foundation, even if the evidence was weak, inconsistent, or\\n\\nof doubtful credibility. Id. In making this determination, we take the evidence in a\\n\\nlight most favorable to the accused. Id.\\n\\n Vereen claims that the district court should have instructed the jury about his\\n\\n“innocent” and “transitory” possession of a firearm. We remain unpersuaded,\\n\\nhowever, having carefully considered the language of the statute and the way other\\n\\ncourts have interpreted it. Most critically, we can find nothing in the text to\\n\\nsuggest the availability of an ITP defense to a § 922(g)(1) charge. The statute does\\n\\nnot invite any kind of inquiry into the purpose or the timespan of a defendant’s\\n\\npossession of the firearm. Allowing for this kind of defense would effectively\\n\\ncause us to rewrite the text of § 922(g) and the statutory scheme, so we have little\\n\\ndifficulty concluding that innocent transitory possession is not available as a\\n\\ndefense against § 922(g).\\n\\n Starting with the plain language of the statute, there is no “innocent” or\\n\\n“transitory” exception. The statute itself simply prohibits the possession of a\\n\\nfirearm by a convicted felon. It provides, in relevant part, that:\\n\\n It shall be unlawful for any person . . . who has been convicted in any\\n court of[ ] a crime punishable by imprisonment for a term exceeding\\n one year . . . to ship or transport in interstate or foreign commerce, or\\n possess in or affecting commerce, any firearm or ammunition; or to\\n 8\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 9 of 31\\n\\n\\n receive any firearm or ammunition which has been shipped or\\n transported in interstate or foreign commerce.\\n\\n18 U.S.C. § 922(g)(1). By its own terms, § 922(g) does not contain a mens rea\\n\\nrequirement, let alone the requirement that the defendant acted willfully or\\n\\nintentionally. Instead, this Court has long held that the applicable mens rea is set\\n\\nout in § 924(a)(2), which, in turn, provides that “[w]hoever knowingly violates\\n\\nsubsection . . . (g) . . . of section 922 shall be fined as provided in this title,\\n\\nimprisoned not more than 10 years, or both.” 18 U.S.C. § 924(a)(2) (emphasis\\n\\nadded). We have read the two statutory provisions together to require only that a\\n\\n§ 922(g) defendant “knowingly possessed” the firearm. United States v. Rehaif,\\n\\n888 F.3d 1138, 1143 (11th Cir. 2018); United States v. Deleveaux, 205 F.3d 1292,\\n\\n1296–97 (11th Cir. 2000); United States v. Billue, 994 F.2d 1562, 1565 (11th Cir.\\n\\n1993); United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990).\\n\\n Notably, § 924(a)(2) does not require that a violation of § 922(g)(1) be done\\n\\n“willfully” or “intentionally,” in sharp contrast to other violations covered by\\n\\n§ 924. Indeed, § 924(a)(1)(D) is a catch-all provision that specifies a “willful”\\n\\nmens rea for certain remaining violations of the chapter: “Whoever . . . willfully\\n\\nviolates any other provision of this chapter . . . .” 18 U.S.C. § 924(a) (emphasis\\n\\nadded); see also United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir. 1988)\\n\\n(Congress “added a set of mens rea requirements by amending section 924(a)(1) to\\n\\npunish certain violations only if they are committed ‘willfully’ and others only if\\n 9\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 10 of 31\\n\\n\\nthey are committed ‘knowingly.’”). As we’ve said many times, when “Congress\\n\\nincludes particular language in one section of a statute but omits it in another\\n\\nsection of the same Act, it is generally presumed that Congress acts intentionally\\n\\nand purposely” in its exclusion. United States v. Alabama, 778 F.3d 926, 933\\n\\n(11th Cir. 2015); see also United States v. Green, 904 F.2d 654, 655 (11th Cir.\\n\\n1990) (applying this general rule to another portion of § 924 and reasoning that\\n\\n“[t]he fact that the former ‘Dangerous Special Offender’ statute, 18 U.S.C.\\n\\n§ 3575(d) provided a time limit for the felonies underlying an enhancement\\n\\nsuggests that Congress knew what it was doing when it omitted such a limit from\\n\\nsection 924(e)(1)”); Antonin Scalia & Bryan A. Garner, Reading Law 107 (2012)\\n\\n(“The expression of one thing implies the exclusion of others (expression unius est\\n\\nexclusion alterius).”). It is abundantly clear that Congress deliberately chose\\n\\nwhich violations of § 922 would require knowing conduct and which would\\n\\ninclude the element of willfulness too.\\n\\n The mens rea associated with “knowing” conduct, the Supreme Court has\\n\\nexplained, “[i]n a general sense . . . corresponds loosely with the concept of\\n\\ngeneral intent.” United States v. Bailey, 444 U.S. 394, 405 (1980); H.R. Rep. 495,\\n\\n99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1351–52 (“It is\\n\\nthe Committee’s intent, that unless otherwise specified, the knowing state of mind\\n\\nshall apply to circumstances and results. This comports with the usual\\n\\n\\n 10\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 11 of 31\\n\\n\\ninterpretations of the general intent requirements of current law.”). More\\n\\nspecifically, a “knowing” mens rea “merely requires proof of knowledge of the\\n\\nfacts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193\\n\\n(1998); see also United States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir. 1994),\\n\\namended, 59 F.3d 1095 (11th Cir. 1995) (“[A] defendant need not intend to violate\\n\\nthe law to commit a general intent crime, but he must actually intend to do the act\\n\\nthat the law proscribes.”). Willfulness, on the other hand, typically requires that\\n\\n“the defendant acted with knowledge that his conduct was unlawful,” Ratzlaf v.\\n\\nUnited States, 510 U.S. 135, 137 (1994), and that the defendant acted with “a ‘bad\\n\\npurpose’” and a “culpable state of mind.” Bryan, 524 U.S. at 191 (quotation\\n\\nomitted); Dixon v. United States, 548 U.S. 1, 5 (2006); see also Phillips, 19 F.3d at\\n\\n1577 (defining “willfully” as meaning “that the act was committed voluntarily and\\n\\npurposely, with the specific intent to do something the law forbids; that is with bad\\n\\npurpose either to disobey or disregard the law”) (quotation omitted).\\n\\n Because, as we see it, § 922(g)(1)’s felon-in-possession-of-a-firearm offense\\n\\nonly requires that the possession be knowing, it is a general intent crime. See\\n\\nPalma, 511 F.3d at 1315. This means that a defendant need not have specifically\\n\\nintended to violate the law and that the defendant’s motive or purpose behind his\\n\\npossession is irrelevant. See id.; United States v. Sistrunk, 622 F.3d 1328, 1332\\n\\n(11th Cir. 2010); see also United States v. Reynolds, 215 F.3d 1210, 1214 (11th\\n\\n\\n 11\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 12 of 31\\n\\n\\nCir. 2000) (rejecting Reynolds’ Eighth Amendment claim because even if his\\n\\nrecent possession of the firearm was for an innocent reason, § 922(g) does not\\n\\n“focus on the motive or purpose of the current possession of firearms, but rather on\\n\\nthe fact that a person with three or more violent felony or serious drug convictions\\n\\ncurrently possesses a firearm”). It also means that by prohibiting only knowing\\n\\npossession, “the statute does not invite inquiry into the reason the defendant\\n\\npossessed the [firearm], as long as the defendant knew it was [a firearm] he\\n\\npossessed.” United States v. Baker, 508 F.3d 1321, 1325 (10th Cir. 2007); United\\n\\nStates v. Johnson, 459 F.3d 990, 996 (9th Cir. 2006). Indeed, by omitting the\\n\\nelement of willfulness from § 922(g)(1), Congress necessarily foreclosed the\\n\\navailability of the innocent transitory possession defense. Without willfulness, any\\n\\ndefense that the defendant possessed the firearm for a good or innocent purpose\\n\\nbecomes irrelevant. See United States v. Gilbert, 430 F.3d 215, 219 (4th Cir.\\n\\n2005) (holding that if Congress had intended for a defendant to offer an ITP\\n\\ndefense, “it would have required a willful violation of the statute, rather than\\n\\nmerely a knowing one,” yet it “deliberately decided to do otherwise”). Nor does\\n\\nthe statute permit any inquiry into how long the defendant’s possession lasted.\\n\\n“The statute explicitly punishes ‘possess[ion],’ not retention, and thus ‘in no way\\n\\ninvites investigation into why the defendant possessed a firearm or how long that\\n\\npossession lasted.’” Johnson, 459 F.3d at 996 (quoting Gilbert, 430 F.3d at 218).\\n\\n\\n 12\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 13 of 31\\n\\n\\n Not only is an innocent transitory possession defense incompatible with the\\n\\ntext, it would also be extremely difficult to administer. In this kind of case, only\\n\\nthe defendant “truly knows of the nature and extent of his gun possession.” Id. at\\n\\n997. As the Ninth Circuit has said, “[w]e will not require the government to\\n\\ncontest motive in every § 922 case where the facts will bear an uncorroborated\\n\\nassertion by the defendant that he innocently came upon a firearm and was\\n\\npreparing to turn it over to the authorities when, alas, he was arrested.” Id. This is\\n\\nespecially true since Congress promulgated the statute to keep guns out of the\\n\\nhands of convicted felons and offered no exception to this general prohibition. Id.\\n\\nat 998. “The statute is precautionary; society deems the risk posed by felon-\\n\\nfirearm possession too great even to entertain the possibility that some felons may\\n\\ninnocently and temporarily possess such a weapon.” Id.\\n\\n In short, under the statute and the developed case law, the purpose behind a\\n\\ndefendant’s possession is irrelevant, which means that he cannot defend against the\\n\\ncrime based on the “innocent” or “transitory” nature of his possession. We now\\n\\njoin the overwhelming majority of our sister circuits that have declined to\\n\\nrecognize the theory of “temporary innocent possession.”2 Baker, 508 F.3d at\\n\\n\\n2\\n In Palma, the only published case we have that addressed the issue at all, we declined to decide\\nthe availability of the defense to a § 922(g) charge, concluding that even if the defense were\\navailable, it was not supported by the evidence. 511 F.3d at 1316. There, the government had\\npresented uncontroverted evidence that Palma had entered a gun shop and shooting range on two\\noccasions; he physically picked up a firearm; he repeatedly referred to the firearm as “my gun”;\\n\\n\\n 13\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 14 of 31\\n\\n\\n1325 (10th Cir.) (rejecting the ITP defense because § 922(g) prohibits “knowing,\\n\\nas opposed to willful, possession of ammunition”); Johnson, 459 F.3d at 997–98\\n\\n(9th Cir.) (holding that the ITP defense would undermine the statutory design of\\n\\n§ 922(g)); United States v. Teemer, 394 F.3d 59, 62–65 (1st Cir. 2005) (rejecting\\n\\nthe ITP defense and affirming district court’s refusal to give jury instruction on\\n\\n“fleeting” or “transitory” possession); United States v. Mercado, 412 F.3d 243,\\n\\n250–52 (1st Cir. 2005) (rejecting the ITP defense and holding that even momentary\\n\\nor fleeting possession of a firearm is sufficient under the statute); Gilbert, 430 F.3d\\n\\nat 218 (4th Cir.) (rejecting the proposal of an exception to § 922(g)(1) when the\\n\\ndefendant had no illicit motive and attempted to quickly rid himself of the firearm);\\n\\nUnited States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003) (holding that only\\n\\njustification defenses would be recognized); see also United States v. Adkins, 196\\n\\nF.3d 1112, 1115 (10th Cir. 1999), overruled on other grounds by Chambers v.\\n\\nUnited States, 555 U.S. 122 (2009) (rejecting claim that knowledgeable and\\n\\nunjustified possession for “a mere second or two” falls outside § 922(g)); United\\n\\nStates v. Rutledge, 33 F.3d 671, 673 (6th Cir. 1994) (rejecting claim that\\n\\n\\n\\n\\nand he requested, purchased, and carried away ammunition for the firearm. Id. The only reason\\nhis possession had been short or transitory was because he was arrested upon exiting the store,\\nand Palma had presented no affirmative evidence that he attempted to rid himself of the\\nammunition. Id. We held that on this evidential foundation, the district court did not abuse its\\ndiscretion in declining to give the instruction. Id. at 1317.\\n 14\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 15 of 31\\n\\n\\npossession of a firearm “for innocent purposes” was “a legitimate defense” to\\n\\n§ 922(g)).\\n\\n As far as we can tell, the D.C. Circuit is the only appellate court -- out of at\\n\\nleast half a dozen -- to have held otherwise. See United States v. Mason, 233 F.3d\\n\\n619, 624–25 (D.C. Cir. 2000) (defining and applying the transitory innocent\\n\\npossession defense). In Mason, the defendant had found a gun in a paper bag near\\n\\na school while he was working as a delivery truck driver, and said he took\\n\\npossession of the firearm only to keep it out of the reach of young children at the\\n\\nschool, fully intending to give the weapon to a police officer whom he expected to\\n\\nsee later that day on his truck delivery route. Id. at 620. The D.C. Circuit\\n\\nnarrowly defined the limits of the defense to situations where the firearm was\\n\\nobtained by innocent means and for no illicit purpose and where the possession\\n\\nwas transitory. Id. at 624.\\n\\n We respectfully disagree. As we see it, the text of the statute answers the\\n\\nprecise question presented by the facts of our case: willfulness has been omitted\\n\\nfrom § 922(g)(1) and we are not free to rewrite the statute and include it. Our\\n\\nposition is consonant with the Supreme Court’s interpretation of the statute’s\\n\\npurpose: “Congress sought to keep guns out of the hands of those who have\\n\\ndemonstrated that they may not be trusted to possess a firearm without becoming a\\n\\nthreat to society.” Small v. United States, 544 U.S. 385, 393 (2005) (quotation\\n\\n\\n 15\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 16 of 31\\n\\n\\nomitted). Beyond that, the facts of Mason are peculiar, involving a firearm found\\n\\nin the open near a schoolyard where young children roam freely and could have\\n\\ndiscovered it. It’s possible that, under the facts in Mason, the defense of necessity\\n\\nor justification would have been available to the defendant. See Deleveaux, 205\\n\\nF.3d at 1295 (exploring the possibility of a defense to § 922(g) that would require\\n\\nthe government to prove beyond a reasonable doubt that the defendant did not act\\n\\nunder duress or by necessity in possessing the firearm). In any event, we’re bound\\n\\nby the unambiguous language contained in § 922(g)(1), and this leaves no room for\\n\\nan innocent or transitory exception, however narrowly the D.C. Circuit may have\\n\\ndrawn it.\\n\\n Moreover, as we see it, this reading of the statute -- one compelled by its\\n\\nunambiguous text -- in no way yields a result that is either unwavering or absurd.\\n\\nWe’ve expressly held that if, for example, a felon truly did not “know” that what\\n\\nhe possessed was a firearm, then § 922(g) could not impose criminal liability. To\\n\\nsatisfy the “knowing” requirement of § 922(g)(1), the government must prove that\\n\\nthe defendant had actual or constructive possession of a firearm. See United States\\n\\nv. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). “To prove actual possession the\\n\\nevidence must show that the defendant either had physical possession of or\\n\\npersonal dominion over the [firearm].” United States v. Leonard, 138 F.3d 906,\\n\\n909 (11th Cir. 1998); see also United States v. Oscar, 877 F.3d 1270, 1280 (11th\\n\\n\\n 16\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 17 of 31\\n\\n\\nCir. 2017) (noting that the government must also show that the defendant\\n\\n“‘knowingly’ possess[ed] the firearm” to establish actual possession). “To\\n\\nestablish constructive possession, the government must show that the defendant\\n\\nexercised ownership, dominion, or control over the firearm or the [premises]\\n\\nconcealing the firearm.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir.\\n\\n2004). Constructive possession can also be established by showing that the\\n\\ndefendant had “the power and intention to exercise dominion or control.” Id. at\\n\\n1235; United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (“Constructive\\n\\npossession exists when a person ‘has knowledge of the thing possessed coupled\\n\\nwith the ability to maintain control over it or reduce it to his physical possession\\n\\neven though he does not have actual possession.’”). Thus, whether possession is\\n\\nactual or constructive, a defendant must have known that what he possessed was a\\n\\nfirearm in order to establish guilt under § 922(g)(1).\\n\\n Furthermore, this Court, like many others, has recognized that a necessity or\\n\\njustification defense may be available in § 922(g)(1) cases. See Deleveaux, 205\\n\\nF.3d at 1297–98 (agreeing with our sister circuits that “the defense of justification\\n\\nmay be available to a § 922(g)(1) charge” and listing cases). We reached this\\n\\nconclusion upon the observation that Congress legislated against the backdrop of\\n\\nthe common law, which has historically recognized a necessity defense. See id. at\\n\\n1297 (citing Bailey, 444 U.S. at 415 n.11 (“Congress in enacting criminal statutes\\n\\n\\n 17\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 18 of 31\\n\\n\\nlegislates against the background of Anglo–Saxon common law . . . .”)). We also\\n\\nstressed that we would allow this defense only in extraordinary circumstances. See\\n\\nid. As a result, a defendant must show four elements to establish a necessity\\n\\ndefense to a § 922(g)(1) charge:\\n\\n (1) that the defendant was under unlawful and present, imminent, and\\n impending threat of death or serious bodily injury; (2) that the\\n defendant did not negligently or recklessly place himself in a situation\\n where he would be forced to engage in criminal conduct; (3) that the\\n defendant had no reasonable legal alternative to violating the law; and\\n (4) that there was a direct causal relationship between the criminal\\n action and the avoidance of the threatened harm.\\n\\nSee id. (citing United States v. Wofford, 122 F.3d 787, 789–90 (9th Cir. 1997);\\n\\nUnited States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991); United States v.\\n\\nSingleton, 902 F.2d 471, 472 (6th Cir. 1990); and United States v. Gant, 691 F.2d\\n\\n1159, 1162–63 (5th Cir. 1982)); see also Pattern Jury Instructions, Criminal Cases,\\n\\nEleventh Circuit, Special Instruction Number 16, entitled “Duress and Coercion\\n\\n(Justification or Necessity).” We’ve emphasized that “[t]he first prong requires\\n\\nnothing less than an immediate emergency.” United States v. Rice, 214 F.3d 1295,\\n\\n1297 (11th Cir. 2000).\\n\\n So, to the extent Vereen could have claimed a true emergency -- say, if his\\n\\nchildren had found the gun in the mailbox -- the defense of necessity arguably\\n\\nwould have been available. But that is not what he asked for and that is not what\\n\\nthe facts established. Rather, Vereen explicitly declined to seek an instruction of\\n\\n\\n 18\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 19 of 31\\n\\n\\nnecessity, 3 and instead sought something different -- a defense that we’ve never\\n\\nrecognized, a defense that is contrary to the text, and a defense that would\\n\\nimpractically force the courts to delve into the purpose behind the possession of a\\n\\nfirearm. While the Supreme Court has recognized common-law defenses to\\n\\nfederal criminal firearm statutes, the Supreme Court has done so with common-law\\n\\ndefenses that have been “long-established” and that Congress would have been\\n\\nfamiliar with. See, e.g., Dixon, 548 U.S. at 13–14 (discussing the defense of\\n\\nduress). Vereen has given us no reason to think that the innocent transitory\\n\\npossession defense was long-established or that Congress would have been\\n\\nfamiliar with it.\\n\\n In short, the district court did not abuse its considerable discretion in\\n\\ndeclining to give the requested instruction. We add, however, that even if the\\n\\ninnocent transitory possession defense was somehow available in this Circuit (and\\n\\nit is not) the district court would not have abused its discretion in declining to give\\n\\nthe instruction in this case. It is plain from this record that Vereen did not rid\\n\\nhimself of possession of the firearm as promptly as reasonably possible. Vereen\\n\\ntestified that he had a cellphone on his person at the time that he saw the gun in the\\n\\n\\n\\n\\n3\\n In relevant part, defense counsel told the district court: “Judge, first of all, I want to make it\\nclear, if I didn’t before, I am not asking for a justification affirmative defense. I’m not. . . . This\\nis very clearly to me not a justification affirmative defense case. There is no evidence to support\\nthe four prongs of that.”\\n 19\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 20 of 31\\n\\n\\nmailbox. He could have left the gun in the mailbox and called the police to\\n\\nimmediately report the firearm. Indeed, he could have waited by the mailbox for\\n\\nthe police to arrive, without ever touching the gun. And if he was somehow\\n\\nreluctant to call the police in a public place while he stood at the box, Vereen could\\n\\nhave locked the gun back in the mailbox and returned to his apartment to make the\\n\\ncall. While he testified that he did not know how many keys to the mailbox there\\n\\nwere, he thought his family had one or two. Normally his girlfriend had the key;\\n\\nhe had one that day. It was altogether unclear from his testimony how his sons\\n\\nwould have gained access to the mailbox; he did not testify that they had keys.\\n\\nRegardless, if he was concerned that his children might have a key to the mailbox\\n\\nand might attempt to check the mailbox, after discovering the firearm he could\\n\\nhave kept his children away from the box or requested guidance from police.\\n\\n Finally, we cannot forget that Vereen’s possession of the firearm was short\\n\\nnot because he attempted to get rid of the weapon, but only because he was\\n\\narrested so soon (seconds) after placing the gun in his back pocket. See Palma,\\n\\n511 F.3d at 1316. Nor can we ignore that police found during a search of his\\n\\napartment a black shotgun, as well as a box of ammunition matching the caliber of\\n\\nthe firearm Vereen took from the mailbox. The district court did not abuse its\\n\\ndiscretion in declining to give an ITP instruction.\\n\\n\\n\\n\\n 20\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 21 of 31\\n\\n\\n III.\\n\\n We also reject Vereen’s claim, made for the first time on appeal, that the\\n\\nterm “unlawful possession” under § 922(g)(1) is unconstitutionally vague because\\n\\nwe have never before determined whether there is an ITP defense to the charge.\\n\\nObjections not raised in the district court are reviewed only for plain error. United\\n\\nStates v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). To establish plain error,\\n\\na defendant must show there is (1) error, (2) that is plain, and (3) that affects\\n\\nsubstantial rights. Id. at 1019. If all three conditions are met, we may exercise our\\n\\ndiscretion to recognize a forfeited error, but only if the error seriously affects the\\n\\nfairness, integrity, or public reputation of judicial proceedings. Id. When neither\\n\\nthis Court nor the Supreme Court have resolved an issue, there can be no plain\\n\\nerror in regard to that issue. Id.\\n\\n As an initial matter, plain error is the appropriate standard of review against\\n\\nwhich to measure this claim. The record reveals that Vereen argued before the\\n\\ndistrict court that he was entitled to an ITP jury instruction, not that the term\\n\\nunlawful possession was unconstitutionally vague because we had never addressed\\n\\nthe ITP defense. Vereen cannot show plain error. He has pointed to no precedent,\\n\\nand independent research has revealed none, from this Court or the Supreme Court\\n\\nholding that a court’s failure to affirmatively determine whether a defense is\\n\\n\\n\\n\\n 21\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 22 of 31\\n\\n\\navailable for a crime renders the underlying criminal statute unconstitutionally\\n\\nvague. See id. at 1019.\\n\\n IV.\\n\\n We are also unconvinced by Vereen’s claim that the government failed to\\n\\nestablish that his prior Florida convictions qualified as violent felonies under the\\n\\nArmed Career Criminal Act. We review de novo whether an offense qualifies as a\\n\\nviolent felony under the ACCA. United States v. Lockett, 810 F.3d 1262, 1266\\n\\n(11th Cir. 2016).\\n\\n Under the statute, a person who violates § 922(g) and has three previous\\n\\nconvictions for either violent felonies or serious drug offenses shall be imprisoned\\n\\nnot less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent\\n\\nfelony” as any of several enumerated crimes, or any crime punishable by a term of\\n\\nimprisonment exceeding one year that has as an element the use, attempted use, or\\n\\nthreatened use of physical force against the person of another.4 Id. § 924(e)(2)(B).\\n\\n\\n4\\n The statute reads:\\n\\n [T]he term “violent felony” means any crime punishable by imprisonment for a term\\n exceeding one year, or any act of juvenile delinquency involving the use or carrying of a\\n firearm, knife, or destructive device that would be punishable by imprisonment for such\\n term if committed by an adult, that --\\n (i) has as an element the use, attempted use, or threatened use of physical force\\n against the person of another; or\\n (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise\\n involves conduct that presents a serious potential risk of physical injury to\\n another.\\n\\n18 U.S.C. § 924(e)(2)(B).\\n 22\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 23 of 31\\n\\n\\n In determining whether a prior conviction qualifies as a violent felony under\\n\\nthe ACCA, sentencing courts look at the elements of the crime, not the underlying\\n\\nfacts of the conduct that led to the conviction. United States v. Braun, 801 F.3d\\n\\n1301, 1304 (11th Cir. 2015). In other words, all that matters are “the elements of\\n\\nthe statute of conviction.” Taylor v. United States, 495 U.S. 575, 601 (1990).\\n\\nWhen a statute “comprises multiple, alternative versions of a crime” -- that is,\\n\\nwhen a statute is “divisible” -- the court “must determine which version of the\\n\\ncrime the defendant was convicted of,” then determine whether that specific\\n\\noffense qualifies as an ACCA predicate. Braun, 801 F.3d at 1304 (quoting\\n\\nDescamps v. United States, 570 U.S. 254, 262 (2013)). A statute is divisible if it\\n\\nsets out one or more elements of the offense in the alternative, thereby defining\\n\\nmultiple crimes, and indivisible if it contains a single set of elements. Descamps,\\n\\n570 U.S. at 262–64. If the statute is divisible, then the sentencing court may\\n\\nconsult a limited class of documents to determine which alternative element\\n\\nformed the basis of the prior conviction. Id. at 257–58. That class of documents,\\n\\nknown as “Shepard” documents, includes: the terms of the charging document, the\\n\\nterms of a plea agreement or transcript of the colloquy between the judge and the\\n\\ndefendant in which the factual basis for the plea was confirmed by the defendant,\\n\\nor some comparable judicial record. Shepard v. United States, 544 U.S. 13, 26\\n\\n(2005). Guilty pleas may establish ACCA predicate offenses. Id. at 19.\\n\\n\\n 23\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 24 of 31\\n\\n\\n Vereen argues that his two prior aggravated battery offenses do not\\n\\nconstitute violent felonies under the ACCA. Florida law, at the time of Vereen’s\\n\\ntwo convictions, defined aggravated battery this way:\\n\\n (1)(a) A person commits aggravated battery who, in committing\\n battery:\\n\\n 1. Intentionally or knowingly causes great bodily harm,\\n permanent disability, or permanent disfigurement; or\\n\\n 2. Uses a deadly weapon.\\n\\n (b) A person commits aggravated battery if the person who was the\\n victim of the battery was pregnant at the time of the offense and the\\n offender knew or should have known that the victim was pregnant.\\n\\nFla. Stat. § 784.045. We’ve held that a Florida aggravated battery conviction\\n\\nqualifies as a violent felony under the elements clause under either of the first two\\n\\nalternatives in § 784.045. Turner v. Warden Coleman FCI (Medium), 709 F.3d\\n\\n1328, 1341 (11th Cir. 2013), abrogated on other grounds by Hill, 799 F.3d at 1321\\n\\nn.1.5 Based on Vereen’s Shepherd documents, his 2000 aggravated battery\\n\\n\\n\\n5\\n In Hill, a panel of this Court noted that it was no longer bound by the determination in Turner\\nthat battery on a law enforcement officer was a violent felony under the residual clause after\\nJohnson v. United States, 135 S. Ct. 2551 (2015). Hill, 799 F.3d at 1321 n.1. However, Johnson\\ndid not undermine the portion of Turner that relied on the elements clause to determine that\\naggravated battery can qualify as a violent felony. See Johnson, 135 S. Ct. at 2563 (“Today’s\\ndecision does not call into question application of the Act to the four enumerated offenses, or the\\nremainder of the Act’s definition of a violent felony.”). We have repeatedly cited the portions of\\nTurner that were unaffected by Johnson as good law after Hill. See, e.g., Hylor v. United States,\\n896 F.3d 1219, 1223 (11th Cir. 2018); United States v. Deshazior, 882 F.3d 1352, 1355 (11th\\nCir. 2018); United States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (per curiam)\\n(holding that the argument that a Florida conviction for aggravated assault is not a crime of\\nviolence was “foreclosed by our precedent” in Turner).\\n 24\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 25 of 31\\n\\n\\njudgment stated that he pled guilty to violating Florida Statutes § 784.045,\\n\\naggravated battery “(GBH/deadly weapon),” and the charging information alleged\\n\\nthat he intentionally caused great bodily harm, permanent disability, or permanent\\n\\ndisfigurement using a deadly weapon. Similarly, the 2011 aggravated battery\\n\\njudgment indicated that Vereen pled guilty to aggravated battery causing great\\n\\nbodily harm, in violation of Florida Statutes § 784.045(1)(A)(1), and the\\n\\ninformation charged that he intentionally caused great bodily harm, permanent\\n\\ndisability, or permanent disfigurement. Thus, the charging documents from both\\n\\nconvictions indicate that he was convicted of violating subsection (a) of the\\n\\naggravated battery statute, and we are bound by our holding in Turner that Florida\\n\\naggravated battery qualifies as an ACCA predicate. See United States v. Kaley,\\n\\n579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a prior\\n\\nopinion only where that holding is overruled by the Court sitting en banc or by the\\n\\nSupreme Court.”). 6\\n\\n\\n\\n\\n6\\n We’ve also rejected Vereen’s claim that injuries requiring medical attention are necessary to\\nestablish the requisite level of force for purposes of the ACCA. See United States v. Vail-\\nBailon, 868 F.3d 1293, 1299–1302 (11th Cir. 2017) (en banc). As we reiterated in Vail-Bailon,\\nthe proper standard is force “capable” of causing physical pain or injury. Id. at 1300–01. And as\\nfor his argument that the government failed to provide sufficient proof that he assented to the\\nunderlying facts of the offenses, Vereen is mistaken. Unlike a nolo contendere plea without an\\nadmission of guilt, see United States v. Diaz-Calderone, 716 F.3d 1345 (11th Cir. 2013),\\nVereen’s aggravated battery judgments indicate that he pled guilty, and a guilty plea is sufficient\\nto establish an ACCA predicate conviction. See Shepard, 544 U.S. at 19.\\n 25\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 26 of 31\\n\\n\\n Vereen also says his 2012 felony battery conviction does not constitute an\\n\\nACCA predicate. The Florida battery statute provided, at the relevant time, that:\\n\\n (1) (a) The offense of battery occurs when a person:\\n\\n 1. Actually and intentionally touches or strikes another person\\n against the will of the other; or\\n\\n 2. Intentionally causes bodily harm to another person.\\n\\n (b) Except as provided in subsection (2), a person who commits\\n battery commits a misdemeanor of the first degree . . .\\n\\n (2) A person who has one prior conviction for battery, aggravated\\n battery, or felony battery and who commits any second or\\n subsequent battery commits a felony of the third degree[.]\\n\\nFla. Stat. § 784.03. Because Vereen was convicted under § 784.03(2), we analyze\\n\\nthat subsection, which requires that Vereen committed a battery subsequently to a\\n\\nconviction for battery, aggravated battery, or felony battery. Curtis Johnson v.\\n\\nUnited States, 559 U.S. 133, 136 (2010). Battery, in turn, is defined in\\n\\n§ 784.03(1), which is divisible into at least two elements: (1) to intentionally cause\\n\\nbodily harm; or (2) actually and intentionally touch or strike the victim. Id. at 136–\\n\\n37. Florida courts interpreting § 784.03(1)(a) have treated these two divisible\\n\\nsubsections ((1) and (2)) as alternative elements of the crime of battery. See, e.g.,\\n\\nJaimes v. State, 51 So. 3d 445, 449–51 (Fla. 2010); State v. Weaver, 957 So. 2d\\n\\n586, 587–89 (Fla. 2007); Fla. Std. Jury Instr. (Crim.) 8.3.\\n\\n\\n\\n\\n 26\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 27 of 31\\n\\n\\n The district court was permitted, as it did, to look to Shepard documents to\\n\\ndetermine which of the alternative elements of the divisible statute Vereen was\\n\\nconvicted of violating. See Descamps, 570 U.S. at 260–61, 263. In providing the\\n\\nfactual basis during the plea colloquy for the § 784.03(2) charge, the prosecutor\\n\\ndetailed that Vereen had falsely imprisoned a woman he was in a domestic\\n\\nrelationship with for nine to ten hours, during which time he “repeatedly hit and\\n\\nstruck” her. The prosecutor added that the police had “observed injuries on [the\\n\\nvictim] consistent with the batteries that had been reported.” Reviewing these and\\n\\nother Shepard documents, we are satisfied that Vereen was convicted of a form of\\n\\nFlorida battery that is a violent felony -- the bodily harm prong. See Diaz-\\n\\nCalderone, 716 F.3d at 1350–51 (where charging instrument alleged that defendant\\n\\ndid “touch or strike [or] cause bodily harm,” district court properly relied on\\n\\nfactual basis and plea colloquy to determine whether he had pleaded to violent\\n\\nelement).\\n\\n We address the “bodily harm” prong of § 784.03 even though the\\n\\ngovernment did not fully flesh out the argument before the district court, 7 because\\n\\n\\n7\\n The government originally argued at Vereen’s sentencing that his Florida felony battery crime\\nqualified as a violent felony because the “touch or strike” prong of the Florida battery statute was\\ndivisible, and Vereen had struck the victim, committing a violent felony. In so doing, it relied on\\nour opinion in United States v. Green, 842 F.3d 1299, 1324 (11th Cir. 2016), opinion vacated\\nand superseded on denial of reh’g, 873 F.3d 846 (11th Cir. Sept. 29, 2017), which had held that\\nthe touch or strike prong of the Florida statute was itself divisible, and that a conviction under the\\nstrike prong of § 784.03 qualified as a violent felony under the elements clause. Since Vereen’s\\n\\n\\n 27\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 28 of 31\\n\\n\\na change in our case law occurred after the appeals briefs were completed in this\\n\\ncase, so neither Vereen nor the government initially had the opportunity to focus\\n\\non the bodily harm prong in district court. However, since the change in law, both\\n\\nparties have filed two sets of supplemental authority raising the issue in this Court,\\n\\nand we’ve had oral argument addressing the issue. Moreover, the record makes it\\n\\nclear that the United States relied on both the striking and bodily harm prongs at\\n\\nsentencing, and that all of the necessary facts were before the district court: The\\n\\ngovernment informed the district court that Vereen’s Shepard documents\\n\\nestablished his guilty plea to having “repeatedly hit and struck” his victim, leaving\\n\\nvisible “injuries”; Vereen didn’t dispute that the plea colloquy stated facts that\\n\\nwould make it a violent predicate; and Vereen only challenged whether his assent\\n\\nby the entry of a guilty plea was sufficient to make the plea colloquy reliable, an\\n\\nobjection the district court overruled.\\n\\n We turn, then, to the application of these facts to the question before us,\\n\\nrecognizing that “in the context of a statutory definition of ‘violent felony,’ the\\n\\nphrase ‘physical force’ means violent force -- that is, force capable of causing\\n\\nphysical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140\\n\\n\\n\\nsentencing, however, the first Green opinion was vacated and superseded by a new opinion,\\nwhich did not reach the issue of whether the strike prong of § 784.03 qualified as an independent\\nviolent felony. Green, 873 F.3d at 868–69. Because Green was vacated, the government now\\nargues on appeal that Vereen’s Shepard documents establish that he was convicted under the\\n“bodily harm” prong of § 784.03, which still qualifies as a violent felony under the ACCA.\\n 28\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 29 of 31\\n\\n\\n(emphasis omitted). In United States v. Vail-Bailon, 868 F.3d 1293 (11th Cir.\\n\\n2017) (en banc), we held that the test in Curtis Johnson for “determining whether\\n\\nan offense calls for the use of physical force . . . is whether the statute calls for\\n\\nviolent force that is capable of causing physical pain or injury to another.” Id. at\\n\\n1302. Using this test, we hold that Vereen’s conviction under Florida’s battery\\n\\nstatute, requiring a use of force that “intentionally cause[s] bodily harm,” qualifies\\n\\nas a violent felony under the elements clause, because force that in fact causes this\\n\\nlevel of harm “necessarily constitutes force that is capable of causing pain or\\n\\ninjury.” Id. at 1303; see also id. at 1304 (holding that Florida’s other felony-\\n\\nbattery statute, Fla. Stat. § 784.041, “which includes the additional element that the\\n\\ntouch or strike in fact cause significant physical injury, necessarily requires the use\\n\\nof force capable of causing pain or injury and therefore does” qualify as an ACCA\\n\\npredicate). As a result, Vereen’s prior conviction for felony battery under Florida\\n\\nStatutes § 784.03 qualified as a valid ACCA predicate offense. 8\\n\\n\\n8\\n In reaching this conclusion, we emphasize that Vereen conceded in district court that the facts\\nstated in the relevant plea colloquy would make this conviction a violent predicate, that all of the\\nrelevant Shepard documents concerning whether viewing Vereen’s crime through the “bodily\\nharm” prong would satisfy the ACCA were before the district court, and that the resolution of the\\nmatter is clear. Thus, even though the district court did not address this exact issue, we can\\naffirm on this ground. See Ovalles v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018)\\n(establishing a new test to determine whether a defendant’s prior conviction qualifies as a “crime\\nof violence” under 18 U.S.C. § 924(c), which uses a “conduct-based approach” that relies on the\\nactual facts and circumstances underlying a defendant’s offense, and applying that test in the first\\ninstance to admitted, “real-life” facts “embodied in a written plea agreement and detailed\\ncolloquy”); United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012) (“Because we can\\naffirm for any reason supported by the record, ‘[e]ven though the district court did not reach the\\n\\n\\n 29\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 30 of 31\\n\\n\\n With two prior convictions for Florida aggravated battery, and one prior\\n\\nconviction for Florida felony battery, Vereen had the requisite ACCA predicate\\n\\noffenses to qualify as a career offender. Because this satisfies the required number\\n\\nof predicate offenses, we need not reach the issue of whether child abuse qualifies.\\n\\n V.\\n\\n Vereen also claims that his Fifth and Sixth Amendment rights were violated\\n\\nbecause his sentence was increased based on the Armed Career Criminal Act\\n\\nwithout these requirements being charged in the indictment and proven to the\\n\\nsatisfaction of a jury beyond a reasonable doubt. Vereen concedes, however, that\\n\\nthis argument is barred by binding precedent. In Apprendi v. New Jersey, 530 U.S.\\n\\n\\nresidual clause issue, we can still decide it.’”); United States v. Taylor, 88 F.3d 938, 944 (11th\\nCir. 1996) (“Although the district court did not make individualized findings regarding the\\nobstruction of justice enhancement, the record clearly reflects the basis for the enhancement and\\nsupports it; a remand is not necessary.”); United States v. Jones, 52 F.3d 924, 927 (11th Cir.\\n1995) (“No remand is necessary in this case, however, because Jones is represented in this\\nappeal by conflict-free counsel, and the record is sufficient for us to determine that Jones’s\\nselective prosecution defense is clearly without merit. No additional facts need be developed,\\nand any district court decision of the issue would be reviewed de novo by this Court anyway.”);\\nsee also Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32 (11th Cir. 2004)\\n(holding that issues raised for the first time on appeal are generally forfeited, unless: (1) the issue\\ninvolves a pure question of law and refusal to consider it would result in a miscarriage of justice;\\n(2) the party had no opportunity to raise the issue below; (3) the interest of substantial justice is\\nat stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant\\nquestions of general impact or of great public concern). This situation is nothing like the one in,\\nfor example, United States v. Petite, 703 F.3d 1290, (11th Cir. 2013), where we held that the\\ngovernment could not offer on appeal a new predicate conviction in support of an ACCA\\nenhancement. Id. at 1292 n.2. Not only is the language in Petite dicta, but the defendant in\\nPetite had objected at sentencing and on direct appeal that the vehicle flight offense did not count\\nsubstantively under the residual clause, which means that the government had the opportunity to\\nraise an alternate ground for affirmance but nevertheless chose not to. See id. at 1292. Here, the\\ngovernment had no opportunity to do so.\\n\\n\\n 30\\n\\f Case: 17-11147 Date Filed: 04/05/2019 Page: 31 of 31\\n\\n\\n466 (2000), the Supreme Court held that any fact that increases the penalty for a\\n\\ncrime beyond the prescribed statutory maximum must be submitted to a jury, and\\n\\nproven beyond a reasonable doubt, but it excepted the fact of a prior conviction\\n\\nfrom this rule. Id. at 490. Thus, Vereen’s claims fail.\\n\\n Finally, Vereen argues that § 922(g) is unconstitutional, facially and as\\n\\napplied, because it exceeds Congress’s constitutional power under the Commerce\\n\\nClause. Once again, Vereen concedes that this argument is barred by binding\\n\\nprecedent. In United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), we held that\\n\\nUnited States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529\\n\\nU.S. 598 (2000), did not alter our previous holding that § 922(g) is constitutional.\\n\\nSee Scott, 263 F.3d at 1271–74; Kaley, 579 F.3d at 1255. Accordingly, this claim\\n\\nfails too.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1879,"cells":{"id":{"kind":"number","value":4607489,"string":"4,607,489"},"name":{"kind":"string","value":"Camille BURBAN, Plaintiff-Appellant, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Camille Burban v. City of Neptune Beach, Florida"},"decision_date":{"kind":"string","value":"2019-04-05"},"docket_number":{"kind":"string","value":"18-11347"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carnes, Martin, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"MARTIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11347 Date Filed: 04/05/2019 Page: 1 of 18\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11347\\n ________________________\\n\\n D.C. Docket No. 3:17-cv-00262-MMH-JBT\\n\\nCAMILLE BURBAN,\\n Plaintiff - Appellant,\\n\\n\\n versus\\n\\n\\nCITY OF NEPTUNE BEACH, FLORIDA,\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\\n\\nMARTIN, Circuit Judge:\\n\\n The Law Enforcement Officers Safety Act (“LEOSA”) allows “a qualified\\n\\nretired law enforcement officer . . . who is carrying the identification required by\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 2 of 18\\n\\n\\n[the Act]” to “carry a concealed firearm,” notwithstanding most State or local\\n\\nrestrictions. 18 U.S.C. §§ 926C(a), (b). Camille Burban, who is a retired police\\n\\nofficer formerly employed by the Neptune Beach Police Department (“the\\n\\nDepartment”), sued the City of Neptune Beach, Florida seeking to have it issue her\\n\\nthe type of identification card required by LEOSA. The District Court dismissed\\n\\nMs. Burban’s amended complaint, finding that LEOSA does not give rise to a\\n\\nfederal right enforceable under 42 U.S.C. § 1983. After careful review, and with\\n\\nthe benefit of oral argument, we affirm.\\n\\n I.\\n\\n In March 2017, Camille Burban sued Neptune Beach, Florida seeking to\\n\\nenforce her individual rights she believes are granted to her by the Law\\n\\nEnforcement Officers Safety Act, 18 U.S.C. § 926C. LEOSA permits qualified\\n\\nactive and retired law enforcement officers who meet certain conditions to carry a\\n\\nconcealed firearm anywhere in the United States, even if State or local law would\\n\\nordinarily prohibit it. See id. §§ 926B(a), 926C(a). But see id. § 926B(b)\\n\\n(establishing that LEOSA does not supersede laws restricting firearms on private\\n\\nproperty or State or local government property); id. § 926C(b) (same). Section\\n\\n926C, which is divided into five subsections, addresses retired officers.\\n\\n Subsection (a) provides:\\n\\n Notwithstanding any other provision of the law of any\\n State or any political subdivision thereof, an individual\\n 2\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 3 of 18\\n\\n\\n who is a qualified retired law enforcement officer and who\\n is carrying the identification required by subsection (d)\\n may carry a concealed firearm that has been shipped or\\n transported in interstate or foreign commerce, subject to\\n subsection (b).\\n\\nId. § 926C(a). As set out in subsection (c), a “qualified retired law enforcement\\n\\nofficer” is defined as a person who, among other things, “separated from service in\\n\\ngood standing,” “served as a law enforcement officer for an aggregate of 10 years\\n\\nor more,” and has met certain firearms training standards during the most recent\\n\\n12-month period. See id. § 926(c) (establishing seven conditions for recognition as\\n\\na “qualified retired law enforcement officer”).\\n\\n Subsection (d) sets out two options for the type of identification a qualified\\n\\nretired law enforcement officer must possess in order to lawfully carry a concealed\\n\\nweapon under LEOSA. Option one is:\\n\\n [A] photographic identification issued by the agency from\\n which the individual separated from service as a law\\n enforcement officer that identifies the person as having\\n been employed as a police officer or law enforcement\\n officer and indicates that the individual has, not less\\n recently than one year before the date the individual is\\n carrying the concealed firearm, been tested or otherwise\\n found by the agency to meet the active duty standards for\\n qualification in firearms training as established by the\\n agency to carry a firearm of the same type as the concealed\\n firearm[.]\\n\\nId. § 926C(d)(1). Option two is “a photographic identification issued by the\\n\\nagency” that identifies the person as retired law enforcement together with a\\n\\n\\n 3\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 4 of 18\\n\\n\\nfirearms certification issued no more than a year ago by either “the State in which\\n\\nthe individual resides or by a [qualified] certified firearms instructor.” Id.\\n\\n§ 926C(d)(2). The firearms certification must show that the retired officer met the\\n\\nactive duty standards “as established by the State, to carry a firearm of the same\\n\\ntype as the concealed firearm,” or, if the State does not have such standards,\\n\\n“standards set by any law enforcement agency within that State to carry a firearm\\n\\nof the same type as the concealed firearm.” Id. § 926C(d)(2)(B)(I), (II). Finally,\\n\\nsubsection (e) defines “firearm” and “service with a public agency as a law\\n\\nenforcement officer.” Id. § 926(e).\\n\\n According to Ms. Burban’s amended complaint, she was an officer with the\\n\\nDepartment for more than ten years before she retired from service in 2013. In\\n\\nOctober 2016, she asked the Department to issue her the type of photographic\\n\\nidentification card required by LEOSA. The Department denied her request,\\n\\nexplaining that under its policy, these cards are issued only to officers who retired\\n\\nin good standing and who qualify with a Department-certified firearms instructor.\\n\\nThe Department policy also requires an officer to serve for at least fifteen years to\\n\\nbe eligible to receive an identification for LEOSA purposes, even though the\\n\\nstatute requires just ten. Ms. Burban’s later petitions for clarification about the\\n\\nDepartment’s reasons for denying her request went unanswered.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 5 of 18\\n\\n\\n Ms. Burban’s suit challenged the Department’s requirements as inconsistent\\n\\nwith federal law. More to the point, Ms. Burban asserted that she is a qualified\\n\\nretired law enforcement officer as defined in LEOSA. She said the City’s refusal\\n\\nto supply her with LEOSA-compliant identification deprived her of federal rights\\n\\nconferred upon her by LEOSA and enforceable under 42 U.S.C. § 1983.\\n\\n The City moved to dismiss Ms. Burban’s amended complaint. The District\\n\\nCourt applied the framework set out in Blessing v. Freestone, 520 U.S. 329, 117 S.\\n\\nCt. 1353 (1997). In doing so, the District Court found that LEOSA did not give\\n\\nMs. Burban an individually enforceable federal right and dismissed her complaint\\n\\nfor failure to state a claim on which relief may be granted. This is Ms. Burban’s\\n\\nappeal.\\n\\n II.\\n\\n “We review de novo the district court’s grant of a motion to dismiss under\\n\\nRule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint\\n\\nas true and construing them in the light most favorable to the plaintiff.” Am.\\n\\nDental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation\\n\\nmarks omitted).\\n\\n\\n\\n\\n 5\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 6 of 18\\n\\n\\n III.\\n\\n This appeal must address whether LEOSA creates a right enforceable under\\n\\n42 U.S.C. § 1983 to LEOSA-compliant, agency-issued identification. As set out\\n\\nbelow, we conclude that it does not and therefore affirm the District Court.\\n\\n\\n\\n A.\\n\\n Section 1983 provides a private cause of action against any person who,\\n\\nunder color of state law, deprives an individual of “any rights, privileges, or\\n\\nimmunities secured by the Constitution and laws” of the United States. 42 U.S.C.\\n\\n§ 1983. Section 1983 actions may be brought to enforce rights created by federal\\n\\nstatutes as well as by the Constitution. See Maine v. Thiboutot, 448 U.S. 1, 4–8,\\n\\n100 S. Ct. 2502, 2504–06 (1980). But “to seek redress through § 1983 . . . a\\n\\nplaintiff must assert the violation of a federal right, not merely a violation of\\n\\nfederal law.” Blessing, 520 U.S. at 340, 117 S. Ct. at 1359 (emphasis in original).\\n\\n In Blessing, the Supreme Court described the framework for deciding\\n\\nwhether a federal statute creates rights enforceable under § 1983. First, a court\\n\\nmust break down a plaintiff’s complaint into “manageable analytic bites,”\\n\\nidentifying “exactly what rights, considered in their most concrete, specific form,\\n\\n[plaintiff] [is] asserting.” Id. at 342, 346, 117 S. Ct. at 1360, 1362; see, e.g., Harris\\n\\nv. James, 127 F.3d 993, 1005–1012 (11th Cir. 1997) (assessing provision-by-\\n\\n\\n 6\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 7 of 18\\n\\n\\nprovision whether the Medicaid Act creates a federal right to transportation to and\\n\\nfrom medical providers); cf. Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d\\n\\n709, 714–15 (11th Cir. 1996) (explaining that the Harris panel’s conclusion that\\n\\nthe Medicaid Act did not create a federal right to transportation to and from\\n\\nmedical providers did not reach the question of whether any provisions of that\\n\\nsame Act created a federal right to reasonably prompt provision of medical\\n\\nassistance). It is a mistake for a court to take a “blanket approach” to determining\\n\\nwhether a statute is rights-creating. Blessing, 520 U.S. at 344, 117 S. Ct. at 1361.\\n\\n Once the right being asserted has been identified, a court must consider three\\n\\nfactors:\\n\\n First, Congress must have intended that the provision in\\n question benefit the plaintiff. Second, the plaintiff must\\n demonstrate that the right assertedly protected by the\\n statute is not so ‘vague and amorphous’ that its\\n enforcement would strain judicial competence. Third,\\n the statute must unambiguously impose a binding\\n obligation on the States. In other words, the provision\\n giving rise to the asserted right must be couched in\\n mandatory, rather than precatory, terms.\\n\\nId. at 340–41, 117 S. Ct. at 1359 (citations omitted). If all three of these factors are\\n\\nsatisfied, this creates a rebuttable presumption that a right is enforceable under\\n\\n§ 1983. Id. at 341, 117 S. Ct. at 1360. However, a defendant is able to rebut that\\n\\npresumption by showing Congress expressly or impliedly foreclosed a remedy\\n\\nunder § 1983. Id. If a provision fails to meet any one of the three Blessing factors,\\n\\n\\n 7\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 8 of 18\\n\\n\\nit does not provide a person with a federal right enforceable under § 1983. See\\n\\nArrington v. Helms, 438 F.3d 1336, 1345 (11th Cir. 2006).\\n\\n Since Blessing, the Supreme Court has explicitly “reject[ed] the notion that\\n\\n. . . anything short of an unambiguously conferred right” may support a cause of\\n\\naction brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct.\\n\\n2268, 2275 (2002). Thus, “where the text and structure of a statute provide no\\n\\nindication that Congress intends to create new individual rights, there is no basis\\n\\nfor a private suit . . . under § 1983.” Id. at 286, 122 S. Ct. at 2277.\\n\\n B.\\n\\n We need not belabor our analysis because no provision of § 926C, read\\n\\nindividually or together, “unambiguously impose[s] a binding obligation on the\\n\\nStates” to give agency-issued, LEOSA-compliant identification to retired law\\n\\nenforcement officers.1 Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. The failure\\n\\nto satisfy one of the Blessing factors dooms Ms. Burban’s complaint. See\\n\\nArrington, 438 F.3d at 1345. We therefore affirm its dismissal.\\n\\n A provision unambiguously imposes a binding obligation on the States when\\n\\n“the asserted right [is] couched in mandatory, rather than precatory, terms.”\\n\\nBlessing, 520 U.S. at 341, 117 S. Ct. at 1359. We typically look to the language of\\n\\n\\n 1\\n This case does not require us to reach the question of whether LEOSA might create any\\nother enforceable federal rights, so we do not. Neither do we address whether Ms. Burban might\\nhave a cause of action under state law.\\n 8\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 9 of 18\\n\\n\\na provision for words like “must” and “shall.” See Kingdomware Techs., Inc. v.\\n\\nUnited States, 579 U.S. __, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’\\n\\nwhich implies discretion, the word ‘shall’ usually connotes a requirement.”); see\\n\\nalso, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 512, 110 S. Ct. 2510, 2519\\n\\n(1990) (concluding the Boren Amendment, which provided that a State plan\\n\\n“‘must’ ‘provide for payment . . . of hospital[s]’ according to rates the State finds\\n\\nare reasonable and adequate,” is cast in mandatory terms (alterations and emphasis\\n\\nin original) (quoting 42 U.S.C. § 1396(a)(13)(A) (1982 ed., Supp. V))); Wright v.\\n\\nCity of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 430–31, 107 S. Ct. 766,\\n\\n773–74 (1987) (concluding a provision of the United States Housing Act of 1937\\n\\nthat provided a low-income family “shall pay as rent” a specified percentage of its\\n\\nincome imposed a mandatory limitation on rent). A provision that “reflects merely\\n\\na ‘congressional preference’ for a certain kind of conduct rather than a binding\\n\\nobligation” does not suffice. Wilder, 496 U.S. at 509, 110 S. Ct. at 2517. Also, it\\n\\nis our charge to confirm that the language compels a State to afford the right the\\n\\nplaintiff seeks to vindicate as opposed to some other right. Cf. Suter v. Artist M.,\\n\\n503 U.S. 347, 358–63, 112 S. Ct. 1360, 1367–70 (1992) (concluding the\\n\\nmandatory language of a provision of the Adoption Assistance and Child Welfare\\n\\nAct of 1980 requiring States receiving federal funds to provide a plan that “shall be\\n\\nin effect in all political subdivisions” did not render individually enforceable a\\n\\n\\n 9\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 10 of 18\\n\\n\\nseparate provision providing for “reasonable efforts” to prevent or eliminate\\n\\nremoval of a child from his or her home).\\n\\n There is no provision of § 926C that compels the States to provide LEOSA-\\n\\ncompliant identification. Two of the five subsections of § 926C do not so much as\\n\\nmention identification. See 18 U.S.C. §§ 926C(b), (e). And those provisions that\\n\\ndo refer to identification—(a), (c), and (d)—do not impose any obligation on the\\n\\nStates to provide it. See id. §§ 926C(a), (c), (d).\\n\\n Subsection (a) indicates that a retired officer may only carry a concealed\\n\\nweapon pursuant to LEOSA if he or she is also “carrying the identification\\n\\nrequired by subsection (d).” Id. § 926(a). This provision does not obligate States\\n\\nto create—much less issue—LEOSA-compliant identification. Rather, it puts the\\n\\nburden on the retired law enforcement officer who seeks to carry a concealed\\n\\nweapon pursuant to LEOSA to also hold LEOSA-compliant identification.\\n\\nSubsection (c) also mentions identification, see id. § 926C(c)(5), but only in noting\\n\\nthat a person who hasn’t been issued agency identification because of an agency’s\\n\\nfinding that he or she is unqualified for mental health reasons is not a qualified\\n\\nretired law enforcement officer. Id. Here again, this provision does not feature\\n\\nany language imposing an obligation on the States to issue identification under any\\n\\ncircumstances. Finally, subsection (d) defines the two options for “the\\n\\nidentification required by this subsection.” Id. § 926C(d). But this provision is\\n\\n\\n 10\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 11 of 18\\n\\n\\npurely definitional. And this Court has made clear that definitional provisions are\\n\\nnot enforceable under § 1983. See 31 Foster Children v. Bush, 329 F.3d 1255,\\n\\n1271 (11th Cir. 2003) (“Because §§ 675(5)(D) and (E) are definitional in nature,\\n\\nthey alone cannot and do not supply a basis for conferring rights enforceable under\\n\\n§ 1983.”). We thus conclude that no provision of § 926C compels a State to issue\\n\\nidentification. This being the case, we cannot say LEOSA provides the right Ms.\\n\\nBurban seeks to enforce.\\n\\n C.\\n\\n Beyond the Blessing test, we are also mindful of the “anticommandeering”\\n\\ndoctrine. This doctrine follows from the Tenth Amendment’s explicit reservation\\n\\nof “powers not delegated to the United States by the Constitution, nor prohibited\\n\\nby it to the States, . . . to the States respectively, or to the people.” U.S. Const.\\n\\namend. X. The Tenth Amendment confirms the idea that “the power of the Federal\\n\\nGovernment is subject to limits that may, in a given instance, reserve power to the\\n\\nStates.” New York v. United States, 505 U.S. 144, 157, 112 S. Ct. 2408, 2418\\n\\n(1992). Thus, the Supreme Court has recognized that “[w]hile Congress has\\n\\nsubstantial powers to govern the Nation directly, including in areas of intimate\\n\\nconcern to the States, the Constitution has never been understood to confer upon\\n\\nCongress the ability to require the States to govern according to Congress’\\n\\ninstructions.” Id. at 162, 112 S. Ct. at 2421.\\n\\n\\n 11\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 12 of 18\\n\\n\\n Citing the anticommandeering doctrine, the Supreme Court has invalidated\\n\\nfederal laws that commandeer a State’s legislative or administrative machinery for\\n\\nfederal purposes. For example, in New York v. United States, the Court struck\\n\\ndown provisions of a federal statute that required a State to either take title to\\n\\nnuclear waste or enact certain state waste regulations. Id. at 174–75, 112 S. Ct. at\\n\\n2427–28. Likewise, in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365\\n\\n(1997), the Court struck down federal legislation compelling state law enforcement\\n\\nofficers to perform federally mandated background checks on handgun purchasers.\\n\\nId. at 933–35, 117 S. Ct. at 2383–84. The Court explained that the\\n\\nanticommandeering principle extends even to federal laws that require States to\\n\\nperform only “discrete, ministerial tasks.” Id. at 929–30, 117 S. Ct. at 2382. And\\n\\nthis principle applies even when “States are not forced to absorb the costs of\\n\\nimplementing a federal program,” because “they are still put in the position of\\n\\ntaking the blame for its burdensomeness and for its defects.” Id. At the same time,\\n\\nthe Court has clarified that anticommandeering principles do not bar federal laws\\n\\nthat “‘regulate[] state activities,’ rather than ‘seek[ing] to control or influence the\\n\\nmanner in which States regulate private parties.’” Reno v. Condon, 528 U.S. 141,\\n\\n150, 120 S. Ct. 666, 672 (2000) (quoting South Carolina v. Baker, 485 U.S. 505,\\n\\n514–15, 108 S. Ct. 1355, 1362 (1988)).\\n\\n\\n\\n\\n 12\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 13 of 18\\n\\n\\n Ms. Burban argues that because Florida law already has mechanisms for\\n\\nproviding identification cards to qualified retired law enforcement officers, her\\n\\nrequest does not raise a commandeering problem. See Fla. Stat. § 112.193(2); Fla.\\n\\nAdmin. Code r. 11B-27.014. That argument fails on both factual and legal\\n\\ngrounds. First, neither of the provisions that Ms. Burban points to establishes a\\n\\nprocedural mechanism for issuing identification cards to qualified retired law\\n\\nenforcement officers. Section 112.193(2) of the Florida Code, which was enacted\\n\\nlong before LEOSA, states that employers “may” provide retiring officers with an\\n\\nidentification card marked “retired” as part of a commemorative service award.\\n\\nAnd Rule 11B-27.014 of Florida’s Administrative Code establishes a procedure for\\n\\nproviding firearm certifications but none for issuing photographic identification\\n\\ncards. If, as Ms. Burban contends, LEOSA required states to provide photographic\\n\\nidentification cards to all qualified retired law enforcement officers, Florida would\\n\\nhave to do more than either of those provisions contemplate to comply with\\n\\nLEOSA’s mandate. Second, even if Ms. Burban was right about what those\\n\\nprovisions say, she has provided no authority from this Circuit for the proposition\\n\\nthat anticommandeering principles do not apply when a State voluntarily\\n\\nparticipates in administrative tasks similar to programming desired by the federal\\n\\ngovernment but applies its own standards. Neither has our own search revealed\\n\\nany such authority. In any event, a State’s decision to voluntarily follow certain\\n\\n\\n 13\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 14 of 18\\n\\n\\nfederal standards does not mean it must forgo any challenge to other federal\\n\\nstandards with which it does not want to comply.\\n\\n Ms. Burban’s interpretation of § 926C would, in our view, raise serious\\n\\nanticommandeering concerns. Contrary to her suggestion, her proposal that we\\n\\nrequire states to issue identification plainly seeks to control how States regulate\\n\\nprivate parties, as opposed to regulating state activities. Cf. Reno, 528 U.S. at 151,\\n\\n120 S. Ct. at 672 (noting that the Driver’s Privacy Protection Act of 1994, which\\n\\nregulates disclosure of personal information contained in records of state motor\\n\\nvehicle departments, “does not require state officials to assist in the enforcement of\\n\\nfederal statutes regulating private individuals”). We avoid statutory interpretations\\n\\nthat raise constitutional problems. See Edward J. DeBartolo Corp. v. Fla. Gulf\\n\\nCoast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 1397\\n\\n(1988) (“[W]here an otherwise acceptable construction of a statute would raise\\n\\nserious constitutional problems, the Court will construe the statute to avoid such\\n\\nproblems unless such construction is plainly contrary to the intent of Congress.”).\\n\\nThus, beyond its failure to satisfy the Blessing criteria—which is alone\\n\\ndispositive—there are other good reasons for rejecting Ms. Burban’s preferred\\n\\ninterpretation.\\n\\n\\n\\n\\n 14\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 15 of 18\\n\\n\\n D.\\n\\n Ms. Burban’s other arguments for why § 926C might afford a right to\\n\\nagency-identification are also unpersuasive. For example, she argues LEOSA’s\\n\\npurpose, intent, and text demonstrate that Congress intended to extend to retired\\n\\nlaw enforcement officers the right to carry concealed firearms. She gleans from\\n\\nthis general desire that Congress must have wanted to obligate agencies to issue\\n\\nLEOSA-compliant identification. But, as we have already explained, the rule is\\n\\nthat Congress must have “unambiguously impose[d] a binding obligation on the\\n\\nStates.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. We do not stack inference\\n\\non inference to impose an obligation on the States that Congress did not obviously\\n\\nimpose. There is simply no provision of § 926C that tells a State it must do as Ms.\\n\\nBurban asks.\\n\\n We view Ms. Burban’s focus on the overall purpose of LEOSA as\\n\\nmisguided. Blessing teaches that we must identify the “most concrete, specific”\\n\\nright a plaintiff is asserting and assess whether Congress afforded that particular\\n\\nright. Id. at 346, 117 S. Ct. at 1362. We cannot interpret Ms. Burban’s complaint\\n\\nas seeking to generally vindicate LEOSA rights. Because she has no enforceable\\n\\nright to agency-issued identification, her complaint must necessarily fail no matter\\n\\nwhat other rights LEOSA might confer. See id.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 16 of 18\\n\\n\\n Ms. Burban also asks this Court to follow DuBerry v. District of Columbia,\\n\\n824 F.3d 1046 (D.C. Cir. 2016), which is a decision of the D.C. Circuit. In\\n\\nDuBerry, four retired D.C. correctional officers sued the District of Columbia\\n\\nbecause it refused to certify that they had served as law enforcement officers. Id.\\n\\nat 1048, 1050. According to the officers’ complaint, they could not get the firearm\\n\\ncertification required by subsection (d)(2)(B) without certification of their prior\\n\\nlaw enforcement service. Id. The D.C. Circuit held that LEOSA created a right\\n\\nenforceable under § 1983. Id. at 1054–55.\\n\\n To begin, DuBerry is not binding authority in this Circuit. See Bonner v.\\n\\nCity of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the\\n\\nestablished federal legal system the decisions of one circuit are not binding on\\n\\nother circuits.”). And we decline to follow it here.\\n\\n First, the DuBerry plaintiffs asserted a different right than the one Ms.\\n\\nBurban seeks to vindicate here. In DuBerry, the plaintiffs sought only certification\\n\\nof the “historical fact[]” of their service. See 824 F.3d at 1050. They did not seek\\n\\nidentification. Indeed, their complaint alleged that “each [plaintiff] has a photo\\n\\nidentification card issued by the D.C. Department of Corrections stating that he is a\\n\\nretired employee of the D.C. Department of Corrections where he had the authority\\n\\nto arrest and apprehend, and to act in a law enforcement capacity.” Id. (citing\\n\\nplaintiffs’ amended complaint); see also DuBerry v. District of Columbia, 106 F.\\n\\n\\n 16\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 17 of 18\\n\\n\\nSupp. 3d 245, 263 n.18 (D.D.C. 2015) (“Plaintiffs here do not assert a right to the\\n\\nidentification required in subsection (d).”), reversed on other grounds by DuBerry,\\n\\n824 F.3d at 1055. Given Blessing’s command that courts are to assess the specific,\\n\\nconcrete rights a plaintiff asserts, 520 U.S. at 346, 117 S. Ct. at 1362, we do not\\n\\nread DuBerry as reaching the question presented here.\\n\\n Second, we do not view the request in DuBerry to raise the commandeering\\n\\nissues present here. That suit was not against a State or a political division within a\\n\\nState, but instead against the District of Columbia. See Duberry, 824 F.3d at 1048.\\n\\nThe Constitution plainly recognizes that “Congress shall have Power . . . To\\n\\nexercise exclusive Legislation in all Cases whatsoever,” over the District as “the\\n\\nSeat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17\\n\\n(emphasis added); see also Kendall v. United States ex rel. Stokes, 37 U.S. (12\\n\\nPet.) 524, 619 (1838) (“Congress has the entire control over the [D]istrict for every\\n\\npurpose of government.”). In fact, the D.C. Circuit noted in DuBerry that,\\n\\nalthough the District of Columbia raised the anticommandeering doctrine, it\\n\\n“cite[d] no authority that the doctrine is applicable to it.” 824 F.3d at 1057. Thus,\\n\\nfor this reason as well, we do not consider DuBerry’s analysis persuasive for\\n\\ndeciding the question before us in this case.\\n\\n\\n\\n\\n 17\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 18 of 18\\n\\n\\n ***\\n\\n Because no provision of § 926C compels the States to provide LEOSA-\\n\\ncompliant identification, we conclude LEOSA does not confer such right. We\\n\\ntherefore AFFIRM the dismissal of Ms. Burban’s amended complaint.\\n\\n\\n\\n\\n 18\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4384742/\", \"author_raw\": \"MARTIN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"CARNES"},"judge2":{"kind":"string","value":"MARTIN"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4607489/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Camille BURBAN, Plaintiff-Appellant, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11347 Date Filed: 04/05/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-11347\n ________________________\n\n D.C. Docket No. 3:17-cv-00262-MMH-JBT\n\nCAMILLE BURBAN,\n Plaintiff - Appellant,\n\n\n versus\n\n\nCITY OF NEPTUNE BEACH, FLORIDA,\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 5, 2019)\n\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\n\nMARTIN, Circuit Judge:\n\n The Law Enforcement Officers Safety Act (“LEOSA”) allows “a qualified\n\nretired law enforcement officer . . . who is carrying the identification required by\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 2 of 18\n\n\n[the Act]” to “carry a concealed firearm,” notwithstanding most State or local\n\nrestrictions. 18 U.S.C. §§ 926C(a), (b). Camille Burban, who is a retired police\n\nofficer formerly employed by the Neptune Beach Police Department (“the\n\nDepartment”), sued the City of Neptune Beach, Florida seeking to have it issue her\n\nthe type of identification card required by LEOSA. The District Court dismissed\n\nMs. Burban’s amended complaint, finding that LEOSA does not give rise to a\n\nfederal right enforceable under 42 U.S.C. § 1983. After careful review, and with\n\nthe benefit of oral argument, we affirm.\n\n I.\n\n In March 2017, Camille Burban sued Neptune Beach, Florida seeking to\n\nenforce her individual rights she believes are granted to her by the Law\n\nEnforcement Officers Safety Act, 18 U.S.C. § 926C. LEOSA permits qualified\n\nactive and retired law enforcement officers who meet certain conditions to carry a\n\nconcealed firearm anywhere in the United States, even if State or local law would\n\nordinarily prohibit it. See id. §§ 926B(a), 926C(a). But see id. § 926B(b)\n\n(establishing that LEOSA does not supersede laws restricting firearms on private\n\nproperty or State or local government property); id. § 926C(b) (same). Section\n\n926C, which is divided into five subsections, addresses retired officers.\n\n Subsection (a) provides:\n\n Notwithstanding any other provision of the law of any\n State or any political subdivision thereof, an individual\n 2\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 3 of 18\n\n\n who is a qualified retired law enforcement officer and who\n is carrying the identification required by subsection (d)\n may carry a concealed firearm that has been shipped or\n transported in interstate or foreign commerce, subject to\n subsection (b).\n\nId. § 926C(a). As set out in subsection (c), a “qualified retired law enforcement\n\nofficer” is defined as a person who, among other things, “separated from service in\n\ngood standing,” “served as a law enforcement officer for an aggregate of 10 years\n\nor more,” and has met certain firearms training standards during the most recent\n\n12-month period. See id. § 926(c) (establishing seven conditions for recognition as\n\na “qualified retired law enforcement officer”).\n\n Subsection (d) sets out two options for the type of identification a qualified\n\nretired law enforcement officer must possess in order to lawfully carry a concealed\n\nweapon under LEOSA. Option one is:\n\n [A] photographic identification issued by the agency from\n which the individual separated from service as a law\n enforcement officer that identifies the person as having\n been employed as a police officer or law enforcement\n officer and indicates that the individual has, not less\n recently than one year before the date the individual is\n carrying the concealed firearm, been tested or otherwise\n found by the agency to meet the active duty standards for\n qualification in firearms training as established by the\n agency to carry a firearm of the same type as the concealed\n firearm[.]\n\nId. § 926C(d)(1). Option two is “a photographic identification issued by the\n\nagency” that identifies the person as retired law enforcement together with a\n\n\n 3\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 4 of 18\n\n\nfirearms certification issued no more than a year ago by either “the State in which\n\nthe individual resides or by a [qualified] certified firearms instructor.” Id.\n\n§ 926C(d)(2). The firearms certification must show that the retired officer met the\n\nactive duty standards “as established by the State, to carry a firearm of the same\n\ntype as the concealed firearm,” or, if the State does not have such standards,\n\n“standards set by any law enforcement agency within that State to carry a firearm\n\nof the same type as the concealed firearm.” Id. § 926C(d)(2)(B)(I), (II). Finally,\n\nsubsection (e) defines “firearm” and “service with a public agency as a law\n\nenforcement officer.” Id. § 926(e).\n\n According to Ms. Burban’s amended complaint, she was an officer with the\n\nDepartment for more than ten years before she retired from service in 2013. In\n\nOctober 2016, she asked the Department to issue her the type of photographic\n\nidentification card required by LEOSA. The Department denied her request,\n\nexplaining that under its policy, these cards are issued only to officers who retired\n\nin good standing and who qualify with a Department-certified firearms instructor.\n\nThe Department policy also requires an officer to serve for at least fifteen years to\n\nbe eligible to receive an identification for LEOSA purposes, even though the\n\nstatute requires just ten. Ms. Burban’s later petitions for clarification about the\n\nDepartment’s reasons for denying her request went unanswered.\n\n\n\n\n 4\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 5 of 18\n\n\n Ms. Burban’s suit challenged the Department’s requirements as inconsistent\n\nwith federal law. More to the point, Ms. Burban asserted that she is a qualified\n\nretired law enforcement officer as defined in LEOSA. She said the City’s refusal\n\nto supply her with LEOSA-compliant identification deprived her of federal rights\n\nconferred upon her by LEOSA and enforceable under 42 U.S.C. § 1983.\n\n The City moved to dismiss Ms. Burban’s amended complaint. The District\n\nCourt applied the framework set out in Blessing v. Freestone, 520 U.S. 329, 117 S.\n\nCt. 1353 (1997). In doing so, the District Court found that LEOSA did not give\n\nMs. Burban an individually enforceable federal right and dismissed her complaint\n\nfor failure to state a claim on which relief may be granted. This is Ms. Burban’s\n\nappeal.\n\n II.\n\n “We review de novo the district court’s grant of a motion to dismiss under\n\nRule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint\n\nas true and construing them in the light most favorable to the plaintiff.” Am.\n\nDental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation\n\nmarks omitted).\n\n\n\n\n 5\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 6 of 18\n\n\n III.\n\n This appeal must address whether LEOSA creates a right enforceable under\n\n42 U.S.C. § 1983 to LEOSA-compliant, agency-issued identification. As set out\n\nbelow, we conclude that it does not and therefore affirm the District Court.\n\n\n\n A.\n\n Section 1983 provides a private cause of action against any person who,\n\nunder color of state law, deprives an individual of “any rights, privileges, or\n\nimmunities secured by the Constitution and laws” of the United States. 42 U.S.C.\n\n§ 1983. Section 1983 actions may be brought to enforce rights created by federal\n\nstatutes as well as by the Constitution. See Maine v. Thiboutot, 448 U.S. 1, 4–8,\n\n100 S. Ct. 2502, 2504–06 (1980). But “to seek redress through § 1983 . . . a\n\nplaintiff must assert the violation of a federal right, not merely a violation of\n\nfederal law.” Blessing, 520 U.S. at 340, 117 S. Ct. at 1359 (emphasis in original).\n\n In Blessing, the Supreme Court described the framework for deciding\n\nwhether a federal statute creates rights enforceable under § 1983. First, a court\n\nmust break down a plaintiff’s complaint into “manageable analytic bites,”\n\nidentifying “exactly what rights, considered in their most concrete, specific form,\n\n[plaintiff] [is] asserting.” Id. at 342, 346, 117 S. Ct. at 1360, 1362; see, e.g., Harris\n\nv. James, 127 F.3d 993, 1005–1012 (11th Cir. 1997) (assessing provision-by-\n\n\n 6\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 7 of 18\n\n\nprovision whether the Medicaid Act creates a federal right to transportation to and\n\nfrom medical providers); cf. Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d\n\n709, 714–15 (11th Cir. 1996) (explaining that the Harris panel’s conclusion that\n\nthe Medicaid Act did not create a federal right to transportation to and from\n\nmedical providers did not reach the question of whether any provisions of that\n\nsame Act created a federal right to reasonably prompt provision of medical\n\nassistance). It is a mistake for a court to take a “blanket approach” to determining\n\nwhether a statute is rights-creating. Blessing, 520 U.S. at 344, 117 S. Ct. at 1361.\n\n Once the right being asserted has been identified, a court must consider three\n\nfactors:\n\n First, Congress must have intended that the provision in\n question benefit the plaintiff. Second, the plaintiff must\n demonstrate that the right assertedly protected by the\n statute is not so ‘vague and amorphous’ that its\n enforcement would strain judicial competence. Third,\n the statute must unambiguously impose a binding\n obligation on the States. In other words, the provision\n giving rise to the asserted right must be couched in\n mandatory, rather than precatory, terms.\n\nId. at 340–41, 117 S. Ct. at 1359 (citations omitted). If all three of these factors are\n\nsatisfied, this creates a rebuttable presumption that a right is enforceable under\n\n§ 1983. Id. at 341, 117 S. Ct. at 1360. However, a defendant is able to rebut that\n\npresumption by showing Congress expressly or impliedly foreclosed a remedy\n\nunder § 1983. Id. If a provision fails to meet any one of the three Blessing factors,\n\n\n 7\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 8 of 18\n\n\nit does not provide a person with a federal right enforceable under § 1983. See\n\nArrington v. Helms, 438 F.3d 1336, 1345 (11th Cir. 2006).\n\n Since Blessing, the Supreme Court has explicitly “reject[ed] the notion that\n\n. . . anything short of an unambiguously conferred right” may support a cause of\n\naction brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct.\n\n2268, 2275 (2002). Thus, “where the text and structure of a statute provide no\n\nindication that Congress intends to create new individual rights, there is no basis\n\nfor a private suit . . . under § 1983.” Id. at 286, 122 S. Ct. at 2277.\n\n B.\n\n We need not belabor our analysis because no provision of § 926C, read\n\nindividually or together, “unambiguously impose[s] a binding obligation on the\n\nStates” to give agency-issued, LEOSA-compliant identification to retired law\n\nenforcement officers.1 Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. The failure\n\nto satisfy one of the Blessing factors dooms Ms. Burban’s complaint. See\n\nArrington, 438 F.3d at 1345. We therefore affirm its dismissal.\n\n A provision unambiguously imposes a binding obligation on the States when\n\n“the asserted right [is] couched in mandatory, rather than precatory, terms.”\n\nBlessing, 520 U.S. at 341, 117 S. Ct. at 1359. We typically look to the language of\n\n\n 1\n This case does not require us to reach the question of whether LEOSA might create any\nother enforceable federal rights, so we do not. Neither do we address whether Ms. Burban might\nhave a cause of action under state law.\n 8\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 9 of 18\n\n\na provision for words like “must” and “shall.” See Kingdomware Techs., Inc. v.\n\nUnited States, 579 U.S. __, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’\n\nwhich implies discretion, the word ‘shall’ usually connotes a requirement.”); see\n\nalso, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 512, 110 S. Ct. 2510, 2519\n\n(1990) (concluding the Boren Amendment, which provided that a State plan\n\n“‘must’ ‘provide for payment . . . of hospital[s]’ according to rates the State finds\n\nare reasonable and adequate,” is cast in mandatory terms (alterations and emphasis\n\nin original) (quoting 42 U.S.C. § 1396(a)(13)(A) (1982 ed., Supp. V))); Wright v.\n\nCity of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 430–31, 107 S. Ct. 766,\n\n773–74 (1987) (concluding a provision of the United States Housing Act of 1937\n\nthat provided a low-income family “shall pay as rent” a specified percentage of its\n\nincome imposed a mandatory limitation on rent). A provision that “reflects merely\n\na ‘congressional preference’ for a certain kind of conduct rather than a binding\n\nobligation” does not suffice. Wilder, 496 U.S. at 509, 110 S. Ct. at 2517. Also, it\n\nis our charge to confirm that the language compels a State to afford the right the\n\nplaintiff seeks to vindicate as opposed to some other right. Cf. Suter v. Artist M.,\n\n503 U.S. 347, 358–63, 112 S. Ct. 1360, 1367–70 (1992) (concluding the\n\nmandatory language of a provision of the Adoption Assistance and Child Welfare\n\nAct of 1980 requiring States receiving federal funds to provide a plan that “shall be\n\nin effect in all political subdivisions” did not render individually enforceable a\n\n\n 9\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 10 of 18\n\n\nseparate provision providing for “reasonable efforts” to prevent or eliminate\n\nremoval of a child from his or her home).\n\n There is no provision of § 926C that compels the States to provide LEOSA-\n\ncompliant identification. Two of the five subsections of § 926C do not so much as\n\nmention identification. See 18 U.S.C. §§ 926C(b), (e). And those provisions that\n\ndo refer to identification—(a), (c), and (d)—do not impose any obligation on the\n\nStates to provide it. See id. §§ 926C(a), (c), (d).\n\n Subsection (a) indicates that a retired officer may only carry a concealed\n\nweapon pursuant to LEOSA if he or she is also “carrying the identification\n\nrequired by subsection (d).” Id. § 926(a). This provision does not obligate States\n\nto create—much less issue—LEOSA-compliant identification. Rather, it puts the\n\nburden on the retired law enforcement officer who seeks to carry a concealed\n\nweapon pursuant to LEOSA to also hold LEOSA-compliant identification.\n\nSubsection (c) also mentions identification, see id. § 926C(c)(5), but only in noting\n\nthat a person who hasn’t been issued agency identification because of an agency’s\n\nfinding that he or she is unqualified for mental health reasons is not a qualified\n\nretired law enforcement officer. Id. Here again, this provision does not feature\n\nany language imposing an obligation on the States to issue identification under any\n\ncircumstances. Finally, subsection (d) defines the two options for “the\n\nidentification required by this subsection.” Id. § 926C(d). But this provision is\n\n\n 10\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 11 of 18\n\n\npurely definitional. And this Court has made clear that definitional provisions are\n\nnot enforceable under § 1983. See 31 Foster Children v. Bush, 329 F.3d 1255,\n\n1271 (11th Cir. 2003) (“Because §§ 675(5)(D) and (E) are definitional in nature,\n\nthey alone cannot and do not supply a basis for conferring rights enforceable under\n\n§ 1983.”). We thus conclude that no provision of § 926C compels a State to issue\n\nidentification. This being the case, we cannot say LEOSA provides the right Ms.\n\nBurban seeks to enforce.\n\n C.\n\n Beyond the Blessing test, we are also mindful of the “anticommandeering”\n\ndoctrine. This doctrine follows from the Tenth Amendment’s explicit reservation\n\nof “powers not delegated to the United States by the Constitution, nor prohibited\n\nby it to the States, . . . to the States respectively, or to the people.” U.S. Const.\n\namend. X. The Tenth Amendment confirms the idea that “the power of the Federal\n\nGovernment is subject to limits that may, in a given instance, reserve power to the\n\nStates.” New York v. United States, 505 U.S. 144, 157, 112 S. Ct. 2408, 2418\n\n(1992). Thus, the Supreme Court has recognized that “[w]hile Congress has\n\nsubstantial powers to govern the Nation directly, including in areas of intimate\n\nconcern to the States, the Constitution has never been understood to confer upon\n\nCongress the ability to require the States to govern according to Congress’\n\ninstructions.” Id. at 162, 112 S. Ct. at 2421.\n\n\n 11\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 12 of 18\n\n\n Citing the anticommandeering doctrine, the Supreme Court has invalidated\n\nfederal laws that commandeer a State’s legislative or administrative machinery for\n\nfederal purposes. For example, in New York v. United States, the Court struck\n\ndown provisions of a federal statute that required a State to either take title to\n\nnuclear waste or enact certain state waste regulations. Id. at 174–75, 112 S. Ct. at\n\n2427–28. Likewise, in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365\n\n(1997), the Court struck down federal legislation compelling state law enforcement\n\nofficers to perform federally mandated background checks on handgun purchasers.\n\nId. at 933–35, 117 S. Ct. at 2383–84. The Court explained that the\n\nanticommandeering principle extends even to federal laws that require States to\n\nperform only “discrete, ministerial tasks.” Id. at 929–30, 117 S. Ct. at 2382. And\n\nthis principle applies even when “States are not forced to absorb the costs of\n\nimplementing a federal program,” because “they are still put in the position of\n\ntaking the blame for its burdensomeness and for its defects.” Id. At the same time,\n\nthe Court has clarified that anticommandeering principles do not bar federal laws\n\nthat “‘regulate[] state activities,’ rather than ‘seek[ing] to control or influence the\n\nmanner in which States regulate private parties.’” Reno v. Condon, 528 U.S. 141,\n\n150, 120 S. Ct. 666, 672 (2000) (quoting South Carolina v. Baker, 485 U.S. 505,\n\n514–15, 108 S. Ct. 1355, 1362 (1988)).\n\n\n\n\n 12\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 13 of 18\n\n\n Ms. Burban argues that because Florida law already has mechanisms for\n\nproviding identification cards to qualified retired law enforcement officers, her\n\nrequest does not raise a commandeering problem. See Fla. Stat. § 112.193(2); Fla.\n\nAdmin. Code r. 11B-27.014. That argument fails on both factual and legal\n\ngrounds. First, neither of the provisions that Ms. Burban points to establishes a\n\nprocedural mechanism for issuing identification cards to qualified retired law\n\nenforcement officers. Section 112.193(2) of the Florida Code, which was enacted\n\nlong before LEOSA, states that employers “may” provide retiring officers with an\n\nidentification card marked “retired” as part of a commemorative service award.\n\nAnd Rule 11B-27.014 of Florida’s Administrative Code establishes a procedure for\n\nproviding firearm certifications but none for issuing photographic identification\n\ncards. If, as Ms. Burban contends, LEOSA required states to provide photographic\n\nidentification cards to all qualified retired law enforcement officers, Florida would\n\nhave to do more than either of those provisions contemplate to comply with\n\nLEOSA’s mandate. Second, even if Ms. Burban was right about what those\n\nprovisions say, she has provided no authority from this Circuit for the proposition\n\nthat anticommandeering principles do not apply when a State voluntarily\n\nparticipates in administrative tasks similar to programming desired by the federal\n\ngovernment but applies its own standards. Neither has our own search revealed\n\nany such authority. In any event, a State’s decision to voluntarily follow certain\n\n\n 13\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 14 of 18\n\n\nfederal standards does not mean it must forgo any challenge to other federal\n\nstandards with which it does not want to comply.\n\n Ms. Burban’s interpretation of § 926C would, in our view, raise serious\n\nanticommandeering concerns. Contrary to her suggestion, her proposal that we\n\nrequire states to issue identification plainly seeks to control how States regulate\n\nprivate parties, as opposed to regulating state activities. Cf. Reno, 528 U.S. at 151,\n\n120 S. Ct. at 672 (noting that the Driver’s Privacy Protection Act of 1994, which\n\nregulates disclosure of personal information contained in records of state motor\n\nvehicle departments, “does not require state officials to assist in the enforcement of\n\nfederal statutes regulating private individuals”). We avoid statutory interpretations\n\nthat raise constitutional problems. See Edward J. DeBartolo Corp. v. Fla. Gulf\n\nCoast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 1397\n\n(1988) (“[W]here an otherwise acceptable construction of a statute would raise\n\nserious constitutional problems, the Court will construe the statute to avoid such\n\nproblems unless such construction is plainly contrary to the intent of Congress.”).\n\nThus, beyond its failure to satisfy the Blessing criteria—which is alone\n\ndispositive—there are other good reasons for rejecting Ms. Burban’s preferred\n\ninterpretation.\n\n\n\n\n 14\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 15 of 18\n\n\n D.\n\n Ms. Burban’s other arguments for why § 926C might afford a right to\n\nagency-identification are also unpersuasive. For example, she argues LEOSA’s\n\npurpose, intent, and text demonstrate that Congress intended to extend to retired\n\nlaw enforcement officers the right to carry concealed firearms. She gleans from\n\nthis general desire that Congress must have wanted to obligate agencies to issue\n\nLEOSA-compliant identification. But, as we have already explained, the rule is\n\nthat Congress must have “unambiguously impose[d] a binding obligation on the\n\nStates.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. We do not stack inference\n\non inference to impose an obligation on the States that Congress did not obviously\n\nimpose. There is simply no provision of § 926C that tells a State it must do as Ms.\n\nBurban asks.\n\n We view Ms. Burban’s focus on the overall purpose of LEOSA as\n\nmisguided. Blessing teaches that we must identify the “most concrete, specific”\n\nright a plaintiff is asserting and assess whether Congress afforded that particular\n\nright. Id. at 346, 117 S. Ct. at 1362. We cannot interpret Ms. Burban’s complaint\n\nas seeking to generally vindicate LEOSA rights. Because she has no enforceable\n\nright to agency-issued identification, her complaint must necessarily fail no matter\n\nwhat other rights LEOSA might confer. See id.\n\n\n\n\n 15\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 16 of 18\n\n\n Ms. Burban also asks this Court to follow DuBerry v. District of Columbia,\n\n824 F.3d 1046 (D.C. Cir. 2016), which is a decision of the D.C. Circuit. In\n\nDuBerry, four retired D.C. correctional officers sued the District of Columbia\n\nbecause it refused to certify that they had served as law enforcement officers. Id.\n\nat 1048, 1050. According to the officers’ complaint, they could not get the firearm\n\ncertification required by subsection (d)(2)(B) without certification of their prior\n\nlaw enforcement service. Id. The D.C. Circuit held that LEOSA created a right\n\nenforceable under § 1983. Id. at 1054–55.\n\n To begin, DuBerry is not binding authority in this Circuit. See Bonner v.\n\nCity of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the\n\nestablished federal legal system the decisions of one circuit are not binding on\n\nother circuits.”). And we decline to follow it here.\n\n First, the DuBerry plaintiffs asserted a different right than the one Ms.\n\nBurban seeks to vindicate here. In DuBerry, the plaintiffs sought only certification\n\nof the “historical fact[]” of their service. See 824 F.3d at 1050. They did not seek\n\nidentification. Indeed, their complaint alleged that “each [plaintiff] has a photo\n\nidentification card issued by the D.C. Department of Corrections stating that he is a\n\nretired employee of the D.C. Department of Corrections where he had the authority\n\nto arrest and apprehend, and to act in a law enforcement capacity.” Id. (citing\n\nplaintiffs’ amended complaint); see also DuBerry v. District of Columbia, 106 F.\n\n\n 16\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 17 of 18\n\n\nSupp. 3d 245, 263 n.18 (D.D.C. 2015) (“Plaintiffs here do not assert a right to the\n\nidentification required in subsection (d).”), reversed on other grounds by DuBerry,\n\n824 F.3d at 1055. Given Blessing’s command that courts are to assess the specific,\n\nconcrete rights a plaintiff asserts, 520 U.S. at 346, 117 S. Ct. at 1362, we do not\n\nread DuBerry as reaching the question presented here.\n\n Second, we do not view the request in DuBerry to raise the commandeering\n\nissues present here. That suit was not against a State or a political division within a\n\nState, but instead against the District of Columbia. See Duberry, 824 F.3d at 1048.\n\nThe Constitution plainly recognizes that “Congress shall have Power . . . To\n\nexercise exclusive Legislation in all Cases whatsoever,” over the District as “the\n\nSeat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17\n\n(emphasis added); see also Kendall v. United States ex rel. Stokes, 37 U.S. (12\n\nPet.) 524, 619 (1838) (“Congress has the entire control over the [D]istrict for every\n\npurpose of government.”). In fact, the D.C. Circuit noted in DuBerry that,\n\nalthough the District of Columbia raised the anticommandeering doctrine, it\n\n“cite[d] no authority that the doctrine is applicable to it.” 824 F.3d at 1057. Thus,\n\nfor this reason as well, we do not consider DuBerry’s analysis persuasive for\n\ndeciding the question before us in this case.\n\n\n\n\n 17\n\f Case: 18-11347 Date Filed: 04/05/2019 Page: 18 of 18\n\n\n ***\n\n Because no provision of § 926C compels the States to provide LEOSA-\n\ncompliant identification, we conclude LEOSA does not confer such right. We\n\ntherefore AFFIRM the dismissal of Ms. Burban’s amended complaint.\n\n\n\n\n 18\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Camille BURBAN, Plaintiff-Appellant, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11347 Date Filed: 04/05/2019 Page: 1 of 18\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11347\\n ________________________\\n\\n D.C. Docket No. 3:17-cv-00262-MMH-JBT\\n\\nCAMILLE BURBAN,\\n Plaintiff - Appellant,\\n\\n\\n versus\\n\\n\\nCITY OF NEPTUNE BEACH, FLORIDA,\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 5, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\\n\\nMARTIN, Circuit Judge:\\n\\n The Law Enforcement Officers Safety Act (“LEOSA”) allows “a qualified\\n\\nretired law enforcement officer . . . who is carrying the identification required by\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 2 of 18\\n\\n\\n[the Act]” to “carry a concealed firearm,” notwithstanding most State or local\\n\\nrestrictions. 18 U.S.C. §§ 926C(a), (b). Camille Burban, who is a retired police\\n\\nofficer formerly employed by the Neptune Beach Police Department (“the\\n\\nDepartment”), sued the City of Neptune Beach, Florida seeking to have it issue her\\n\\nthe type of identification card required by LEOSA. The District Court dismissed\\n\\nMs. Burban’s amended complaint, finding that LEOSA does not give rise to a\\n\\nfederal right enforceable under 42 U.S.C. § 1983. After careful review, and with\\n\\nthe benefit of oral argument, we affirm.\\n\\n I.\\n\\n In March 2017, Camille Burban sued Neptune Beach, Florida seeking to\\n\\nenforce her individual rights she believes are granted to her by the Law\\n\\nEnforcement Officers Safety Act, 18 U.S.C. § 926C. LEOSA permits qualified\\n\\nactive and retired law enforcement officers who meet certain conditions to carry a\\n\\nconcealed firearm anywhere in the United States, even if State or local law would\\n\\nordinarily prohibit it. See id. §§ 926B(a), 926C(a). But see id. § 926B(b)\\n\\n(establishing that LEOSA does not supersede laws restricting firearms on private\\n\\nproperty or State or local government property); id. § 926C(b) (same). Section\\n\\n926C, which is divided into five subsections, addresses retired officers.\\n\\n Subsection (a) provides:\\n\\n Notwithstanding any other provision of the law of any\\n State or any political subdivision thereof, an individual\\n 2\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 3 of 18\\n\\n\\n who is a qualified retired law enforcement officer and who\\n is carrying the identification required by subsection (d)\\n may carry a concealed firearm that has been shipped or\\n transported in interstate or foreign commerce, subject to\\n subsection (b).\\n\\nId. § 926C(a). As set out in subsection (c), a “qualified retired law enforcement\\n\\nofficer” is defined as a person who, among other things, “separated from service in\\n\\ngood standing,” “served as a law enforcement officer for an aggregate of 10 years\\n\\nor more,” and has met certain firearms training standards during the most recent\\n\\n12-month period. See id. § 926(c) (establishing seven conditions for recognition as\\n\\na “qualified retired law enforcement officer”).\\n\\n Subsection (d) sets out two options for the type of identification a qualified\\n\\nretired law enforcement officer must possess in order to lawfully carry a concealed\\n\\nweapon under LEOSA. Option one is:\\n\\n [A] photographic identification issued by the agency from\\n which the individual separated from service as a law\\n enforcement officer that identifies the person as having\\n been employed as a police officer or law enforcement\\n officer and indicates that the individual has, not less\\n recently than one year before the date the individual is\\n carrying the concealed firearm, been tested or otherwise\\n found by the agency to meet the active duty standards for\\n qualification in firearms training as established by the\\n agency to carry a firearm of the same type as the concealed\\n firearm[.]\\n\\nId. § 926C(d)(1). Option two is “a photographic identification issued by the\\n\\nagency” that identifies the person as retired law enforcement together with a\\n\\n\\n 3\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 4 of 18\\n\\n\\nfirearms certification issued no more than a year ago by either “the State in which\\n\\nthe individual resides or by a [qualified] certified firearms instructor.” Id.\\n\\n§ 926C(d)(2). The firearms certification must show that the retired officer met the\\n\\nactive duty standards “as established by the State, to carry a firearm of the same\\n\\ntype as the concealed firearm,” or, if the State does not have such standards,\\n\\n“standards set by any law enforcement agency within that State to carry a firearm\\n\\nof the same type as the concealed firearm.” Id. § 926C(d)(2)(B)(I), (II). Finally,\\n\\nsubsection (e) defines “firearm” and “service with a public agency as a law\\n\\nenforcement officer.” Id. § 926(e).\\n\\n According to Ms. Burban’s amended complaint, she was an officer with the\\n\\nDepartment for more than ten years before she retired from service in 2013. In\\n\\nOctober 2016, she asked the Department to issue her the type of photographic\\n\\nidentification card required by LEOSA. The Department denied her request,\\n\\nexplaining that under its policy, these cards are issued only to officers who retired\\n\\nin good standing and who qualify with a Department-certified firearms instructor.\\n\\nThe Department policy also requires an officer to serve for at least fifteen years to\\n\\nbe eligible to receive an identification for LEOSA purposes, even though the\\n\\nstatute requires just ten. Ms. Burban’s later petitions for clarification about the\\n\\nDepartment’s reasons for denying her request went unanswered.\\n\\n\\n\\n\\n 4\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 5 of 18\\n\\n\\n Ms. Burban’s suit challenged the Department’s requirements as inconsistent\\n\\nwith federal law. More to the point, Ms. Burban asserted that she is a qualified\\n\\nretired law enforcement officer as defined in LEOSA. She said the City’s refusal\\n\\nto supply her with LEOSA-compliant identification deprived her of federal rights\\n\\nconferred upon her by LEOSA and enforceable under 42 U.S.C. § 1983.\\n\\n The City moved to dismiss Ms. Burban’s amended complaint. The District\\n\\nCourt applied the framework set out in Blessing v. Freestone, 520 U.S. 329, 117 S.\\n\\nCt. 1353 (1997). In doing so, the District Court found that LEOSA did not give\\n\\nMs. Burban an individually enforceable federal right and dismissed her complaint\\n\\nfor failure to state a claim on which relief may be granted. This is Ms. Burban’s\\n\\nappeal.\\n\\n II.\\n\\n “We review de novo the district court’s grant of a motion to dismiss under\\n\\nRule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint\\n\\nas true and construing them in the light most favorable to the plaintiff.” Am.\\n\\nDental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation\\n\\nmarks omitted).\\n\\n\\n\\n\\n 5\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 6 of 18\\n\\n\\n III.\\n\\n This appeal must address whether LEOSA creates a right enforceable under\\n\\n42 U.S.C. § 1983 to LEOSA-compliant, agency-issued identification. As set out\\n\\nbelow, we conclude that it does not and therefore affirm the District Court.\\n\\n\\n\\n A.\\n\\n Section 1983 provides a private cause of action against any person who,\\n\\nunder color of state law, deprives an individual of “any rights, privileges, or\\n\\nimmunities secured by the Constitution and laws” of the United States. 42 U.S.C.\\n\\n§ 1983. Section 1983 actions may be brought to enforce rights created by federal\\n\\nstatutes as well as by the Constitution. See Maine v. Thiboutot, 448 U.S. 1, 4–8,\\n\\n100 S. Ct. 2502, 2504–06 (1980). But “to seek redress through § 1983 . . . a\\n\\nplaintiff must assert the violation of a federal right, not merely a violation of\\n\\nfederal law.” Blessing, 520 U.S. at 340, 117 S. Ct. at 1359 (emphasis in original).\\n\\n In Blessing, the Supreme Court described the framework for deciding\\n\\nwhether a federal statute creates rights enforceable under § 1983. First, a court\\n\\nmust break down a plaintiff’s complaint into “manageable analytic bites,”\\n\\nidentifying “exactly what rights, considered in their most concrete, specific form,\\n\\n[plaintiff] [is] asserting.” Id. at 342, 346, 117 S. Ct. at 1360, 1362; see, e.g., Harris\\n\\nv. James, 127 F.3d 993, 1005–1012 (11th Cir. 1997) (assessing provision-by-\\n\\n\\n 6\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 7 of 18\\n\\n\\nprovision whether the Medicaid Act creates a federal right to transportation to and\\n\\nfrom medical providers); cf. Doe 1-13 ex rel. Doe, Sr. 1-13 v. Chiles, 136 F.3d\\n\\n709, 714–15 (11th Cir. 1996) (explaining that the Harris panel’s conclusion that\\n\\nthe Medicaid Act did not create a federal right to transportation to and from\\n\\nmedical providers did not reach the question of whether any provisions of that\\n\\nsame Act created a federal right to reasonably prompt provision of medical\\n\\nassistance). It is a mistake for a court to take a “blanket approach” to determining\\n\\nwhether a statute is rights-creating. Blessing, 520 U.S. at 344, 117 S. Ct. at 1361.\\n\\n Once the right being asserted has been identified, a court must consider three\\n\\nfactors:\\n\\n First, Congress must have intended that the provision in\\n question benefit the plaintiff. Second, the plaintiff must\\n demonstrate that the right assertedly protected by the\\n statute is not so ‘vague and amorphous’ that its\\n enforcement would strain judicial competence. Third,\\n the statute must unambiguously impose a binding\\n obligation on the States. In other words, the provision\\n giving rise to the asserted right must be couched in\\n mandatory, rather than precatory, terms.\\n\\nId. at 340–41, 117 S. Ct. at 1359 (citations omitted). If all three of these factors are\\n\\nsatisfied, this creates a rebuttable presumption that a right is enforceable under\\n\\n§ 1983. Id. at 341, 117 S. Ct. at 1360. However, a defendant is able to rebut that\\n\\npresumption by showing Congress expressly or impliedly foreclosed a remedy\\n\\nunder § 1983. Id. If a provision fails to meet any one of the three Blessing factors,\\n\\n\\n 7\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 8 of 18\\n\\n\\nit does not provide a person with a federal right enforceable under § 1983. See\\n\\nArrington v. Helms, 438 F.3d 1336, 1345 (11th Cir. 2006).\\n\\n Since Blessing, the Supreme Court has explicitly “reject[ed] the notion that\\n\\n. . . anything short of an unambiguously conferred right” may support a cause of\\n\\naction brought under § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct.\\n\\n2268, 2275 (2002). Thus, “where the text and structure of a statute provide no\\n\\nindication that Congress intends to create new individual rights, there is no basis\\n\\nfor a private suit . . . under § 1983.” Id. at 286, 122 S. Ct. at 2277.\\n\\n B.\\n\\n We need not belabor our analysis because no provision of § 926C, read\\n\\nindividually or together, “unambiguously impose[s] a binding obligation on the\\n\\nStates” to give agency-issued, LEOSA-compliant identification to retired law\\n\\nenforcement officers.1 Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. The failure\\n\\nto satisfy one of the Blessing factors dooms Ms. Burban’s complaint. See\\n\\nArrington, 438 F.3d at 1345. We therefore affirm its dismissal.\\n\\n A provision unambiguously imposes a binding obligation on the States when\\n\\n“the asserted right [is] couched in mandatory, rather than precatory, terms.”\\n\\nBlessing, 520 U.S. at 341, 117 S. Ct. at 1359. We typically look to the language of\\n\\n\\n 1\\n This case does not require us to reach the question of whether LEOSA might create any\\nother enforceable federal rights, so we do not. Neither do we address whether Ms. Burban might\\nhave a cause of action under state law.\\n 8\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 9 of 18\\n\\n\\na provision for words like “must” and “shall.” See Kingdomware Techs., Inc. v.\\n\\nUnited States, 579 U.S. __, 136 S. Ct. 1969, 1977 (2016) (“Unlike the word ‘may,’\\n\\nwhich implies discretion, the word ‘shall’ usually connotes a requirement.”); see\\n\\nalso, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 512, 110 S. Ct. 2510, 2519\\n\\n(1990) (concluding the Boren Amendment, which provided that a State plan\\n\\n“‘must’ ‘provide for payment . . . of hospital[s]’ according to rates the State finds\\n\\nare reasonable and adequate,” is cast in mandatory terms (alterations and emphasis\\n\\nin original) (quoting 42 U.S.C. § 1396(a)(13)(A) (1982 ed., Supp. V))); Wright v.\\n\\nCity of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 430–31, 107 S. Ct. 766,\\n\\n773–74 (1987) (concluding a provision of the United States Housing Act of 1937\\n\\nthat provided a low-income family “shall pay as rent” a specified percentage of its\\n\\nincome imposed a mandatory limitation on rent). A provision that “reflects merely\\n\\na ‘congressional preference’ for a certain kind of conduct rather than a binding\\n\\nobligation” does not suffice. Wilder, 496 U.S. at 509, 110 S. Ct. at 2517. Also, it\\n\\nis our charge to confirm that the language compels a State to afford the right the\\n\\nplaintiff seeks to vindicate as opposed to some other right. Cf. Suter v. Artist M.,\\n\\n503 U.S. 347, 358–63, 112 S. Ct. 1360, 1367–70 (1992) (concluding the\\n\\nmandatory language of a provision of the Adoption Assistance and Child Welfare\\n\\nAct of 1980 requiring States receiving federal funds to provide a plan that “shall be\\n\\nin effect in all political subdivisions” did not render individually enforceable a\\n\\n\\n 9\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 10 of 18\\n\\n\\nseparate provision providing for “reasonable efforts” to prevent or eliminate\\n\\nremoval of a child from his or her home).\\n\\n There is no provision of § 926C that compels the States to provide LEOSA-\\n\\ncompliant identification. Two of the five subsections of § 926C do not so much as\\n\\nmention identification. See 18 U.S.C. §§ 926C(b), (e). And those provisions that\\n\\ndo refer to identification—(a), (c), and (d)—do not impose any obligation on the\\n\\nStates to provide it. See id. §§ 926C(a), (c), (d).\\n\\n Subsection (a) indicates that a retired officer may only carry a concealed\\n\\nweapon pursuant to LEOSA if he or she is also “carrying the identification\\n\\nrequired by subsection (d).” Id. § 926(a). This provision does not obligate States\\n\\nto create—much less issue—LEOSA-compliant identification. Rather, it puts the\\n\\nburden on the retired law enforcement officer who seeks to carry a concealed\\n\\nweapon pursuant to LEOSA to also hold LEOSA-compliant identification.\\n\\nSubsection (c) also mentions identification, see id. § 926C(c)(5), but only in noting\\n\\nthat a person who hasn’t been issued agency identification because of an agency’s\\n\\nfinding that he or she is unqualified for mental health reasons is not a qualified\\n\\nretired law enforcement officer. Id. Here again, this provision does not feature\\n\\nany language imposing an obligation on the States to issue identification under any\\n\\ncircumstances. Finally, subsection (d) defines the two options for “the\\n\\nidentification required by this subsection.” Id. § 926C(d). But this provision is\\n\\n\\n 10\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 11 of 18\\n\\n\\npurely definitional. And this Court has made clear that definitional provisions are\\n\\nnot enforceable under § 1983. See 31 Foster Children v. Bush, 329 F.3d 1255,\\n\\n1271 (11th Cir. 2003) (“Because §§ 675(5)(D) and (E) are definitional in nature,\\n\\nthey alone cannot and do not supply a basis for conferring rights enforceable under\\n\\n§ 1983.”). We thus conclude that no provision of § 926C compels a State to issue\\n\\nidentification. This being the case, we cannot say LEOSA provides the right Ms.\\n\\nBurban seeks to enforce.\\n\\n C.\\n\\n Beyond the Blessing test, we are also mindful of the “anticommandeering”\\n\\ndoctrine. This doctrine follows from the Tenth Amendment’s explicit reservation\\n\\nof “powers not delegated to the United States by the Constitution, nor prohibited\\n\\nby it to the States, . . . to the States respectively, or to the people.” U.S. Const.\\n\\namend. X. The Tenth Amendment confirms the idea that “the power of the Federal\\n\\nGovernment is subject to limits that may, in a given instance, reserve power to the\\n\\nStates.” New York v. United States, 505 U.S. 144, 157, 112 S. Ct. 2408, 2418\\n\\n(1992). Thus, the Supreme Court has recognized that “[w]hile Congress has\\n\\nsubstantial powers to govern the Nation directly, including in areas of intimate\\n\\nconcern to the States, the Constitution has never been understood to confer upon\\n\\nCongress the ability to require the States to govern according to Congress’\\n\\ninstructions.” Id. at 162, 112 S. Ct. at 2421.\\n\\n\\n 11\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 12 of 18\\n\\n\\n Citing the anticommandeering doctrine, the Supreme Court has invalidated\\n\\nfederal laws that commandeer a State’s legislative or administrative machinery for\\n\\nfederal purposes. For example, in New York v. United States, the Court struck\\n\\ndown provisions of a federal statute that required a State to either take title to\\n\\nnuclear waste or enact certain state waste regulations. Id. at 174–75, 112 S. Ct. at\\n\\n2427–28. Likewise, in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365\\n\\n(1997), the Court struck down federal legislation compelling state law enforcement\\n\\nofficers to perform federally mandated background checks on handgun purchasers.\\n\\nId. at 933–35, 117 S. Ct. at 2383–84. The Court explained that the\\n\\nanticommandeering principle extends even to federal laws that require States to\\n\\nperform only “discrete, ministerial tasks.” Id. at 929–30, 117 S. Ct. at 2382. And\\n\\nthis principle applies even when “States are not forced to absorb the costs of\\n\\nimplementing a federal program,” because “they are still put in the position of\\n\\ntaking the blame for its burdensomeness and for its defects.” Id. At the same time,\\n\\nthe Court has clarified that anticommandeering principles do not bar federal laws\\n\\nthat “‘regulate[] state activities,’ rather than ‘seek[ing] to control or influence the\\n\\nmanner in which States regulate private parties.’” Reno v. Condon, 528 U.S. 141,\\n\\n150, 120 S. Ct. 666, 672 (2000) (quoting South Carolina v. Baker, 485 U.S. 505,\\n\\n514–15, 108 S. Ct. 1355, 1362 (1988)).\\n\\n\\n\\n\\n 12\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 13 of 18\\n\\n\\n Ms. Burban argues that because Florida law already has mechanisms for\\n\\nproviding identification cards to qualified retired law enforcement officers, her\\n\\nrequest does not raise a commandeering problem. See Fla. Stat. § 112.193(2); Fla.\\n\\nAdmin. Code r. 11B-27.014. That argument fails on both factual and legal\\n\\ngrounds. First, neither of the provisions that Ms. Burban points to establishes a\\n\\nprocedural mechanism for issuing identification cards to qualified retired law\\n\\nenforcement officers. Section 112.193(2) of the Florida Code, which was enacted\\n\\nlong before LEOSA, states that employers “may” provide retiring officers with an\\n\\nidentification card marked “retired” as part of a commemorative service award.\\n\\nAnd Rule 11B-27.014 of Florida’s Administrative Code establishes a procedure for\\n\\nproviding firearm certifications but none for issuing photographic identification\\n\\ncards. If, as Ms. Burban contends, LEOSA required states to provide photographic\\n\\nidentification cards to all qualified retired law enforcement officers, Florida would\\n\\nhave to do more than either of those provisions contemplate to comply with\\n\\nLEOSA’s mandate. Second, even if Ms. Burban was right about what those\\n\\nprovisions say, she has provided no authority from this Circuit for the proposition\\n\\nthat anticommandeering principles do not apply when a State voluntarily\\n\\nparticipates in administrative tasks similar to programming desired by the federal\\n\\ngovernment but applies its own standards. Neither has our own search revealed\\n\\nany such authority. In any event, a State’s decision to voluntarily follow certain\\n\\n\\n 13\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 14 of 18\\n\\n\\nfederal standards does not mean it must forgo any challenge to other federal\\n\\nstandards with which it does not want to comply.\\n\\n Ms. Burban’s interpretation of § 926C would, in our view, raise serious\\n\\nanticommandeering concerns. Contrary to her suggestion, her proposal that we\\n\\nrequire states to issue identification plainly seeks to control how States regulate\\n\\nprivate parties, as opposed to regulating state activities. Cf. Reno, 528 U.S. at 151,\\n\\n120 S. Ct. at 672 (noting that the Driver’s Privacy Protection Act of 1994, which\\n\\nregulates disclosure of personal information contained in records of state motor\\n\\nvehicle departments, “does not require state officials to assist in the enforcement of\\n\\nfederal statutes regulating private individuals”). We avoid statutory interpretations\\n\\nthat raise constitutional problems. See Edward J. DeBartolo Corp. v. Fla. Gulf\\n\\nCoast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 1397\\n\\n(1988) (“[W]here an otherwise acceptable construction of a statute would raise\\n\\nserious constitutional problems, the Court will construe the statute to avoid such\\n\\nproblems unless such construction is plainly contrary to the intent of Congress.”).\\n\\nThus, beyond its failure to satisfy the Blessing criteria—which is alone\\n\\ndispositive—there are other good reasons for rejecting Ms. Burban’s preferred\\n\\ninterpretation.\\n\\n\\n\\n\\n 14\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 15 of 18\\n\\n\\n D.\\n\\n Ms. Burban’s other arguments for why § 926C might afford a right to\\n\\nagency-identification are also unpersuasive. For example, she argues LEOSA’s\\n\\npurpose, intent, and text demonstrate that Congress intended to extend to retired\\n\\nlaw enforcement officers the right to carry concealed firearms. She gleans from\\n\\nthis general desire that Congress must have wanted to obligate agencies to issue\\n\\nLEOSA-compliant identification. But, as we have already explained, the rule is\\n\\nthat Congress must have “unambiguously impose[d] a binding obligation on the\\n\\nStates.” Blessing, 520 U.S. at 341, 117 S. Ct. at 1359. We do not stack inference\\n\\non inference to impose an obligation on the States that Congress did not obviously\\n\\nimpose. There is simply no provision of § 926C that tells a State it must do as Ms.\\n\\nBurban asks.\\n\\n We view Ms. Burban’s focus on the overall purpose of LEOSA as\\n\\nmisguided. Blessing teaches that we must identify the “most concrete, specific”\\n\\nright a plaintiff is asserting and assess whether Congress afforded that particular\\n\\nright. Id. at 346, 117 S. Ct. at 1362. We cannot interpret Ms. Burban’s complaint\\n\\nas seeking to generally vindicate LEOSA rights. Because she has no enforceable\\n\\nright to agency-issued identification, her complaint must necessarily fail no matter\\n\\nwhat other rights LEOSA might confer. See id.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 16 of 18\\n\\n\\n Ms. Burban also asks this Court to follow DuBerry v. District of Columbia,\\n\\n824 F.3d 1046 (D.C. Cir. 2016), which is a decision of the D.C. Circuit. In\\n\\nDuBerry, four retired D.C. correctional officers sued the District of Columbia\\n\\nbecause it refused to certify that they had served as law enforcement officers. Id.\\n\\nat 1048, 1050. According to the officers’ complaint, they could not get the firearm\\n\\ncertification required by subsection (d)(2)(B) without certification of their prior\\n\\nlaw enforcement service. Id. The D.C. Circuit held that LEOSA created a right\\n\\nenforceable under § 1983. Id. at 1054–55.\\n\\n To begin, DuBerry is not binding authority in this Circuit. See Bonner v.\\n\\nCity of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (“Under the\\n\\nestablished federal legal system the decisions of one circuit are not binding on\\n\\nother circuits.”). And we decline to follow it here.\\n\\n First, the DuBerry plaintiffs asserted a different right than the one Ms.\\n\\nBurban seeks to vindicate here. In DuBerry, the plaintiffs sought only certification\\n\\nof the “historical fact[]” of their service. See 824 F.3d at 1050. They did not seek\\n\\nidentification. Indeed, their complaint alleged that “each [plaintiff] has a photo\\n\\nidentification card issued by the D.C. Department of Corrections stating that he is a\\n\\nretired employee of the D.C. Department of Corrections where he had the authority\\n\\nto arrest and apprehend, and to act in a law enforcement capacity.” Id. (citing\\n\\nplaintiffs’ amended complaint); see also DuBerry v. District of Columbia, 106 F.\\n\\n\\n 16\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 17 of 18\\n\\n\\nSupp. 3d 245, 263 n.18 (D.D.C. 2015) (“Plaintiffs here do not assert a right to the\\n\\nidentification required in subsection (d).”), reversed on other grounds by DuBerry,\\n\\n824 F.3d at 1055. Given Blessing’s command that courts are to assess the specific,\\n\\nconcrete rights a plaintiff asserts, 520 U.S. at 346, 117 S. Ct. at 1362, we do not\\n\\nread DuBerry as reaching the question presented here.\\n\\n Second, we do not view the request in DuBerry to raise the commandeering\\n\\nissues present here. That suit was not against a State or a political division within a\\n\\nState, but instead against the District of Columbia. See Duberry, 824 F.3d at 1048.\\n\\nThe Constitution plainly recognizes that “Congress shall have Power . . . To\\n\\nexercise exclusive Legislation in all Cases whatsoever,” over the District as “the\\n\\nSeat of the Government of the United States.” U.S. Const. art. I, § 8, cl. 17\\n\\n(emphasis added); see also Kendall v. United States ex rel. Stokes, 37 U.S. (12\\n\\nPet.) 524, 619 (1838) (“Congress has the entire control over the [D]istrict for every\\n\\npurpose of government.”). In fact, the D.C. Circuit noted in DuBerry that,\\n\\nalthough the District of Columbia raised the anticommandeering doctrine, it\\n\\n“cite[d] no authority that the doctrine is applicable to it.” 824 F.3d at 1057. Thus,\\n\\nfor this reason as well, we do not consider DuBerry’s analysis persuasive for\\n\\ndeciding the question before us in this case.\\n\\n\\n\\n\\n 17\\n\\f Case: 18-11347 Date Filed: 04/05/2019 Page: 18 of 18\\n\\n\\n ***\\n\\n Because no provision of § 926C compels the States to provide LEOSA-\\n\\ncompliant identification, we conclude LEOSA does not confer such right. We\\n\\ntherefore AFFIRM the dismissal of Ms. Burban’s amended complaint.\\n\\n\\n\\n\\n 18\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1880,"cells":{"id":{"kind":"number","value":4608521,"string":"4,608,521"},"name":{"kind":"string","value":"Christopher Lee PRICE, Plaintiff - Appellant, v. COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees."},"name_abbreviation":{"kind":"string","value":"Christopher Lee Price v. Commissioner, Alabama Department of Corrections"},"decision_date":{"kind":"string","value":"2019-04-10"},"docket_number":{"kind":"string","value":"19-11268"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Wilson, Rosenbaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 19-11268 Date Filed: 04/10/2019 Page: 1 of 26\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 19-11268\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:19-cv-00057-KD-MU\\n\\n\\n\\nCHRISTOPHER LEE PRICE,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nCOMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,\\nWARDEN, HOLMAN CORRECTIONAL FACILITY,\\n\\n Defendants - Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Alabama\\n _______________________\\n\\n (April 10, 2019)\\n\\nBefore TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.\\n\\nPER CURIAM:\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 2 of 26\\n\\n\\n Christopher Lee Price, an Alabama prisoner sentenced to death for killing a\\n\\nman during the commission of a robbery, has moved this Court for an emergency\\n\\nstay of his execution, which is scheduled to take place on April 11, 2019, at 6:00\\n\\np.m. Central Standard Time at the Holman Correctional Facility (“Holman”). Price\\n\\nalso appeals the district court’s order denying his motion for preliminary injunction\\n\\nand its order denying his renewed motion for preliminary injunction. Included\\n\\nwithin those orders is the district court’s denial of Price’s Cross-Motion for\\n\\nSummary Judgment.1 After careful consideration, we affirm the district court’s\\n\\ndenial of Price’s Cross-Motion for Summary Judgment as well as its denial of Price’s\\n\\noriginal and renewed motions for preliminary injunction. We also deny Price’s\\n\\nmotion for a stay of execution because he cannot show a substantial likelihood of\\n\\nsuccess on his petition.\\n\\nI. Background\\n\\n Price was convicted of capital murder for killing William Lynn during the\\n\\ncommission of a robbery, and Price was subsequently sentenced to death. See Price\\n\\nv. State, 725 So. 2d 1003, 1011 (Ala. Crim. App. 1997), aff'd sub nom. Ex parte\\n\\nPrice, 725 So. 2d 1063 (Ala. 1998). Price filed a direct appeal of both his conviction\\n\\nand death sentence, but both were affirmed. See Price, 725 So. 2d at 1062, aff’d,\\n\\n\\n\\n 1\\n Price’s Notice of Appeal makes clear that he appeals from “any and all adverse rulings\\nincorporated in, antecedent to, or ancillary to” those orders.\\n 2\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 3 of 26\\n\\n\\n725 So. 2d 1063 (Ala. 1998). Price’s conviction and sentence became final in May\\n\\n1999 after the Supreme Court denied his petition for writ of certiorari. See Price v.\\n\\nAlabama, 526 U.S. 1133 (1999).\\n\\n Price then filed a state post-conviction Rule 32 petition, but the petition was\\n\\ndenied, and the Court of Criminal Appeals of Alabama affirmed. See Price v. State,\\n\\n880 So. 2d 502 (Ala. Crim. App. 2003). The Alabama Supreme Court denied\\n\\ncertiorari review. Ex parte Price, 976 So. 2d 1057 (Ala. 2003).\\n\\n Later, Price filed a petition for writ of habeas corpus in the Northern District\\n\\nof Alabama. The district court issued an opinion denying the petition with prejudice\\n\\nand entering judgment against Price. We affirmed that judgment. See Price v. Allen,\\n\\n679 F.3d 1315, 1319-20 (11th Cir. 2012) (per curiam). The Supreme Court also\\n\\ndenied Price’s petition for writ of certiorari. Price v. Thomas, 568 U.S. 1212 (2013).\\n\\n Price filed a successive state post-conviction Rule 32 petition in 2017, arguing\\n\\nthat his death sentence was unconstitutional under Hurst v. Florida, 136 S. Ct. 616\\n\\n(2016). That petition was also denied, and the Court of Criminal Appeals of\\n\\nAlabama affirmed. Price v. State, No. CR-16-0785, 2017 WL 10923867 (Ala. Crim.\\n\\nApp. Aug. 4, 2017), reh'g denied (Sept. 8, 2017). The Alabama Supreme Court\\n\\ndenied certiorari.\\n\\n Following his direct criminal appeals and after the State moved the Alabama\\n\\nSupreme Court to set an execution date, Price brought a civil lawsuit under 42 U.S.C.\\n\\n\\n 3\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 4 of 26\\n\\n\\n§ 1983 alleging that the Alabama Department of Corrections’s (“ADOC”) use of\\n\\nmidazolam in its three-drug lethal-injection protocol violates the Eighth\\n\\nAmendment’s ban on cruel and unusual punishment because it is not effective in\\n\\nrendering an inmate insensate during execution (the “first § 1983 action”). The\\n\\ndistrict court held a bench trial on Price’s § 1983 claim. But the district court\\n\\nbifurcated the trial, addressing only whether Price could meet his burden of showing\\n\\nthat his chosen alternative drug—pentobarbital—was available to the ADOC. The\\n\\ndistrict court found in favor of the ADOC and against Price. It concluded that Price\\n\\nhad failed to meet his burden of showing that pentobarbital was a feasible and\\n\\navailable drug for use by the ADOC.\\n\\n Price appealed and, on September 18, 2018, we affirmed. Price v. Comm'r,\\n\\nAla. Dep't of Corr., 752 F. App'x 701 (11th Cir. 2018). Price recently filed a petition\\n\\nfor writ of certiorari with the Supreme Court of the United States. That petition is\\n\\ncurrently pending.\\n\\nII. Facts Relevant to this Appeal\\n\\n While the appeal of Price’s first § 1983 action was pending before this Court,\\n\\nthe Alabama legislature amended the State’s execution statute to add nitrogen\\n\\nhypoxia as an approved method of execution. The amendment became effective on\\n\\nJune 1, 2018. See Ala. Code § 15-18-82.1. The statute reads, in relevant part, “A\\n\\ndeath sentence shall be executed by lethal injection, unless the person sentenced to\\n\\n\\n 4\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 5 of 26\\n\\n\\ndeath affirmatively elects to be executed by electrocution or nitrogen hypoxia.” Ala.\\n\\nCode § 15-18-82.1(a). The statute also provides that the election of death by\\n\\nnitrogen hypoxia is waived unless it is personally made by the inmate in writing and\\n\\ndelivered to the warden within thirty days after the certificate of judgment pursuant\\n\\nto a decision by the Alabama Supreme Court affirming the sentence of death. Ala.\\n\\nCode § 15-18-82.1(b)(2). If a judgment was issued before June 1, 2018, as was the\\n\\ncase with Price, the election must have been made and delivered to the warden within\\n\\nthirty days of June 1, 2018. See Id.\\n\\n On January 11, 2019, the State moved the Alabama Supreme Court to set an\\n\\nexecution date for Price. The Alabama Supreme Court granted the motion on March\\n\\n1, 2019, ordering that Price be executed on April 11, 2019, by lethal injection.\\n\\n In the meantime, on January 27, 2019, Price wrote a letter to the warden of\\n\\nHolman asking that he be executed by nitrogen hypoxia. 2 The warden responded by\\n\\nnotifying Price that his request was past the thirty-day deadline set forth in the\\n\\nstatute. Nevertheless, she further noted that she did not have the authority to grant,\\n\\ndeny, or reject the request, and she indicated that any further consideration of the\\n\\n\\n 2\\n Price suggests that he was unaware of the ability to elect nitrogen hypoxia as a means of\\nexecution until his pro bono counsel, Aaron Katz, called Federal Public Defender John Palombi\\non January 12, 2019. According to Price, during that phone conversation, Palombi “informed\\nAttorney Katz about the Alabama legislature’s March 2018 amendments to the State’s execution\\nprotocol.” However, as we note later in this opinion, our opinion in Price’s first § 1983 action,\\nwhich we issued in September 2018, specifically referenced the fact that Alabama had adopted\\nnitrogen hypoxia as a means of execution. We further noted that Price apparently had not elected\\nthis option.\\n 5\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 6 of 26\\n\\n\\nmatter needed to go through Price’s attorney to the Attorney General’s Office.\\n\\nPrice’s attorney then reached out to the Attorney General’s Office and reiterated\\n\\nPrice’s desire to “opt in to the nitrogen hypoxia protocol.” Assistant Attorney\\n\\nGeneral Henry Johnson denied the request, citing the thirty-day period to opt into\\n\\nthe protocol.\\n\\n On February 8, 2019, (approximately one month after the State sought an\\n\\nexecution date), Price filed a civil complaint against the Commissioner of the ADOC\\n\\nand others. The new complaint set forth a § 1983 claim in which Price realleged\\n\\nmany of the claims raised in his previous § 1983 action concerning the three-drug\\n\\nlethal-injection protocol (the “second § 1983 action”). For example, Price claims\\n\\nthat the use of midazolam as the first drug in its three-drug lethal-injection protocol\\n\\nviolates the Eighth Amendment’s ban on cruel and unusual punishment. The\\n\\ncomplaint in the second § 1983 action also alleges that the State violated Price’s\\n\\nFourteenth Amendment right to equal protection by refusing to allow him to elect\\n\\nnitrogen hypoxia as his method of execution. With respect to that claim, Price\\n\\ncontended that the State entered into “secret agreements” with many death row\\n\\ninmates allowing them to elect nitrogen hypoxia but would not allow him to do so\\n\\noutside of the 30-day opt-in period.3\\n\\n\\n 3\\n The complaint in the second § 1983 action further alleges that the State failed to take\\nsteps to prevent material deviations from its lethal-injection procedures in future executions, but\\nPrice abandoned that claim, as he did not argue it to the district court below, and it is not part of\\n 6\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 7 of 26\\n\\n\\nIII. Discussion\\n\\n We review de novo an order on summary judgment. Smith v. Owens, 848 F.3d\\n\\n975, 978 (11th Cir. 2017). As for the district court’s denial of Price’s motion for\\n\\nstay of execution, we review that for abuse of discretion. Brooks v. Warden, 810\\n\\nF.3d 812, 818 (11th Cir. 2016). With respect to the district court’s factual findings,\\n\\nwe review those for clear error. Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015).\\n\\nUnder this standard, we may not reverse “simply because we are convinced that we\\n\\nwould have decided the case differently.” Id. (cleaned up).\\n\\n Finally, we may grant Price’s motion for stay of execution filed in this Court\\n\\nonly if Price establishes that “(1) he has a substantial likelihood of success on the\\n\\nmerits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay\\n\\nwould not substantially harm the other litigant; and (4) if issued, the injunction\\n\\nwould not be adverse to the public interest.” Arthur v. Comm'r, Ala. Dep't of Corr.,\\n\\n840 F.3d 1268, 1321 (11th Cir. 2016) (quoting Brooks v. Warden, 810 F.3d 812, 818\\n\\n(11th Cir. 2016) (emphases in original)), abrogated on other grounds by Bucklew v.\\n\\nPrecythe, No. 17-8151, 2019 WL 1428884, at *10 (U.S. Apr. 1, 2019). The “first\\n\\nand most important question” regarding a stay of execution is whether the petitioner\\n\\n\\n\\n\\nthe present appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)\\n(claims or arguments not briefed before an appellate court are deemed abandoned and will not be\\naddressed).\\n\\n 7\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 8 of 26\\n\\n\\nis substantially likely to succeed on the merits of his claims. Jones v. Comm’r. Ga.\\n\\nDep’t of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016).\\n\\n After careful consideration, we conclude that the district court did not err\\n\\nwhen it denied Price’s Cross-Motion for Summary Judgment, although our basis for\\n\\naffirmance differs from the grounds set forth by the district court. We further find\\n\\nthat the district court did not abuse its discretion when it denied Price’s initial and\\n\\nrenewed motions for preliminary injunction in which he sought a stay of execution.\\n\\nFinally, we deny Price’s motion for stay of execution because he has not satisfied\\n\\nthe requirements for such a stay.\\n\\n We now examine each of Price’s claims in turn.\\n\\n A. Fourteenth Amendment Equal Protection Claim\\n\\n Price contends that the State violated his Fourteenth Amendment right to\\n\\nequal protection by not permitting him to elect nitrogen hypoxia as a method of\\n\\nexecution. To prevail on his equal-protection claim, Price must first show that “the\\n\\nState will treat him disparately from other similarly situated persons.” Arthur v.\\n\\nThomas, 674 F.3d 1257, 1262 (11th Cir. 2012) (quoting DeYoung v. Owens, 646\\n\\nF.3d 1319, 1327 (11th Cir. 2011)). Second, “[i]f a law treats individuals differently\\n\\non the basis of . . . [a] suspect classification, or if the law impinges on a fundamental\\n\\nright, it is subject to strict scrutiny.” Id. (quoting Leib v. Hillsborough Cty. Pub.\\n\\nTransp. Comm'n, 558 F.3d 1301, 1306 (11th Cir. 2009)). Otherwise, Price “must\\n\\n\\n 8\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 9 of 26\\n\\n\\nshow that the disparate treatment is not rationally related to a legitimate government\\n\\ninterest.” Id. (quoting DeYoung, 646 F.3d at 1327–28).\\n\\n The district court did not err in denying Price’s equal-protection claim.\\n\\nImportantly, Price has not demonstrated that he was or will be treated differently\\n\\nthan similarly situated inmates. Although Price appeared to initially contend that\\n\\nthe State made “secret agreements” with other death-row inmates—suggesting that\\n\\nthese inmates elected to opt in to the nitrogen hypoxia protocol outside of the thirty-\\n\\nday window—he seems to now concede that these other inmates made their election\\n\\nwithin the thirty-day window.\\n\\n The record reveals that Price had the same opportunity as every other inmate\\n\\nto elect nitrogen hypoxia as his method of execution. When the State added nitrogen\\n\\nhypoxia as a statutorily viable method of execution in June 2018, all inmates whose\\n\\ndeath sentences were final as of June 1, 2018, received a thirty-day period to elect\\n\\nnitrogen hypoxia. See Ala. Code § 15-18-82.1(b)(2). Significantly, Price was\\n\\nrepresented by counsel when the State added nitrogen hypoxia as a method of\\n\\nexecution.\\n\\n According to the State, all death-row inmates at Holman, including Price,\\n\\nwere provided with a copy of an election form, and forty-eight of those inmates\\n\\ntimely elected nitrogen hypoxia. Price did not. The record contains the affidavit of\\n\\nCaptain Jeff Emberton, who attested to the fact that, in mid-June 2018, after the State\\n\\n\\n 9\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 10 of 26\\n\\n\\nauthorized nitrogen hypoxia as a method of execution, the warden of Holman\\n\\ndirected him to provide every death-row inmate an election form and an envelope.\\n\\nAccording to Emberton, he delivered the form to every death-row inmate at Homan\\n\\nas instructed. The form identified Act 2018-353 (which amended Ala. Code. § 15-\\n\\n18-82.1 to include nitrogen hypoxia) and allowed for the inmate to state that he was\\n\\nmaking the election of nitrogen hypoxia as the means of execution.4 Price did not\\n\\ncontend that he did not receive the form or that he was not given the option to make\\n\\nthe same election.\\n\\n In sharp contrast to other inmates who opted for the protocol by the July 1,\\n\\n2018, deadline, Price waited until late January 2019 to seek to elect nitrogen hypoxia\\n\\nfor his execution. Price appears to argue that the ADOC’s provision of the election\\n\\nform was insufficient. But Price was represented by counsel, so any doubts Price\\n\\n\\n\\n 4\\n The form stated as follows:\\n ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA\\nPursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather\\nthan by lethal injection.\\nThis election is not intended to affect the status of any challenge(s) (current or future) to my\\nconviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol\\nadopted for carrying out execution by nitrogen hypoxia.\\nDated this _____ day of June, 2018.\\n\\n____________________________ _______________________________\\nName/Inmate Number Signature\\n\\nECF No. 19-2. The State admits though that it did not create the election form. Rather, it claims\\nthe Federal Public Defender’s Office created the form and gave a copy of it to the warden of\\nHolman. But inmates not represented by the Federal Public Defender’s Office were among those\\nwho timely completed the form.\\n 10\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 11 of 26\\n\\n\\nhad about the form could have been resolved by consulting with his attorney. Plus,\\n\\nseveral other inmates were able to make the timely election based on the provision\\n\\nof the form by the State. Price takes issue with the fact that most of the inmates that\\n\\ntimely elected nitrogen hypoxia were represented by the Federal Public Defender’s\\n\\nOffice and that they were given an explanation of their rights by that office before\\n\\nreceiving the form. But as we have noted, Price was also represented by counsel,\\n\\nand he could have asked for an explanation of the form. Nor does Price make any\\n\\nSixth Amendment claim, in any event. Finally, the interactions between other\\n\\ninmates and the Federal Public Defender’s Office do not support any unequal\\n\\ntreatment by the State of similarly situated individuals.\\n\\n Further, to the extent Price claims that he did not become aware of the change\\n\\nin law until January 2019, he has not asserted that the State treated Price differently\\n\\nthan other death-row inmates with respect to this information. Moreover, the record\\n\\nhere shows that Price and his counsel plainly had reason to know of the change in\\n\\nAlabama’s law before January 2019 because we specifically described that change\\n\\nwhen we issued our decision in Price’s first § 1983 action appeal. See Price, 752 F.\\n\\nApp’x at 703 n.3.\\n\\n Because Price did not timely elect the new protocol, he is not similarly situated\\n\\nin all material respects to the inmates who did make such an election within the\\n\\nthirty-day timeframe. And because Price has not shown that he is similarly situated\\n\\n\\n 11\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 12 of 26\\n\\n\\nto those inmates, he cannot demonstrate any equal-protection violation due to the\\n\\nState’s denial of execution by nitrogen hypoxia. But even if Price were similarly\\n\\nsituated to the other death-row inmates, he cannot establish an equal-protection\\n\\nviolation because he was treated exactly the same as the other inmates. Every inmate\\n\\nwas given thirty days within which to elect nitrogen hypoxia as their method of\\n\\nexecution. Ironically, if the State did allow Price to make the belated election he\\n\\nseeks, it would be treating him differently than other death-row inmates who were\\n\\nnot afforded the same benefit.\\n\\n In the end, it appears that Price takes issue with the thirty-day election period\\n\\nitself, arguing that it is arbitrary. But even considering Price’s claim as a challenge\\n\\nto the statute itself—that it treats similarly situated death-row inmates differently\\n\\nbased on a criterion (a thirty-day election) that does not rationally further any\\n\\nlegitimate state interest—the claim fails. As noted by the district court, a statute is\\n\\npresumed constitutional, and a classification not involving fundamental rights nor\\n\\nproceeding along suspect lines “cannot run afoul of the Equal Protection Clause if\\n\\nthere is a rational relationship between the disparity of treatment and some legitimate\\n\\ngovernmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (citations\\n\\nomitted). Here, a rational basis exists for the thirty-day rule—the efficient and\\n\\norderly use of state resources in planning and preparing for executions. And Price\\n\\n\\n\\n\\n 12\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 13 of 26\\n\\n\\nhas not negated this rational basis for the thirty-day election requirement. 5 See id.\\n\\n(noting “[t]he burden is on the one attacking the legislative arrangement to negate\\n\\nevery conceivable basis which might support it”).\\n\\n B. Eighth Amendment Claim\\n\\n The Supreme Court’s decision in Glossip v. Gross, 135 S. Ct. 2726, 2737\\n\\n(2015), sets forth the relevant two-pronged standard a plaintiff must meet to succeed\\n\\non an Eighth Amendment method-of-execution claim.\\n\\n Prisoners cannot succeed on a method-of-execution claim unless they can\\n\\nestablish that the method challenged presents a risk that is “‘sure or very likely to\\n\\ncause serious illness and needless suffering,’ and gives rise to ‘sufficiently imminent\\n\\ndangers.’” Id. (emphasis in original) (quoting Baze, 553 U.S. at 50 (plurality\\n\\nopinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). The\\n\\nSupreme Court further elaborated in Baze, “Simply because an execution method\\n\\nmay result in pain, either by accident or as an inescapable consequence of death,\\n\\ndoes not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as\\n\\ncruel and unusual” punishment prohibited by the Eighth Amendment. Baze, 553\\n\\n\\n 5\\n On appeal, Price claims that the district court committed error in refusing to apply strict\\nscrutiny to the State’s alleged differential treatment of him. He argues that once the district court\\nconcluded he was substantially likely to prevail on his allegation that the State’s lethal-injection\\nprotocol will cause him severe pain and needless suffering, it should have applied strict scrutiny\\nto his equal-protection claim, since the right to be free from cruel and unusual punishment is a\\nfundamental right. We do not evaluate this argument of Price’s, as we conclude that binding\\nprecedent requires us to find on this record that Price is not substantially likely to prevail on his\\nallegation that the State’s lethal-injection protocol will cause him severe pain.\\n 13\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 14 of 26\\n\\n\\nU.S. at 50. So to prevail on a method-of-execution claim, an inmate must show a\\n\\n“‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that\\n\\nprevents prison officials from pleading that they were ‘subjectively blameless for\\n\\npurposes of the Eighth Amendment.’” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553\\n\\nU.S. at 50 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 846, and\\n\\nn. 9 (1994)).\\n\\n The inmate must also “identify an alternative that is ‘feasible, readily\\n\\nimplemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”\\n\\nId. (quoting Baze, 553 U.S. at 52). Where a prisoner claims a safer alternative to the\\n\\nState’s lethal-injection protocol, he cannot make a successful challenge by showing\\n\\na “slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 51).\\n\\nDeath-row inmates face a heavy burden.\\n\\n The Supreme Court recently reiterated an inmate’s burden in an Eighth\\n\\nAmendment method-of-execution challenge in Bucklew v. Precythe, No. 17-8151,\\n\\n2019 WL 1428884, at *8 (U.S. Apr. 1, 2019). As summarized by the Court, a\\n\\nprisoner “must show a feasible and readily implemented alternative method of\\n\\nexecution that would significantly reduce a substantial risk of severe pain and that\\n\\nthe State has refused to adopt without a legitimate penological reason.” Id.\\n\\n In reaffirming this standard, however, the Supreme Court recognized the\\n\\nburden an inmate has under the Baze-Glossip test can be “overstated.” Id. at *10. It\\n\\n\\n 14\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 15 of 26\\n\\n\\nclarified that “[a]n inmate seeking to identify an alternative method of execution is\\n\\nnot limited to choosing among those presently authorized by a particular State’s\\n\\nlaw.” Id. So a petitioner can identify a “well-established protocol in another State\\n\\nas a potentially viable option.” Id. Justice Kavanaugh noted that all nine Justices\\n\\nagreed on this point. Id. at *16 (Kavanaugh, J., concurring) (citing Arthur v. Dunn,\\n\\n580 U.S. __, 137 S. Ct. 725, 733-34 (2017) (Sotomayor, J. dissenting from denial of\\n\\ncertiorari)).\\n\\n For this reason, a portion of our decision in Arthur v. Comm'r, Ala. Dep't of\\n\\nCorr., 840 F.3d 1268 (11th Cir. 2016), has been abrogated by Bucklew. In particular,\\n\\nin Arthur, we determined that a proposed method of execution (death by firing\\n\\nsquad) was not an available alternative because the state in which the inmate would\\n\\nbe executed did not authorize it. Id. at 1317-18. We made this determination despite\\n\\nthe fact that another state authorized the particular method of execution proposed by\\n\\nthe inmate. Id. But Bucklew demonstrates our conclusion in Arthur was incorrect.\\n\\nHaving clarified the applicable law, we turn to the Baze-Glossip test in reverse order,\\n\\ntackling the availability issue first.\\n\\n 1. Price has shown that nitrogen hypoxia is an available alternative\\n method of execution that is feasible and readily implemented\\n\\n Price claims that nitrogen hypoxia is an available method of execution for him\\n\\nbecause the Alabama legislature has authorized it. In proposing nitrogen hypoxia as\\n\\nan alternative to the State’s midazolam lethal-injection protocol, Price emphasizes\\n 15\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 16 of 26\\n\\n\\nthat he is merely seeking to be executed by a method of execution that the Alabama\\n\\nlegislature, “after considerable thought, has expressly authorized.” He also argues\\n\\nthat nitrogen hypoxia is feasible and readily implemented because pure nitrogen gas\\n\\nis easily purchased. No supply concerns exist for nitrogen, and counsel for Price\\n\\nnotes that he was recently able to easily purchase a tank of 99.9% pure compressed\\n\\nnitrogen gas.\\n\\n The State retorts that nitrogen hypoxia is not an available method of execution\\n\\nto Price as a matter of state law because he failed to make a timely election under\\n\\nthe applicable statute. It also claims nitrogen hypoxia is neither feasible nor readily\\n\\nimplemented at this date, since the ADOC has not yet finalized a nitrogen hypoxia\\n\\nprotocol, and it is not likely that one will be in place by April 11, 2019. Finally, the\\n\\nState asserts Price did not meet his burden to prove a known and available alternative\\n\\nmethod of execution because he did not provide sufficient details of how the State\\n\\ncould induce nitrogen hypoxia.\\n\\n To resolve this issue, we turn to Bucklew for guidance. Bucklew sheds some\\n\\nlight on the “availability” prong of the Baze-Glossip test, and it specifically\\n\\naddresses an inmate’s proposal of nitrogen hypoxia as an alternative method of\\n\\nexecution.\\n\\n In Bucklew, the Supreme Court determined that the inmate had not presented\\n\\na triable question on the viability of nitrogen hypoxia as an alternative to lethal\\n\\n\\n 16\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 17 of 26\\n\\n\\ninjection for two reasons. First, the Court noted, to establish that a proposed\\n\\nalternative method is available, an inmate must do more than show that it is\\n\\ntheoretically “feasible”; he must also show that it is “readily implemented.”\\n\\nBucklew, 2019 WL 1428884, at *11 (citing Glossip, 135 S. Ct. at 2737-38). To meet\\n\\nthis burden, the inmate’s proposed alternative must be “sufficiently detailed to\\n\\npermit a finding that the State could carry it out ‘relatively easily and reasonably\\n\\nquickly.’” Id. (quoting McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017);\\n\\nArthur, 840 F.3d at 1300).\\n\\n The Court in Bucklew found that the inmate had failed to meet this burden\\n\\nbecause he presented no evidence on details such as how nitrogen gas would be\\n\\nadministered, in what concentration, and for how long the gas would be\\n\\nadministered. Id. The inmate also did not suggest how the State could ensure the\\n\\nsafety of the execution team. Id. Instead, the inmate pointed only to reports from\\n\\ncorrectional institutions in other states revealing that additional study was needed to\\n\\nput in place a protocol for execution by nitrogen hypoxia. Id.\\n\\n Second, the Court in Bucklew determined that the State had a legitimate reason\\n\\nfor not switching its current lethal-injection protocol: nitrogen hypoxia was an\\n\\n“entirely new method—one that had ‘never been used to carry out an execution’ and\\n\\nhad ‘no track record of successful use.’” Id. (quoting McGehee, 854 F.3d at 493).\\n\\nThe Court concluded by stating that the Eighth Amendment “does not compel a State\\n\\n\\n 17\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 18 of 26\\n\\n\\nto adopt ‘untried and untested’ (and thus unusual in the constitutional sense) methods\\n\\nof execution.” Id. (quoting Baze, 553 U.S. at 41). 6\\n\\n Here, the State argues that although the Code of Alabama now contemplates\\n\\nnitrogen hypoxia as a means of execution, it is not “available” because the ADOC is\\n\\nstill developing a protocol, and the process will not be complete in time for Price’s\\n\\nApril 11, 2019, execution. We are not persuaded. If a State adopts a particular\\n\\nmethod of execution—as the State of Alabama did in March 2018—it thereby\\n\\nconcedes that the method of execution is available to its inmates. Unlike in Bucklew,\\n\\nwhere the inmate proposed the adoption of a new method, here, the State of Alabama\\n\\nchose, on its own, and after careful consideration, to offer nitrogen hypoxia as a\\n\\nmethod of execution for its death-row inmates. So unlike the inmate in Bucklew,\\n\\nPrice is not attempting to “compel” the State to adopt a different and new method of\\n\\nexecution at all. The method was already adopted well before Price’s Eighth\\n\\nAmendment challenge—and more than a year before Price’s scheduled execution\\n\\ndate.\\n\\n A State may not simultaneously offer a particular method of execution and\\n\\ndeny it as “unavailable.” Rather, because the State voluntarily included nitrogen\\n\\n\\n\\n\\n 6\\n The Supreme Court did note, however, while the case was pending, a “few” states had\\nauthorized nitrogen hypoxia as a method of execution. Bucklew, 2019 WL 1428884, at *11 n.1.\\nBut, it emphasized, “[t]o date, no one in this case has pointed us to an execution in this country\\nusing nitrogen gas.” Id.\\n 18\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 19 of 26\\n\\n\\nhypoxia in its statute, we reject the State’s argument that nitrogen hypoxia is not\\n\\n“available” to Price simply because the State has not yet developed a protocol to\\n\\nadminister this method of execution. If we were to find otherwise, it would lead to\\n\\nan absurd result. States could adopt a method of execution, take no action at all to\\n\\nimplement a protocol to effectuate it, and then defeat an inmate’s Eighth\\n\\nAmendment challenge by simply claiming the method is not “available” due to a\\n\\nlack of protocol.\\n\\n Roughly two years ago, the Alabama legislature introduced a bill that would\\n\\nmake nitrogen hypoxia a statutorily authorized method of execution in Alabama.\\n\\nThe bill was also passed and enacted into law more than a year ago, and inmates\\n\\nhave been electing nitrogen hypoxia since June 2018. Under these circumstances,\\n\\nwe cannot agree that nitrogen hypoxia is not available in the State of Alabama.\\n\\nIndeed, Alabama’s official legislature-enacted policy is that nitrogen hypoxia is an\\n\\navailable method of execution in the State.\\n\\n We also reject the State’s suggestion that nitrogen hypoxia is not available to\\n\\nPrice only because he missed the 30-day election period. If nitrogen hypoxia is\\n\\notherwise “available” to inmates under Bucklew, that the State chooses to offer the\\n\\nchance to opt for it for a period of only 30 days does not somehow render it\\n\\n“unavailable” by Bucklew’s criteria. To the contrary, for the same reason that\\n\\nBucklew abrogates Arthur’s requirement that a state offer a method of execution for\\n\\n\\n 19\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 20 of 26\\n\\n\\nit to be “available,” Bucklew renders a state’s time limit on a given execution option\\n\\nof no moment to whether that option is “available.”\\n\\n The closer question is whether Price’s alleged lack of detail with respect to\\n\\nhow the State would implement his execution by nitrogen hypoxia defeats his Eighth\\n\\nAmendment claim. We agree that Price did not come forward with sufficient detail\\n\\nabout how the State could implement nitrogen hypoxia to satisfy Bucklew’s\\n\\nrequirement where the inmate proposes a new method of execution. But under the\\n\\nparticular circumstances here—where the State by law previously adopted nitrogen\\n\\nhypoxia as an official method of execution—we do not believe that was Price’s\\n\\nburden to bear. Rather, an inmate may satisfy his burden to demonstrate that the\\n\\nmethod of execution is feasible and readily implemented by pointing to the executing\\n\\nstate’s official adoption of that method of execution.\\n\\n True, in Bucklew, the Supreme Court discussed how Bucklew had failed to set\\n\\nforth evidence of essential questions like how the nitrogen gas would be\\n\\nadministered, and it used this as a basis to defeat the Eighth Amendment claim. But\\n\\nas we have noted, a key distinction between Bucklew and our case is present. Again,\\n\\nin Bucklew, the inmate was proposing a new alternative method of execution that\\n\\nhad not yet been approved by the state. And in addressing whether the suggested\\n\\nalternative method was “feasible” and “readily implemented,” the Supreme Court\\n\\n\\n\\n\\n 20\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 21 of 26\\n\\n\\nexplained that the inmate’s proposal must be sufficiently detailed. Bucklew, 2019\\n\\nWL 1428884, at *11.\\n\\n Here, Price did not “propose” a new method of execution; he pointed to one\\n\\nthat the State already made available. The State, on its own, had already adopted\\n\\nnitrogen hypoxia as an alternative to lethal injection. Under these circumstances,\\n\\nthe State bears the responsibility to formulate a protocol detailing how to effectuate\\n\\nexecution by nitrogen hypoxia. Indeed, it would be bizarre to put the onus on Price\\n\\nto come up with a proposed protocol for the State to use when the State has already\\n\\nadopted the particular method of execution and is required to develop a protocol for\\n\\nit, anyway. For these reasons, we conclude that Price’s lack of detail as to how the\\n\\nState would implement death by nitrogen hypoxia does not prevent him from\\n\\nestablishing that this method of execution is available to him.\\n\\n Finally, we acknowledge the potential for abuse in delaying execution that a\\n\\nstate’s decision to make multiple methods of execution available could present.\\n\\nUnder Bucklew, 2019 WL 1428884, at *14 (citation and quotation marks omitted),\\n\\n“[b]oth the State and the victims of crime have an important interest in the timely\\n\\nenforcement of a sentence.” So to the extent that a particular available method of\\n\\ndeath reasonably requires a certain period for the state to prepare for execution, a\\n\\nprisoner may not successfully seek execution by an alternative method inside that\\n\\nwindow of time. But this is not that case.\\n\\n\\n 21\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 22 of 26\\n\\n\\n Here, Price sought execution by nitrogen hypoxia in January 2019, and his\\n\\nexecution is not scheduled to occur until April 11, 2019. While the State has not yet\\n\\ndeveloped a protocol for execution by nitrogen hypoxia, it has submitted no evidence\\n\\nto suggest that once it has satisfied its burden to develop its execution-by-nitrogen-\\n\\nhypoxia protocol, preparing to carry out execution by nitrogen hypoxia will\\n\\nreasonably require more than two-and-one-half months.\\n\\n 2. Price has not established a substantial likelihood that he would be\\n able to show that nitrogen hypoxia significantly reduces a\\n substantial risk of pain when compared to the three-drug protocol\\n\\n Nevertheless, Price cannot succeed on his Eighth Amendment challenge\\n\\nbecause he has not shown that nitrogen hypoxia will “significantly reduce a\\n\\nsubstantial risk of severe pain.” Bucklew, 2019 WL 1428884, at *12. As the\\n\\nSupreme Court in Bucklew recently indicated, a minor reduction in risk is not\\n\\nenough; “the difference must be clear and considerable.” Id. at *12. Here, Price has\\n\\nfailed to meet that standard.\\n\\n As an initial matter, we reject Price’s contention that, by not moving for\\n\\nsummary judgment on this issue, the State has somehow conceded that a genuine\\n\\nissue of material fact exists with respect to whether its lethal-injection protocol\\n\\ncarries a substantial risk of causing severe pain. At this stage, where Price seeks a\\n\\nstay of execution, he bears the burden to show that a substantial likelihood of success\\n\\non the merits exists. And, during the hearing before the district court, the State\\n\\n\\n 22\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 23 of 26\\n\\n\\ncontended that its three-drug lethal-injection protocol using midazolam was a safe\\n\\nand effective constitutional method of execution.\\n\\n In the district court, Price pointed to two things to support his motion: (1) the\\n\\ndeclaration of his expert Dr. David Lubarsky, which he also presented during his\\n\\nappeal on the first § 1983 action; and (2) a decision by a district court in the Southern\\n\\nDistrict of Ohio—In re Ohio Execution Protocol Litigation, No. 11-cv-1016, 2019\\n\\nWL 244488, at *70 (S.D. Ohio Jan. 14, 2019). Dr. Lubarsky’s declaration contains\\n\\nhis opinion that midazolam will not provide adequate analgesic effects during\\n\\nPrice’s execution. And Price relies on the Southern District of Ohio’s opinion\\n\\nbecause the court there found Ohio’s lethal injection protocol—which uses\\n\\nmidazolam—“will certainly or very likely cause [an inmate] severe pain and\\n\\nneedless suffering.”\\n\\n The State submitted nothing on the record in response to contest Dr.\\n\\nLubarsky’s assertions. Rather, it relied on the evidence it submitted in Price’s first\\n\\n§ 1983 action. But the district court never reached this question in the first § 1983\\n\\naction, and the State failed to file its evidence on this issue in the pending matter.\\n\\nAs a result, the record contains only Dr. Lubarsky’s uncontested assertions that the\\n\\nState’s use of midazolam in the three-drug protocol presents a substantial risk of\\n\\nsevere pain to Price. So the district court’s conclusion that Price satisfied his burden\\n\\n\\n\\n\\n 23\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 24 of 26\\n\\n\\nto establish that lethal injection carries a substantial risk of severe pain cannot be\\n\\nclearly erroneous, since the only evidence of record supports that conclusion.\\n\\n Nevertheless, the district court did clearly err in concluding that Price had met\\n\\nhis burden to show that execution by nitrogen hypoxia presented an alternative that\\n\\nwould significantly reduce the risk of substantial pain to Price. The district court\\n\\nbased its finding in this regard on Dr. Lubarsky’s declaration in the first § 1983\\n\\naction appeal and on a report from East Central University. But Dr. Lubarsky’s\\n\\ndeclaration did not compare the effectiveness of the current three-drug protocol to\\n\\nthe proposed use of nitrogen hypoxia.7\\n\\n And Price’s reliance on the East Central University report entitled “Nitrogen\\n\\nInduced Hypoxia as a Form of Capital Punishment,” in which the authors studied\\n\\nnitrogen hypoxia, is also problematic. Importantly, the report is a preliminary draft\\n\\nreport that is stamped with the words “Do Not Cite.” So we cannot conclude that\\n\\nPrice’s reliance on this report alone could satisfy his burden to show that execution\\n\\nby nitrogen hypoxia would significantly reduce the risk of substantial pain to Price.\\n\\nAnd in the absence of the East Central University report, the district court was left\\n\\nwithout any evidence supporting a conclusion that nitrogen is not likely to result in\\n\\nany substantial physical discomfort during executions. Consequently, we find that\\n\\n\\n 7\\n The district court likewise recognized that Dr. Lubarsky offered no opinion regarding the\\ncomparison between the pain incurred with the lethal-injection protocol and that incurred with the\\nadministration of nitrogen hypoxia.\\n 24\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 25 of 26\\n\\n\\nthe district court clearly erred when it found that Price satisfied his burden to\\n\\nestablish that nitrogen would likely not result in substantial physical discomfort to\\n\\nPrice. The district court simply had no reliable evidence upon which to make this\\n\\ndetermination.\\n\\n We further note that the report itself also did not compare the two methods of\\n\\nexecution, and to the extent Price claims he would feel like he was suffocating if\\n\\nexecuted by lethal injection, the petitioner in Bucklew admitted that feelings of\\n\\nsuffocation could also occur with nitrogen gas. Bucklew, 2019 WL 1428884, at *13.\\n\\nLikewise, the record in Bucklew supported the conclusion that the petitioner could\\n\\nbe capable of feeling pain for 20 to 30 seconds when nitrogen is used for an\\n\\nexecution. Id. The Court also recognized expert testimony that suggested the effects\\n\\nof nitrogen could vary depending on how it was administered. Id. In short, the\\n\\ndistrict court clearly erred when it concluded Price had satisfied his burden to\\n\\nestablish that nitrogen hypoxia would significantly reduce a substantial risk of severe\\n\\npain. For these reasons, Price has failed to show a substantial likelihood of success\\n\\non the merits of his claim.\\n\\nIV. Conclusion\\n\\n For the foregoing reasons, we affirm the district court’s denial of Price’s\\n\\nCross-Motion for Summary Judgment as well as its denial of Price’s original and\\n\\nrenewed motions for preliminary injunction. And because Price has not satisfied his\\n\\n\\n 25\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 26 of 26\\n\\n\\nburden to show a substantial likelihood of success on the merits with respect to either\\n\\nhis Fourteenth Amendment equal-protection claim or his Eighth Amendment\\n\\nmethod-of-execution claim, we deny his emergency motion to stay his execution.\\n\\n AFFIRMED and MOTION FOR STAY DENIED.\\n\\n\\n\\n\\n 26\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4385774/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"WILSON"},"judge3":{"kind":"string","value":"ROSENBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4608521/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Christopher Lee PRICE, Plaintiff - Appellant, v. COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-11268 Date Filed: 04/10/2019 Page: 1 of 26\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 19-11268\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 1:19-cv-00057-KD-MU\n\n\n\nCHRISTOPHER LEE PRICE,\n\n Plaintiff - Appellant,\n\nversus\n\nCOMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,\nWARDEN, HOLMAN CORRECTIONAL FACILITY,\n\n Defendants - Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Alabama\n _______________________\n\n (April 10, 2019)\n\nBefore TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.\n\nPER CURIAM:\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 2 of 26\n\n\n Christopher Lee Price, an Alabama prisoner sentenced to death for killing a\n\nman during the commission of a robbery, has moved this Court for an emergency\n\nstay of his execution, which is scheduled to take place on April 11, 2019, at 6:00\n\np.m. Central Standard Time at the Holman Correctional Facility (“Holman”). Price\n\nalso appeals the district court’s order denying his motion for preliminary injunction\n\nand its order denying his renewed motion for preliminary injunction. Included\n\nwithin those orders is the district court’s denial of Price’s Cross-Motion for\n\nSummary Judgment.1 After careful consideration, we affirm the district court’s\n\ndenial of Price’s Cross-Motion for Summary Judgment as well as its denial of Price’s\n\noriginal and renewed motions for preliminary injunction. We also deny Price’s\n\nmotion for a stay of execution because he cannot show a substantial likelihood of\n\nsuccess on his petition.\n\nI. Background\n\n Price was convicted of capital murder for killing William Lynn during the\n\ncommission of a robbery, and Price was subsequently sentenced to death. See Price\n\nv. State, 725 So. 2d 1003, 1011 (Ala. Crim. App. 1997), aff'd sub nom. Ex parte\n\nPrice, 725 So. 2d 1063 (Ala. 1998). Price filed a direct appeal of both his conviction\n\nand death sentence, but both were affirmed. See Price, 725 So. 2d at 1062, aff’d,\n\n\n\n 1\n Price’s Notice of Appeal makes clear that he appeals from “any and all adverse rulings\nincorporated in, antecedent to, or ancillary to” those orders.\n 2\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 3 of 26\n\n\n725 So. 2d 1063 (Ala. 1998). Price’s conviction and sentence became final in May\n\n1999 after the Supreme Court denied his petition for writ of certiorari. See Price v.\n\nAlabama, 526 U.S. 1133 (1999).\n\n Price then filed a state post-conviction Rule 32 petition, but the petition was\n\ndenied, and the Court of Criminal Appeals of Alabama affirmed. See Price v. State,\n\n880 So. 2d 502 (Ala. Crim. App. 2003). The Alabama Supreme Court denied\n\ncertiorari review. Ex parte Price, 976 So. 2d 1057 (Ala. 2003).\n\n Later, Price filed a petition for writ of habeas corpus in the Northern District\n\nof Alabama. The district court issued an opinion denying the petition with prejudice\n\nand entering judgment against Price. We affirmed that judgment. See Price v. Allen,\n\n679 F.3d 1315, 1319-20 (11th Cir. 2012) (per curiam). The Supreme Court also\n\ndenied Price’s petition for writ of certiorari. Price v. Thomas, 568 U.S. 1212 (2013).\n\n Price filed a successive state post-conviction Rule 32 petition in 2017, arguing\n\nthat his death sentence was unconstitutional under Hurst v. Florida, 136 S. Ct. 616\n\n(2016). That petition was also denied, and the Court of Criminal Appeals of\n\nAlabama affirmed. Price v. State, No. CR-16-0785, 2017 WL 10923867 (Ala. Crim.\n\nApp. Aug. 4, 2017), reh'g denied (Sept. 8, 2017). The Alabama Supreme Court\n\ndenied certiorari.\n\n Following his direct criminal appeals and after the State moved the Alabama\n\nSupreme Court to set an execution date, Price brought a civil lawsuit under 42 U.S.C.\n\n\n 3\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 4 of 26\n\n\n§ 1983 alleging that the Alabama Department of Corrections’s (“ADOC”) use of\n\nmidazolam in its three-drug lethal-injection protocol violates the Eighth\n\nAmendment’s ban on cruel and unusual punishment because it is not effective in\n\nrendering an inmate insensate during execution (the “first § 1983 action”). The\n\ndistrict court held a bench trial on Price’s § 1983 claim. But the district court\n\nbifurcated the trial, addressing only whether Price could meet his burden of showing\n\nthat his chosen alternative drug—pentobarbital—was available to the ADOC. The\n\ndistrict court found in favor of the ADOC and against Price. It concluded that Price\n\nhad failed to meet his burden of showing that pentobarbital was a feasible and\n\navailable drug for use by the ADOC.\n\n Price appealed and, on September 18, 2018, we affirmed. Price v. Comm'r,\n\nAla. Dep't of Corr., 752 F. App'x 701 (11th Cir. 2018). Price recently filed a petition\n\nfor writ of certiorari with the Supreme Court of the United States. That petition is\n\ncurrently pending.\n\nII. Facts Relevant to this Appeal\n\n While the appeal of Price’s first § 1983 action was pending before this Court,\n\nthe Alabama legislature amended the State’s execution statute to add nitrogen\n\nhypoxia as an approved method of execution. The amendment became effective on\n\nJune 1, 2018. See Ala. Code § 15-18-82.1. The statute reads, in relevant part, “A\n\ndeath sentence shall be executed by lethal injection, unless the person sentenced to\n\n\n 4\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 5 of 26\n\n\ndeath affirmatively elects to be executed by electrocution or nitrogen hypoxia.” Ala.\n\nCode § 15-18-82.1(a). The statute also provides that the election of death by\n\nnitrogen hypoxia is waived unless it is personally made by the inmate in writing and\n\ndelivered to the warden within thirty days after the certificate of judgment pursuant\n\nto a decision by the Alabama Supreme Court affirming the sentence of death. Ala.\n\nCode § 15-18-82.1(b)(2). If a judgment was issued before June 1, 2018, as was the\n\ncase with Price, the election must have been made and delivered to the warden within\n\nthirty days of June 1, 2018. See Id.\n\n On January 11, 2019, the State moved the Alabama Supreme Court to set an\n\nexecution date for Price. The Alabama Supreme Court granted the motion on March\n\n1, 2019, ordering that Price be executed on April 11, 2019, by lethal injection.\n\n In the meantime, on January 27, 2019, Price wrote a letter to the warden of\n\nHolman asking that he be executed by nitrogen hypoxia. 2 The warden responded by\n\nnotifying Price that his request was past the thirty-day deadline set forth in the\n\nstatute. Nevertheless, she further noted that she did not have the authority to grant,\n\ndeny, or reject the request, and she indicated that any further consideration of the\n\n\n 2\n Price suggests that he was unaware of the ability to elect nitrogen hypoxia as a means of\nexecution until his pro bono counsel, Aaron Katz, called Federal Public Defender John Palombi\non January 12, 2019. According to Price, during that phone conversation, Palombi “informed\nAttorney Katz about the Alabama legislature’s March 2018 amendments to the State’s execution\nprotocol.” However, as we note later in this opinion, our opinion in Price’s first § 1983 action,\nwhich we issued in September 2018, specifically referenced the fact that Alabama had adopted\nnitrogen hypoxia as a means of execution. We further noted that Price apparently had not elected\nthis option.\n 5\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 6 of 26\n\n\nmatter needed to go through Price’s attorney to the Attorney General’s Office.\n\nPrice’s attorney then reached out to the Attorney General’s Office and reiterated\n\nPrice’s desire to “opt in to the nitrogen hypoxia protocol.” Assistant Attorney\n\nGeneral Henry Johnson denied the request, citing the thirty-day period to opt into\n\nthe protocol.\n\n On February 8, 2019, (approximately one month after the State sought an\n\nexecution date), Price filed a civil complaint against the Commissioner of the ADOC\n\nand others. The new complaint set forth a § 1983 claim in which Price realleged\n\nmany of the claims raised in his previous § 1983 action concerning the three-drug\n\nlethal-injection protocol (the “second § 1983 action”). For example, Price claims\n\nthat the use of midazolam as the first drug in its three-drug lethal-injection protocol\n\nviolates the Eighth Amendment’s ban on cruel and unusual punishment. The\n\ncomplaint in the second § 1983 action also alleges that the State violated Price’s\n\nFourteenth Amendment right to equal protection by refusing to allow him to elect\n\nnitrogen hypoxia as his method of execution. With respect to that claim, Price\n\ncontended that the State entered into “secret agreements” with many death row\n\ninmates allowing them to elect nitrogen hypoxia but would not allow him to do so\n\noutside of the 30-day opt-in period.3\n\n\n 3\n The complaint in the second § 1983 action further alleges that the State failed to take\nsteps to prevent material deviations from its lethal-injection procedures in future executions, but\nPrice abandoned that claim, as he did not argue it to the district court below, and it is not part of\n 6\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 7 of 26\n\n\nIII. Discussion\n\n We review de novo an order on summary judgment. Smith v. Owens, 848 F.3d\n\n975, 978 (11th Cir. 2017). As for the district court’s denial of Price’s motion for\n\nstay of execution, we review that for abuse of discretion. Brooks v. Warden, 810\n\nF.3d 812, 818 (11th Cir. 2016). With respect to the district court’s factual findings,\n\nwe review those for clear error. Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015).\n\nUnder this standard, we may not reverse “simply because we are convinced that we\n\nwould have decided the case differently.” Id. (cleaned up).\n\n Finally, we may grant Price’s motion for stay of execution filed in this Court\n\nonly if Price establishes that “(1) he has a substantial likelihood of success on the\n\nmerits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay\n\nwould not substantially harm the other litigant; and (4) if issued, the injunction\n\nwould not be adverse to the public interest.” Arthur v. Comm'r, Ala. Dep't of Corr.,\n\n840 F.3d 1268, 1321 (11th Cir. 2016) (quoting Brooks v. Warden, 810 F.3d 812, 818\n\n(11th Cir. 2016) (emphases in original)), abrogated on other grounds by Bucklew v.\n\nPrecythe, No. 17-8151, 2019 WL 1428884, at *10 (U.S. Apr. 1, 2019). The “first\n\nand most important question” regarding a stay of execution is whether the petitioner\n\n\n\n\nthe present appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)\n(claims or arguments not briefed before an appellate court are deemed abandoned and will not be\naddressed).\n\n 7\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 8 of 26\n\n\nis substantially likely to succeed on the merits of his claims. Jones v. Comm’r. Ga.\n\nDep’t of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016).\n\n After careful consideration, we conclude that the district court did not err\n\nwhen it denied Price’s Cross-Motion for Summary Judgment, although our basis for\n\naffirmance differs from the grounds set forth by the district court. We further find\n\nthat the district court did not abuse its discretion when it denied Price’s initial and\n\nrenewed motions for preliminary injunction in which he sought a stay of execution.\n\nFinally, we deny Price’s motion for stay of execution because he has not satisfied\n\nthe requirements for such a stay.\n\n We now examine each of Price’s claims in turn.\n\n A. Fourteenth Amendment Equal Protection Claim\n\n Price contends that the State violated his Fourteenth Amendment right to\n\nequal protection by not permitting him to elect nitrogen hypoxia as a method of\n\nexecution. To prevail on his equal-protection claim, Price must first show that “the\n\nState will treat him disparately from other similarly situated persons.” Arthur v.\n\nThomas, 674 F.3d 1257, 1262 (11th Cir. 2012) (quoting DeYoung v. Owens, 646\n\nF.3d 1319, 1327 (11th Cir. 2011)). Second, “[i]f a law treats individuals differently\n\non the basis of . . . [a] suspect classification, or if the law impinges on a fundamental\n\nright, it is subject to strict scrutiny.” Id. (quoting Leib v. Hillsborough Cty. Pub.\n\nTransp. Comm'n, 558 F.3d 1301, 1306 (11th Cir. 2009)). Otherwise, Price “must\n\n\n 8\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 9 of 26\n\n\nshow that the disparate treatment is not rationally related to a legitimate government\n\ninterest.” Id. (quoting DeYoung, 646 F.3d at 1327–28).\n\n The district court did not err in denying Price’s equal-protection claim.\n\nImportantly, Price has not demonstrated that he was or will be treated differently\n\nthan similarly situated inmates. Although Price appeared to initially contend that\n\nthe State made “secret agreements” with other death-row inmates—suggesting that\n\nthese inmates elected to opt in to the nitrogen hypoxia protocol outside of the thirty-\n\nday window—he seems to now concede that these other inmates made their election\n\nwithin the thirty-day window.\n\n The record reveals that Price had the same opportunity as every other inmate\n\nto elect nitrogen hypoxia as his method of execution. When the State added nitrogen\n\nhypoxia as a statutorily viable method of execution in June 2018, all inmates whose\n\ndeath sentences were final as of June 1, 2018, received a thirty-day period to elect\n\nnitrogen hypoxia. See Ala. Code § 15-18-82.1(b)(2). Significantly, Price was\n\nrepresented by counsel when the State added nitrogen hypoxia as a method of\n\nexecution.\n\n According to the State, all death-row inmates at Holman, including Price,\n\nwere provided with a copy of an election form, and forty-eight of those inmates\n\ntimely elected nitrogen hypoxia. Price did not. The record contains the affidavit of\n\nCaptain Jeff Emberton, who attested to the fact that, in mid-June 2018, after the State\n\n\n 9\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 10 of 26\n\n\nauthorized nitrogen hypoxia as a method of execution, the warden of Holman\n\ndirected him to provide every death-row inmate an election form and an envelope.\n\nAccording to Emberton, he delivered the form to every death-row inmate at Homan\n\nas instructed. The form identified Act 2018-353 (which amended Ala. Code. § 15-\n\n18-82.1 to include nitrogen hypoxia) and allowed for the inmate to state that he was\n\nmaking the election of nitrogen hypoxia as the means of execution.4 Price did not\n\ncontend that he did not receive the form or that he was not given the option to make\n\nthe same election.\n\n In sharp contrast to other inmates who opted for the protocol by the July 1,\n\n2018, deadline, Price waited until late January 2019 to seek to elect nitrogen hypoxia\n\nfor his execution. Price appears to argue that the ADOC’s provision of the election\n\nform was insufficient. But Price was represented by counsel, so any doubts Price\n\n\n\n 4\n The form stated as follows:\n ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA\nPursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather\nthan by lethal injection.\nThis election is not intended to affect the status of any challenge(s) (current or future) to my\nconviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol\nadopted for carrying out execution by nitrogen hypoxia.\nDated this _____ day of June, 2018.\n\n____________________________ _______________________________\nName/Inmate Number Signature\n\nECF No. 19-2. The State admits though that it did not create the election form. Rather, it claims\nthe Federal Public Defender’s Office created the form and gave a copy of it to the warden of\nHolman. But inmates not represented by the Federal Public Defender’s Office were among those\nwho timely completed the form.\n 10\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 11 of 26\n\n\nhad about the form could have been resolved by consulting with his attorney. Plus,\n\nseveral other inmates were able to make the timely election based on the provision\n\nof the form by the State. Price takes issue with the fact that most of the inmates that\n\ntimely elected nitrogen hypoxia were represented by the Federal Public Defender’s\n\nOffice and that they were given an explanation of their rights by that office before\n\nreceiving the form. But as we have noted, Price was also represented by counsel,\n\nand he could have asked for an explanation of the form. Nor does Price make any\n\nSixth Amendment claim, in any event. Finally, the interactions between other\n\ninmates and the Federal Public Defender’s Office do not support any unequal\n\ntreatment by the State of similarly situated individuals.\n\n Further, to the extent Price claims that he did not become aware of the change\n\nin law until January 2019, he has not asserted that the State treated Price differently\n\nthan other death-row inmates with respect to this information. Moreover, the record\n\nhere shows that Price and his counsel plainly had reason to know of the change in\n\nAlabama’s law before January 2019 because we specifically described that change\n\nwhen we issued our decision in Price’s first § 1983 action appeal. See Price, 752 F.\n\nApp’x at 703 n.3.\n\n Because Price did not timely elect the new protocol, he is not similarly situated\n\nin all material respects to the inmates who did make such an election within the\n\nthirty-day timeframe. And because Price has not shown that he is similarly situated\n\n\n 11\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 12 of 26\n\n\nto those inmates, he cannot demonstrate any equal-protection violation due to the\n\nState’s denial of execution by nitrogen hypoxia. But even if Price were similarly\n\nsituated to the other death-row inmates, he cannot establish an equal-protection\n\nviolation because he was treated exactly the same as the other inmates. Every inmate\n\nwas given thirty days within which to elect nitrogen hypoxia as their method of\n\nexecution. Ironically, if the State did allow Price to make the belated election he\n\nseeks, it would be treating him differently than other death-row inmates who were\n\nnot afforded the same benefit.\n\n In the end, it appears that Price takes issue with the thirty-day election period\n\nitself, arguing that it is arbitrary. But even considering Price’s claim as a challenge\n\nto the statute itself—that it treats similarly situated death-row inmates differently\n\nbased on a criterion (a thirty-day election) that does not rationally further any\n\nlegitimate state interest—the claim fails. As noted by the district court, a statute is\n\npresumed constitutional, and a classification not involving fundamental rights nor\n\nproceeding along suspect lines “cannot run afoul of the Equal Protection Clause if\n\nthere is a rational relationship between the disparity of treatment and some legitimate\n\ngovernmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (citations\n\nomitted). Here, a rational basis exists for the thirty-day rule—the efficient and\n\norderly use of state resources in planning and preparing for executions. And Price\n\n\n\n\n 12\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 13 of 26\n\n\nhas not negated this rational basis for the thirty-day election requirement. 5 See id.\n\n(noting “[t]he burden is on the one attacking the legislative arrangement to negate\n\nevery conceivable basis which might support it”).\n\n B. Eighth Amendment Claim\n\n The Supreme Court’s decision in Glossip v. Gross, 135 S. Ct. 2726, 2737\n\n(2015), sets forth the relevant two-pronged standard a plaintiff must meet to succeed\n\non an Eighth Amendment method-of-execution claim.\n\n Prisoners cannot succeed on a method-of-execution claim unless they can\n\nestablish that the method challenged presents a risk that is “‘sure or very likely to\n\ncause serious illness and needless suffering,’ and gives rise to ‘sufficiently imminent\n\ndangers.’” Id. (emphasis in original) (quoting Baze, 553 U.S. at 50 (plurality\n\nopinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). The\n\nSupreme Court further elaborated in Baze, “Simply because an execution method\n\nmay result in pain, either by accident or as an inescapable consequence of death,\n\ndoes not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as\n\ncruel and unusual” punishment prohibited by the Eighth Amendment. Baze, 553\n\n\n 5\n On appeal, Price claims that the district court committed error in refusing to apply strict\nscrutiny to the State’s alleged differential treatment of him. He argues that once the district court\nconcluded he was substantially likely to prevail on his allegation that the State’s lethal-injection\nprotocol will cause him severe pain and needless suffering, it should have applied strict scrutiny\nto his equal-protection claim, since the right to be free from cruel and unusual punishment is a\nfundamental right. We do not evaluate this argument of Price’s, as we conclude that binding\nprecedent requires us to find on this record that Price is not substantially likely to prevail on his\nallegation that the State’s lethal-injection protocol will cause him severe pain.\n 13\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 14 of 26\n\n\nU.S. at 50. So to prevail on a method-of-execution claim, an inmate must show a\n\n“‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that\n\nprevents prison officials from pleading that they were ‘subjectively blameless for\n\npurposes of the Eighth Amendment.’” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553\n\nU.S. at 50 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 846, and\n\nn. 9 (1994)).\n\n The inmate must also “identify an alternative that is ‘feasible, readily\n\nimplemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”\n\nId. (quoting Baze, 553 U.S. at 52). Where a prisoner claims a safer alternative to the\n\nState’s lethal-injection protocol, he cannot make a successful challenge by showing\n\na “slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 51).\n\nDeath-row inmates face a heavy burden.\n\n The Supreme Court recently reiterated an inmate’s burden in an Eighth\n\nAmendment method-of-execution challenge in Bucklew v. Precythe, No. 17-8151,\n\n2019 WL 1428884, at *8 (U.S. Apr. 1, 2019). As summarized by the Court, a\n\nprisoner “must show a feasible and readily implemented alternative method of\n\nexecution that would significantly reduce a substantial risk of severe pain and that\n\nthe State has refused to adopt without a legitimate penological reason.” Id.\n\n In reaffirming this standard, however, the Supreme Court recognized the\n\nburden an inmate has under the Baze-Glossip test can be “overstated.” Id. at *10. It\n\n\n 14\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 15 of 26\n\n\nclarified that “[a]n inmate seeking to identify an alternative method of execution is\n\nnot limited to choosing among those presently authorized by a particular State’s\n\nlaw.” Id. So a petitioner can identify a “well-established protocol in another State\n\nas a potentially viable option.” Id. Justice Kavanaugh noted that all nine Justices\n\nagreed on this point. Id. at *16 (Kavanaugh, J., concurring) (citing Arthur v. Dunn,\n\n580 U.S. __, 137 S. Ct. 725, 733-34 (2017) (Sotomayor, J. dissenting from denial of\n\ncertiorari)).\n\n For this reason, a portion of our decision in Arthur v. Comm'r, Ala. Dep't of\n\nCorr., 840 F.3d 1268 (11th Cir. 2016), has been abrogated by Bucklew. In particular,\n\nin Arthur, we determined that a proposed method of execution (death by firing\n\nsquad) was not an available alternative because the state in which the inmate would\n\nbe executed did not authorize it. Id. at 1317-18. We made this determination despite\n\nthe fact that another state authorized the particular method of execution proposed by\n\nthe inmate. Id. But Bucklew demonstrates our conclusion in Arthur was incorrect.\n\nHaving clarified the applicable law, we turn to the Baze-Glossip test in reverse order,\n\ntackling the availability issue first.\n\n 1. Price has shown that nitrogen hypoxia is an available alternative\n method of execution that is feasible and readily implemented\n\n Price claims that nitrogen hypoxia is an available method of execution for him\n\nbecause the Alabama legislature has authorized it. In proposing nitrogen hypoxia as\n\nan alternative to the State’s midazolam lethal-injection protocol, Price emphasizes\n 15\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 16 of 26\n\n\nthat he is merely seeking to be executed by a method of execution that the Alabama\n\nlegislature, “after considerable thought, has expressly authorized.” He also argues\n\nthat nitrogen hypoxia is feasible and readily implemented because pure nitrogen gas\n\nis easily purchased. No supply concerns exist for nitrogen, and counsel for Price\n\nnotes that he was recently able to easily purchase a tank of 99.9% pure compressed\n\nnitrogen gas.\n\n The State retorts that nitrogen hypoxia is not an available method of execution\n\nto Price as a matter of state law because he failed to make a timely election under\n\nthe applicable statute. It also claims nitrogen hypoxia is neither feasible nor readily\n\nimplemented at this date, since the ADOC has not yet finalized a nitrogen hypoxia\n\nprotocol, and it is not likely that one will be in place by April 11, 2019. Finally, the\n\nState asserts Price did not meet his burden to prove a known and available alternative\n\nmethod of execution because he did not provide sufficient details of how the State\n\ncould induce nitrogen hypoxia.\n\n To resolve this issue, we turn to Bucklew for guidance. Bucklew sheds some\n\nlight on the “availability” prong of the Baze-Glossip test, and it specifically\n\naddresses an inmate’s proposal of nitrogen hypoxia as an alternative method of\n\nexecution.\n\n In Bucklew, the Supreme Court determined that the inmate had not presented\n\na triable question on the viability of nitrogen hypoxia as an alternative to lethal\n\n\n 16\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 17 of 26\n\n\ninjection for two reasons. First, the Court noted, to establish that a proposed\n\nalternative method is available, an inmate must do more than show that it is\n\ntheoretically “feasible”; he must also show that it is “readily implemented.”\n\nBucklew, 2019 WL 1428884, at *11 (citing Glossip, 135 S. Ct. at 2737-38). To meet\n\nthis burden, the inmate’s proposed alternative must be “sufficiently detailed to\n\npermit a finding that the State could carry it out ‘relatively easily and reasonably\n\nquickly.’” Id. (quoting McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017);\n\nArthur, 840 F.3d at 1300).\n\n The Court in Bucklew found that the inmate had failed to meet this burden\n\nbecause he presented no evidence on details such as how nitrogen gas would be\n\nadministered, in what concentration, and for how long the gas would be\n\nadministered. Id. The inmate also did not suggest how the State could ensure the\n\nsafety of the execution team. Id. Instead, the inmate pointed only to reports from\n\ncorrectional institutions in other states revealing that additional study was needed to\n\nput in place a protocol for execution by nitrogen hypoxia. Id.\n\n Second, the Court in Bucklew determined that the State had a legitimate reason\n\nfor not switching its current lethal-injection protocol: nitrogen hypoxia was an\n\n“entirely new method—one that had ‘never been used to carry out an execution’ and\n\nhad ‘no track record of successful use.’” Id. (quoting McGehee, 854 F.3d at 493).\n\nThe Court concluded by stating that the Eighth Amendment “does not compel a State\n\n\n 17\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 18 of 26\n\n\nto adopt ‘untried and untested’ (and thus unusual in the constitutional sense) methods\n\nof execution.” Id. (quoting Baze, 553 U.S. at 41). 6\n\n Here, the State argues that although the Code of Alabama now contemplates\n\nnitrogen hypoxia as a means of execution, it is not “available” because the ADOC is\n\nstill developing a protocol, and the process will not be complete in time for Price’s\n\nApril 11, 2019, execution. We are not persuaded. If a State adopts a particular\n\nmethod of execution—as the State of Alabama did in March 2018—it thereby\n\nconcedes that the method of execution is available to its inmates. Unlike in Bucklew,\n\nwhere the inmate proposed the adoption of a new method, here, the State of Alabama\n\nchose, on its own, and after careful consideration, to offer nitrogen hypoxia as a\n\nmethod of execution for its death-row inmates. So unlike the inmate in Bucklew,\n\nPrice is not attempting to “compel” the State to adopt a different and new method of\n\nexecution at all. The method was already adopted well before Price’s Eighth\n\nAmendment challenge—and more than a year before Price’s scheduled execution\n\ndate.\n\n A State may not simultaneously offer a particular method of execution and\n\ndeny it as “unavailable.” Rather, because the State voluntarily included nitrogen\n\n\n\n\n 6\n The Supreme Court did note, however, while the case was pending, a “few” states had\nauthorized nitrogen hypoxia as a method of execution. Bucklew, 2019 WL 1428884, at *11 n.1.\nBut, it emphasized, “[t]o date, no one in this case has pointed us to an execution in this country\nusing nitrogen gas.” Id.\n 18\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 19 of 26\n\n\nhypoxia in its statute, we reject the State’s argument that nitrogen hypoxia is not\n\n“available” to Price simply because the State has not yet developed a protocol to\n\nadminister this method of execution. If we were to find otherwise, it would lead to\n\nan absurd result. States could adopt a method of execution, take no action at all to\n\nimplement a protocol to effectuate it, and then defeat an inmate’s Eighth\n\nAmendment challenge by simply claiming the method is not “available” due to a\n\nlack of protocol.\n\n Roughly two years ago, the Alabama legislature introduced a bill that would\n\nmake nitrogen hypoxia a statutorily authorized method of execution in Alabama.\n\nThe bill was also passed and enacted into law more than a year ago, and inmates\n\nhave been electing nitrogen hypoxia since June 2018. Under these circumstances,\n\nwe cannot agree that nitrogen hypoxia is not available in the State of Alabama.\n\nIndeed, Alabama’s official legislature-enacted policy is that nitrogen hypoxia is an\n\navailable method of execution in the State.\n\n We also reject the State’s suggestion that nitrogen hypoxia is not available to\n\nPrice only because he missed the 30-day election period. If nitrogen hypoxia is\n\notherwise “available” to inmates under Bucklew, that the State chooses to offer the\n\nchance to opt for it for a period of only 30 days does not somehow render it\n\n“unavailable” by Bucklew’s criteria. To the contrary, for the same reason that\n\nBucklew abrogates Arthur’s requirement that a state offer a method of execution for\n\n\n 19\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 20 of 26\n\n\nit to be “available,” Bucklew renders a state’s time limit on a given execution option\n\nof no moment to whether that option is “available.”\n\n The closer question is whether Price’s alleged lack of detail with respect to\n\nhow the State would implement his execution by nitrogen hypoxia defeats his Eighth\n\nAmendment claim. We agree that Price did not come forward with sufficient detail\n\nabout how the State could implement nitrogen hypoxia to satisfy Bucklew’s\n\nrequirement where the inmate proposes a new method of execution. But under the\n\nparticular circumstances here—where the State by law previously adopted nitrogen\n\nhypoxia as an official method of execution—we do not believe that was Price’s\n\nburden to bear. Rather, an inmate may satisfy his burden to demonstrate that the\n\nmethod of execution is feasible and readily implemented by pointing to the executing\n\nstate’s official adoption of that method of execution.\n\n True, in Bucklew, the Supreme Court discussed how Bucklew had failed to set\n\nforth evidence of essential questions like how the nitrogen gas would be\n\nadministered, and it used this as a basis to defeat the Eighth Amendment claim. But\n\nas we have noted, a key distinction between Bucklew and our case is present. Again,\n\nin Bucklew, the inmate was proposing a new alternative method of execution that\n\nhad not yet been approved by the state. And in addressing whether the suggested\n\nalternative method was “feasible” and “readily implemented,” the Supreme Court\n\n\n\n\n 20\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 21 of 26\n\n\nexplained that the inmate’s proposal must be sufficiently detailed. Bucklew, 2019\n\nWL 1428884, at *11.\n\n Here, Price did not “propose” a new method of execution; he pointed to one\n\nthat the State already made available. The State, on its own, had already adopted\n\nnitrogen hypoxia as an alternative to lethal injection. Under these circumstances,\n\nthe State bears the responsibility to formulate a protocol detailing how to effectuate\n\nexecution by nitrogen hypoxia. Indeed, it would be bizarre to put the onus on Price\n\nto come up with a proposed protocol for the State to use when the State has already\n\nadopted the particular method of execution and is required to develop a protocol for\n\nit, anyway. For these reasons, we conclude that Price’s lack of detail as to how the\n\nState would implement death by nitrogen hypoxia does not prevent him from\n\nestablishing that this method of execution is available to him.\n\n Finally, we acknowledge the potential for abuse in delaying execution that a\n\nstate’s decision to make multiple methods of execution available could present.\n\nUnder Bucklew, 2019 WL 1428884, at *14 (citation and quotation marks omitted),\n\n“[b]oth the State and the victims of crime have an important interest in the timely\n\nenforcement of a sentence.” So to the extent that a particular available method of\n\ndeath reasonably requires a certain period for the state to prepare for execution, a\n\nprisoner may not successfully seek execution by an alternative method inside that\n\nwindow of time. But this is not that case.\n\n\n 21\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 22 of 26\n\n\n Here, Price sought execution by nitrogen hypoxia in January 2019, and his\n\nexecution is not scheduled to occur until April 11, 2019. While the State has not yet\n\ndeveloped a protocol for execution by nitrogen hypoxia, it has submitted no evidence\n\nto suggest that once it has satisfied its burden to develop its execution-by-nitrogen-\n\nhypoxia protocol, preparing to carry out execution by nitrogen hypoxia will\n\nreasonably require more than two-and-one-half months.\n\n 2. Price has not established a substantial likelihood that he would be\n able to show that nitrogen hypoxia significantly reduces a\n substantial risk of pain when compared to the three-drug protocol\n\n Nevertheless, Price cannot succeed on his Eighth Amendment challenge\n\nbecause he has not shown that nitrogen hypoxia will “significantly reduce a\n\nsubstantial risk of severe pain.” Bucklew, 2019 WL 1428884, at *12. As the\n\nSupreme Court in Bucklew recently indicated, a minor reduction in risk is not\n\nenough; “the difference must be clear and considerable.” Id. at *12. Here, Price has\n\nfailed to meet that standard.\n\n As an initial matter, we reject Price’s contention that, by not moving for\n\nsummary judgment on this issue, the State has somehow conceded that a genuine\n\nissue of material fact exists with respect to whether its lethal-injection protocol\n\ncarries a substantial risk of causing severe pain. At this stage, where Price seeks a\n\nstay of execution, he bears the burden to show that a substantial likelihood of success\n\non the merits exists. And, during the hearing before the district court, the State\n\n\n 22\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 23 of 26\n\n\ncontended that its three-drug lethal-injection protocol using midazolam was a safe\n\nand effective constitutional method of execution.\n\n In the district court, Price pointed to two things to support his motion: (1) the\n\ndeclaration of his expert Dr. David Lubarsky, which he also presented during his\n\nappeal on the first § 1983 action; and (2) a decision by a district court in the Southern\n\nDistrict of Ohio—In re Ohio Execution Protocol Litigation, No. 11-cv-1016, 2019\n\nWL 244488, at *70 (S.D. Ohio Jan. 14, 2019). Dr. Lubarsky’s declaration contains\n\nhis opinion that midazolam will not provide adequate analgesic effects during\n\nPrice’s execution. And Price relies on the Southern District of Ohio’s opinion\n\nbecause the court there found Ohio’s lethal injection protocol—which uses\n\nmidazolam—“will certainly or very likely cause [an inmate] severe pain and\n\nneedless suffering.”\n\n The State submitted nothing on the record in response to contest Dr.\n\nLubarsky’s assertions. Rather, it relied on the evidence it submitted in Price’s first\n\n§ 1983 action. But the district court never reached this question in the first § 1983\n\naction, and the State failed to file its evidence on this issue in the pending matter.\n\nAs a result, the record contains only Dr. Lubarsky’s uncontested assertions that the\n\nState’s use of midazolam in the three-drug protocol presents a substantial risk of\n\nsevere pain to Price. So the district court’s conclusion that Price satisfied his burden\n\n\n\n\n 23\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 24 of 26\n\n\nto establish that lethal injection carries a substantial risk of severe pain cannot be\n\nclearly erroneous, since the only evidence of record supports that conclusion.\n\n Nevertheless, the district court did clearly err in concluding that Price had met\n\nhis burden to show that execution by nitrogen hypoxia presented an alternative that\n\nwould significantly reduce the risk of substantial pain to Price. The district court\n\nbased its finding in this regard on Dr. Lubarsky’s declaration in the first § 1983\n\naction appeal and on a report from East Central University. But Dr. Lubarsky’s\n\ndeclaration did not compare the effectiveness of the current three-drug protocol to\n\nthe proposed use of nitrogen hypoxia.7\n\n And Price’s reliance on the East Central University report entitled “Nitrogen\n\nInduced Hypoxia as a Form of Capital Punishment,” in which the authors studied\n\nnitrogen hypoxia, is also problematic. Importantly, the report is a preliminary draft\n\nreport that is stamped with the words “Do Not Cite.” So we cannot conclude that\n\nPrice’s reliance on this report alone could satisfy his burden to show that execution\n\nby nitrogen hypoxia would significantly reduce the risk of substantial pain to Price.\n\nAnd in the absence of the East Central University report, the district court was left\n\nwithout any evidence supporting a conclusion that nitrogen is not likely to result in\n\nany substantial physical discomfort during executions. Consequently, we find that\n\n\n 7\n The district court likewise recognized that Dr. Lubarsky offered no opinion regarding the\ncomparison between the pain incurred with the lethal-injection protocol and that incurred with the\nadministration of nitrogen hypoxia.\n 24\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 25 of 26\n\n\nthe district court clearly erred when it found that Price satisfied his burden to\n\nestablish that nitrogen would likely not result in substantial physical discomfort to\n\nPrice. The district court simply had no reliable evidence upon which to make this\n\ndetermination.\n\n We further note that the report itself also did not compare the two methods of\n\nexecution, and to the extent Price claims he would feel like he was suffocating if\n\nexecuted by lethal injection, the petitioner in Bucklew admitted that feelings of\n\nsuffocation could also occur with nitrogen gas. Bucklew, 2019 WL 1428884, at *13.\n\nLikewise, the record in Bucklew supported the conclusion that the petitioner could\n\nbe capable of feeling pain for 20 to 30 seconds when nitrogen is used for an\n\nexecution. Id. The Court also recognized expert testimony that suggested the effects\n\nof nitrogen could vary depending on how it was administered. Id. In short, the\n\ndistrict court clearly erred when it concluded Price had satisfied his burden to\n\nestablish that nitrogen hypoxia would significantly reduce a substantial risk of severe\n\npain. For these reasons, Price has failed to show a substantial likelihood of success\n\non the merits of his claim.\n\nIV. Conclusion\n\n For the foregoing reasons, we affirm the district court’s denial of Price’s\n\nCross-Motion for Summary Judgment as well as its denial of Price’s original and\n\nrenewed motions for preliminary injunction. And because Price has not satisfied his\n\n\n 25\n\f Case: 19-11268 Date Filed: 04/10/2019 Page: 26 of 26\n\n\nburden to show a substantial likelihood of success on the merits with respect to either\n\nhis Fourteenth Amendment equal-protection claim or his Eighth Amendment\n\nmethod-of-execution claim, we deny his emergency motion to stay his execution.\n\n AFFIRMED and MOTION FOR STAY DENIED.\n\n\n\n\n 26\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Christopher Lee PRICE, Plaintiff - Appellant, v. COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-11268 Date Filed: 04/10/2019 Page: 1 of 26\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 19-11268\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:19-cv-00057-KD-MU\\n\\n\\n\\nCHRISTOPHER LEE PRICE,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nCOMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,\\nWARDEN, HOLMAN CORRECTIONAL FACILITY,\\n\\n Defendants - Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Alabama\\n _______________________\\n\\n (April 10, 2019)\\n\\nBefore TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.\\n\\nPER CURIAM:\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 2 of 26\\n\\n\\n Christopher Lee Price, an Alabama prisoner sentenced to death for killing a\\n\\nman during the commission of a robbery, has moved this Court for an emergency\\n\\nstay of his execution, which is scheduled to take place on April 11, 2019, at 6:00\\n\\np.m. Central Standard Time at the Holman Correctional Facility (“Holman”). Price\\n\\nalso appeals the district court’s order denying his motion for preliminary injunction\\n\\nand its order denying his renewed motion for preliminary injunction. Included\\n\\nwithin those orders is the district court’s denial of Price’s Cross-Motion for\\n\\nSummary Judgment.1 After careful consideration, we affirm the district court’s\\n\\ndenial of Price’s Cross-Motion for Summary Judgment as well as its denial of Price’s\\n\\noriginal and renewed motions for preliminary injunction. We also deny Price’s\\n\\nmotion for a stay of execution because he cannot show a substantial likelihood of\\n\\nsuccess on his petition.\\n\\nI. Background\\n\\n Price was convicted of capital murder for killing William Lynn during the\\n\\ncommission of a robbery, and Price was subsequently sentenced to death. See Price\\n\\nv. State, 725 So. 2d 1003, 1011 (Ala. Crim. App. 1997), aff'd sub nom. Ex parte\\n\\nPrice, 725 So. 2d 1063 (Ala. 1998). Price filed a direct appeal of both his conviction\\n\\nand death sentence, but both were affirmed. See Price, 725 So. 2d at 1062, aff’d,\\n\\n\\n\\n 1\\n Price’s Notice of Appeal makes clear that he appeals from “any and all adverse rulings\\nincorporated in, antecedent to, or ancillary to” those orders.\\n 2\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 3 of 26\\n\\n\\n725 So. 2d 1063 (Ala. 1998). Price’s conviction and sentence became final in May\\n\\n1999 after the Supreme Court denied his petition for writ of certiorari. See Price v.\\n\\nAlabama, 526 U.S. 1133 (1999).\\n\\n Price then filed a state post-conviction Rule 32 petition, but the petition was\\n\\ndenied, and the Court of Criminal Appeals of Alabama affirmed. See Price v. State,\\n\\n880 So. 2d 502 (Ala. Crim. App. 2003). The Alabama Supreme Court denied\\n\\ncertiorari review. Ex parte Price, 976 So. 2d 1057 (Ala. 2003).\\n\\n Later, Price filed a petition for writ of habeas corpus in the Northern District\\n\\nof Alabama. The district court issued an opinion denying the petition with prejudice\\n\\nand entering judgment against Price. We affirmed that judgment. See Price v. Allen,\\n\\n679 F.3d 1315, 1319-20 (11th Cir. 2012) (per curiam). The Supreme Court also\\n\\ndenied Price’s petition for writ of certiorari. Price v. Thomas, 568 U.S. 1212 (2013).\\n\\n Price filed a successive state post-conviction Rule 32 petition in 2017, arguing\\n\\nthat his death sentence was unconstitutional under Hurst v. Florida, 136 S. Ct. 616\\n\\n(2016). That petition was also denied, and the Court of Criminal Appeals of\\n\\nAlabama affirmed. Price v. State, No. CR-16-0785, 2017 WL 10923867 (Ala. Crim.\\n\\nApp. Aug. 4, 2017), reh'g denied (Sept. 8, 2017). The Alabama Supreme Court\\n\\ndenied certiorari.\\n\\n Following his direct criminal appeals and after the State moved the Alabama\\n\\nSupreme Court to set an execution date, Price brought a civil lawsuit under 42 U.S.C.\\n\\n\\n 3\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 4 of 26\\n\\n\\n§ 1983 alleging that the Alabama Department of Corrections’s (“ADOC”) use of\\n\\nmidazolam in its three-drug lethal-injection protocol violates the Eighth\\n\\nAmendment’s ban on cruel and unusual punishment because it is not effective in\\n\\nrendering an inmate insensate during execution (the “first § 1983 action”). The\\n\\ndistrict court held a bench trial on Price’s § 1983 claim. But the district court\\n\\nbifurcated the trial, addressing only whether Price could meet his burden of showing\\n\\nthat his chosen alternative drug—pentobarbital—was available to the ADOC. The\\n\\ndistrict court found in favor of the ADOC and against Price. It concluded that Price\\n\\nhad failed to meet his burden of showing that pentobarbital was a feasible and\\n\\navailable drug for use by the ADOC.\\n\\n Price appealed and, on September 18, 2018, we affirmed. Price v. Comm'r,\\n\\nAla. Dep't of Corr., 752 F. App'x 701 (11th Cir. 2018). Price recently filed a petition\\n\\nfor writ of certiorari with the Supreme Court of the United States. That petition is\\n\\ncurrently pending.\\n\\nII. Facts Relevant to this Appeal\\n\\n While the appeal of Price’s first § 1983 action was pending before this Court,\\n\\nthe Alabama legislature amended the State’s execution statute to add nitrogen\\n\\nhypoxia as an approved method of execution. The amendment became effective on\\n\\nJune 1, 2018. See Ala. Code § 15-18-82.1. The statute reads, in relevant part, “A\\n\\ndeath sentence shall be executed by lethal injection, unless the person sentenced to\\n\\n\\n 4\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 5 of 26\\n\\n\\ndeath affirmatively elects to be executed by electrocution or nitrogen hypoxia.” Ala.\\n\\nCode § 15-18-82.1(a). The statute also provides that the election of death by\\n\\nnitrogen hypoxia is waived unless it is personally made by the inmate in writing and\\n\\ndelivered to the warden within thirty days after the certificate of judgment pursuant\\n\\nto a decision by the Alabama Supreme Court affirming the sentence of death. Ala.\\n\\nCode § 15-18-82.1(b)(2). If a judgment was issued before June 1, 2018, as was the\\n\\ncase with Price, the election must have been made and delivered to the warden within\\n\\nthirty days of June 1, 2018. See Id.\\n\\n On January 11, 2019, the State moved the Alabama Supreme Court to set an\\n\\nexecution date for Price. The Alabama Supreme Court granted the motion on March\\n\\n1, 2019, ordering that Price be executed on April 11, 2019, by lethal injection.\\n\\n In the meantime, on January 27, 2019, Price wrote a letter to the warden of\\n\\nHolman asking that he be executed by nitrogen hypoxia. 2 The warden responded by\\n\\nnotifying Price that his request was past the thirty-day deadline set forth in the\\n\\nstatute. Nevertheless, she further noted that she did not have the authority to grant,\\n\\ndeny, or reject the request, and she indicated that any further consideration of the\\n\\n\\n 2\\n Price suggests that he was unaware of the ability to elect nitrogen hypoxia as a means of\\nexecution until his pro bono counsel, Aaron Katz, called Federal Public Defender John Palombi\\non January 12, 2019. According to Price, during that phone conversation, Palombi “informed\\nAttorney Katz about the Alabama legislature’s March 2018 amendments to the State’s execution\\nprotocol.” However, as we note later in this opinion, our opinion in Price’s first § 1983 action,\\nwhich we issued in September 2018, specifically referenced the fact that Alabama had adopted\\nnitrogen hypoxia as a means of execution. We further noted that Price apparently had not elected\\nthis option.\\n 5\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 6 of 26\\n\\n\\nmatter needed to go through Price’s attorney to the Attorney General’s Office.\\n\\nPrice’s attorney then reached out to the Attorney General’s Office and reiterated\\n\\nPrice’s desire to “opt in to the nitrogen hypoxia protocol.” Assistant Attorney\\n\\nGeneral Henry Johnson denied the request, citing the thirty-day period to opt into\\n\\nthe protocol.\\n\\n On February 8, 2019, (approximately one month after the State sought an\\n\\nexecution date), Price filed a civil complaint against the Commissioner of the ADOC\\n\\nand others. The new complaint set forth a § 1983 claim in which Price realleged\\n\\nmany of the claims raised in his previous § 1983 action concerning the three-drug\\n\\nlethal-injection protocol (the “second § 1983 action”). For example, Price claims\\n\\nthat the use of midazolam as the first drug in its three-drug lethal-injection protocol\\n\\nviolates the Eighth Amendment’s ban on cruel and unusual punishment. The\\n\\ncomplaint in the second § 1983 action also alleges that the State violated Price’s\\n\\nFourteenth Amendment right to equal protection by refusing to allow him to elect\\n\\nnitrogen hypoxia as his method of execution. With respect to that claim, Price\\n\\ncontended that the State entered into “secret agreements” with many death row\\n\\ninmates allowing them to elect nitrogen hypoxia but would not allow him to do so\\n\\noutside of the 30-day opt-in period.3\\n\\n\\n 3\\n The complaint in the second § 1983 action further alleges that the State failed to take\\nsteps to prevent material deviations from its lethal-injection procedures in future executions, but\\nPrice abandoned that claim, as he did not argue it to the district court below, and it is not part of\\n 6\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 7 of 26\\n\\n\\nIII. Discussion\\n\\n We review de novo an order on summary judgment. Smith v. Owens, 848 F.3d\\n\\n975, 978 (11th Cir. 2017). As for the district court’s denial of Price’s motion for\\n\\nstay of execution, we review that for abuse of discretion. Brooks v. Warden, 810\\n\\nF.3d 812, 818 (11th Cir. 2016). With respect to the district court’s factual findings,\\n\\nwe review those for clear error. Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015).\\n\\nUnder this standard, we may not reverse “simply because we are convinced that we\\n\\nwould have decided the case differently.” Id. (cleaned up).\\n\\n Finally, we may grant Price’s motion for stay of execution filed in this Court\\n\\nonly if Price establishes that “(1) he has a substantial likelihood of success on the\\n\\nmerits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay\\n\\nwould not substantially harm the other litigant; and (4) if issued, the injunction\\n\\nwould not be adverse to the public interest.” Arthur v. Comm'r, Ala. Dep't of Corr.,\\n\\n840 F.3d 1268, 1321 (11th Cir. 2016) (quoting Brooks v. Warden, 810 F.3d 812, 818\\n\\n(11th Cir. 2016) (emphases in original)), abrogated on other grounds by Bucklew v.\\n\\nPrecythe, No. 17-8151, 2019 WL 1428884, at *10 (U.S. Apr. 1, 2019). The “first\\n\\nand most important question” regarding a stay of execution is whether the petitioner\\n\\n\\n\\n\\nthe present appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)\\n(claims or arguments not briefed before an appellate court are deemed abandoned and will not be\\naddressed).\\n\\n 7\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 8 of 26\\n\\n\\nis substantially likely to succeed on the merits of his claims. Jones v. Comm’r. Ga.\\n\\nDep’t of Corr., 811 F.3d 1288, 1292 (11th Cir. 2016).\\n\\n After careful consideration, we conclude that the district court did not err\\n\\nwhen it denied Price’s Cross-Motion for Summary Judgment, although our basis for\\n\\naffirmance differs from the grounds set forth by the district court. We further find\\n\\nthat the district court did not abuse its discretion when it denied Price’s initial and\\n\\nrenewed motions for preliminary injunction in which he sought a stay of execution.\\n\\nFinally, we deny Price’s motion for stay of execution because he has not satisfied\\n\\nthe requirements for such a stay.\\n\\n We now examine each of Price’s claims in turn.\\n\\n A. Fourteenth Amendment Equal Protection Claim\\n\\n Price contends that the State violated his Fourteenth Amendment right to\\n\\nequal protection by not permitting him to elect nitrogen hypoxia as a method of\\n\\nexecution. To prevail on his equal-protection claim, Price must first show that “the\\n\\nState will treat him disparately from other similarly situated persons.” Arthur v.\\n\\nThomas, 674 F.3d 1257, 1262 (11th Cir. 2012) (quoting DeYoung v. Owens, 646\\n\\nF.3d 1319, 1327 (11th Cir. 2011)). Second, “[i]f a law treats individuals differently\\n\\non the basis of . . . [a] suspect classification, or if the law impinges on a fundamental\\n\\nright, it is subject to strict scrutiny.” Id. (quoting Leib v. Hillsborough Cty. Pub.\\n\\nTransp. Comm'n, 558 F.3d 1301, 1306 (11th Cir. 2009)). Otherwise, Price “must\\n\\n\\n 8\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 9 of 26\\n\\n\\nshow that the disparate treatment is not rationally related to a legitimate government\\n\\ninterest.” Id. (quoting DeYoung, 646 F.3d at 1327–28).\\n\\n The district court did not err in denying Price’s equal-protection claim.\\n\\nImportantly, Price has not demonstrated that he was or will be treated differently\\n\\nthan similarly situated inmates. Although Price appeared to initially contend that\\n\\nthe State made “secret agreements” with other death-row inmates—suggesting that\\n\\nthese inmates elected to opt in to the nitrogen hypoxia protocol outside of the thirty-\\n\\nday window—he seems to now concede that these other inmates made their election\\n\\nwithin the thirty-day window.\\n\\n The record reveals that Price had the same opportunity as every other inmate\\n\\nto elect nitrogen hypoxia as his method of execution. When the State added nitrogen\\n\\nhypoxia as a statutorily viable method of execution in June 2018, all inmates whose\\n\\ndeath sentences were final as of June 1, 2018, received a thirty-day period to elect\\n\\nnitrogen hypoxia. See Ala. Code § 15-18-82.1(b)(2). Significantly, Price was\\n\\nrepresented by counsel when the State added nitrogen hypoxia as a method of\\n\\nexecution.\\n\\n According to the State, all death-row inmates at Holman, including Price,\\n\\nwere provided with a copy of an election form, and forty-eight of those inmates\\n\\ntimely elected nitrogen hypoxia. Price did not. The record contains the affidavit of\\n\\nCaptain Jeff Emberton, who attested to the fact that, in mid-June 2018, after the State\\n\\n\\n 9\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 10 of 26\\n\\n\\nauthorized nitrogen hypoxia as a method of execution, the warden of Holman\\n\\ndirected him to provide every death-row inmate an election form and an envelope.\\n\\nAccording to Emberton, he delivered the form to every death-row inmate at Homan\\n\\nas instructed. The form identified Act 2018-353 (which amended Ala. Code. § 15-\\n\\n18-82.1 to include nitrogen hypoxia) and allowed for the inmate to state that he was\\n\\nmaking the election of nitrogen hypoxia as the means of execution.4 Price did not\\n\\ncontend that he did not receive the form or that he was not given the option to make\\n\\nthe same election.\\n\\n In sharp contrast to other inmates who opted for the protocol by the July 1,\\n\\n2018, deadline, Price waited until late January 2019 to seek to elect nitrogen hypoxia\\n\\nfor his execution. Price appears to argue that the ADOC’s provision of the election\\n\\nform was insufficient. But Price was represented by counsel, so any doubts Price\\n\\n\\n\\n 4\\n The form stated as follows:\\n ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA\\nPursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather\\nthan by lethal injection.\\nThis election is not intended to affect the status of any challenge(s) (current or future) to my\\nconviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol\\nadopted for carrying out execution by nitrogen hypoxia.\\nDated this _____ day of June, 2018.\\n\\n____________________________ _______________________________\\nName/Inmate Number Signature\\n\\nECF No. 19-2. The State admits though that it did not create the election form. Rather, it claims\\nthe Federal Public Defender’s Office created the form and gave a copy of it to the warden of\\nHolman. But inmates not represented by the Federal Public Defender’s Office were among those\\nwho timely completed the form.\\n 10\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 11 of 26\\n\\n\\nhad about the form could have been resolved by consulting with his attorney. Plus,\\n\\nseveral other inmates were able to make the timely election based on the provision\\n\\nof the form by the State. Price takes issue with the fact that most of the inmates that\\n\\ntimely elected nitrogen hypoxia were represented by the Federal Public Defender’s\\n\\nOffice and that they were given an explanation of their rights by that office before\\n\\nreceiving the form. But as we have noted, Price was also represented by counsel,\\n\\nand he could have asked for an explanation of the form. Nor does Price make any\\n\\nSixth Amendment claim, in any event. Finally, the interactions between other\\n\\ninmates and the Federal Public Defender’s Office do not support any unequal\\n\\ntreatment by the State of similarly situated individuals.\\n\\n Further, to the extent Price claims that he did not become aware of the change\\n\\nin law until January 2019, he has not asserted that the State treated Price differently\\n\\nthan other death-row inmates with respect to this information. Moreover, the record\\n\\nhere shows that Price and his counsel plainly had reason to know of the change in\\n\\nAlabama’s law before January 2019 because we specifically described that change\\n\\nwhen we issued our decision in Price’s first § 1983 action appeal. See Price, 752 F.\\n\\nApp’x at 703 n.3.\\n\\n Because Price did not timely elect the new protocol, he is not similarly situated\\n\\nin all material respects to the inmates who did make such an election within the\\n\\nthirty-day timeframe. And because Price has not shown that he is similarly situated\\n\\n\\n 11\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 12 of 26\\n\\n\\nto those inmates, he cannot demonstrate any equal-protection violation due to the\\n\\nState’s denial of execution by nitrogen hypoxia. But even if Price were similarly\\n\\nsituated to the other death-row inmates, he cannot establish an equal-protection\\n\\nviolation because he was treated exactly the same as the other inmates. Every inmate\\n\\nwas given thirty days within which to elect nitrogen hypoxia as their method of\\n\\nexecution. Ironically, if the State did allow Price to make the belated election he\\n\\nseeks, it would be treating him differently than other death-row inmates who were\\n\\nnot afforded the same benefit.\\n\\n In the end, it appears that Price takes issue with the thirty-day election period\\n\\nitself, arguing that it is arbitrary. But even considering Price’s claim as a challenge\\n\\nto the statute itself—that it treats similarly situated death-row inmates differently\\n\\nbased on a criterion (a thirty-day election) that does not rationally further any\\n\\nlegitimate state interest—the claim fails. As noted by the district court, a statute is\\n\\npresumed constitutional, and a classification not involving fundamental rights nor\\n\\nproceeding along suspect lines “cannot run afoul of the Equal Protection Clause if\\n\\nthere is a rational relationship between the disparity of treatment and some legitimate\\n\\ngovernmental purpose.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (citations\\n\\nomitted). Here, a rational basis exists for the thirty-day rule—the efficient and\\n\\norderly use of state resources in planning and preparing for executions. And Price\\n\\n\\n\\n\\n 12\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 13 of 26\\n\\n\\nhas not negated this rational basis for the thirty-day election requirement. 5 See id.\\n\\n(noting “[t]he burden is on the one attacking the legislative arrangement to negate\\n\\nevery conceivable basis which might support it”).\\n\\n B. Eighth Amendment Claim\\n\\n The Supreme Court’s decision in Glossip v. Gross, 135 S. Ct. 2726, 2737\\n\\n(2015), sets forth the relevant two-pronged standard a plaintiff must meet to succeed\\n\\non an Eighth Amendment method-of-execution claim.\\n\\n Prisoners cannot succeed on a method-of-execution claim unless they can\\n\\nestablish that the method challenged presents a risk that is “‘sure or very likely to\\n\\ncause serious illness and needless suffering,’ and gives rise to ‘sufficiently imminent\\n\\ndangers.’” Id. (emphasis in original) (quoting Baze, 553 U.S. at 50 (plurality\\n\\nopinion) (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993)). The\\n\\nSupreme Court further elaborated in Baze, “Simply because an execution method\\n\\nmay result in pain, either by accident or as an inescapable consequence of death,\\n\\ndoes not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as\\n\\ncruel and unusual” punishment prohibited by the Eighth Amendment. Baze, 553\\n\\n\\n 5\\n On appeal, Price claims that the district court committed error in refusing to apply strict\\nscrutiny to the State’s alleged differential treatment of him. He argues that once the district court\\nconcluded he was substantially likely to prevail on his allegation that the State’s lethal-injection\\nprotocol will cause him severe pain and needless suffering, it should have applied strict scrutiny\\nto his equal-protection claim, since the right to be free from cruel and unusual punishment is a\\nfundamental right. We do not evaluate this argument of Price’s, as we conclude that binding\\nprecedent requires us to find on this record that Price is not substantially likely to prevail on his\\nallegation that the State’s lethal-injection protocol will cause him severe pain.\\n 13\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 14 of 26\\n\\n\\nU.S. at 50. So to prevail on a method-of-execution claim, an inmate must show a\\n\\n“‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that\\n\\nprevents prison officials from pleading that they were ‘subjectively blameless for\\n\\npurposes of the Eighth Amendment.’” Glossip, 135 S.Ct. at 2737 (quoting Baze, 553\\n\\nU.S. at 50 (plurality opinion) (quoting Farmer v. Brennan, 511 U.S. 825, 846, and\\n\\nn. 9 (1994)).\\n\\n The inmate must also “identify an alternative that is ‘feasible, readily\\n\\nimplemented, and in fact significantly reduce[s] a substantial risk of severe pain.’”\\n\\nId. (quoting Baze, 553 U.S. at 52). Where a prisoner claims a safer alternative to the\\n\\nState’s lethal-injection protocol, he cannot make a successful challenge by showing\\n\\na “slightly or marginally safer alternative.” Id. (quoting Baze, 553 U.S. at 51).\\n\\nDeath-row inmates face a heavy burden.\\n\\n The Supreme Court recently reiterated an inmate’s burden in an Eighth\\n\\nAmendment method-of-execution challenge in Bucklew v. Precythe, No. 17-8151,\\n\\n2019 WL 1428884, at *8 (U.S. Apr. 1, 2019). As summarized by the Court, a\\n\\nprisoner “must show a feasible and readily implemented alternative method of\\n\\nexecution that would significantly reduce a substantial risk of severe pain and that\\n\\nthe State has refused to adopt without a legitimate penological reason.” Id.\\n\\n In reaffirming this standard, however, the Supreme Court recognized the\\n\\nburden an inmate has under the Baze-Glossip test can be “overstated.” Id. at *10. It\\n\\n\\n 14\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 15 of 26\\n\\n\\nclarified that “[a]n inmate seeking to identify an alternative method of execution is\\n\\nnot limited to choosing among those presently authorized by a particular State’s\\n\\nlaw.” Id. So a petitioner can identify a “well-established protocol in another State\\n\\nas a potentially viable option.” Id. Justice Kavanaugh noted that all nine Justices\\n\\nagreed on this point. Id. at *16 (Kavanaugh, J., concurring) (citing Arthur v. Dunn,\\n\\n580 U.S. __, 137 S. Ct. 725, 733-34 (2017) (Sotomayor, J. dissenting from denial of\\n\\ncertiorari)).\\n\\n For this reason, a portion of our decision in Arthur v. Comm'r, Ala. Dep't of\\n\\nCorr., 840 F.3d 1268 (11th Cir. 2016), has been abrogated by Bucklew. In particular,\\n\\nin Arthur, we determined that a proposed method of execution (death by firing\\n\\nsquad) was not an available alternative because the state in which the inmate would\\n\\nbe executed did not authorize it. Id. at 1317-18. We made this determination despite\\n\\nthe fact that another state authorized the particular method of execution proposed by\\n\\nthe inmate. Id. But Bucklew demonstrates our conclusion in Arthur was incorrect.\\n\\nHaving clarified the applicable law, we turn to the Baze-Glossip test in reverse order,\\n\\ntackling the availability issue first.\\n\\n 1. Price has shown that nitrogen hypoxia is an available alternative\\n method of execution that is feasible and readily implemented\\n\\n Price claims that nitrogen hypoxia is an available method of execution for him\\n\\nbecause the Alabama legislature has authorized it. In proposing nitrogen hypoxia as\\n\\nan alternative to the State’s midazolam lethal-injection protocol, Price emphasizes\\n 15\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 16 of 26\\n\\n\\nthat he is merely seeking to be executed by a method of execution that the Alabama\\n\\nlegislature, “after considerable thought, has expressly authorized.” He also argues\\n\\nthat nitrogen hypoxia is feasible and readily implemented because pure nitrogen gas\\n\\nis easily purchased. No supply concerns exist for nitrogen, and counsel for Price\\n\\nnotes that he was recently able to easily purchase a tank of 99.9% pure compressed\\n\\nnitrogen gas.\\n\\n The State retorts that nitrogen hypoxia is not an available method of execution\\n\\nto Price as a matter of state law because he failed to make a timely election under\\n\\nthe applicable statute. It also claims nitrogen hypoxia is neither feasible nor readily\\n\\nimplemented at this date, since the ADOC has not yet finalized a nitrogen hypoxia\\n\\nprotocol, and it is not likely that one will be in place by April 11, 2019. Finally, the\\n\\nState asserts Price did not meet his burden to prove a known and available alternative\\n\\nmethod of execution because he did not provide sufficient details of how the State\\n\\ncould induce nitrogen hypoxia.\\n\\n To resolve this issue, we turn to Bucklew for guidance. Bucklew sheds some\\n\\nlight on the “availability” prong of the Baze-Glossip test, and it specifically\\n\\naddresses an inmate’s proposal of nitrogen hypoxia as an alternative method of\\n\\nexecution.\\n\\n In Bucklew, the Supreme Court determined that the inmate had not presented\\n\\na triable question on the viability of nitrogen hypoxia as an alternative to lethal\\n\\n\\n 16\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 17 of 26\\n\\n\\ninjection for two reasons. First, the Court noted, to establish that a proposed\\n\\nalternative method is available, an inmate must do more than show that it is\\n\\ntheoretically “feasible”; he must also show that it is “readily implemented.”\\n\\nBucklew, 2019 WL 1428884, at *11 (citing Glossip, 135 S. Ct. at 2737-38). To meet\\n\\nthis burden, the inmate’s proposed alternative must be “sufficiently detailed to\\n\\npermit a finding that the State could carry it out ‘relatively easily and reasonably\\n\\nquickly.’” Id. (quoting McGehee v. Hutchinson, 854 F.3d 488, 493 (8th Cir. 2017);\\n\\nArthur, 840 F.3d at 1300).\\n\\n The Court in Bucklew found that the inmate had failed to meet this burden\\n\\nbecause he presented no evidence on details such as how nitrogen gas would be\\n\\nadministered, in what concentration, and for how long the gas would be\\n\\nadministered. Id. The inmate also did not suggest how the State could ensure the\\n\\nsafety of the execution team. Id. Instead, the inmate pointed only to reports from\\n\\ncorrectional institutions in other states revealing that additional study was needed to\\n\\nput in place a protocol for execution by nitrogen hypoxia. Id.\\n\\n Second, the Court in Bucklew determined that the State had a legitimate reason\\n\\nfor not switching its current lethal-injection protocol: nitrogen hypoxia was an\\n\\n“entirely new method—one that had ‘never been used to carry out an execution’ and\\n\\nhad ‘no track record of successful use.’” Id. (quoting McGehee, 854 F.3d at 493).\\n\\nThe Court concluded by stating that the Eighth Amendment “does not compel a State\\n\\n\\n 17\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 18 of 26\\n\\n\\nto adopt ‘untried and untested’ (and thus unusual in the constitutional sense) methods\\n\\nof execution.” Id. (quoting Baze, 553 U.S. at 41). 6\\n\\n Here, the State argues that although the Code of Alabama now contemplates\\n\\nnitrogen hypoxia as a means of execution, it is not “available” because the ADOC is\\n\\nstill developing a protocol, and the process will not be complete in time for Price’s\\n\\nApril 11, 2019, execution. We are not persuaded. If a State adopts a particular\\n\\nmethod of execution—as the State of Alabama did in March 2018—it thereby\\n\\nconcedes that the method of execution is available to its inmates. Unlike in Bucklew,\\n\\nwhere the inmate proposed the adoption of a new method, here, the State of Alabama\\n\\nchose, on its own, and after careful consideration, to offer nitrogen hypoxia as a\\n\\nmethod of execution for its death-row inmates. So unlike the inmate in Bucklew,\\n\\nPrice is not attempting to “compel” the State to adopt a different and new method of\\n\\nexecution at all. The method was already adopted well before Price’s Eighth\\n\\nAmendment challenge—and more than a year before Price’s scheduled execution\\n\\ndate.\\n\\n A State may not simultaneously offer a particular method of execution and\\n\\ndeny it as “unavailable.” Rather, because the State voluntarily included nitrogen\\n\\n\\n\\n\\n 6\\n The Supreme Court did note, however, while the case was pending, a “few” states had\\nauthorized nitrogen hypoxia as a method of execution. Bucklew, 2019 WL 1428884, at *11 n.1.\\nBut, it emphasized, “[t]o date, no one in this case has pointed us to an execution in this country\\nusing nitrogen gas.” Id.\\n 18\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 19 of 26\\n\\n\\nhypoxia in its statute, we reject the State’s argument that nitrogen hypoxia is not\\n\\n“available” to Price simply because the State has not yet developed a protocol to\\n\\nadminister this method of execution. If we were to find otherwise, it would lead to\\n\\nan absurd result. States could adopt a method of execution, take no action at all to\\n\\nimplement a protocol to effectuate it, and then defeat an inmate’s Eighth\\n\\nAmendment challenge by simply claiming the method is not “available” due to a\\n\\nlack of protocol.\\n\\n Roughly two years ago, the Alabama legislature introduced a bill that would\\n\\nmake nitrogen hypoxia a statutorily authorized method of execution in Alabama.\\n\\nThe bill was also passed and enacted into law more than a year ago, and inmates\\n\\nhave been electing nitrogen hypoxia since June 2018. Under these circumstances,\\n\\nwe cannot agree that nitrogen hypoxia is not available in the State of Alabama.\\n\\nIndeed, Alabama’s official legislature-enacted policy is that nitrogen hypoxia is an\\n\\navailable method of execution in the State.\\n\\n We also reject the State’s suggestion that nitrogen hypoxia is not available to\\n\\nPrice only because he missed the 30-day election period. If nitrogen hypoxia is\\n\\notherwise “available” to inmates under Bucklew, that the State chooses to offer the\\n\\nchance to opt for it for a period of only 30 days does not somehow render it\\n\\n“unavailable” by Bucklew’s criteria. To the contrary, for the same reason that\\n\\nBucklew abrogates Arthur’s requirement that a state offer a method of execution for\\n\\n\\n 19\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 20 of 26\\n\\n\\nit to be “available,” Bucklew renders a state’s time limit on a given execution option\\n\\nof no moment to whether that option is “available.”\\n\\n The closer question is whether Price’s alleged lack of detail with respect to\\n\\nhow the State would implement his execution by nitrogen hypoxia defeats his Eighth\\n\\nAmendment claim. We agree that Price did not come forward with sufficient detail\\n\\nabout how the State could implement nitrogen hypoxia to satisfy Bucklew’s\\n\\nrequirement where the inmate proposes a new method of execution. But under the\\n\\nparticular circumstances here—where the State by law previously adopted nitrogen\\n\\nhypoxia as an official method of execution—we do not believe that was Price’s\\n\\nburden to bear. Rather, an inmate may satisfy his burden to demonstrate that the\\n\\nmethod of execution is feasible and readily implemented by pointing to the executing\\n\\nstate’s official adoption of that method of execution.\\n\\n True, in Bucklew, the Supreme Court discussed how Bucklew had failed to set\\n\\nforth evidence of essential questions like how the nitrogen gas would be\\n\\nadministered, and it used this as a basis to defeat the Eighth Amendment claim. But\\n\\nas we have noted, a key distinction between Bucklew and our case is present. Again,\\n\\nin Bucklew, the inmate was proposing a new alternative method of execution that\\n\\nhad not yet been approved by the state. And in addressing whether the suggested\\n\\nalternative method was “feasible” and “readily implemented,” the Supreme Court\\n\\n\\n\\n\\n 20\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 21 of 26\\n\\n\\nexplained that the inmate’s proposal must be sufficiently detailed. Bucklew, 2019\\n\\nWL 1428884, at *11.\\n\\n Here, Price did not “propose” a new method of execution; he pointed to one\\n\\nthat the State already made available. The State, on its own, had already adopted\\n\\nnitrogen hypoxia as an alternative to lethal injection. Under these circumstances,\\n\\nthe State bears the responsibility to formulate a protocol detailing how to effectuate\\n\\nexecution by nitrogen hypoxia. Indeed, it would be bizarre to put the onus on Price\\n\\nto come up with a proposed protocol for the State to use when the State has already\\n\\nadopted the particular method of execution and is required to develop a protocol for\\n\\nit, anyway. For these reasons, we conclude that Price’s lack of detail as to how the\\n\\nState would implement death by nitrogen hypoxia does not prevent him from\\n\\nestablishing that this method of execution is available to him.\\n\\n Finally, we acknowledge the potential for abuse in delaying execution that a\\n\\nstate’s decision to make multiple methods of execution available could present.\\n\\nUnder Bucklew, 2019 WL 1428884, at *14 (citation and quotation marks omitted),\\n\\n“[b]oth the State and the victims of crime have an important interest in the timely\\n\\nenforcement of a sentence.” So to the extent that a particular available method of\\n\\ndeath reasonably requires a certain period for the state to prepare for execution, a\\n\\nprisoner may not successfully seek execution by an alternative method inside that\\n\\nwindow of time. But this is not that case.\\n\\n\\n 21\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 22 of 26\\n\\n\\n Here, Price sought execution by nitrogen hypoxia in January 2019, and his\\n\\nexecution is not scheduled to occur until April 11, 2019. While the State has not yet\\n\\ndeveloped a protocol for execution by nitrogen hypoxia, it has submitted no evidence\\n\\nto suggest that once it has satisfied its burden to develop its execution-by-nitrogen-\\n\\nhypoxia protocol, preparing to carry out execution by nitrogen hypoxia will\\n\\nreasonably require more than two-and-one-half months.\\n\\n 2. Price has not established a substantial likelihood that he would be\\n able to show that nitrogen hypoxia significantly reduces a\\n substantial risk of pain when compared to the three-drug protocol\\n\\n Nevertheless, Price cannot succeed on his Eighth Amendment challenge\\n\\nbecause he has not shown that nitrogen hypoxia will “significantly reduce a\\n\\nsubstantial risk of severe pain.” Bucklew, 2019 WL 1428884, at *12. As the\\n\\nSupreme Court in Bucklew recently indicated, a minor reduction in risk is not\\n\\nenough; “the difference must be clear and considerable.” Id. at *12. Here, Price has\\n\\nfailed to meet that standard.\\n\\n As an initial matter, we reject Price’s contention that, by not moving for\\n\\nsummary judgment on this issue, the State has somehow conceded that a genuine\\n\\nissue of material fact exists with respect to whether its lethal-injection protocol\\n\\ncarries a substantial risk of causing severe pain. At this stage, where Price seeks a\\n\\nstay of execution, he bears the burden to show that a substantial likelihood of success\\n\\non the merits exists. And, during the hearing before the district court, the State\\n\\n\\n 22\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 23 of 26\\n\\n\\ncontended that its three-drug lethal-injection protocol using midazolam was a safe\\n\\nand effective constitutional method of execution.\\n\\n In the district court, Price pointed to two things to support his motion: (1) the\\n\\ndeclaration of his expert Dr. David Lubarsky, which he also presented during his\\n\\nappeal on the first § 1983 action; and (2) a decision by a district court in the Southern\\n\\nDistrict of Ohio—In re Ohio Execution Protocol Litigation, No. 11-cv-1016, 2019\\n\\nWL 244488, at *70 (S.D. Ohio Jan. 14, 2019). Dr. Lubarsky’s declaration contains\\n\\nhis opinion that midazolam will not provide adequate analgesic effects during\\n\\nPrice’s execution. And Price relies on the Southern District of Ohio’s opinion\\n\\nbecause the court there found Ohio’s lethal injection protocol—which uses\\n\\nmidazolam—“will certainly or very likely cause [an inmate] severe pain and\\n\\nneedless suffering.”\\n\\n The State submitted nothing on the record in response to contest Dr.\\n\\nLubarsky’s assertions. Rather, it relied on the evidence it submitted in Price’s first\\n\\n§ 1983 action. But the district court never reached this question in the first § 1983\\n\\naction, and the State failed to file its evidence on this issue in the pending matter.\\n\\nAs a result, the record contains only Dr. Lubarsky’s uncontested assertions that the\\n\\nState’s use of midazolam in the three-drug protocol presents a substantial risk of\\n\\nsevere pain to Price. So the district court’s conclusion that Price satisfied his burden\\n\\n\\n\\n\\n 23\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 24 of 26\\n\\n\\nto establish that lethal injection carries a substantial risk of severe pain cannot be\\n\\nclearly erroneous, since the only evidence of record supports that conclusion.\\n\\n Nevertheless, the district court did clearly err in concluding that Price had met\\n\\nhis burden to show that execution by nitrogen hypoxia presented an alternative that\\n\\nwould significantly reduce the risk of substantial pain to Price. The district court\\n\\nbased its finding in this regard on Dr. Lubarsky’s declaration in the first § 1983\\n\\naction appeal and on a report from East Central University. But Dr. Lubarsky’s\\n\\ndeclaration did not compare the effectiveness of the current three-drug protocol to\\n\\nthe proposed use of nitrogen hypoxia.7\\n\\n And Price’s reliance on the East Central University report entitled “Nitrogen\\n\\nInduced Hypoxia as a Form of Capital Punishment,” in which the authors studied\\n\\nnitrogen hypoxia, is also problematic. Importantly, the report is a preliminary draft\\n\\nreport that is stamped with the words “Do Not Cite.” So we cannot conclude that\\n\\nPrice’s reliance on this report alone could satisfy his burden to show that execution\\n\\nby nitrogen hypoxia would significantly reduce the risk of substantial pain to Price.\\n\\nAnd in the absence of the East Central University report, the district court was left\\n\\nwithout any evidence supporting a conclusion that nitrogen is not likely to result in\\n\\nany substantial physical discomfort during executions. Consequently, we find that\\n\\n\\n 7\\n The district court likewise recognized that Dr. Lubarsky offered no opinion regarding the\\ncomparison between the pain incurred with the lethal-injection protocol and that incurred with the\\nadministration of nitrogen hypoxia.\\n 24\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 25 of 26\\n\\n\\nthe district court clearly erred when it found that Price satisfied his burden to\\n\\nestablish that nitrogen would likely not result in substantial physical discomfort to\\n\\nPrice. The district court simply had no reliable evidence upon which to make this\\n\\ndetermination.\\n\\n We further note that the report itself also did not compare the two methods of\\n\\nexecution, and to the extent Price claims he would feel like he was suffocating if\\n\\nexecuted by lethal injection, the petitioner in Bucklew admitted that feelings of\\n\\nsuffocation could also occur with nitrogen gas. Bucklew, 2019 WL 1428884, at *13.\\n\\nLikewise, the record in Bucklew supported the conclusion that the petitioner could\\n\\nbe capable of feeling pain for 20 to 30 seconds when nitrogen is used for an\\n\\nexecution. Id. The Court also recognized expert testimony that suggested the effects\\n\\nof nitrogen could vary depending on how it was administered. Id. In short, the\\n\\ndistrict court clearly erred when it concluded Price had satisfied his burden to\\n\\nestablish that nitrogen hypoxia would significantly reduce a substantial risk of severe\\n\\npain. For these reasons, Price has failed to show a substantial likelihood of success\\n\\non the merits of his claim.\\n\\nIV. Conclusion\\n\\n For the foregoing reasons, we affirm the district court’s denial of Price’s\\n\\nCross-Motion for Summary Judgment as well as its denial of Price’s original and\\n\\nrenewed motions for preliminary injunction. And because Price has not satisfied his\\n\\n\\n 25\\n\\f Case: 19-11268 Date Filed: 04/10/2019 Page: 26 of 26\\n\\n\\nburden to show a substantial likelihood of success on the merits with respect to either\\n\\nhis Fourteenth Amendment equal-protection claim or his Eighth Amendment\\n\\nmethod-of-execution claim, we deny his emergency motion to stay his execution.\\n\\n AFFIRMED and MOTION FOR STAY DENIED.\\n\\n\\n\\n\\n 26\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1881,"cells":{"id":{"kind":"number","value":4609331,"string":"4,609,331"},"name":{"kind":"string","value":"OAK GROVE RESOURCES, LLC, National Union Fire Insurance/ AIG, Petitioners, v. DIRECTOR, OWCP, United States Department of Labor, Respondents. U.S. Steel Mining Company, LLC, U.S. Steel Corporation, Petitioners, v. Cassandra M. Terry, O.B.O. and Widow of Luther Terry, Director, OWCP, United States Department of Labor, Respondents."},"name_abbreviation":{"kind":"string","value":"U.S. Steel Mining Company, LLC v. Cassandra M. Terry"},"decision_date":{"kind":"string","value":"2019-04-11"},"docket_number":{"kind":"string","value":"17-14468; 17-15782"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Newsom, Antoon\", \"parties\": \"\", \"opinions\": [{\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-14468 Date Filed: 04/11/2019 Page: 1 of 19\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14468\\n ________________________\\n\\n Agency No. BRB 16-0570 BLA\\n\\n\\n\\nOAK GROVE RESOURCES, LLC,\\nNATIONAL UNION FIRE INSURANCE/ AIG,\\n\\n Petitioners,\\n\\n versus\\n\\nDIRECTOR, OWCP,\\nUNITED STATES DEPARTMENT OF LABOR,\\n\\n Respondents.\\n\\n\\n ________________________\\n\\n No. 17-15782\\n ________________________\\n\\n Agency No. 17-0105\\n\\n\\n\\nU.S. STEEL MINING COMPANY, LLC,\\nU.S. STEEL CORPORATION,\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 2 of 19\\n\\n\\n Petitioners,\\n\\n versus\\n\\nCASSANDRA M. TERRY, O.B.O. and Widow of Luther Terry,\\nDIRECTOR, OWCP,\\nUNITED STATES DEPARTMENT OF LABOR,\\n\\n Respondents.\\n\\n\\n ________________________\\n\\n Petitions for Review of a Decision of the\\n Benefits Review Board\\n ________________________\\n\\n (April 11, 2019)\\n\\nBefore TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, * District Judge.\\n\\nNEWSOM, Circuit Judge:\\n\\n These consolidated Black Lung Benefits Act appeals present two\\n\\nquestions—both of which are important to the parties, and one of which turns out\\n\\nto be pretty interesting. Starting with the important-but-relatively-uninteresting: In\\n\\none of the cases, a mining company contends, for a smattering of reasons, that an\\n\\nALJ’s decision that one of its former miners was entitled to benefits under the Act\\n\\nisn’t supported by substantial evidence. To be brief, we disagree. Ample evidence\\n\\n\\n\\n\\n*\\n Honorable John Antoon II, United States District Judge for the Middle District of Florida,\\nsitting by designation.\\n\\n 2\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 3 of 19\\n\\n\\nsupports the ALJ’s determination, and none of the company’s challenges to the\\n\\nALJ’s analysis withstands scrutiny.\\n\\n Now, for the more interesting issue, which exists in both appeals: The Act\\n\\nprovides two means by which a deceased miner’s survivors can claim benefits.\\n\\nFirst, the survivors can prove that the miner died due to a lung disease called\\n\\npneumoconiosis. See 30 U.S.C. §§ 922(a), 932(c). Alternatively, they can proceed\\n\\nunder the Act’s so-called “automatic entitlement” provision, 30 U.S.C. § 932(l),\\n\\nwhich states that “[i]n no case shall the eligible survivors of a miner who was\\n\\ndetermined to be eligible to receive benefits . . . at the time of his or her death be\\n\\nrequired to file a new claim for benefits, or refile or otherwise revalidate the claim\\n\\nof such miner.” These cases call on us to take a closer look at the italicized portion\\n\\nof § 932(l). Under one reading—urged by the mining-companies here—the phrase\\n\\n“at the time of his or her death” modifies the verb “determined,” such that a\\n\\nminer’s survivors are entitled to benefits only if the pertinent government\\n\\ndecisionmaker issued a formal “determin[ation]” of the miner’s eligibility before\\n\\nhe or she died. Under an alternative reading—advanced by two surviving spouses,\\n\\nwith the support of the United States—“at the time of his or her death” modifies\\n\\nthe adjective “eligible,” such that survivors’ entitlement to benefits depends on\\n\\nwhether the miner was eligible before his or her death, not whether, by that time,\\n\\nthe pertinent decisionmaker had formally determined the miner to be so.\\n\\n\\n 3\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 4 of 19\\n\\n\\n We hold that the survivors and the government have the better of the\\n\\ninterpretive argument. Not only does their interpretation follow most naturally\\n\\nfrom § 932(l)’s syntax and find support in the traditional “last antecedent” canon, it\\n\\nalso—and quite unlike the companies’ reading—squares with common sense by\\n\\navoiding arbitrary distinctions between identically situated claimants.\\n\\n I\\n\\n Before us are two consolidated cases—Oak Grove Resources, LLC, et al. v.\\n\\nDirector, OWCP (“Oak Grove”), and U.S. Steel Mining Company, LLC, et al. v.\\n\\nDirector, OWCP (“U.S. Steel”). We briefly review the facts of each case before\\n\\nturning to a preliminary question posed only in U.S. Steel.\\n\\n A\\n\\n Starting with Oak Grove: In July 2012, Lee Ferguson, a coal miner with\\n\\nmore than three decades’ experience, sought benefits under the Black Lung\\n\\nBenefits Act, 30 U.S.C. § 901 et seq., and its implementing regulations, 20 C.F.R.\\n\\n§ 725.1 et seq. A District Director1 denied Lee’s claim, and Lee appealed.\\n\\nUnfortunately, Lee died of mesenteric ischemia in November 2014, while his\\n\\nappeal was pending. His widow, Carrie Ferguson, filed a claim for survivor\\n\\nbenefits in March 2015.\\n\\n\\n\\n1\\n The Department of Labor includes the Division of Coal Mine Workers’ Compensation. This\\nDivision has District Offices across the country, each led by a Regional and District Director.\\n\\n 4\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 5 of 19\\n\\n\\n The following November, the ALJ handling Lee’s appeal overturned the\\n\\nDistrict Director’s decision and held that Lee’s employer, Oak Grove, was liable\\n\\nfor benefits from the date that Lee had initially filed his claim. Before us, Oak\\n\\nGrove does not contest Lee’s own eligibility for benefits—only whether, under the\\n\\nAct, those benefits are properly payable to Carrie as Lee’s surviving spouse.\\n\\n In February 2016, the same District Director who had denied Lee’s claim\\n\\nissued a decision in Carrie’s favor. In so doing, the District Director relied on 30\\n\\nU.S.C. § 932(l)—which, as already noted, provides that “[i]n no case shall the\\n\\neligible survivors of a miner who was determined to be eligible to receive\\n\\nbenefits . . . at the time of his or her death be required to file a new claim for\\n\\nbenefits, or refile or otherwise revalidate the claim of such miner.”\\n\\n Challenging the District Director’s decision before an ALJ, Oak Grove\\n\\nargued that Carrie was not entitled to benefits under § 932(l) because Lee had not\\n\\nbeen “determined to be eligible to receive benefits . . . at the time of his . . . death”\\n\\nin November 2014. Rather, Oak Grove observed, the District Director had\\n\\ndetermined Lee’s eligibility in February 2016, more than a year after his death.\\n\\nFactually, Oak Grove was quite right—Lee hadn’t been formally determined to be\\n\\neligible before he died. As a matter of law, though, the ALJ concluded that the\\n\\ntiming of the District Director’s determination vis-à-vis Lee’s death was\\n\\ninconsequential; all that mattered was that Lee was in fact eligible for benefits at\\n\\n\\n 5\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 6 of 19\\n\\n\\nthe time he died. The Department of Labor’s Benefits Review Board affirmed the\\n\\nALJ’s decision in a published opinion. See Ferguson v. Oak Grove Res., LLC, No.\\n\\n16-0570 BLA, 2017 WL 3953435 (Ben. Rev. Bd. 2017).\\n\\n B\\n\\n Turning to U.S. Steel: Luther Terry applied unsuccessfully for benefits under\\n\\nthe Act in 2006 and 2011. Luther succeeded in his third attempt in 2014, but he\\n\\ndidn’t survive to collect. A veteran miner and lifelong smoker, Luther died of\\n\\ncardiopulmonary arrest the year before, in 2013. Luther’s widow, Cassandra\\n\\nTerry, filed a claim for benefits shortly after his death, and a District Director\\n\\nfound that she was eligible, citing § 932(l)’s automatic-entitlement provision.\\n\\nLuther’s employer, U.S. Steel, requested a hearing before an ALJ to contest that\\n\\nconclusion on the same basis as in Oak Grove—namely, that Luther had died\\n\\nbefore he was formally “determined” to be eligible for benefits. The ALJ affirmed\\n\\nthe District Director on the same ground as in Oak Grove—what mattered was that\\n\\nbefore he died, Luther was eligible for benefits, not whether he had been\\n\\ndetermined to be so. And as in Oak Grove, the Benefits Review Board affirmed\\n\\nthe ALJ’s decision. See Terry v. U.S. Steel Corp., Nos. 17-0105 BLA and 17-0107\\n\\nBLA, 2017 WL 5898736 (Ben. Rev. Bd. 2017).\\n\\n But U.S. Steel is different from Oak Grove in one key respect. Unlike Oak\\n\\nGrove, U.S. Steel has not conceded that Luther was eligible for benefits in the first\\n\\n\\n 6\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 7 of 19\\n\\n\\nplace. Accordingly, before turning to Cassandra’s entitlement to survivor benefits\\n\\nunder § 932(l), we must first address the preliminary question of Luther’s own\\n\\neligibility. Although something of a detour, the fact- and labor-intensive nature of\\n\\nthe eligibility inquiry usefully underscores what’s at stake in our subsequent\\n\\nanalysis of § 932(l). That provision is dubbed an “automatic entitlement” because,\\n\\nwhere applicable, it allows a miner’s survivors to avoid the morass into which we\\n\\nnow descend.\\n\\n II\\n\\n The Act establishes a rebuttable presumption that a miner’s death or\\n\\ndisability is attributable to pneumoconiosis2—and thus compensable—if the miner\\n\\ncan show, as relevant here, that he or she “was employed for fifteen years or more\\n\\nin one or more underground coal mines” and that the “evidence demonstrates the\\n\\nexistence of a totally disabling respiratory or pulmonary impairment.” 30 U.S.C.\\n\\n§ 921(c)(4). U.S. Steel doesn’t dispute that it bears the burden of rebutting this\\n\\npresumption with respect to Luther Terry.\\n\\n Section 921(c)(4) and its implementing regulation, 20 C.F.R. § 718.305,\\n\\ndetail two means by which U.S. Steel can discharge its burden. First, it can\\n\\n“establish[]” that Luther “does not, or did not, have” “[c]linical” or “[l]egal”\\n\\n\\n2\\n Pneumoconiosis is “a chronic dust disease of the lung and its sequelae, including respiratory\\nand pulmonary impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a).\\n\\n\\n 7\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 8 of 19\\n\\n\\npneumoconiosis. Id. § 718.305(d)(1)(i).3 For ease of reference, we’ll call this the\\n\\nempirical method of rebuttal. Second, U.S. Steel can rebut the presumption by\\n\\n“[e]stablishing” that “no part of the miner’s respiratory or pulmonary total\\n\\ndisability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). We’ll\\n\\ncall this the causal method. In order to “establish[]” non-liability via either\\n\\nmethod, the employer must affirmatively disprove the miner’s presumptive\\n\\nentitlement by a preponderance of the evidence. See United States Steel Corp. v.\\n\\nGray, 588 F.2d 1022, 1028 (5th Cir. 1979). 4\\n\\n U.S. Steel offers a litany of reasons why the ALJ erred in concluding that\\n\\nLuther was eligible for benefits. We needn’t respond point-by-point; an\\n\\nassessment of U.S. Steel’s principal contentions will suffice.\\n\\n 1. U.S. Steel first assails the ALJ’s decision to assign greater weight to\\n\\ncredentialed radiologists’ interpretations of Luther’s chest x-rays than to those\\n\\noffered by a “B-reader” pulmonologist.5 But the ALJ’s determination in that\\n\\n\\n3\\n “Clinical” pneumoconiosis “consists of those diseases recognized by the medical community as\\npneumoconiosis.” 20 C.F.R. § 718.201(a)(1). The “legal” version broadens the scope to include\\n“any chronic lung disease or impairment and its sequelae arising out of coal mine employment.”\\nId. § 718.201(a)(2).\\n4\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court\\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\\nOctober 1, 1981.\\n5\\n Per the CDC’s description of “The NIOSH B Reader Program”: “The B Reader Program aims\\nto ensure competency in radiographic reading by evaluating the ability of readers to classify a\\ntest set of radiographs, thereby creating and maintaining a pool of qualified readers having the\\nskills and ability to provide accurate and precise ILO [International Labour Office]\\n\\n\\n 8\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 9 of 19\\n\\n\\nrespect is supported by both law and logic. As for law, one of the governing\\n\\nregulations provides that “where two or more X-ray reports are in conflict, in\\n\\nevaluating such X-ray reports consideration must be given to the radiological\\n\\nqualifications of the physicians interpreting such X-rays.” 20 C.F.R.\\n\\n§ 718.202(a)(1) (emphasis added). Another likewise requires that a chest x-ray\\n\\nused as medical evidence include “the name and qualifications of the physician\\n\\nwho interpreted the X-ray”—and goes on to require a notation specifying “whether\\n\\nhe or she was a Board-certified radiologist, a Board-eligible radiologist, or a\\n\\nCertified B-reader.” See id. § 718.102(e) (emphasis added). If the distinctions\\n\\nbetween credentialed radiologists and B-readers didn’t matter, the regulations\\n\\nwouldn’t draw them. Good old common sense reinforces the regulations’ line-\\n\\ndrawing and further supports the ALJ’s decision: reading x-rays, after all, is what\\n\\nradiologists do. See, e.g., Webster’s Second New International Dictionary 2052\\n\\n(1944) (defining “radiologist” as “[o]ne who practices or is versed in the use of X\\n\\nrays”).\\n\\n 2. U.S. Steel also asserts that the ALJ erred in discounting the findings of\\n\\nDr. Michele Postma, who had been one of Luther’s treating physicians—and\\n\\nwhose testimony U.S. Steel introduced—on the ground that she stopped treating\\n\\n\\n\\nclassifications.” Centers for Disease Control and Prevention, Chest Radiography: The NIOSH B\\nReader Program, https://www.cdc.gov/niosh/topics/chestradiography/breader.html.\\n\\n 9\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 10 of 19\\n\\n\\nLuther four years before his death. As U.S. Steel puts it, the ALJ’s “‘later is\\n\\nbetter’ analysis is not allowed under 20 C.F.R. § 718.202.” The text of § 718.202\\n\\nsays nothing of the sort, so U.S. Steel draws our attention to the Fourth Circuit’s\\n\\ndecision in Adkins v. Director, 958 F.2d 49 (4th Cir. 1992). But Adkins doesn’t\\n\\nhold—or even suggest—that a “later [evidence] is better [evidence]” rationale is\\n\\nimpermissible per se; rather, the Adkins court merely explained that later-is-better\\n\\nlogic may fail in certain circumstances. In particular, the court observed that\\n\\nbecause pneumoconiosis is a progressive disease, privileging a later physician’s\\n\\nopinion makes sense only where “the evidence, on its face, shows that the miner’s\\n\\ncondition has worsened.” Id. at 52. If, by contrast, the miner’s condition has\\n\\nimproved—as the evidence before the court in Adkins indicated—then later-is-\\n\\nbetter reasoning loses its force: “Either the earlier or the later result must be wrong,\\n\\nand it is just as likely that the later evidence is faulty as the earlier.” Id. What\\n\\nabout the medical evidence before the ALJ here? On balance, that evidence—\\n\\nespecially when weighted for physician expertise—indicated that Luther’s\\n\\ncondition probably had deteriorated over time. So, as it turns out, Adkins\\n\\nboomerangs back around on U.S. Steel to support the ALJ’s decision to discount\\n\\nDr. Postma’s conclusions.\\n\\n 3. We’ll take one more: U.S. Steel contends that the ALJ erred in holding\\n\\nthat Dr. Postma’s and Dr. Allan Goldstein’s conclusions “c[ould not] be credited”\\n\\n\\n 10\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 11 of 19\\n\\n\\nbecause their negative findings as to the empirical method of rebuttal—i.e., that\\n\\nLuther didn’t suffer from pneumoconiosis in the first place—undermined the basis\\n\\nfor their conclusions as to the causal method—“that no part of [Luther’s]\\n\\nrespiratory or pulmonary total disability was caused by pneumoconiosis.”\\n\\n U.S. Steel sends us back to the Fourth Circuit for support, arguing that the\\n\\nALJ’s approach would be permissible only if Dr. Postma and Dr. Goldstein had\\n\\n“failed to consider pneumoconiosis as an additional cause of [Luther’s] pulmonary\\n\\nproblems.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000).\\n\\nOf course, as an out-of-circuit case, Island Creek is only persuasive here, and we\\n\\nfind a later Fourth Circuit decision more persuasive on the very point that U.S.\\n\\nSteel is raising.\\n\\n In Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), the court\\n\\nfound that “[l]ong-standing precedent establishes that a medical opinion premised\\n\\non an erroneous finding” under the empirical method of rebuttal “that a claimant\\n\\ndoes not suffer from pneumoconiosis is not worthy of much, if any, weight,\\n\\nparticularly with respect to whether,” under the causal method, “a claimant’s\\n\\ndisability was caused by that disease.” Id. at 504 (quotation marks and citation\\n\\nomitted). As the court explained, that’s because the “credibility of a doctor’s\\n\\njudgment as to whether pneumoconiosis is a cause of a miner’s disability is\\n\\nnecessarily influenced by the accuracy of his underlying diagnosis.” Id. Because\\n\\n\\n 11\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 12 of 19\\n\\n\\nthe doctor is essentially engaging in a counterfactual exercise as to the causal\\n\\nmethod, the Hobet court concluded, “opinions that erroneously fail to diagnose\\n\\npneumoconiosis may not be credited at all, unless an ALJ is able to identify\\n\\nspecific and persuasive reasons for concluding that the doctor’s judgment on the\\n\\nquestion of disability causation does not rest upon the predicate misdiagnosis.” Id.\\n\\nat 505 (quotation marks and citations omitted). That seems eminently sensible to\\n\\nus. And here, the ALJ didn’t find any “specific or persuasive reasons” to think that\\n\\nDr. Postma’s and Dr. Goldstein’s erroneous empirical-method conclusions hadn’t\\n\\ninfected their causal-method analysis—nor has U.S. Steel identified any such\\n\\nreasons.\\n\\n Enough. We hold that the ALJ’s determination that Luther was eligible for\\n\\nbenefits under the Act was consistent with the law and supported by substantial\\n\\nevidence. We turn, then, to the question whether Luther’s widow, Cassandra—and\\n\\nwith her, Lee Terry’s widow, Carrie—qualifies for survivor benefits under §\\n\\n932(l)’s automatic-entitlement provision.\\n\\n III\\n\\n If Part II of this opinion seemed sloggy, that’s because it was. The\\n\\neligibility-determining process that it chronicles is not just fact- and context-\\n\\nintensive but also fiscally and emotionally exhausting. The object of 30 U.S.C.\\n\\n\\n\\n\\n 12\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 13 of 19\\n\\n\\n§ 932(l) is to free the survivors of a deceased miner whose benefits claim has\\n\\nalready run the eligibility gauntlet from the burden of having to run it again.\\n\\n As already noted—twice now, but the language is critical—§ 932(l) states\\n\\nthat “[i]n no case shall the eligible survivors of a miner who was determined to be\\n\\neligible to receive benefits . . . at the time of his or her death be required to file a\\n\\nnew claim for benefits, or refile or otherwise revalidate the claim of such miner.”\\n\\nThe key phrase for our purposes—the hinge on which the dispute here turns—is “a\\n\\nminer who was determined to be eligible to receive benefits . . . at the time of his\\n\\nor her death.” There are two ways to understand that bit of text. Either “at the\\n\\ntime of his or her death” modifies the word “eligible”—such that a miner need\\n\\nonly have been eligible at the time he died, not formally determined to be\\n\\neligible—or it modifies the word “determined”—such that an eligibility\\n\\ndetermination must have been made before the miner died. It matters here, of\\n\\ncourse, because Lee Ferguson and Luther Terry were formally determined to be\\n\\neligible for benefits only after their deaths. They were eligible at the times that\\n\\nthey died, but only posthumously determined so.\\n\\n Carrie and Cassandra—supported by the government—advocate the former\\n\\nreading: The phrase “at the time of his or her death,” they say, modifies the term\\n\\n“eligible.” Accordingly, their argument goes, it’s sufficient that their husbands\\n\\nwere eligible for benefits under the Act at the times of their deaths, and it doesn’t\\n\\n\\n 13\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 14 of 19\\n\\n\\nmatter that the formal determinations of their husbands’ eligibility came only later.\\n\\nThat, they say for starters, is the most natural reading of the statute’s text. If “at\\n\\nthe time of his or her death” was intended to modify the word “determined,” the\\n\\nprovision would have been framed differently: “a miner who was determined at the\\n\\ntime of his or her death to be eligible to receive benefits at the time of his or her\\n\\ndeath.” Relatedly, Carrie and Cassandra cite the “rule of the last antecedent,”\\n\\npursuant to which “‘a limiting clause or phrase . . . should ordinarily be read as\\n\\nmodifying only the noun or phrase that it immediately follows.’” Kehoe v. Fidelity\\n\\nFed. Bank & Trust, 421 F.3d 1209, 1215 (11th Cir. 2005) (quoting Barnhart v.\\n\\nThomas, 540 U.S. 20, 26 (2003)). They emphasize that the word nearest the\\n\\nprepositional phrase “at the time of his or her death” (setting aside the irrelevant\\n\\n“to receive benefits under this subchapter”) is “eligible,” not “determined.”\\n\\nFinally, they point to the perverse consequences that would ensue from the\\n\\ncontrary reading: Imagine that two miners apply for benefits, and ALJs grant their\\n\\napplications on the same day—say, a Tuesday. The lone difference is that the first\\n\\nminer dies on Monday, just before his ALJ’s decision, whereas the second dies on\\n\\nWednesday, just afterward. There’s no rational basis, Carrie and Cassandra\\n\\ncontend, for treating the two miners’ survivors differently—particularly given that\\n\\ndoing so could well yoke a widow’s entitlement to benefits to the (in)efficiency of\\n\\nthe administrative process.\\n\\n\\n 14\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 15 of 19\\n\\n\\n The companies, by contrast, assert that “at the time of his or her death”\\n\\nmodifies the word “determined,” such that the formal determination of a miner’s\\n\\neligibility—and not just eligibility in the abstract—must have preceded his or her\\n\\ndeath. Accordingly, they say, because Lee and Luther weren’t determined to be\\n\\neligible until after they died, Carrie and Cassandra aren’t entitled to benefits under\\n\\n§ 932(l). The employers contend that an eligibility-focused reading violates the\\n\\nrule against surplusage by depriving the phrase “at the time of his or her death” of\\n\\nany real effect. See, e.g., United States v. Butler, 297 U.S. 1, 65 (1936) (“These\\n\\nwords cannot be meaningless, else they would not have been used.”). The reason,\\n\\nthey say, is that a miner’s eligibility is necessarily based on his or her condition\\n\\nwhile alive—a deceased miner can’t be eligible—and so it adds nothing to specify\\n\\nthat the miner must have been eligible “at the time of his or her death.”\\n\\n In our judgment, Carrie and Cassandra have the better of the interpretive\\n\\nargument. On balance—and particularly in light of the “last antecedent” canon—\\n\\nthe phrase “at the time of his or her death” is most naturally read as modifying the\\n\\nword “eligible” rather than the word “determined.” If Congress had intended\\n\\notherwise, it would (or should) have drafted the statute differently, and more\\n\\nprecisely, to refer to a “a miner who was determined at the time of his or her death\\n\\nto receive benefits.” Moreover, as the Supreme Court has emphasized, “[w]e need\\n\\nnot leave our common sense at the doorstep when we interpret a statute,” Price\\n\\n\\n 15\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 16 of 19\\n\\n\\nWaterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other\\n\\ngrounds, Civil Rights Act of 1991, Tit. I § 107(a), 105 Stat. 1075, as recognized in\\n\\nBurrage v. United States, 571 U.S. 204 (2014), and we can think of no common-\\n\\nsense reason why Congress would have wanted to differentiate between two\\n\\notherwise-identical survivors solely by virtue of the fact that the ALJ in charge of\\n\\none miner’s case got around to determining eligibility before he died while the ALJ\\n\\nhandling the other’s case didn’t. The statutory language doesn’t require (or on\\n\\nbalance even support) that cruel-happenstance result, and we decline to insinuate it.\\n\\n As to the employers’ surplusage-based argument, we think it enough to say\\n\\ntwo things. First, linking “at the time of his or her death” to eligibility, rather than\\n\\nto a formal determination, doesn’t render the phrase wholly meaningless—it just\\n\\nmakes the provision a little clumsy (in a “duh!” kind of way). Second, there are\\n\\ninstances in which a court may validly “prefer ordinary meaning to an unusual\\n\\nmeaning that will avoid surplusage.” Antonin Scalia & Bryan A. Garner, Reading\\n\\nLaw: The Interpretation of Legal Texts 176 (2012). This is just one such instance.\\n\\n There is one final point: Because we find that § 932(l)’s language is clear—\\n\\nand that it clearly favors Carrie and Cassandra’s position—we have no occasion to\\n\\nresort to the principles of deference embodied in Chevron, U.S.A., Inc. v. Natural\\n\\nResources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny. Even so,\\n\\nwe note—are fortified in our view by the fact—that the Department of Labor sees\\n\\n\\n 16\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 17 of 19\\n\\n\\nit the same way. To obtain benefits under 20 C.F.R. § 725.212, which implements\\n\\n§ 932(l), an otherwise eligible survivor must show (as relevant here) that the\\n\\ndeceased miner either:\\n\\n (i) Is determined to have died due to pneumoconiosis; or\\n\\n (ii) Filed a claim for benefits on or after January 1, 1982, which\\n results or resulted in a final award of benefits, and the surviving\\n spouse . . . filed a claim for benefits after January 1, 2005 which was\\n pending on or after March 23, 2010.\\n\\n20 C.F.R. § 725.212 (2013) (emphasis added). The regulation thus mirrors the two\\n\\nmeans that the Act itself specifies by which a survivor can demonstrate eligibility:\\n\\n(1) proving that the deceased miner died as a result of pneumoconiosis, see 30\\n\\nU.S.C. §§ 922(a), 932(c); and (2) satisfying the requirements of the automatic-\\n\\nentitlement provision, see id. § 932(l). The Department’s interpretation of § 932(l)\\n\\nin 20 C.F.R. § 725.212(ii) squares with our own. The logic runs as follows: The\\n\\nregulation pertains to “surviving spouse[s]”—and thus, by definition, to deceased\\n\\nminers. Within that class, there are claims that “resulted”—past tense—in an\\n\\naward of benefits; those might (or might not) refer to pre-death eligibility\\n\\ndeterminations. But there are also claims that “result[]”—present tense—in an\\n\\naward; of necessity—the miner having died, such that he or she has a “surviving\\n\\nspouse”—those refer to posthumous determinations. Indeed, that is exactly what\\n\\nthe Benefits Review Board said here; it construed the phrase “which results or\\n\\nresulted in” as authorizing benefits regardless of whether the miner died before or\\n 17\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 18 of 19\\n\\n\\nafter he was formally determined to be eligible. See Oak Grove, Doc. 23 at 18–19\\n\\n(“In accord with the prior versions of the regulation, the plain language of the\\n\\ncurrent regulation covers awards that occur before a miner’s death (i.e., a miner’s\\n\\nclaim which ‘resulted’ in an award), as well as awards that occur after a miner’s\\n\\ndeath (i.e., a miner’s claim which ‘results’ in an award).”).\\n\\n In sum, we hold that careful attention to § 932(l)’s text requires a decision in\\n\\nfavor of Carrie and Cassandra: Because their husbands were eligible for benefits\\n\\nunder the Act at the times of their respective deaths—and despite the fact that the\\n\\nmen were only thereafter formally determined to be eligible—Carrie and\\n\\nCassandra are due survivor benefits under § 932(l)’s automatic-entitlement\\n\\nprovision.6\\n\\n\\n6\\n Separate from—and in addition to—their arguments from statutory text, the parties offer\\ndueling citations to off-point decisions and extensive examinations of § 932(l)’s drafting history.\\nAs to the former, we think it sufficient to say that none of the parties’ cases squarely addresses\\nthe issue before us today. The companies rely principally on U.S. Steel Mining Co., LLC v.\\nDirector, OWCP [Starks]—where, in fairness to their position, the court did say that “[w]e hold\\nthat, to obtain benefits under the amended § 932(l),” the widow there “was required to show only\\nthat she met the appropriate relational and dependency requirements rendering her an ‘eligible\\nsurvivor’ and that [her deceased husband] was receiving benefits when he died.” 719 F.3d 1275,\\n1284 (11th Cir. 2013) (emphasis added). The italicized language might seem to suggest that\\n§ 932(l) requires proof of pre-death payments and, accordingly, a pre-death “determin[ation].”\\nBut Starks had nothing to do with the “at the time of his or her death” issue; rather, it addressed\\nthe separate question whether the survivor had to “prove that the miner spouse died due to\\npneumoconiosis.” Id. at 1280. It so happened that the miner there had been determined to be\\neligible before his death, but nothing in Starks turned on that fact, and we therefore reject the\\nsuggestion that our “was receiving benefits when he died” reference binds us here. See Dantzler\\nv. I.R.S., 183 F.3d 1247, 1251 (11th Cir. 1999) (“A judicial opinion is not a statute, and not every\\nsentence in a judicial opinion is law.”). For their part, Carrie and Cassandra point to Drummond\\nCo., Inc. v. Dir., OWCP [Allred], 650 F. App’x 690, 691 (11th Cir. 2016). But Allred, too—in\\naddition to being unpublished—is distinguishable. It’s true, as one of the ALJs here explained,\\n\\n\\n 18\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 19 of 19\\n\\n\\n IV\\n\\n For the foregoing reasons, the Board’s decisions in both cases before us are\\n\\nAFFIRMED.\\n\\n\\n\\n\\nthat Allred “affirmed a benefits award pursuant to the automatic entitlement provision where a\\nminer was awarded benefits posthumously.” U.S. Steel, Doc. 23 at 3. But the question presented\\nin Allred was different—namely, whether the ALJ in that case had applied the proper legal\\nstandard in determining whether the employer had rebutted the presumption in 20 C.F.R. §\\n718.305 that the miner there had clinical or legal pneumoconiosis.\\n We can make even quicker work of the parties’ protracted battle over § 932(l)’s\\nlegislative history. That history—which comprises amendments on top of amendments on top of\\namendments—“could hardly be more complicated,” B & G Const. Co. v. Dir., Office of Workers’\\nComp. Programs, 662 F.3d 233, 239 (3d Cir. 2011) (quoting Helen Mining Co. v. Dir., OWCP,\\n924 F.2d 1269, 1271 (3d Cir. 1991) (en banc)), and perhaps not surprisingly, we find it utterly\\nunenlightening. Hence our quaint fixation on § 932(l)’s enacted text. See generally CRI-Leslie\\nv. Comm’r, 882 F.3d 1026, 1033 (11th Cir. 2018) (“As a formal matter, it is of course only the\\nstatutory text . . . that is ‘law’ in the constitutional sense—that’s all that was enacted through the\\nbicameral legislative process and presented to the President for his signature.”) (citing U.S.\\nConst. art. I § 7, cls. 2–3).\\n\\n 19\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4386584/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ANTOON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4609331/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: OAK GROVE RESOURCES, LLC, National Union Fire Insurance/ AIG, Petitioners, v. DIRECTOR, OWCP, United States Department of Labor, Respondents. U.S. Steel Mining Company, LLC, U.S. Steel Corporation, Petitioners, v. Cassandra M. Terry, O.B.O. and Widow of Luther Terry, Director, OWCP, United States Department of Labor, Respondents.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-11\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-14468 Date Filed: 04/11/2019 Page: 1 of 19\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-14468\n ________________________\n\n Agency No. BRB 16-0570 BLA\n\n\n\nOAK GROVE RESOURCES, LLC,\nNATIONAL UNION FIRE INSURANCE/ AIG,\n\n Petitioners,\n\n versus\n\nDIRECTOR, OWCP,\nUNITED STATES DEPARTMENT OF LABOR,\n\n Respondents.\n\n\n ________________________\n\n No. 17-15782\n ________________________\n\n Agency No. 17-0105\n\n\n\nU.S. STEEL MINING COMPANY, LLC,\nU.S. STEEL CORPORATION,\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 2 of 19\n\n\n Petitioners,\n\n versus\n\nCASSANDRA M. TERRY, O.B.O. and Widow of Luther Terry,\nDIRECTOR, OWCP,\nUNITED STATES DEPARTMENT OF LABOR,\n\n Respondents.\n\n\n ________________________\n\n Petitions for Review of a Decision of the\n Benefits Review Board\n ________________________\n\n (April 11, 2019)\n\nBefore TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, * District Judge.\n\nNEWSOM, Circuit Judge:\n\n These consolidated Black Lung Benefits Act appeals present two\n\nquestions—both of which are important to the parties, and one of which turns out\n\nto be pretty interesting. Starting with the important-but-relatively-uninteresting: In\n\none of the cases, a mining company contends, for a smattering of reasons, that an\n\nALJ’s decision that one of its former miners was entitled to benefits under the Act\n\nisn’t supported by substantial evidence. To be brief, we disagree. Ample evidence\n\n\n\n\n*\n Honorable John Antoon II, United States District Judge for the Middle District of Florida,\nsitting by designation.\n\n 2\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 3 of 19\n\n\nsupports the ALJ’s determination, and none of the company’s challenges to the\n\nALJ’s analysis withstands scrutiny.\n\n Now, for the more interesting issue, which exists in both appeals: The Act\n\nprovides two means by which a deceased miner’s survivors can claim benefits.\n\nFirst, the survivors can prove that the miner died due to a lung disease called\n\npneumoconiosis. See 30 U.S.C. §§ 922(a), 932(c). Alternatively, they can proceed\n\nunder the Act’s so-called “automatic entitlement” provision, 30 U.S.C. § 932(l),\n\nwhich states that “[i]n no case shall the eligible survivors of a miner who was\n\ndetermined to be eligible to receive benefits . . . at the time of his or her death be\n\nrequired to file a new claim for benefits, or refile or otherwise revalidate the claim\n\nof such miner.” These cases call on us to take a closer look at the italicized portion\n\nof § 932(l). Under one reading—urged by the mining-companies here—the phrase\n\n“at the time of his or her death” modifies the verb “determined,” such that a\n\nminer’s survivors are entitled to benefits only if the pertinent government\n\ndecisionmaker issued a formal “determin[ation]” of the miner’s eligibility before\n\nhe or she died. Under an alternative reading—advanced by two surviving spouses,\n\nwith the support of the United States—“at the time of his or her death” modifies\n\nthe adjective “eligible,” such that survivors’ entitlement to benefits depends on\n\nwhether the miner was eligible before his or her death, not whether, by that time,\n\nthe pertinent decisionmaker had formally determined the miner to be so.\n\n\n 3\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 4 of 19\n\n\n We hold that the survivors and the government have the better of the\n\ninterpretive argument. Not only does their interpretation follow most naturally\n\nfrom § 932(l)’s syntax and find support in the traditional “last antecedent” canon, it\n\nalso—and quite unlike the companies’ reading—squares with common sense by\n\navoiding arbitrary distinctions between identically situated claimants.\n\n I\n\n Before us are two consolidated cases—Oak Grove Resources, LLC, et al. v.\n\nDirector, OWCP (“Oak Grove”), and U.S. Steel Mining Company, LLC, et al. v.\n\nDirector, OWCP (“U.S. Steel”). We briefly review the facts of each case before\n\nturning to a preliminary question posed only in U.S. Steel.\n\n A\n\n Starting with Oak Grove: In July 2012, Lee Ferguson, a coal miner with\n\nmore than three decades’ experience, sought benefits under the Black Lung\n\nBenefits Act, 30 U.S.C. § 901 et seq., and its implementing regulations, 20 C.F.R.\n\n§ 725.1 et seq. A District Director1 denied Lee’s claim, and Lee appealed.\n\nUnfortunately, Lee died of mesenteric ischemia in November 2014, while his\n\nappeal was pending. His widow, Carrie Ferguson, filed a claim for survivor\n\nbenefits in March 2015.\n\n\n\n1\n The Department of Labor includes the Division of Coal Mine Workers’ Compensation. This\nDivision has District Offices across the country, each led by a Regional and District Director.\n\n 4\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 5 of 19\n\n\n The following November, the ALJ handling Lee’s appeal overturned the\n\nDistrict Director’s decision and held that Lee’s employer, Oak Grove, was liable\n\nfor benefits from the date that Lee had initially filed his claim. Before us, Oak\n\nGrove does not contest Lee’s own eligibility for benefits—only whether, under the\n\nAct, those benefits are properly payable to Carrie as Lee’s surviving spouse.\n\n In February 2016, the same District Director who had denied Lee’s claim\n\nissued a decision in Carrie’s favor. In so doing, the District Director relied on 30\n\nU.S.C. § 932(l)—which, as already noted, provides that “[i]n no case shall the\n\neligible survivors of a miner who was determined to be eligible to receive\n\nbenefits . . . at the time of his or her death be required to file a new claim for\n\nbenefits, or refile or otherwise revalidate the claim of such miner.”\n\n Challenging the District Director’s decision before an ALJ, Oak Grove\n\nargued that Carrie was not entitled to benefits under § 932(l) because Lee had not\n\nbeen “determined to be eligible to receive benefits . . . at the time of his . . . death”\n\nin November 2014. Rather, Oak Grove observed, the District Director had\n\ndetermined Lee’s eligibility in February 2016, more than a year after his death.\n\nFactually, Oak Grove was quite right—Lee hadn’t been formally determined to be\n\neligible before he died. As a matter of law, though, the ALJ concluded that the\n\ntiming of the District Director’s determination vis-à-vis Lee’s death was\n\ninconsequential; all that mattered was that Lee was in fact eligible for benefits at\n\n\n 5\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 6 of 19\n\n\nthe time he died. The Department of Labor’s Benefits Review Board affirmed the\n\nALJ’s decision in a published opinion. See Ferguson v. Oak Grove Res., LLC, No.\n\n16-0570 BLA, 2017 WL 3953435 (Ben. Rev. Bd. 2017).\n\n B\n\n Turning to U.S. Steel: Luther Terry applied unsuccessfully for benefits under\n\nthe Act in 2006 and 2011. Luther succeeded in his third attempt in 2014, but he\n\ndidn’t survive to collect. A veteran miner and lifelong smoker, Luther died of\n\ncardiopulmonary arrest the year before, in 2013. Luther’s widow, Cassandra\n\nTerry, filed a claim for benefits shortly after his death, and a District Director\n\nfound that she was eligible, citing § 932(l)’s automatic-entitlement provision.\n\nLuther’s employer, U.S. Steel, requested a hearing before an ALJ to contest that\n\nconclusion on the same basis as in Oak Grove—namely, that Luther had died\n\nbefore he was formally “determined” to be eligible for benefits. The ALJ affirmed\n\nthe District Director on the same ground as in Oak Grove—what mattered was that\n\nbefore he died, Luther was eligible for benefits, not whether he had been\n\ndetermined to be so. And as in Oak Grove, the Benefits Review Board affirmed\n\nthe ALJ’s decision. See Terry v. U.S. Steel Corp., Nos. 17-0105 BLA and 17-0107\n\nBLA, 2017 WL 5898736 (Ben. Rev. Bd. 2017).\n\n But U.S. Steel is different from Oak Grove in one key respect. Unlike Oak\n\nGrove, U.S. Steel has not conceded that Luther was eligible for benefits in the first\n\n\n 6\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 7 of 19\n\n\nplace. Accordingly, before turning to Cassandra’s entitlement to survivor benefits\n\nunder § 932(l), we must first address the preliminary question of Luther’s own\n\neligibility. Although something of a detour, the fact- and labor-intensive nature of\n\nthe eligibility inquiry usefully underscores what’s at stake in our subsequent\n\nanalysis of § 932(l). That provision is dubbed an “automatic entitlement” because,\n\nwhere applicable, it allows a miner’s survivors to avoid the morass into which we\n\nnow descend.\n\n II\n\n The Act establishes a rebuttable presumption that a miner’s death or\n\ndisability is attributable to pneumoconiosis2—and thus compensable—if the miner\n\ncan show, as relevant here, that he or she “was employed for fifteen years or more\n\nin one or more underground coal mines” and that the “evidence demonstrates the\n\nexistence of a totally disabling respiratory or pulmonary impairment.” 30 U.S.C.\n\n§ 921(c)(4). U.S. Steel doesn’t dispute that it bears the burden of rebutting this\n\npresumption with respect to Luther Terry.\n\n Section 921(c)(4) and its implementing regulation, 20 C.F.R. § 718.305,\n\ndetail two means by which U.S. Steel can discharge its burden. First, it can\n\n“establish[]” that Luther “does not, or did not, have” “[c]linical” or “[l]egal”\n\n\n2\n Pneumoconiosis is “a chronic dust disease of the lung and its sequelae, including respiratory\nand pulmonary impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a).\n\n\n 7\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 8 of 19\n\n\npneumoconiosis. Id. § 718.305(d)(1)(i).3 For ease of reference, we’ll call this the\n\nempirical method of rebuttal. Second, U.S. Steel can rebut the presumption by\n\n“[e]stablishing” that “no part of the miner’s respiratory or pulmonary total\n\ndisability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). We’ll\n\ncall this the causal method. In order to “establish[]” non-liability via either\n\nmethod, the employer must affirmatively disprove the miner’s presumptive\n\nentitlement by a preponderance of the evidence. See United States Steel Corp. v.\n\nGray, 588 F.2d 1022, 1028 (5th Cir. 1979). 4\n\n U.S. Steel offers a litany of reasons why the ALJ erred in concluding that\n\nLuther was eligible for benefits. We needn’t respond point-by-point; an\n\nassessment of U.S. Steel’s principal contentions will suffice.\n\n 1. U.S. Steel first assails the ALJ’s decision to assign greater weight to\n\ncredentialed radiologists’ interpretations of Luther’s chest x-rays than to those\n\noffered by a “B-reader” pulmonologist.5 But the ALJ’s determination in that\n\n\n3\n “Clinical” pneumoconiosis “consists of those diseases recognized by the medical community as\npneumoconiosis.” 20 C.F.R. § 718.201(a)(1). The “legal” version broadens the scope to include\n“any chronic lung disease or impairment and its sequelae arising out of coal mine employment.”\nId. § 718.201(a)(2).\n4\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\nOctober 1, 1981.\n5\n Per the CDC’s description of “The NIOSH B Reader Program”: “The B Reader Program aims\nto ensure competency in radiographic reading by evaluating the ability of readers to classify a\ntest set of radiographs, thereby creating and maintaining a pool of qualified readers having the\nskills and ability to provide accurate and precise ILO [International Labour Office]\n\n\n 8\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 9 of 19\n\n\nrespect is supported by both law and logic. As for law, one of the governing\n\nregulations provides that “where two or more X-ray reports are in conflict, in\n\nevaluating such X-ray reports consideration must be given to the radiological\n\nqualifications of the physicians interpreting such X-rays.” 20 C.F.R.\n\n§ 718.202(a)(1) (emphasis added). Another likewise requires that a chest x-ray\n\nused as medical evidence include “the name and qualifications of the physician\n\nwho interpreted the X-ray”—and goes on to require a notation specifying “whether\n\nhe or she was a Board-certified radiologist, a Board-eligible radiologist, or a\n\nCertified B-reader.” See id. § 718.102(e) (emphasis added). If the distinctions\n\nbetween credentialed radiologists and B-readers didn’t matter, the regulations\n\nwouldn’t draw them. Good old common sense reinforces the regulations’ line-\n\ndrawing and further supports the ALJ’s decision: reading x-rays, after all, is what\n\nradiologists do. See, e.g., Webster’s Second New International Dictionary 2052\n\n(1944) (defining “radiologist” as “[o]ne who practices or is versed in the use of X\n\nrays”).\n\n 2. U.S. Steel also asserts that the ALJ erred in discounting the findings of\n\nDr. Michele Postma, who had been one of Luther’s treating physicians—and\n\nwhose testimony U.S. Steel introduced—on the ground that she stopped treating\n\n\n\nclassifications.” Centers for Disease Control and Prevention, Chest Radiography: The NIOSH B\nReader Program, https://www.cdc.gov/niosh/topics/chestradiography/breader.html.\n\n 9\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 10 of 19\n\n\nLuther four years before his death. As U.S. Steel puts it, the ALJ’s “‘later is\n\nbetter’ analysis is not allowed under 20 C.F.R. § 718.202.” The text of § 718.202\n\nsays nothing of the sort, so U.S. Steel draws our attention to the Fourth Circuit’s\n\ndecision in Adkins v. Director, 958 F.2d 49 (4th Cir. 1992). But Adkins doesn’t\n\nhold—or even suggest—that a “later [evidence] is better [evidence]” rationale is\n\nimpermissible per se; rather, the Adkins court merely explained that later-is-better\n\nlogic may fail in certain circumstances. In particular, the court observed that\n\nbecause pneumoconiosis is a progressive disease, privileging a later physician’s\n\nopinion makes sense only where “the evidence, on its face, shows that the miner’s\n\ncondition has worsened.” Id. at 52. If, by contrast, the miner’s condition has\n\nimproved—as the evidence before the court in Adkins indicated—then later-is-\n\nbetter reasoning loses its force: “Either the earlier or the later result must be wrong,\n\nand it is just as likely that the later evidence is faulty as the earlier.” Id. What\n\nabout the medical evidence before the ALJ here? On balance, that evidence—\n\nespecially when weighted for physician expertise—indicated that Luther’s\n\ncondition probably had deteriorated over time. So, as it turns out, Adkins\n\nboomerangs back around on U.S. Steel to support the ALJ’s decision to discount\n\nDr. Postma’s conclusions.\n\n 3. We’ll take one more: U.S. Steel contends that the ALJ erred in holding\n\nthat Dr. Postma’s and Dr. Allan Goldstein’s conclusions “c[ould not] be credited”\n\n\n 10\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 11 of 19\n\n\nbecause their negative findings as to the empirical method of rebuttal—i.e., that\n\nLuther didn’t suffer from pneumoconiosis in the first place—undermined the basis\n\nfor their conclusions as to the causal method—“that no part of [Luther’s]\n\nrespiratory or pulmonary total disability was caused by pneumoconiosis.”\n\n U.S. Steel sends us back to the Fourth Circuit for support, arguing that the\n\nALJ’s approach would be permissible only if Dr. Postma and Dr. Goldstein had\n\n“failed to consider pneumoconiosis as an additional cause of [Luther’s] pulmonary\n\nproblems.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000).\n\nOf course, as an out-of-circuit case, Island Creek is only persuasive here, and we\n\nfind a later Fourth Circuit decision more persuasive on the very point that U.S.\n\nSteel is raising.\n\n In Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), the court\n\nfound that “[l]ong-standing precedent establishes that a medical opinion premised\n\non an erroneous finding” under the empirical method of rebuttal “that a claimant\n\ndoes not suffer from pneumoconiosis is not worthy of much, if any, weight,\n\nparticularly with respect to whether,” under the causal method, “a claimant’s\n\ndisability was caused by that disease.” Id. at 504 (quotation marks and citation\n\nomitted). As the court explained, that’s because the “credibility of a doctor’s\n\njudgment as to whether pneumoconiosis is a cause of a miner’s disability is\n\nnecessarily influenced by the accuracy of his underlying diagnosis.” Id. Because\n\n\n 11\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 12 of 19\n\n\nthe doctor is essentially engaging in a counterfactual exercise as to the causal\n\nmethod, the Hobet court concluded, “opinions that erroneously fail to diagnose\n\npneumoconiosis may not be credited at all, unless an ALJ is able to identify\n\nspecific and persuasive reasons for concluding that the doctor’s judgment on the\n\nquestion of disability causation does not rest upon the predicate misdiagnosis.” Id.\n\nat 505 (quotation marks and citations omitted). That seems eminently sensible to\n\nus. And here, the ALJ didn’t find any “specific or persuasive reasons” to think that\n\nDr. Postma’s and Dr. Goldstein’s erroneous empirical-method conclusions hadn’t\n\ninfected their causal-method analysis—nor has U.S. Steel identified any such\n\nreasons.\n\n Enough. We hold that the ALJ’s determination that Luther was eligible for\n\nbenefits under the Act was consistent with the law and supported by substantial\n\nevidence. We turn, then, to the question whether Luther’s widow, Cassandra—and\n\nwith her, Lee Terry’s widow, Carrie—qualifies for survivor benefits under §\n\n932(l)’s automatic-entitlement provision.\n\n III\n\n If Part II of this opinion seemed sloggy, that’s because it was. The\n\neligibility-determining process that it chronicles is not just fact- and context-\n\nintensive but also fiscally and emotionally exhausting. The object of 30 U.S.C.\n\n\n\n\n 12\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 13 of 19\n\n\n§ 932(l) is to free the survivors of a deceased miner whose benefits claim has\n\nalready run the eligibility gauntlet from the burden of having to run it again.\n\n As already noted—twice now, but the language is critical—§ 932(l) states\n\nthat “[i]n no case shall the eligible survivors of a miner who was determined to be\n\neligible to receive benefits . . . at the time of his or her death be required to file a\n\nnew claim for benefits, or refile or otherwise revalidate the claim of such miner.”\n\nThe key phrase for our purposes—the hinge on which the dispute here turns—is “a\n\nminer who was determined to be eligible to receive benefits . . . at the time of his\n\nor her death.” There are two ways to understand that bit of text. Either “at the\n\ntime of his or her death” modifies the word “eligible”—such that a miner need\n\nonly have been eligible at the time he died, not formally determined to be\n\neligible—or it modifies the word “determined”—such that an eligibility\n\ndetermination must have been made before the miner died. It matters here, of\n\ncourse, because Lee Ferguson and Luther Terry were formally determined to be\n\neligible for benefits only after their deaths. They were eligible at the times that\n\nthey died, but only posthumously determined so.\n\n Carrie and Cassandra—supported by the government—advocate the former\n\nreading: The phrase “at the time of his or her death,” they say, modifies the term\n\n“eligible.” Accordingly, their argument goes, it’s sufficient that their husbands\n\nwere eligible for benefits under the Act at the times of their deaths, and it doesn’t\n\n\n 13\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 14 of 19\n\n\nmatter that the formal determinations of their husbands’ eligibility came only later.\n\nThat, they say for starters, is the most natural reading of the statute’s text. If “at\n\nthe time of his or her death” was intended to modify the word “determined,” the\n\nprovision would have been framed differently: “a miner who was determined at the\n\ntime of his or her death to be eligible to receive benefits at the time of his or her\n\ndeath.” Relatedly, Carrie and Cassandra cite the “rule of the last antecedent,”\n\npursuant to which “‘a limiting clause or phrase . . . should ordinarily be read as\n\nmodifying only the noun or phrase that it immediately follows.’” Kehoe v. Fidelity\n\nFed. Bank & Trust, 421 F.3d 1209, 1215 (11th Cir. 2005) (quoting Barnhart v.\n\nThomas, 540 U.S. 20, 26 (2003)). They emphasize that the word nearest the\n\nprepositional phrase “at the time of his or her death” (setting aside the irrelevant\n\n“to receive benefits under this subchapter”) is “eligible,” not “determined.”\n\nFinally, they point to the perverse consequences that would ensue from the\n\ncontrary reading: Imagine that two miners apply for benefits, and ALJs grant their\n\napplications on the same day—say, a Tuesday. The lone difference is that the first\n\nminer dies on Monday, just before his ALJ’s decision, whereas the second dies on\n\nWednesday, just afterward. There’s no rational basis, Carrie and Cassandra\n\ncontend, for treating the two miners’ survivors differently—particularly given that\n\ndoing so could well yoke a widow’s entitlement to benefits to the (in)efficiency of\n\nthe administrative process.\n\n\n 14\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 15 of 19\n\n\n The companies, by contrast, assert that “at the time of his or her death”\n\nmodifies the word “determined,” such that the formal determination of a miner’s\n\neligibility—and not just eligibility in the abstract—must have preceded his or her\n\ndeath. Accordingly, they say, because Lee and Luther weren’t determined to be\n\neligible until after they died, Carrie and Cassandra aren’t entitled to benefits under\n\n§ 932(l). The employers contend that an eligibility-focused reading violates the\n\nrule against surplusage by depriving the phrase “at the time of his or her death” of\n\nany real effect. See, e.g., United States v. Butler, 297 U.S. 1, 65 (1936) (“These\n\nwords cannot be meaningless, else they would not have been used.”). The reason,\n\nthey say, is that a miner’s eligibility is necessarily based on his or her condition\n\nwhile alive—a deceased miner can’t be eligible—and so it adds nothing to specify\n\nthat the miner must have been eligible “at the time of his or her death.”\n\n In our judgment, Carrie and Cassandra have the better of the interpretive\n\nargument. On balance—and particularly in light of the “last antecedent” canon—\n\nthe phrase “at the time of his or her death” is most naturally read as modifying the\n\nword “eligible” rather than the word “determined.” If Congress had intended\n\notherwise, it would (or should) have drafted the statute differently, and more\n\nprecisely, to refer to a “a miner who was determined at the time of his or her death\n\nto receive benefits.” Moreover, as the Supreme Court has emphasized, “[w]e need\n\nnot leave our common sense at the doorstep when we interpret a statute,” Price\n\n\n 15\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 16 of 19\n\n\nWaterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other\n\ngrounds, Civil Rights Act of 1991, Tit. I § 107(a), 105 Stat. 1075, as recognized in\n\nBurrage v. United States, 571 U.S. 204 (2014), and we can think of no common-\n\nsense reason why Congress would have wanted to differentiate between two\n\notherwise-identical survivors solely by virtue of the fact that the ALJ in charge of\n\none miner’s case got around to determining eligibility before he died while the ALJ\n\nhandling the other’s case didn’t. The statutory language doesn’t require (or on\n\nbalance even support) that cruel-happenstance result, and we decline to insinuate it.\n\n As to the employers’ surplusage-based argument, we think it enough to say\n\ntwo things. First, linking “at the time of his or her death” to eligibility, rather than\n\nto a formal determination, doesn’t render the phrase wholly meaningless—it just\n\nmakes the provision a little clumsy (in a “duh!” kind of way). Second, there are\n\ninstances in which a court may validly “prefer ordinary meaning to an unusual\n\nmeaning that will avoid surplusage.” Antonin Scalia & Bryan A. Garner, Reading\n\nLaw: The Interpretation of Legal Texts 176 (2012). This is just one such instance.\n\n There is one final point: Because we find that § 932(l)’s language is clear—\n\nand that it clearly favors Carrie and Cassandra’s position—we have no occasion to\n\nresort to the principles of deference embodied in Chevron, U.S.A., Inc. v. Natural\n\nResources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny. Even so,\n\nwe note—are fortified in our view by the fact—that the Department of Labor sees\n\n\n 16\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 17 of 19\n\n\nit the same way. To obtain benefits under 20 C.F.R. § 725.212, which implements\n\n§ 932(l), an otherwise eligible survivor must show (as relevant here) that the\n\ndeceased miner either:\n\n (i) Is determined to have died due to pneumoconiosis; or\n\n (ii) Filed a claim for benefits on or after January 1, 1982, which\n results or resulted in a final award of benefits, and the surviving\n spouse . . . filed a claim for benefits after January 1, 2005 which was\n pending on or after March 23, 2010.\n\n20 C.F.R. § 725.212 (2013) (emphasis added). The regulation thus mirrors the two\n\nmeans that the Act itself specifies by which a survivor can demonstrate eligibility:\n\n(1) proving that the deceased miner died as a result of pneumoconiosis, see 30\n\nU.S.C. §§ 922(a), 932(c); and (2) satisfying the requirements of the automatic-\n\nentitlement provision, see id. § 932(l). The Department’s interpretation of § 932(l)\n\nin 20 C.F.R. § 725.212(ii) squares with our own. The logic runs as follows: The\n\nregulation pertains to “surviving spouse[s]”—and thus, by definition, to deceased\n\nminers. Within that class, there are claims that “resulted”—past tense—in an\n\naward of benefits; those might (or might not) refer to pre-death eligibility\n\ndeterminations. But there are also claims that “result[]”—present tense—in an\n\naward; of necessity—the miner having died, such that he or she has a “surviving\n\nspouse”—those refer to posthumous determinations. Indeed, that is exactly what\n\nthe Benefits Review Board said here; it construed the phrase “which results or\n\nresulted in” as authorizing benefits regardless of whether the miner died before or\n 17\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 18 of 19\n\n\nafter he was formally determined to be eligible. See Oak Grove, Doc. 23 at 18–19\n\n(“In accord with the prior versions of the regulation, the plain language of the\n\ncurrent regulation covers awards that occur before a miner’s death (i.e., a miner’s\n\nclaim which ‘resulted’ in an award), as well as awards that occur after a miner’s\n\ndeath (i.e., a miner’s claim which ‘results’ in an award).”).\n\n In sum, we hold that careful attention to § 932(l)’s text requires a decision in\n\nfavor of Carrie and Cassandra: Because their husbands were eligible for benefits\n\nunder the Act at the times of their respective deaths—and despite the fact that the\n\nmen were only thereafter formally determined to be eligible—Carrie and\n\nCassandra are due survivor benefits under § 932(l)’s automatic-entitlement\n\nprovision.6\n\n\n6\n Separate from—and in addition to—their arguments from statutory text, the parties offer\ndueling citations to off-point decisions and extensive examinations of § 932(l)’s drafting history.\nAs to the former, we think it sufficient to say that none of the parties’ cases squarely addresses\nthe issue before us today. The companies rely principally on U.S. Steel Mining Co., LLC v.\nDirector, OWCP [Starks]—where, in fairness to their position, the court did say that “[w]e hold\nthat, to obtain benefits under the amended § 932(l),” the widow there “was required to show only\nthat she met the appropriate relational and dependency requirements rendering her an ‘eligible\nsurvivor’ and that [her deceased husband] was receiving benefits when he died.” 719 F.3d 1275,\n1284 (11th Cir. 2013) (emphasis added). The italicized language might seem to suggest that\n§ 932(l) requires proof of pre-death payments and, accordingly, a pre-death “determin[ation].”\nBut Starks had nothing to do with the “at the time of his or her death” issue; rather, it addressed\nthe separate question whether the survivor had to “prove that the miner spouse died due to\npneumoconiosis.” Id. at 1280. It so happened that the miner there had been determined to be\neligible before his death, but nothing in Starks turned on that fact, and we therefore reject the\nsuggestion that our “was receiving benefits when he died” reference binds us here. See Dantzler\nv. I.R.S., 183 F.3d 1247, 1251 (11th Cir. 1999) (“A judicial opinion is not a statute, and not every\nsentence in a judicial opinion is law.”). For their part, Carrie and Cassandra point to Drummond\nCo., Inc. v. Dir., OWCP [Allred], 650 F. App’x 690, 691 (11th Cir. 2016). But Allred, too—in\naddition to being unpublished—is distinguishable. It’s true, as one of the ALJs here explained,\n\n\n 18\n\f Case: 17-14468 Date Filed: 04/11/2019 Page: 19 of 19\n\n\n IV\n\n For the foregoing reasons, the Board’s decisions in both cases before us are\n\nAFFIRMED.\n\n\n\n\nthat Allred “affirmed a benefits award pursuant to the automatic entitlement provision where a\nminer was awarded benefits posthumously.” U.S. Steel, Doc. 23 at 3. But the question presented\nin Allred was different—namely, whether the ALJ in that case had applied the proper legal\nstandard in determining whether the employer had rebutted the presumption in 20 C.F.R. §\n718.305 that the miner there had clinical or legal pneumoconiosis.\n We can make even quicker work of the parties’ protracted battle over § 932(l)’s\nlegislative history. That history—which comprises amendments on top of amendments on top of\namendments—“could hardly be more complicated,” B & G Const. Co. v. Dir., Office of Workers’\nComp. Programs, 662 F.3d 233, 239 (3d Cir. 2011) (quoting Helen Mining Co. v. Dir., OWCP,\n924 F.2d 1269, 1271 (3d Cir. 1991) (en banc)), and perhaps not surprisingly, we find it utterly\nunenlightening. Hence our quaint fixation on § 932(l)’s enacted text. See generally CRI-Leslie\nv. Comm’r, 882 F.3d 1026, 1033 (11th Cir. 2018) (“As a formal matter, it is of course only the\nstatutory text . . . that is ‘law’ in the constitutional sense—that’s all that was enacted through the\nbicameral legislative process and presented to the President for his signature.”) (citing U.S.\nConst. art. I § 7, cls. 2–3).\n\n 19\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: OAK GROVE RESOURCES, LLC, National Union Fire Insurance/ AIG, Petitioners, v. DIRECTOR, OWCP, United States Department of Labor, Respondents. U.S. Steel Mining Company, LLC, U.S. Steel Corporation, Petitioners, v. Cassandra M. Terry, O.B.O. and Widow of Luther Terry, Director, OWCP, United States Department of Labor, Respondents.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-11\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-14468 Date Filed: 04/11/2019 Page: 1 of 19\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-14468\\n ________________________\\n\\n Agency No. BRB 16-0570 BLA\\n\\n\\n\\nOAK GROVE RESOURCES, LLC,\\nNATIONAL UNION FIRE INSURANCE/ AIG,\\n\\n Petitioners,\\n\\n versus\\n\\nDIRECTOR, OWCP,\\nUNITED STATES DEPARTMENT OF LABOR,\\n\\n Respondents.\\n\\n\\n ________________________\\n\\n No. 17-15782\\n ________________________\\n\\n Agency No. 17-0105\\n\\n\\n\\nU.S. STEEL MINING COMPANY, LLC,\\nU.S. STEEL CORPORATION,\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 2 of 19\\n\\n\\n Petitioners,\\n\\n versus\\n\\nCASSANDRA M. TERRY, O.B.O. and Widow of Luther Terry,\\nDIRECTOR, OWCP,\\nUNITED STATES DEPARTMENT OF LABOR,\\n\\n Respondents.\\n\\n\\n ________________________\\n\\n Petitions for Review of a Decision of the\\n Benefits Review Board\\n ________________________\\n\\n (April 11, 2019)\\n\\nBefore TJOFLAT and NEWSOM, Circuit Judges, and ANTOON, * District Judge.\\n\\nNEWSOM, Circuit Judge:\\n\\n These consolidated Black Lung Benefits Act appeals present two\\n\\nquestions—both of which are important to the parties, and one of which turns out\\n\\nto be pretty interesting. Starting with the important-but-relatively-uninteresting: In\\n\\none of the cases, a mining company contends, for a smattering of reasons, that an\\n\\nALJ’s decision that one of its former miners was entitled to benefits under the Act\\n\\nisn’t supported by substantial evidence. To be brief, we disagree. Ample evidence\\n\\n\\n\\n\\n*\\n Honorable John Antoon II, United States District Judge for the Middle District of Florida,\\nsitting by designation.\\n\\n 2\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 3 of 19\\n\\n\\nsupports the ALJ’s determination, and none of the company’s challenges to the\\n\\nALJ’s analysis withstands scrutiny.\\n\\n Now, for the more interesting issue, which exists in both appeals: The Act\\n\\nprovides two means by which a deceased miner’s survivors can claim benefits.\\n\\nFirst, the survivors can prove that the miner died due to a lung disease called\\n\\npneumoconiosis. See 30 U.S.C. §§ 922(a), 932(c). Alternatively, they can proceed\\n\\nunder the Act’s so-called “automatic entitlement” provision, 30 U.S.C. § 932(l),\\n\\nwhich states that “[i]n no case shall the eligible survivors of a miner who was\\n\\ndetermined to be eligible to receive benefits . . . at the time of his or her death be\\n\\nrequired to file a new claim for benefits, or refile or otherwise revalidate the claim\\n\\nof such miner.” These cases call on us to take a closer look at the italicized portion\\n\\nof § 932(l). Under one reading—urged by the mining-companies here—the phrase\\n\\n“at the time of his or her death” modifies the verb “determined,” such that a\\n\\nminer’s survivors are entitled to benefits only if the pertinent government\\n\\ndecisionmaker issued a formal “determin[ation]” of the miner’s eligibility before\\n\\nhe or she died. Under an alternative reading—advanced by two surviving spouses,\\n\\nwith the support of the United States—“at the time of his or her death” modifies\\n\\nthe adjective “eligible,” such that survivors’ entitlement to benefits depends on\\n\\nwhether the miner was eligible before his or her death, not whether, by that time,\\n\\nthe pertinent decisionmaker had formally determined the miner to be so.\\n\\n\\n 3\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 4 of 19\\n\\n\\n We hold that the survivors and the government have the better of the\\n\\ninterpretive argument. Not only does their interpretation follow most naturally\\n\\nfrom § 932(l)’s syntax and find support in the traditional “last antecedent” canon, it\\n\\nalso—and quite unlike the companies’ reading—squares with common sense by\\n\\navoiding arbitrary distinctions between identically situated claimants.\\n\\n I\\n\\n Before us are two consolidated cases—Oak Grove Resources, LLC, et al. v.\\n\\nDirector, OWCP (“Oak Grove”), and U.S. Steel Mining Company, LLC, et al. v.\\n\\nDirector, OWCP (“U.S. Steel”). We briefly review the facts of each case before\\n\\nturning to a preliminary question posed only in U.S. Steel.\\n\\n A\\n\\n Starting with Oak Grove: In July 2012, Lee Ferguson, a coal miner with\\n\\nmore than three decades’ experience, sought benefits under the Black Lung\\n\\nBenefits Act, 30 U.S.C. § 901 et seq., and its implementing regulations, 20 C.F.R.\\n\\n§ 725.1 et seq. A District Director1 denied Lee’s claim, and Lee appealed.\\n\\nUnfortunately, Lee died of mesenteric ischemia in November 2014, while his\\n\\nappeal was pending. His widow, Carrie Ferguson, filed a claim for survivor\\n\\nbenefits in March 2015.\\n\\n\\n\\n1\\n The Department of Labor includes the Division of Coal Mine Workers’ Compensation. This\\nDivision has District Offices across the country, each led by a Regional and District Director.\\n\\n 4\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 5 of 19\\n\\n\\n The following November, the ALJ handling Lee’s appeal overturned the\\n\\nDistrict Director’s decision and held that Lee’s employer, Oak Grove, was liable\\n\\nfor benefits from the date that Lee had initially filed his claim. Before us, Oak\\n\\nGrove does not contest Lee’s own eligibility for benefits—only whether, under the\\n\\nAct, those benefits are properly payable to Carrie as Lee’s surviving spouse.\\n\\n In February 2016, the same District Director who had denied Lee’s claim\\n\\nissued a decision in Carrie’s favor. In so doing, the District Director relied on 30\\n\\nU.S.C. § 932(l)—which, as already noted, provides that “[i]n no case shall the\\n\\neligible survivors of a miner who was determined to be eligible to receive\\n\\nbenefits . . . at the time of his or her death be required to file a new claim for\\n\\nbenefits, or refile or otherwise revalidate the claim of such miner.”\\n\\n Challenging the District Director’s decision before an ALJ, Oak Grove\\n\\nargued that Carrie was not entitled to benefits under § 932(l) because Lee had not\\n\\nbeen “determined to be eligible to receive benefits . . . at the time of his . . . death”\\n\\nin November 2014. Rather, Oak Grove observed, the District Director had\\n\\ndetermined Lee’s eligibility in February 2016, more than a year after his death.\\n\\nFactually, Oak Grove was quite right—Lee hadn’t been formally determined to be\\n\\neligible before he died. As a matter of law, though, the ALJ concluded that the\\n\\ntiming of the District Director’s determination vis-à-vis Lee’s death was\\n\\ninconsequential; all that mattered was that Lee was in fact eligible for benefits at\\n\\n\\n 5\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 6 of 19\\n\\n\\nthe time he died. The Department of Labor’s Benefits Review Board affirmed the\\n\\nALJ’s decision in a published opinion. See Ferguson v. Oak Grove Res., LLC, No.\\n\\n16-0570 BLA, 2017 WL 3953435 (Ben. Rev. Bd. 2017).\\n\\n B\\n\\n Turning to U.S. Steel: Luther Terry applied unsuccessfully for benefits under\\n\\nthe Act in 2006 and 2011. Luther succeeded in his third attempt in 2014, but he\\n\\ndidn’t survive to collect. A veteran miner and lifelong smoker, Luther died of\\n\\ncardiopulmonary arrest the year before, in 2013. Luther’s widow, Cassandra\\n\\nTerry, filed a claim for benefits shortly after his death, and a District Director\\n\\nfound that she was eligible, citing § 932(l)’s automatic-entitlement provision.\\n\\nLuther’s employer, U.S. Steel, requested a hearing before an ALJ to contest that\\n\\nconclusion on the same basis as in Oak Grove—namely, that Luther had died\\n\\nbefore he was formally “determined” to be eligible for benefits. The ALJ affirmed\\n\\nthe District Director on the same ground as in Oak Grove—what mattered was that\\n\\nbefore he died, Luther was eligible for benefits, not whether he had been\\n\\ndetermined to be so. And as in Oak Grove, the Benefits Review Board affirmed\\n\\nthe ALJ’s decision. See Terry v. U.S. Steel Corp., Nos. 17-0105 BLA and 17-0107\\n\\nBLA, 2017 WL 5898736 (Ben. Rev. Bd. 2017).\\n\\n But U.S. Steel is different from Oak Grove in one key respect. Unlike Oak\\n\\nGrove, U.S. Steel has not conceded that Luther was eligible for benefits in the first\\n\\n\\n 6\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 7 of 19\\n\\n\\nplace. Accordingly, before turning to Cassandra’s entitlement to survivor benefits\\n\\nunder § 932(l), we must first address the preliminary question of Luther’s own\\n\\neligibility. Although something of a detour, the fact- and labor-intensive nature of\\n\\nthe eligibility inquiry usefully underscores what’s at stake in our subsequent\\n\\nanalysis of § 932(l). That provision is dubbed an “automatic entitlement” because,\\n\\nwhere applicable, it allows a miner’s survivors to avoid the morass into which we\\n\\nnow descend.\\n\\n II\\n\\n The Act establishes a rebuttable presumption that a miner’s death or\\n\\ndisability is attributable to pneumoconiosis2—and thus compensable—if the miner\\n\\ncan show, as relevant here, that he or she “was employed for fifteen years or more\\n\\nin one or more underground coal mines” and that the “evidence demonstrates the\\n\\nexistence of a totally disabling respiratory or pulmonary impairment.” 30 U.S.C.\\n\\n§ 921(c)(4). U.S. Steel doesn’t dispute that it bears the burden of rebutting this\\n\\npresumption with respect to Luther Terry.\\n\\n Section 921(c)(4) and its implementing regulation, 20 C.F.R. § 718.305,\\n\\ndetail two means by which U.S. Steel can discharge its burden. First, it can\\n\\n“establish[]” that Luther “does not, or did not, have” “[c]linical” or “[l]egal”\\n\\n\\n2\\n Pneumoconiosis is “a chronic dust disease of the lung and its sequelae, including respiratory\\nand pulmonary impairments, arising out of coal mine employment.” 20 C.F.R. § 718.201(a).\\n\\n\\n 7\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 8 of 19\\n\\n\\npneumoconiosis. Id. § 718.305(d)(1)(i).3 For ease of reference, we’ll call this the\\n\\nempirical method of rebuttal. Second, U.S. Steel can rebut the presumption by\\n\\n“[e]stablishing” that “no part of the miner’s respiratory or pulmonary total\\n\\ndisability was caused by pneumoconiosis.” 20 C.F.R. § 718.305(d)(1)(ii). We’ll\\n\\ncall this the causal method. In order to “establish[]” non-liability via either\\n\\nmethod, the employer must affirmatively disprove the miner’s presumptive\\n\\nentitlement by a preponderance of the evidence. See United States Steel Corp. v.\\n\\nGray, 588 F.2d 1022, 1028 (5th Cir. 1979). 4\\n\\n U.S. Steel offers a litany of reasons why the ALJ erred in concluding that\\n\\nLuther was eligible for benefits. We needn’t respond point-by-point; an\\n\\nassessment of U.S. Steel’s principal contentions will suffice.\\n\\n 1. U.S. Steel first assails the ALJ’s decision to assign greater weight to\\n\\ncredentialed radiologists’ interpretations of Luther’s chest x-rays than to those\\n\\noffered by a “B-reader” pulmonologist.5 But the ALJ’s determination in that\\n\\n\\n3\\n “Clinical” pneumoconiosis “consists of those diseases recognized by the medical community as\\npneumoconiosis.” 20 C.F.R. § 718.201(a)(1). The “legal” version broadens the scope to include\\n“any chronic lung disease or impairment and its sequelae arising out of coal mine employment.”\\nId. § 718.201(a)(2).\\n4\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court\\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\\nOctober 1, 1981.\\n5\\n Per the CDC’s description of “The NIOSH B Reader Program”: “The B Reader Program aims\\nto ensure competency in radiographic reading by evaluating the ability of readers to classify a\\ntest set of radiographs, thereby creating and maintaining a pool of qualified readers having the\\nskills and ability to provide accurate and precise ILO [International Labour Office]\\n\\n\\n 8\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 9 of 19\\n\\n\\nrespect is supported by both law and logic. As for law, one of the governing\\n\\nregulations provides that “where two or more X-ray reports are in conflict, in\\n\\nevaluating such X-ray reports consideration must be given to the radiological\\n\\nqualifications of the physicians interpreting such X-rays.” 20 C.F.R.\\n\\n§ 718.202(a)(1) (emphasis added). Another likewise requires that a chest x-ray\\n\\nused as medical evidence include “the name and qualifications of the physician\\n\\nwho interpreted the X-ray”—and goes on to require a notation specifying “whether\\n\\nhe or she was a Board-certified radiologist, a Board-eligible radiologist, or a\\n\\nCertified B-reader.” See id. § 718.102(e) (emphasis added). If the distinctions\\n\\nbetween credentialed radiologists and B-readers didn’t matter, the regulations\\n\\nwouldn’t draw them. Good old common sense reinforces the regulations’ line-\\n\\ndrawing and further supports the ALJ’s decision: reading x-rays, after all, is what\\n\\nradiologists do. See, e.g., Webster’s Second New International Dictionary 2052\\n\\n(1944) (defining “radiologist” as “[o]ne who practices or is versed in the use of X\\n\\nrays”).\\n\\n 2. U.S. Steel also asserts that the ALJ erred in discounting the findings of\\n\\nDr. Michele Postma, who had been one of Luther’s treating physicians—and\\n\\nwhose testimony U.S. Steel introduced—on the ground that she stopped treating\\n\\n\\n\\nclassifications.” Centers for Disease Control and Prevention, Chest Radiography: The NIOSH B\\nReader Program, https://www.cdc.gov/niosh/topics/chestradiography/breader.html.\\n\\n 9\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 10 of 19\\n\\n\\nLuther four years before his death. As U.S. Steel puts it, the ALJ’s “‘later is\\n\\nbetter’ analysis is not allowed under 20 C.F.R. § 718.202.” The text of § 718.202\\n\\nsays nothing of the sort, so U.S. Steel draws our attention to the Fourth Circuit’s\\n\\ndecision in Adkins v. Director, 958 F.2d 49 (4th Cir. 1992). But Adkins doesn’t\\n\\nhold—or even suggest—that a “later [evidence] is better [evidence]” rationale is\\n\\nimpermissible per se; rather, the Adkins court merely explained that later-is-better\\n\\nlogic may fail in certain circumstances. In particular, the court observed that\\n\\nbecause pneumoconiosis is a progressive disease, privileging a later physician’s\\n\\nopinion makes sense only where “the evidence, on its face, shows that the miner’s\\n\\ncondition has worsened.” Id. at 52. If, by contrast, the miner’s condition has\\n\\nimproved—as the evidence before the court in Adkins indicated—then later-is-\\n\\nbetter reasoning loses its force: “Either the earlier or the later result must be wrong,\\n\\nand it is just as likely that the later evidence is faulty as the earlier.” Id. What\\n\\nabout the medical evidence before the ALJ here? On balance, that evidence—\\n\\nespecially when weighted for physician expertise—indicated that Luther’s\\n\\ncondition probably had deteriorated over time. So, as it turns out, Adkins\\n\\nboomerangs back around on U.S. Steel to support the ALJ’s decision to discount\\n\\nDr. Postma’s conclusions.\\n\\n 3. We’ll take one more: U.S. Steel contends that the ALJ erred in holding\\n\\nthat Dr. Postma’s and Dr. Allan Goldstein’s conclusions “c[ould not] be credited”\\n\\n\\n 10\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 11 of 19\\n\\n\\nbecause their negative findings as to the empirical method of rebuttal—i.e., that\\n\\nLuther didn’t suffer from pneumoconiosis in the first place—undermined the basis\\n\\nfor their conclusions as to the causal method—“that no part of [Luther’s]\\n\\nrespiratory or pulmonary total disability was caused by pneumoconiosis.”\\n\\n U.S. Steel sends us back to the Fourth Circuit for support, arguing that the\\n\\nALJ’s approach would be permissible only if Dr. Postma and Dr. Goldstein had\\n\\n“failed to consider pneumoconiosis as an additional cause of [Luther’s] pulmonary\\n\\nproblems.” Island Creek Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000).\\n\\nOf course, as an out-of-circuit case, Island Creek is only persuasive here, and we\\n\\nfind a later Fourth Circuit decision more persuasive on the very point that U.S.\\n\\nSteel is raising.\\n\\n In Hobet Mining, LLC v. Epling, 783 F.3d 498 (4th Cir. 2015), the court\\n\\nfound that “[l]ong-standing precedent establishes that a medical opinion premised\\n\\non an erroneous finding” under the empirical method of rebuttal “that a claimant\\n\\ndoes not suffer from pneumoconiosis is not worthy of much, if any, weight,\\n\\nparticularly with respect to whether,” under the causal method, “a claimant’s\\n\\ndisability was caused by that disease.” Id. at 504 (quotation marks and citation\\n\\nomitted). As the court explained, that’s because the “credibility of a doctor’s\\n\\njudgment as to whether pneumoconiosis is a cause of a miner’s disability is\\n\\nnecessarily influenced by the accuracy of his underlying diagnosis.” Id. Because\\n\\n\\n 11\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 12 of 19\\n\\n\\nthe doctor is essentially engaging in a counterfactual exercise as to the causal\\n\\nmethod, the Hobet court concluded, “opinions that erroneously fail to diagnose\\n\\npneumoconiosis may not be credited at all, unless an ALJ is able to identify\\n\\nspecific and persuasive reasons for concluding that the doctor’s judgment on the\\n\\nquestion of disability causation does not rest upon the predicate misdiagnosis.” Id.\\n\\nat 505 (quotation marks and citations omitted). That seems eminently sensible to\\n\\nus. And here, the ALJ didn’t find any “specific or persuasive reasons” to think that\\n\\nDr. Postma’s and Dr. Goldstein’s erroneous empirical-method conclusions hadn’t\\n\\ninfected their causal-method analysis—nor has U.S. Steel identified any such\\n\\nreasons.\\n\\n Enough. We hold that the ALJ’s determination that Luther was eligible for\\n\\nbenefits under the Act was consistent with the law and supported by substantial\\n\\nevidence. We turn, then, to the question whether Luther’s widow, Cassandra—and\\n\\nwith her, Lee Terry’s widow, Carrie—qualifies for survivor benefits under §\\n\\n932(l)’s automatic-entitlement provision.\\n\\n III\\n\\n If Part II of this opinion seemed sloggy, that’s because it was. The\\n\\neligibility-determining process that it chronicles is not just fact- and context-\\n\\nintensive but also fiscally and emotionally exhausting. The object of 30 U.S.C.\\n\\n\\n\\n\\n 12\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 13 of 19\\n\\n\\n§ 932(l) is to free the survivors of a deceased miner whose benefits claim has\\n\\nalready run the eligibility gauntlet from the burden of having to run it again.\\n\\n As already noted—twice now, but the language is critical—§ 932(l) states\\n\\nthat “[i]n no case shall the eligible survivors of a miner who was determined to be\\n\\neligible to receive benefits . . . at the time of his or her death be required to file a\\n\\nnew claim for benefits, or refile or otherwise revalidate the claim of such miner.”\\n\\nThe key phrase for our purposes—the hinge on which the dispute here turns—is “a\\n\\nminer who was determined to be eligible to receive benefits . . . at the time of his\\n\\nor her death.” There are two ways to understand that bit of text. Either “at the\\n\\ntime of his or her death” modifies the word “eligible”—such that a miner need\\n\\nonly have been eligible at the time he died, not formally determined to be\\n\\neligible—or it modifies the word “determined”—such that an eligibility\\n\\ndetermination must have been made before the miner died. It matters here, of\\n\\ncourse, because Lee Ferguson and Luther Terry were formally determined to be\\n\\neligible for benefits only after their deaths. They were eligible at the times that\\n\\nthey died, but only posthumously determined so.\\n\\n Carrie and Cassandra—supported by the government—advocate the former\\n\\nreading: The phrase “at the time of his or her death,” they say, modifies the term\\n\\n“eligible.” Accordingly, their argument goes, it’s sufficient that their husbands\\n\\nwere eligible for benefits under the Act at the times of their deaths, and it doesn’t\\n\\n\\n 13\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 14 of 19\\n\\n\\nmatter that the formal determinations of their husbands’ eligibility came only later.\\n\\nThat, they say for starters, is the most natural reading of the statute’s text. If “at\\n\\nthe time of his or her death” was intended to modify the word “determined,” the\\n\\nprovision would have been framed differently: “a miner who was determined at the\\n\\ntime of his or her death to be eligible to receive benefits at the time of his or her\\n\\ndeath.” Relatedly, Carrie and Cassandra cite the “rule of the last antecedent,”\\n\\npursuant to which “‘a limiting clause or phrase . . . should ordinarily be read as\\n\\nmodifying only the noun or phrase that it immediately follows.’” Kehoe v. Fidelity\\n\\nFed. Bank & Trust, 421 F.3d 1209, 1215 (11th Cir. 2005) (quoting Barnhart v.\\n\\nThomas, 540 U.S. 20, 26 (2003)). They emphasize that the word nearest the\\n\\nprepositional phrase “at the time of his or her death” (setting aside the irrelevant\\n\\n“to receive benefits under this subchapter”) is “eligible,” not “determined.”\\n\\nFinally, they point to the perverse consequences that would ensue from the\\n\\ncontrary reading: Imagine that two miners apply for benefits, and ALJs grant their\\n\\napplications on the same day—say, a Tuesday. The lone difference is that the first\\n\\nminer dies on Monday, just before his ALJ’s decision, whereas the second dies on\\n\\nWednesday, just afterward. There’s no rational basis, Carrie and Cassandra\\n\\ncontend, for treating the two miners’ survivors differently—particularly given that\\n\\ndoing so could well yoke a widow’s entitlement to benefits to the (in)efficiency of\\n\\nthe administrative process.\\n\\n\\n 14\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 15 of 19\\n\\n\\n The companies, by contrast, assert that “at the time of his or her death”\\n\\nmodifies the word “determined,” such that the formal determination of a miner’s\\n\\neligibility—and not just eligibility in the abstract—must have preceded his or her\\n\\ndeath. Accordingly, they say, because Lee and Luther weren’t determined to be\\n\\neligible until after they died, Carrie and Cassandra aren’t entitled to benefits under\\n\\n§ 932(l). The employers contend that an eligibility-focused reading violates the\\n\\nrule against surplusage by depriving the phrase “at the time of his or her death” of\\n\\nany real effect. See, e.g., United States v. Butler, 297 U.S. 1, 65 (1936) (“These\\n\\nwords cannot be meaningless, else they would not have been used.”). The reason,\\n\\nthey say, is that a miner’s eligibility is necessarily based on his or her condition\\n\\nwhile alive—a deceased miner can’t be eligible—and so it adds nothing to specify\\n\\nthat the miner must have been eligible “at the time of his or her death.”\\n\\n In our judgment, Carrie and Cassandra have the better of the interpretive\\n\\nargument. On balance—and particularly in light of the “last antecedent” canon—\\n\\nthe phrase “at the time of his or her death” is most naturally read as modifying the\\n\\nword “eligible” rather than the word “determined.” If Congress had intended\\n\\notherwise, it would (or should) have drafted the statute differently, and more\\n\\nprecisely, to refer to a “a miner who was determined at the time of his or her death\\n\\nto receive benefits.” Moreover, as the Supreme Court has emphasized, “[w]e need\\n\\nnot leave our common sense at the doorstep when we interpret a statute,” Price\\n\\n\\n 15\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 16 of 19\\n\\n\\nWaterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by statute on other\\n\\ngrounds, Civil Rights Act of 1991, Tit. I § 107(a), 105 Stat. 1075, as recognized in\\n\\nBurrage v. United States, 571 U.S. 204 (2014), and we can think of no common-\\n\\nsense reason why Congress would have wanted to differentiate between two\\n\\notherwise-identical survivors solely by virtue of the fact that the ALJ in charge of\\n\\none miner’s case got around to determining eligibility before he died while the ALJ\\n\\nhandling the other’s case didn’t. The statutory language doesn’t require (or on\\n\\nbalance even support) that cruel-happenstance result, and we decline to insinuate it.\\n\\n As to the employers’ surplusage-based argument, we think it enough to say\\n\\ntwo things. First, linking “at the time of his or her death” to eligibility, rather than\\n\\nto a formal determination, doesn’t render the phrase wholly meaningless—it just\\n\\nmakes the provision a little clumsy (in a “duh!” kind of way). Second, there are\\n\\ninstances in which a court may validly “prefer ordinary meaning to an unusual\\n\\nmeaning that will avoid surplusage.” Antonin Scalia & Bryan A. Garner, Reading\\n\\nLaw: The Interpretation of Legal Texts 176 (2012). This is just one such instance.\\n\\n There is one final point: Because we find that § 932(l)’s language is clear—\\n\\nand that it clearly favors Carrie and Cassandra’s position—we have no occasion to\\n\\nresort to the principles of deference embodied in Chevron, U.S.A., Inc. v. Natural\\n\\nResources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny. Even so,\\n\\nwe note—are fortified in our view by the fact—that the Department of Labor sees\\n\\n\\n 16\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 17 of 19\\n\\n\\nit the same way. To obtain benefits under 20 C.F.R. § 725.212, which implements\\n\\n§ 932(l), an otherwise eligible survivor must show (as relevant here) that the\\n\\ndeceased miner either:\\n\\n (i) Is determined to have died due to pneumoconiosis; or\\n\\n (ii) Filed a claim for benefits on or after January 1, 1982, which\\n results or resulted in a final award of benefits, and the surviving\\n spouse . . . filed a claim for benefits after January 1, 2005 which was\\n pending on or after March 23, 2010.\\n\\n20 C.F.R. § 725.212 (2013) (emphasis added). The regulation thus mirrors the two\\n\\nmeans that the Act itself specifies by which a survivor can demonstrate eligibility:\\n\\n(1) proving that the deceased miner died as a result of pneumoconiosis, see 30\\n\\nU.S.C. §§ 922(a), 932(c); and (2) satisfying the requirements of the automatic-\\n\\nentitlement provision, see id. § 932(l). The Department’s interpretation of § 932(l)\\n\\nin 20 C.F.R. § 725.212(ii) squares with our own. The logic runs as follows: The\\n\\nregulation pertains to “surviving spouse[s]”—and thus, by definition, to deceased\\n\\nminers. Within that class, there are claims that “resulted”—past tense—in an\\n\\naward of benefits; those might (or might not) refer to pre-death eligibility\\n\\ndeterminations. But there are also claims that “result[]”—present tense—in an\\n\\naward; of necessity—the miner having died, such that he or she has a “surviving\\n\\nspouse”—those refer to posthumous determinations. Indeed, that is exactly what\\n\\nthe Benefits Review Board said here; it construed the phrase “which results or\\n\\nresulted in” as authorizing benefits regardless of whether the miner died before or\\n 17\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 18 of 19\\n\\n\\nafter he was formally determined to be eligible. See Oak Grove, Doc. 23 at 18–19\\n\\n(“In accord with the prior versions of the regulation, the plain language of the\\n\\ncurrent regulation covers awards that occur before a miner’s death (i.e., a miner’s\\n\\nclaim which ‘resulted’ in an award), as well as awards that occur after a miner’s\\n\\ndeath (i.e., a miner’s claim which ‘results’ in an award).”).\\n\\n In sum, we hold that careful attention to § 932(l)’s text requires a decision in\\n\\nfavor of Carrie and Cassandra: Because their husbands were eligible for benefits\\n\\nunder the Act at the times of their respective deaths—and despite the fact that the\\n\\nmen were only thereafter formally determined to be eligible—Carrie and\\n\\nCassandra are due survivor benefits under § 932(l)’s automatic-entitlement\\n\\nprovision.6\\n\\n\\n6\\n Separate from—and in addition to—their arguments from statutory text, the parties offer\\ndueling citations to off-point decisions and extensive examinations of § 932(l)’s drafting history.\\nAs to the former, we think it sufficient to say that none of the parties’ cases squarely addresses\\nthe issue before us today. The companies rely principally on U.S. Steel Mining Co., LLC v.\\nDirector, OWCP [Starks]—where, in fairness to their position, the court did say that “[w]e hold\\nthat, to obtain benefits under the amended § 932(l),” the widow there “was required to show only\\nthat she met the appropriate relational and dependency requirements rendering her an ‘eligible\\nsurvivor’ and that [her deceased husband] was receiving benefits when he died.” 719 F.3d 1275,\\n1284 (11th Cir. 2013) (emphasis added). The italicized language might seem to suggest that\\n§ 932(l) requires proof of pre-death payments and, accordingly, a pre-death “determin[ation].”\\nBut Starks had nothing to do with the “at the time of his or her death” issue; rather, it addressed\\nthe separate question whether the survivor had to “prove that the miner spouse died due to\\npneumoconiosis.” Id. at 1280. It so happened that the miner there had been determined to be\\neligible before his death, but nothing in Starks turned on that fact, and we therefore reject the\\nsuggestion that our “was receiving benefits when he died” reference binds us here. See Dantzler\\nv. I.R.S., 183 F.3d 1247, 1251 (11th Cir. 1999) (“A judicial opinion is not a statute, and not every\\nsentence in a judicial opinion is law.”). For their part, Carrie and Cassandra point to Drummond\\nCo., Inc. v. Dir., OWCP [Allred], 650 F. App’x 690, 691 (11th Cir. 2016). But Allred, too—in\\naddition to being unpublished—is distinguishable. It’s true, as one of the ALJs here explained,\\n\\n\\n 18\\n\\f Case: 17-14468 Date Filed: 04/11/2019 Page: 19 of 19\\n\\n\\n IV\\n\\n For the foregoing reasons, the Board’s decisions in both cases before us are\\n\\nAFFIRMED.\\n\\n\\n\\n\\nthat Allred “affirmed a benefits award pursuant to the automatic entitlement provision where a\\nminer was awarded benefits posthumously.” U.S. Steel, Doc. 23 at 3. But the question presented\\nin Allred was different—namely, whether the ALJ in that case had applied the proper legal\\nstandard in determining whether the employer had rebutted the presumption in 20 C.F.R. §\\n718.305 that the miner there had clinical or legal pneumoconiosis.\\n We can make even quicker work of the parties’ protracted battle over § 932(l)’s\\nlegislative history. That history—which comprises amendments on top of amendments on top of\\namendments—“could hardly be more complicated,” B & G Const. Co. v. Dir., Office of Workers’\\nComp. Programs, 662 F.3d 233, 239 (3d Cir. 2011) (quoting Helen Mining Co. v. Dir., OWCP,\\n924 F.2d 1269, 1271 (3d Cir. 1991) (en banc)), and perhaps not surprisingly, we find it utterly\\nunenlightening. Hence our quaint fixation on § 932(l)’s enacted text. See generally CRI-Leslie\\nv. Comm’r, 882 F.3d 1026, 1033 (11th Cir. 2018) (“As a formal matter, it is of course only the\\nstatutory text . . . that is ‘law’ in the constitutional sense—that’s all that was enacted through the\\nbicameral legislative process and presented to the President for his signature.”) (citing U.S.\\nConst. art. I § 7, cls. 2–3).\\n\\n 19\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1882,"cells":{"id":{"kind":"number","value":4609815,"string":"4,609,815"},"name":{"kind":"string","value":"Wyndel R. HALL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees."},"name_abbreviation":{"kind":"string","value":"Wyndel R. Hall v. Secretary, Department of Corrections"},"decision_date":{"kind":"string","value":"2019-04-12"},"docket_number":{"kind":"string","value":"18-10767"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Marcus, Rosenbaum\", \"parties\": \"\", \"opinions\": [{\"author\": \"TJOFLAT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10767 Date Filed: 04/12/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10767\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\\n\\nWYNDEL R. HALL,\\n Petitioner-Appellant,\\n\\n versus\\n\\nSECRETARY, DEPARTMENT OF CORRECTIONS,\\nATTORNEY GENERAL, STATE OF FLORIDA,\\n Respondents-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 12, 2019)\\n\\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\\n\\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\\n\\nhe argues that the District Court erred by failing to toll the statute of limitations of\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 2 of 17\\n\\n\\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\\n\\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\\n\\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\\n\\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\\n\\nmotion related back to his deficient motion, thus tolling the limitations period. For\\n\\nthe reasons set forth below, we vacate the District Court’s order and remand for\\n\\nfurther proceedings.\\n\\n I.\\n\\n Hall was convicted of one count of capital sexual battery1 and one count of\\n\\nresisting arrest or obstructing an officer without violence by a Polk County jury in\\n\\n2010. He appealed, and the state appellate court affirmed his convictions and\\n\\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\\n\\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\\n\\nUnited States for a writ of certiorari. Thus, his conviction became final for\\n\\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\\n\\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\\n\\n90-day window during which petitioner could have petitioned the Supreme Court\\n\\n\\n\\n\\n 1\\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\\n775.082(2).\\n 2\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 3 of 17\\n\\n\\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\\n\\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\\n\\n On April 11, 2013—289 days after the AEDPA limitations period began to\\n\\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\\n\\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\\n\\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\\n\\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\\n\\npostconviction motion is pending for AEDPA purposes during the period between\\n\\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\\n\\nthat decision). The state appellate court issued its mandate on December 26, 2013,\\n\\nthus restarting Hall’s AEDPA clock with 76 remaining days.\\n\\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\\n\\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\\n\\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\\n\\nraised eight claims of ineffective assistance counsel, the same claims Hall would\\n\\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\\n\\n3.850(n)(2), which required Hall to certify that he could understand English or that\\n\\nhe’d had the motion translated into a language he could understand. Consequently,\\n\\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\\n\\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\\n\\n\\n 3\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 4 of 17\\n\\n\\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\\n\\nsecond amended motion for postconviction relief as the court instructed on\\n\\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\\n\\non appeal. The state appellate court issued its mandate on December 4, 2014.\\n\\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\\n\\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\\n\\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\\n\\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\\n\\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\\n\\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\\n\\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\\n\\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\\n\\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\\n\\nleaving him only 16 days once the state court disposed of that motion. And\\n\\nbecause the state court issued its mandate on the Rule 3.850 motion on December\\n\\n\\n\\n\\n 2\\n It looks like the State reached this date by simply adding three months to March 26,\\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\\nproblem with this method of computing when Hall’s conviction became final for AEDPA\\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\\n 4\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 5 of 17\\n\\n\\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\\n\\nfiled his § 2254 petition on January 13, 2015.\\n\\n The District Court agreed with the State and dismissed Hall’s motion. Hall\\n\\ntimely appealed.\\n\\n II.\\n\\n We review de novo the dismissal of a federal habeas petition as time barred\\n\\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\\n\\n1155 (11th Cir. 2014).\\n\\n AEDPA establishes a one-year statute of limitations for federal habeas\\n\\npetitions filed by state prisoners, which runs from “the date on which the judgment\\n\\nbecame final by the conclusion of direct review or the expiration of the time for\\n\\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\\n\\nreview includes the 90-day window in which the petitioner could have petitioned\\n\\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\\n\\n774.\\n\\n As for tolling, the one-year limitations period for filing a § 2254 petition is\\n\\ntolled during the time in “which a properly filed application for State post-\\n\\n\\n\\n\\n 3\\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\\n 5\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 6 of 17\\n\\n\\nconviction or other collateral review with respect to the pertinent judgment or\\n\\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\\n\\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\\n\\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\\n\\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\\n\\nwe recognize the following as “application[s] for State post-conviction or other\\n\\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\\n\\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\\n\\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\\n\\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\\n\\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\\n\\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\\n\\n(per curiam). Any appeals filed in a state court from the denial of these motions\\n\\nalso qualify as “application[s] for State post-conviction or other collateral review.”\\n\\nSee Ford, 296 F.3d at 1040.\\n\\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\\n\\nfiled January 9, 2014, that was later dismissed because lacked the Rule 3.850(n)(2)\\n\\ncertification—tolled AEDPA’s statute of limitations. If it did, Hall had 62 days\\n\\nafter the state court ruled on it to file his § 2254 motion. But if the initial Rule\\n\\n3.850 did not toll the Hall’s AEDPA clock, he only had 16 days after the state\\n\\n\\n 6\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 7 of 17\\n\\n\\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\\n\\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\\n\\nwindow.\\n\\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\\n\\nwhether that motion was a “properly filed” application for state post-conviction\\n\\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\\n\\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\\n\\nfor post-conviction relief under Rule 3.850 must contain a certification from the\\n\\ndefendant that he understands English or that he has had the motion completely\\n\\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\\n\\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\\n\\nfails to comply with this requirement, one’s motion is not “properly filed” under\\n\\n§ 2244(d)(2).\\n\\n This is not the first occasion we’ve been asked to determine whether a\\n\\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\\n\\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\\n\\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\\n\\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\\n\\ncase, the state habeas court denied the petitioner’s motion without prejudice to\\n\\nrefile a timely and properly sworn motion, but the petitioner chose instead to\\n\\n\\n 7\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 8 of 17\\n\\n\\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\\n\\nhe lost his appeal—more than a year after his conviction became final under\\n\\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\\n\\nBut by then it was too late: we held that the one-year statute of limitations under\\n\\nAEDPA was not tolled because the original deficient motion was not properly\\n\\nfiled. Id. at 1298.\\n\\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\\n\\ninitially filed an amended motion that did not comply with the oath requirement\\n\\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\\n\\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\\n\\nso, and the state court denied his motion on the merits, which the state appellate\\n\\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\\n\\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\\n\\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\\n\\nstatute of limitations, because it was improperly sworn. Id. It was only when the\\n\\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\\n\\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\\n\\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\\n\\n§ 2254 motion. Id. at 1247.\\n\\n\\n\\n\\n 8\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 9 of 17\\n\\n\\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\\n\\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\\n\\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\\n\\nwhen a postconviction motion is stricken with leave to amend, the amended motion\\n\\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\\n\\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\\n\\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\\n\\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\\n\\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\\n\\npetition was timely. Id.\\n\\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\\n\\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\\n\\nAEDPA. But the state habeas court dismissed his motion without prejudice to\\n\\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\\n\\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\\n\\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\\n\\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\\n\\n3.850 motion.\\n\\n Of course, the State tries to escape that conclusion by arguing that Hall’s\\n\\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\\n\\n\\n 9\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 10 of 17\\n\\n\\nof limitations under AEDPA, a state postconviction application must be both\\n\\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\\n\\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\\n\\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\\n\\ndismissed motion and the properly sworn, substitute motion. Thus, the State\\n\\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\\n\\npurposes, and only it tolled the statute of limitations.\\n\\n There are a couple problems with this argument. First, even if we assume\\n\\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\\n\\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\\n\\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\\n\\ncorrected one—that is, the period of time in which there was no motion “pending”\\n\\nbefore the state court, according to this argument—was only 10 days: from\\n\\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\\n\\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\\n\\n\\n\\n 4\\n The State seems to think that its “pending” argument leads to the conclusion that the\\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\\nas follows:\\n 10\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 11 of 17\\n\\n\\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\\n\\nthe 10-day interval where nothing was “pending” before the state court, Hall had\\n\\nuntil January 26, 2015, to file his § 2254. Hall met that deadline, so his § 2254\\n\\nmotion was timely even if we accept the State’s argument.\\n\\n And that’s a big if. The State’s “pending” argument is based on the\\n\\n(admittedly intuitive) notion that a state postconviction motion is no longer\\n\\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\\n\\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\\n\\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\\n\\nprocedure Florida courts have developed for processing facially deficient\\n\\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\\n\\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\\n\\n\\n\\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\\n the trial court because the April 30 Motion had been struck from the record, it was\\n not ‘pending.’\\nId. at 1268–69 (emphasis added) (footnote omitted).\\n Even if we accepted the Overton approach, it would not get the State to its desired\\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\\nOverton.\\n 11\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 12 of 17\\n\\n\\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\\n\\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\\n\\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\\n\\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\\n\\nFlorida’s First District Court of Appeal explained how Spera works:\\n\\n The procedure articulated in Spera allows a defendant an\\n opportunity to amend facially insufficient postconviction claims\\n unless the claims cannot be corrected. Spera’s procedure applies\\n uniformly to all insufficiently pled postconviction claims whether\\n determined to be legally or facially insufficient. The trial court has\\n discretion in determining the length of the defendant’s leave to amend\\n and Spera suggested thirty days would be reasonable.\\n ...\\n [B]ased upon Spera and Nelson v. State, once the window of\\n opportunity to amend expires and the defendant is unable or unwilling\\n to cure the deficiency, the insufficient claim may be denied with\\n prejudice.\\n\\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\\n\\ndismissing a facially insufficient postconviction motion without prejudice is not a\\n\\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\\n\\n2010). This rule—and the Spera procedure more generally—suggests that\\n\\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\\n\\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\\n\\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\\n\\n\\n\\n 5\\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\\n 12\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 13 of 17\\n\\n\\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\\n\\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\\n\\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\\n\\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\\n\\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\\n\\nhad until January 26, 2015, to file his § 2254 petition, see supra note 4, so his\\n\\nJanuary 13, 2015 § 2254 petition was timely.\\n\\n III.\\n\\n The District Court was wrong to conclude that Hall’s § 2254 motion was\\n\\ntime barred. We reverse and remand for proceedings consistent with this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 13\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 14 of 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387068/\", \"author_raw\": \"TJOFLAT, Circuit Judge:\"}, {\"author\": \"TJOFLAT, Circuit Judge, specially concurring\", \"type\": \"concurrence\", \"text\": \"TJOFLAT, Circuit Judge, specially concurring:\\n\\n I write separately to draw the Court’s attention to our practice of incorrectly\\n\\napplying Bond v. Moore to Florida habeas petitioners. The District Court in this\\n\\ncase concluded that Hall’s conviction became final for AEDPA purposes on June\\n\\n26, 2012—that is, 90 days after the Florida District Court of Appeal affirmed his\\n\\nconviction. This conclusion rested on Bond v. Moore, 309 F.3d 770 (11th Cir.\\n\\n2002), where this Court held that AEDPA’s limitations period does not begin to\\n\\nrun until the expiration of the 90-day window in which the petitioner could have\\n\\npetitioned the Supreme Court of the United States for a writ of certiorari on direct\\n\\nreview. Id. at 774.\\n\\n But in this case, unlike in Bond, 1 Hall never sought review of his conviction\\n\\nby the Florida Supreme Court. This means that Hall was not entitled to the 90-day\\n\\nextension Bond requires because the decision of the Florida District Court of\\n\\nAppeal was not a “[f]inal judgment[] or decree[] rendered by the highest court of a\\n\\nState in which a decision could be had.” 28 U.S.C. § 1257(a); see also Pugh v.\\n\\nSmith, 465 F.3d 1295, 1300 (11th Cir. 2006) (holding that the petitioner was not\\n\\nentitled to the 90-day extension because, given that had not sought review by the\\n\\nSupreme Court of Georgia, he could not seek certiorari review by the Supreme\\n\\n\\n\\n 1\\n In Bond, the petitioner sought discretionary review of his conviction by the Florida\\nSupreme Court, but review was denied. Id. at 771–72 (quoting Bond v. State, 684 So. 2d 1350,\\n1350 (Fla. 1996) (unpublished table opinion)).\\n 14\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 15 of 17\\n\\n\\nCourt). As the Supreme Court has repeatedly held, a petitioner must—in the\\n\\nabsence of a statutory or constitutional bar to higher state court review, see, e.g.,\\n\\nThompson v. City of Louisville, 362 U.S. 199, 202, 80 S. Ct. 624, 627 (1960)\\n\\n(certiorari to local police court whose decisions were not otherwise appealable\\n\\nwithin the state court system)—seek review in the state’s highest court before\\n\\nfiling a petition for certiorari.2 In this Circuit, by contrast, we seem to assume that\\n\\na petitioner seeking federal habeas review of a conviction imposed by a Florida\\n\\ncourt is entitled to Bond’s 90-day extension—which necessarily assumes that he\\n\\ncould have petitioned the Supreme Court for certiorari review—regardless of\\n\\nwhether he sought direct review of his conviction by the Florida Supreme Court.\\n\\nSee, e.g., Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275–76 (11th Cir.\\n\\n2006) (per curiam) (holding that petitioner’s sentence became final under AEDPA\\n\\n90 days after his conviction was affirmed by the Florida Fourth District Court of\\n\\nAppeal).\\n\\n For the reasons explained in Pugh v. Smith, this practice makes little sense.\\n\\nSection 2244(d)(1) says that AEDPA’s one-year limitations period “shall run,” in\\n\\ncircumstances like these, “from . . . the date on which the judgment became final\\n\\n\\n\\n\\n 2\\n See, e.g., Kuhns v. California, 419 U.S. 1066, 1066, 95 S. Ct. 652, 652 (1974) (mem.);\\nSandquist v. California, 419 U.S. 1066, 1066, 95 S. Ct. 651, 651 (1974) (mem.); Gotthilf v. Sills,\\n375 U.S. 79, 80, 84 S. Ct. 187, 188 (1963) (per curiam); Parker v. Illinois, 333 U.S. 571, 575–\\n76, 68 S. Ct. 708, 710 (1948).\\n 15\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 16 of 17\\n\\n\\nby the conclusion of direct review or the expiration of the time for seeking such\\n\\nreview.” 28 U.S.C. § 2244(d)(1)(A). In Florida, a non-capital defendant has 30\\n\\ndays after the District Court of Appeal affirms his conviction to seek discretionary\\n\\nreview by the Florida Supreme Court. Fla. R. App. P. 9.120(b). If a defendant\\n\\nchooses not to seek such review, the date on which his “judgment became final by .\\n\\n. . the expiration of the time for seeking [direct] review,” § 2244(d)(1)(A), is 30—\\n\\nnot 90—days after his conviction was affirmed by the District Court of Appeal.\\n\\nCf. Pugh, 465 F.3d at 1298–1300. In other words, a Florida defendant who seeks\\n\\nreview by the Florida Supreme Court is entitled to the additional 90 days that Bond\\n\\nprovides, but a Florida defendant whose direct review ends at the District Court of\\n\\nAppeal is entitled only to 30.\\n\\n Neither the District Court nor the State raised this issue. 3 And because\\n\\nAEDPA’s statute of limitations is not jurisdictional, San Martin v. McNeil, 633\\n\\nF.3d 1257, 1267 (11th Cir. 2011) (citation omitted), the State waived this\\n\\nargument, see Sec’y, U.S. Dep’t of Labor v. Preston, 873 F.3d 877, 881 (11th Cir.\\n\\n2017) (noting that “waiver is permissible” when a statute of limitations does not\\n\\n“limit[] courts’ subject matter jurisdiction”) (citation omitted). But, when the\\n\\n\\n\\n 3\\n The State probably declined to make this argument because we have precedent applying\\nBond’s 90-day extension to petitioners whose direct review ended in the District Court of\\nAppeal. See Chavers, 468 F.3d at 1275–76. If the State had made and prevailed on this\\nargument, Hall’s petition would be untimely. See Maj. Op. at 12 (explaining that Hall’s § 2254\\npetition was timely by 13 days).\\n 16\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 17 of 17\\n\\n\\nappropriate case comes along, we should examine whether our blanket application\\n\\nof Bond is consistent with Pugh and, more generally, the text of § 2244(d)(1)(A).\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387068/\", \"author_raw\": \"TJOFLAT, Circuit Judge, specially concurring\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"MARCUS"},"judge3":{"kind":"string","value":"ROSENBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4609815/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Wyndel R. HALL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10767 Date Filed: 04/12/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-10767\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\n\nWYNDEL R. HALL,\n Petitioner-Appellant,\n\n versus\n\nSECRETARY, DEPARTMENT OF CORRECTIONS,\nATTORNEY GENERAL, STATE OF FLORIDA,\n Respondents-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 12, 2019)\n\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\n\nTJOFLAT, Circuit Judge:\n\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\n\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\n\nhe argues that the District Court erred by failing to toll the statute of limitations of\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 2 of 17\n\n\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\n\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\n\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\n\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\n\nmotion related back to his deficient motion, thus tolling the limitations period. For\n\nthe reasons set forth below, we vacate the District Court’s order and remand for\n\nfurther proceedings.\n\n I.\n\n Hall was convicted of one count of capital sexual battery1 and one count of\n\nresisting arrest or obstructing an officer without violence by a Polk County jury in\n\n2010. He appealed, and the state appellate court affirmed his convictions and\n\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\n\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\n\nUnited States for a writ of certiorari. Thus, his conviction became final for\n\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\n\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\n\n90-day window during which petitioner could have petitioned the Supreme Court\n\n\n\n\n 1\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\n775.082(2).\n 2\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 3 of 17\n\n\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\n\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\n\n On April 11, 2013—289 days after the AEDPA limitations period began to\n\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\n\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\n\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\n\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\n\npostconviction motion is pending for AEDPA purposes during the period between\n\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\n\nthat decision). The state appellate court issued its mandate on December 26, 2013,\n\nthus restarting Hall’s AEDPA clock with 76 remaining days.\n\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\n\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\n\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\n\nraised eight claims of ineffective assistance counsel, the same claims Hall would\n\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\n\n3.850(n)(2), which required Hall to certify that he could understand English or that\n\nhe’d had the motion translated into a language he could understand. Consequently,\n\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\n\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\n\n\n 3\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 4 of 17\n\n\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\n\nsecond amended motion for postconviction relief as the court instructed on\n\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\n\non appeal. The state appellate court issued its mandate on December 4, 2014.\n\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\n\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\n\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\n\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\n\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\n\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\n\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\n\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\n\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\n\nleaving him only 16 days once the state court disposed of that motion. And\n\nbecause the state court issued its mandate on the Rule 3.850 motion on December\n\n\n\n\n 2\n It looks like the State reached this date by simply adding three months to March 26,\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\nproblem with this method of computing when Hall’s conviction became final for AEDPA\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\n 4\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 5 of 17\n\n\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\n\nfiled his § 2254 petition on January 13, 2015.\n\n The District Court agreed with the State and dismissed Hall’s motion. Hall\n\ntimely appealed.\n\n II.\n\n We review de novo the dismissal of a federal habeas petition as time barred\n\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\n\n1155 (11th Cir. 2014).\n\n AEDPA establishes a one-year statute of limitations for federal habeas\n\npetitions filed by state prisoners, which runs from “the date on which the judgment\n\nbecame final by the conclusion of direct review or the expiration of the time for\n\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\n\nreview includes the 90-day window in which the petitioner could have petitioned\n\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\n\n774.\n\n As for tolling, the one-year limitations period for filing a § 2254 petition is\n\ntolled during the time in “which a properly filed application for State post-\n\n\n\n\n 3\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\n 5\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 6 of 17\n\n\nconviction or other collateral review with respect to the pertinent judgment or\n\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\n\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\n\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\n\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\n\nwe recognize the following as “application[s] for State post-conviction or other\n\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\n\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\n\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\n\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\n\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\n\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\n\n(per curiam). Any appeals filed in a state court from the denial of these motions\n\nalso qualify as “application[s] for State post-conviction or other collateral review.”\n\nSee Ford, 296 F.3d at 1040.\n\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\n\nfiled January 9, 2014, that was later dismissed because lacked the Rule 3.850(n)(2)\n\ncertification—tolled AEDPA’s statute of limitations. If it did, Hall had 62 days\n\nafter the state court ruled on it to file his § 2254 motion. But if the initial Rule\n\n3.850 did not toll the Hall’s AEDPA clock, he only had 16 days after the state\n\n\n 6\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 7 of 17\n\n\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\n\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\n\nwindow.\n\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\n\nwhether that motion was a “properly filed” application for state post-conviction\n\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\n\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\n\nfor post-conviction relief under Rule 3.850 must contain a certification from the\n\ndefendant that he understands English or that he has had the motion completely\n\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\n\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\n\nfails to comply with this requirement, one’s motion is not “properly filed” under\n\n§ 2244(d)(2).\n\n This is not the first occasion we’ve been asked to determine whether a\n\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\n\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\n\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\n\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\n\ncase, the state habeas court denied the petitioner’s motion without prejudice to\n\nrefile a timely and properly sworn motion, but the petitioner chose instead to\n\n\n 7\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 8 of 17\n\n\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\n\nhe lost his appeal—more than a year after his conviction became final under\n\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\n\nBut by then it was too late: we held that the one-year statute of limitations under\n\nAEDPA was not tolled because the original deficient motion was not properly\n\nfiled. Id. at 1298.\n\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\n\ninitially filed an amended motion that did not comply with the oath requirement\n\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\n\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\n\nso, and the state court denied his motion on the merits, which the state appellate\n\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\n\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\n\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\n\nstatute of limitations, because it was improperly sworn. Id. It was only when the\n\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\n\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\n\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\n\n§ 2254 motion. Id. at 1247.\n\n\n\n\n 8\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 9 of 17\n\n\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\n\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\n\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\n\nwhen a postconviction motion is stricken with leave to amend, the amended motion\n\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\n\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\n\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\n\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\n\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\n\npetition was timely. Id.\n\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\n\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\n\nAEDPA. But the state habeas court dismissed his motion without prejudice to\n\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\n\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\n\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\n\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\n\n3.850 motion.\n\n Of course, the State tries to escape that conclusion by arguing that Hall’s\n\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\n\n\n 9\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 10 of 17\n\n\nof limitations under AEDPA, a state postconviction application must be both\n\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\n\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\n\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\n\ndismissed motion and the properly sworn, substitute motion. Thus, the State\n\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\n\npurposes, and only it tolled the statute of limitations.\n\n There are a couple problems with this argument. First, even if we assume\n\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\n\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\n\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\n\ncorrected one—that is, the period of time in which there was no motion “pending”\n\nbefore the state court, according to this argument—was only 10 days: from\n\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\n\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\n\n\n\n 4\n The State seems to think that its “pending” argument leads to the conclusion that the\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\nas follows:\n 10\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 11 of 17\n\n\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\n\nthe 10-day interval where nothing was “pending” before the state court, Hall had\n\nuntil January 26, 2015, to file his § 2254. Hall met that deadline, so his § 2254\n\nmotion was timely even if we accept the State’s argument.\n\n And that’s a big if. The State’s “pending” argument is based on the\n\n(admittedly intuitive) notion that a state postconviction motion is no longer\n\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\n\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\n\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\n\nprocedure Florida courts have developed for processing facially deficient\n\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\n\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\n\n\n\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\n the trial court because the April 30 Motion had been struck from the record, it was\n not ‘pending.’\nId. at 1268–69 (emphasis added) (footnote omitted).\n Even if we accepted the Overton approach, it would not get the State to its desired\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\nOverton.\n 11\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 12 of 17\n\n\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\n\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\n\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\n\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\n\nFlorida’s First District Court of Appeal explained how Spera works:\n\n The procedure articulated in Spera allows a defendant an\n opportunity to amend facially insufficient postconviction claims\n unless the claims cannot be corrected. Spera’s procedure applies\n uniformly to all insufficiently pled postconviction claims whether\n determined to be legally or facially insufficient. The trial court has\n discretion in determining the length of the defendant’s leave to amend\n and Spera suggested thirty days would be reasonable.\n ...\n [B]ased upon Spera and Nelson v. State, once the window of\n opportunity to amend expires and the defendant is unable or unwilling\n to cure the deficiency, the insufficient claim may be denied with\n prejudice.\n\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\n\ndismissing a facially insufficient postconviction motion without prejudice is not a\n\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\n\n2010). This rule—and the Spera procedure more generally—suggests that\n\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\n\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\n\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\n\n\n\n 5\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\n 12\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 13 of 17\n\n\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\n\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\n\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\n\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\n\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\n\nhad until January 26, 2015, to file his § 2254 petition, see supra note 4, so his\n\nJanuary 13, 2015 § 2254 petition was timely.\n\n III.\n\n The District Court was wrong to conclude that Hall’s § 2254 motion was\n\ntime barred. We reverse and remand for proceedings consistent with this opinion.\n\n REVERSED AND REMANDED.\n\n\n\n\n 13\n\n Case: 18-10767 Date Filed: 04/12/2019 Page: 14 of 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Wyndel R. HALL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10767 Date Filed: 04/12/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10767\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\\n\\nWYNDEL R. HALL,\\n Petitioner-Appellant,\\n\\n versus\\n\\nSECRETARY, DEPARTMENT OF CORRECTIONS,\\nATTORNEY GENERAL, STATE OF FLORIDA,\\n Respondents-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 12, 2019)\\n\\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\\n\\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\\n\\nhe argues that the District Court erred by failing to toll the statute of limitations of\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 2 of 17\\n\\n\\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\\n\\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\\n\\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\\n\\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\\n\\nmotion related back to his deficient motion, thus tolling the limitations period. For\\n\\nthe reasons set forth below, we vacate the District Court’s order and remand for\\n\\nfurther proceedings.\\n\\n I.\\n\\n Hall was convicted of one count of capital sexual battery1 and one count of\\n\\nresisting arrest or obstructing an officer without violence by a Polk County jury in\\n\\n2010. He appealed, and the state appellate court affirmed his convictions and\\n\\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\\n\\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\\n\\nUnited States for a writ of certiorari. Thus, his conviction became final for\\n\\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\\n\\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\\n\\n90-day window during which petitioner could have petitioned the Supreme Court\\n\\n\\n\\n\\n 1\\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\\n775.082(2).\\n 2\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 3 of 17\\n\\n\\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\\n\\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\\n\\n On April 11, 2013—289 days after the AEDPA limitations period began to\\n\\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\\n\\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\\n\\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\\n\\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\\n\\npostconviction motion is pending for AEDPA purposes during the period between\\n\\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\\n\\nthat decision). The state appellate court issued its mandate on December 26, 2013,\\n\\nthus restarting Hall’s AEDPA clock with 76 remaining days.\\n\\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\\n\\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\\n\\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\\n\\nraised eight claims of ineffective assistance counsel, the same claims Hall would\\n\\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\\n\\n3.850(n)(2), which required Hall to certify that he could understand English or that\\n\\nhe’d had the motion translated into a language he could understand. Consequently,\\n\\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\\n\\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\\n\\n\\n 3\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 4 of 17\\n\\n\\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\\n\\nsecond amended motion for postconviction relief as the court instructed on\\n\\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\\n\\non appeal. The state appellate court issued its mandate on December 4, 2014.\\n\\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\\n\\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\\n\\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\\n\\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\\n\\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\\n\\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\\n\\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\\n\\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\\n\\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\\n\\nleaving him only 16 days once the state court disposed of that motion. And\\n\\nbecause the state court issued its mandate on the Rule 3.850 motion on December\\n\\n\\n\\n\\n 2\\n It looks like the State reached this date by simply adding three months to March 26,\\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\\nproblem with this method of computing when Hall’s conviction became final for AEDPA\\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\\n 4\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 5 of 17\\n\\n\\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\\n\\nfiled his § 2254 petition on January 13, 2015.\\n\\n The District Court agreed with the State and dismissed Hall’s motion. Hall\\n\\ntimely appealed.\\n\\n II.\\n\\n We review de novo the dismissal of a federal habeas petition as time barred\\n\\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\\n\\n1155 (11th Cir. 2014).\\n\\n AEDPA establishes a one-year statute of limitations for federal habeas\\n\\npetitions filed by state prisoners, which runs from “the date on which the judgment\\n\\nbecame final by the conclusion of direct review or the expiration of the time for\\n\\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\\n\\nreview includes the 90-day window in which the petitioner could have petitioned\\n\\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\\n\\n774.\\n\\n As for tolling, the one-year limitations period for filing a § 2254 petition is\\n\\ntolled during the time in “which a properly filed application for State post-\\n\\n\\n\\n\\n 3\\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\\n 5\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 6 of 17\\n\\n\\nconviction or other collateral review with respect to the pertinent judgment or\\n\\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\\n\\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\\n\\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\\n\\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\\n\\nwe recognize the following as “application[s] for State post-conviction or other\\n\\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\\n\\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\\n\\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\\n\\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\\n\\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\\n\\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\\n\\n(per curiam). Any appeals filed in a state court from the denial of these motions\\n\\nalso qualify as “application[s] for State post-conviction or other collateral review.”\\n\\nSee Ford, 296 F.3d at 1040.\\n\\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\\n\\nfiled January 9, 2014, that was later dismissed because lacked the Rule 3.850(n)(2)\\n\\ncertification—tolled AEDPA’s statute of limitations. If it did, Hall had 62 days\\n\\nafter the state court ruled on it to file his § 2254 motion. But if the initial Rule\\n\\n3.850 did not toll the Hall’s AEDPA clock, he only had 16 days after the state\\n\\n\\n 6\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 7 of 17\\n\\n\\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\\n\\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\\n\\nwindow.\\n\\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\\n\\nwhether that motion was a “properly filed” application for state post-conviction\\n\\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\\n\\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\\n\\nfor post-conviction relief under Rule 3.850 must contain a certification from the\\n\\ndefendant that he understands English or that he has had the motion completely\\n\\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\\n\\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\\n\\nfails to comply with this requirement, one’s motion is not “properly filed” under\\n\\n§ 2244(d)(2).\\n\\n This is not the first occasion we’ve been asked to determine whether a\\n\\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\\n\\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\\n\\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\\n\\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\\n\\ncase, the state habeas court denied the petitioner’s motion without prejudice to\\n\\nrefile a timely and properly sworn motion, but the petitioner chose instead to\\n\\n\\n 7\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 8 of 17\\n\\n\\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\\n\\nhe lost his appeal—more than a year after his conviction became final under\\n\\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\\n\\nBut by then it was too late: we held that the one-year statute of limitations under\\n\\nAEDPA was not tolled because the original deficient motion was not properly\\n\\nfiled. Id. at 1298.\\n\\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\\n\\ninitially filed an amended motion that did not comply with the oath requirement\\n\\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\\n\\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\\n\\nso, and the state court denied his motion on the merits, which the state appellate\\n\\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\\n\\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\\n\\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\\n\\nstatute of limitations, because it was improperly sworn. Id. It was only when the\\n\\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\\n\\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\\n\\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\\n\\n§ 2254 motion. Id. at 1247.\\n\\n\\n\\n\\n 8\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 9 of 17\\n\\n\\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\\n\\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\\n\\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\\n\\nwhen a postconviction motion is stricken with leave to amend, the amended motion\\n\\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\\n\\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\\n\\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\\n\\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\\n\\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\\n\\npetition was timely. Id.\\n\\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\\n\\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\\n\\nAEDPA. But the state habeas court dismissed his motion without prejudice to\\n\\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\\n\\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\\n\\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\\n\\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\\n\\n3.850 motion.\\n\\n Of course, the State tries to escape that conclusion by arguing that Hall’s\\n\\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\\n\\n\\n 9\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 10 of 17\\n\\n\\nof limitations under AEDPA, a state postconviction application must be both\\n\\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\\n\\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\\n\\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\\n\\ndismissed motion and the properly sworn, substitute motion. Thus, the State\\n\\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\\n\\npurposes, and only it tolled the statute of limitations.\\n\\n There are a couple problems with this argument. First, even if we assume\\n\\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\\n\\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\\n\\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\\n\\ncorrected one—that is, the period of time in which there was no motion “pending”\\n\\nbefore the state court, according to this argument—was only 10 days: from\\n\\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\\n\\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\\n\\n\\n\\n 4\\n The State seems to think that its “pending” argument leads to the conclusion that the\\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\\nas follows:\\n 10\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 11 of 17\\n\\n\\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\\n\\nthe 10-day interval where nothing was “pending” before the state court, Hall had\\n\\nuntil January 26, 2015, to file his § 2254. Hall met that deadline, so his § 2254\\n\\nmotion was timely even if we accept the State’s argument.\\n\\n And that’s a big if. The State’s “pending” argument is based on the\\n\\n(admittedly intuitive) notion that a state postconviction motion is no longer\\n\\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\\n\\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\\n\\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\\n\\nprocedure Florida courts have developed for processing facially deficient\\n\\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\\n\\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\\n\\n\\n\\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\\n the trial court because the April 30 Motion had been struck from the record, it was\\n not ‘pending.’\\nId. at 1268–69 (emphasis added) (footnote omitted).\\n Even if we accepted the Overton approach, it would not get the State to its desired\\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\\nOverton.\\n 11\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 12 of 17\\n\\n\\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\\n\\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\\n\\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\\n\\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\\n\\nFlorida’s First District Court of Appeal explained how Spera works:\\n\\n The procedure articulated in Spera allows a defendant an\\n opportunity to amend facially insufficient postconviction claims\\n unless the claims cannot be corrected. Spera’s procedure applies\\n uniformly to all insufficiently pled postconviction claims whether\\n determined to be legally or facially insufficient. The trial court has\\n discretion in determining the length of the defendant’s leave to amend\\n and Spera suggested thirty days would be reasonable.\\n ...\\n [B]ased upon Spera and Nelson v. State, once the window of\\n opportunity to amend expires and the defendant is unable or unwilling\\n to cure the deficiency, the insufficient claim may be denied with\\n prejudice.\\n\\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\\n\\ndismissing a facially insufficient postconviction motion without prejudice is not a\\n\\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\\n\\n2010). This rule—and the Spera procedure more generally—suggests that\\n\\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\\n\\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\\n\\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\\n\\n\\n\\n 5\\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\\n 12\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 13 of 17\\n\\n\\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\\n\\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\\n\\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\\n\\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\\n\\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\\n\\nhad until January 26, 2015, to file his § 2254 petition, see supra note 4, so his\\n\\nJanuary 13, 2015 § 2254 petition was timely.\\n\\n III.\\n\\n The District Court was wrong to conclude that Hall’s § 2254 motion was\\n\\ntime barred. We reverse and remand for proceedings consistent with this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 13\\n\\n Case: 18-10767 Date Filed: 04/12/2019 Page: 14 of 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1883,"cells":{"id":{"kind":"number","value":4610641,"string":"4,610,641"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Wyndel R. Hall v. Secretary, Department of Corrections"},"decision_date":{"kind":"string","value":"2019-04-12"},"docket_number":{"kind":"string","value":"18-10767"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"TJOFLAT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"[PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10767\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\\n\\nWYNDEL R. HALL,\\n Petitioner-Appellant,\\n\\n versus\\n\\nSECRETARY, DEPARTMENT OF CORRECTIONS,\\nATTORNEY GENERAL, STATE OF FLORIDA,\\n Respondents-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 12, 2019)\\n\\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\\n\\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\\n\\nhe argues that the District Court erred by failing to toll the statute of limitations of\\n\\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\\n\\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\\n\\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\\n\\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\\n\\nmotion related back to his deficient motion, thus tolling the limitations period. For\\n\\nthe reasons set forth below, we vacate the District Court’s order and remand for\\n\\nfurther proceedings.\\n\\n I.\\n\\n Hall was convicted of one count of capital sexual battery1 and one count of\\n\\nresisting arrest or obstructing an officer without violence by a Polk County jury in\\n\\n2010. He appealed, and the state appellate court affirmed his convictions and\\n\\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\\n\\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\\n\\nUnited States for a writ of certiorari. Thus, his conviction became final for\\n\\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\\n\\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\\n\\n90-day window during which petitioner could have petitioned the Supreme Court\\n\\n\\n\\n\\n 1\\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\\n775.082(2).\\n 2\\n\\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\\n\\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\\n\\n On April 11, 2013—289 days after the AEDPA limitations period began to\\n\\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\\n\\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\\n\\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\\n\\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\\n\\npostconviction motion is pending for AEDPA purposes during the period between\\n\\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\\n\\nthat decision). The state appellate court issued its mandate on December 26, 2013,\\n\\nthus restarting Hall’s AEDPA clock with 76 remaining days.\\n\\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\\n\\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\\n\\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\\n\\nraised eight claims of ineffective assistance counsel, the same claims Hall would\\n\\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\\n\\n3.850(n)(2), which required Hall to certify that he could understand English or that\\n\\nhe’d had the motion translated into a language he could understand. Consequently,\\n\\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\\n\\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\\n\\n\\n 3\\n\\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\\n\\nsecond amended motion for postconviction relief as the court instructed on\\n\\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\\n\\non appeal. The state appellate court issued its mandate on December 4, 2014.\\n\\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\\n\\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\\n\\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\\n\\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\\n\\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\\n\\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\\n\\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\\n\\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\\n\\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\\n\\nleaving him only 16 days once the state court disposed of that motion. And\\n\\nbecause the state court issued its mandate on the Rule 3.850 motion on December\\n\\n\\n\\n\\n 2\\n It looks like the State reached this date by simply adding three months to March 26,\\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\\nproblem with this method of computing when Hall’s conviction became final for AEDPA\\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\\n 4\\n\\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\\n\\nfiled his § 2254 petition on January 13, 2015.\\n\\n The District Court agreed with the State and dismissed Hall’s motion. Hall\\n\\ntimely appealed.\\n\\n II.\\n\\n We review de novo the dismissal of a federal habeas petition as time barred\\n\\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\\n\\n1155 (11th Cir. 2014).\\n\\n AEDPA establishes a one-year statute of limitations for federal habeas\\n\\npetitions filed by state prisoners, which runs from “the date on which the judgment\\n\\nbecame final by the conclusion of direct review or the expiration of the time for\\n\\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\\n\\nreview includes the 90-day window in which the petitioner could have petitioned\\n\\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\\n\\n774.\\n\\n As for tolling, the one-year limitations period for filing a § 2254 petition is\\n\\ntolled during the time in “which a properly filed application for State post-\\n\\n\\n\\n\\n 3\\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\\n 5\\n\\nconviction or other collateral review with respect to the pertinent judgment or\\n\\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\\n\\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\\n\\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\\n\\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\\n\\nwe recognize the following as “application[s] for State post-conviction or other\\n\\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\\n\\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\\n\\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\\n\\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\\n\\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\\n\\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\\n\\n(per curiam). Any appeals filed in a state court from the denial of these motions\\n\\nalso qualify as “application[s] for State post-conviction or other collateral review.”\\n\\nSee Ford, 296 F.3d at 1040.\\n\\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\\n\\nfiled January 9, 2014, that was later dismissed because it lacked the Rule\\n\\n3.850(n)(2) certification—tolled AEDPA’s statute of limitations. If it did, Hall had\\n\\n62 days after the state court ruled on it to file his § 2254 motion. But if the initial\\n\\nRule 3.850 did not toll Hall’s AEDPA clock, he only had 16 days after the state\\n\\n\\n 6\\n\\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\\n\\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\\n\\nwindow.\\n\\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\\n\\nwhether that motion was a “properly filed” application for state post-conviction\\n\\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\\n\\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\\n\\nfor post-conviction relief under Rule 3.850 must contain a certification from the\\n\\ndefendant that he understands English or that he has had the motion completely\\n\\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\\n\\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\\n\\nfails to comply with this requirement, one’s motion is not “properly filed” under\\n\\n§ 2244(d)(2).\\n\\n This is not the first occasion we’ve been asked to determine whether a\\n\\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\\n\\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\\n\\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\\n\\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\\n\\ncase, the state habeas court denied the petitioner’s motion without prejudice to\\n\\nrefile a timely and properly sworn motion, but the petitioner chose instead to\\n\\n\\n 7\\n\\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\\n\\nhe lost his appeal—more than a year after his conviction became final under\\n\\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\\n\\nBut by then it was too late: we held that the one-year statute of limitations under\\n\\nAEDPA was not tolled because the original deficient motion was not properly\\n\\nfiled. Id. at 1298.\\n\\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\\n\\ninitially filed an amended motion that did not comply with the oath requirement\\n\\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\\n\\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\\n\\nso, and the state court denied his motion on the merits, which the state appellate\\n\\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\\n\\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\\n\\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\\n\\nstatute of limitations, because it was improperly sworn. Id. It was only when the\\n\\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\\n\\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\\n\\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\\n\\n§ 2254 motion. Id. at 1247.\\n\\n\\n\\n\\n 8\\n\\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\\n\\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\\n\\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\\n\\nwhen a postconviction motion is stricken with leave to amend, the amended motion\\n\\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\\n\\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\\n\\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\\n\\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\\n\\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\\n\\npetition was timely. Id.\\n\\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\\n\\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\\n\\nAEDPA. But the state habeas court dismissed his motion without prejudice to\\n\\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\\n\\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\\n\\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\\n\\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\\n\\n3.850 motion.\\n\\n Of course, the State tries to escape that conclusion by arguing that Hall’s\\n\\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\\n\\n\\n 9\\n\\nof limitations under AEDPA, a state postconviction application must be both\\n\\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\\n\\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\\n\\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\\n\\ndismissed motion and the properly sworn, substitute motion. Thus, the State\\n\\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\\n\\npurposes, and only it tolled the statute of limitations.\\n\\n There are a couple problems with this argument. First, even if we assume\\n\\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\\n\\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\\n\\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\\n\\ncorrected one—that is, the period of time in which there was no motion “pending”\\n\\nbefore the state court, according to this argument—was only 10 days: from\\n\\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\\n\\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\\n\\n\\n\\n 4\\n The State seems to think that its “pending” argument leads to the conclusion that the\\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\\nas follows:\\n 10\\n\\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\\n\\nthe 10-day interval where nothing was “pending” before the state court, Hall had\\n\\nuntil January 26, 2015, to file his § 2254 motion. Hall met that deadline, so his\\n\\n§ 2254 motion was timely even if we accept the State’s argument.\\n\\n And that’s a big if. The State’s “pending” argument is based on the\\n\\n(admittedly intuitive) notion that a state postconviction motion is no longer\\n\\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\\n\\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\\n\\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\\n\\nprocedure Florida courts have developed for processing facially deficient\\n\\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\\n\\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\\n\\n\\n\\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\\n the trial court because the April 30 Motion had been struck from the record, it was\\n not ‘pending.’\\nId. at 1268–69 (emphasis added) (footnote omitted).\\n Even if we accepted the Overton approach, it would not get the State to its desired\\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\\nOverton.\\n 11\\n\\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\\n\\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\\n\\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\\n\\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\\n\\nFlorida’s First District Court of Appeal explained how Spera works:\\n\\n The procedure articulated in Spera allows a defendant an\\n opportunity to amend facially insufficient postconviction claims\\n unless the claims cannot be corrected. Spera’s procedure applies\\n uniformly to all insufficiently pled postconviction claims whether\\n determined to be legally or facially insufficient. The trial court has\\n discretion in determining the length of the defendant’s leave to amend\\n and Spera suggested thirty days would be reasonable.\\n ...\\n [B]ased upon Spera and Nelson v. State, once the window of\\n opportunity to amend expires and the defendant is unable or unwilling\\n to cure the deficiency, the insufficient claim may be denied with\\n prejudice.\\n\\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\\n\\ndismissing a facially insufficient postconviction motion without prejudice is not a\\n\\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\\n\\n2010). This rule—and the Spera procedure more generally—suggests that\\n\\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\\n\\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\\n\\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\\n\\n\\n\\n 5\\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\\n 12\\n\\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\\n\\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\\n\\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\\n\\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\\n\\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\\n\\nhad until February 4, 2015, to file his § 2254 petition, so his January 13, 2015\\n\\n§ 2254 petition was timely.\\n\\n III.\\n\\n The District Court was wrong to conclude that Hall’s § 2254 motion was\\n\\ntime barred. We reverse and remand for proceedings consistent with this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 13\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387894/\", \"author_raw\": \"TJOFLAT, Circuit Judge:\"}, {\"author\": \"TJOFLAT, Circuit Judge, specially concurring\", \"type\": \"concurrence\", \"text\": \"TJOFLAT, Circuit Judge, specially concurring:\\n\\n I write separately to draw the Court’s attention to our practice of incorrectly\\n\\napplying Bond v. Moore to Florida habeas petitioners. The District Court in this\\n\\ncase concluded that Hall’s conviction became final for AEDPA purposes on June\\n\\n26, 2012—that is, 90 days after the Florida District Court of Appeal affirmed his\\n\\nconviction. This conclusion rested on Bond v. Moore, 309 F.3d 770 (11th Cir.\\n\\n2002), where this Court held that AEDPA’s limitations period does not begin to\\n\\nrun until the expiration of the 90-day window in which the petitioner could have\\n\\npetitioned the Supreme Court of the United States for a writ of certiorari on direct\\n\\nreview. Id. at 774.\\n\\n But in this case, unlike in Bond, 1 Hall never sought review of his conviction\\n\\nby the Florida Supreme Court. This means that Hall was not entitled to the 90-day\\n\\nextension Bond requires because the decision of the Florida District Court of\\n\\nAppeal was not a “[f]inal judgment[] or decree[] rendered by the highest court of a\\n\\nState in which a decision could be had.” 28 U.S.C. § 1257(a); see also Pugh v.\\n\\nSmith, 465 F.3d 1295, 1300 (11th Cir. 2006) (holding that the petitioner was not\\n\\nentitled to the 90-day extension because, given that had not sought review by the\\n\\nSupreme Court of Georgia, he could not seek certiorari review by the Supreme\\n\\n\\n\\n 1\\n In Bond, the petitioner sought discretionary review of his conviction by the Florida\\nSupreme Court, but review was denied. Id. at 771–72 (quoting Bond v. State, 684 So. 2d 1350,\\n1350 (Fla. 1996) (unpublished table opinion)).\\n 14\\n\\nCourt). As the Supreme Court has repeatedly held, a petitioner must—in the\\n\\nabsence of a statutory or constitutional bar to higher state court review, see, e.g.,\\n\\nThompson v. City of Louisville, 362 U.S. 199, 202, 80 S. Ct. 624, 627 (1960)\\n\\n(certiorari to local police court whose decisions were not otherwise appealable\\n\\nwithin the state court system)—seek review in the state’s highest court before\\n\\nfiling a petition for certiorari.2 In this Circuit, by contrast, we seem to assume that\\n\\na petitioner seeking federal habeas review of a conviction imposed by a Florida\\n\\ncourt is entitled to Bond’s 90-day extension—which necessarily assumes that he\\n\\ncould have petitioned the Supreme Court for certiorari review—regardless of\\n\\nwhether he sought direct review of his conviction by the Florida Supreme Court.\\n\\nSee, e.g., Chavers v. Sec’y, Fla. Dep’t of Corr., 468 F.3d 1273, 1275–76 (11th Cir.\\n\\n2006) (per curiam) (holding that petitioner’s sentence became final under AEDPA\\n\\n90 days after his conviction was affirmed by the Florida Fourth District Court of\\n\\nAppeal).\\n\\n For the reasons explained in Pugh v. Smith, this practice makes little sense.\\n\\nSection 2244(d)(1) says that AEDPA’s one-year limitations period “shall run,” in\\n\\ncircumstances like these, “from . . . the date on which the judgment became final\\n\\n\\n\\n\\n 2\\n See, e.g., Kuhns v. California, 419 U.S. 1066, 1066, 95 S. Ct. 652, 652 (1974) (mem.);\\nSandquist v. California, 419 U.S. 1066, 1066, 95 S. Ct. 651, 651 (1974) (mem.); Gotthilf v. Sills,\\n375 U.S. 79, 80, 84 S. Ct. 187, 188 (1963) (per curiam); Parker v. Illinois, 333 U.S. 571, 575–\\n76, 68 S. Ct. 708, 710 (1948).\\n 15\\n\\nby the conclusion of direct review or the expiration of the time for seeking such\\n\\nreview.” 28 U.S.C. § 2244(d)(1)(A). In Florida, a non-capital defendant has 30\\n\\ndays after the District Court of Appeal affirms his conviction to seek discretionary\\n\\nreview by the Florida Supreme Court. Fla. R. App. P. 9.120(b). If a defendant\\n\\nchooses not to seek such review, the date on which his “judgment became final by .\\n\\n. . the expiration of the time for seeking [direct] review,” § 2244(d)(1)(A), is 30—\\n\\nnot 90—days after his conviction was affirmed by the District Court of Appeal.\\n\\nCf. Pugh, 465 F.3d at 1298–1300. In other words, a Florida defendant who seeks\\n\\nreview by the Florida Supreme Court is entitled to the additional 90 days that Bond\\n\\nprovides, but a Florida defendant whose direct review ends at the District Court of\\n\\nAppeal is entitled only to 30.\\n\\n Neither the District Court nor the State raised this issue. 3 And because\\n\\nAEDPA’s statute of limitations is not jurisdictional, San Martin v. McNeil, 633\\n\\nF.3d 1257, 1267 (11th Cir. 2011) (citation omitted), the State waived this\\n\\nargument, see Sec’y, U.S. Dep’t of Labor v. Preston, 873 F.3d 877, 881 (11th Cir.\\n\\n2017) (noting that “waiver is permissible” when a statute of limitations does not\\n\\n“limit[] courts’ subject matter jurisdiction”) (citation omitted). But, when the\\n\\n\\n\\n 3\\n The State probably declined to make this argument because we have precedent applying\\nBond’s 90-day extension to petitioners whose direct review ended in the District Court of\\nAppeal. See Chavers, 468 F.3d at 1275–76. If the State had made and prevailed on this\\nargument, Hall’s petition would be untimely. See Maj. Op. at 12 (explaining that Hall’s § 2254\\npetition was timely by 13 days).\\n 16\\n\\nappropriate case comes along, we should examine whether our blanket application\\n\\nof Bond is consistent with Pugh and, more generally, the text of § 2244(d)(1)(A).\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387894/\", \"author_raw\": \"TJOFLAT, Circuit Judge, specially concurring\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"MARCUS"},"judge3":{"kind":"string","value":"ROSENBAUM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"TJOFLAT\": \", Circuit\", \"MARCUS\": \", Circuit\", \"ROSENBAUM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4610641/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Wyndel R. Hall v. Secretary, Department of Corrections\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n[PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-10767\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\n\nWYNDEL R. HALL,\n Petitioner-Appellant,\n\n versus\n\nSECRETARY, DEPARTMENT OF CORRECTIONS,\nATTORNEY GENERAL, STATE OF FLORIDA,\n Respondents-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 12, 2019)\n\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\n\nTJOFLAT, Circuit Judge:\n\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\n\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\n\nhe argues that the District Court erred by failing to toll the statute of limitations of\n\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\n\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\n\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\n\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\n\nmotion related back to his deficient motion, thus tolling the limitations period. For\n\nthe reasons set forth below, we vacate the District Court’s order and remand for\n\nfurther proceedings.\n\n I.\n\n Hall was convicted of one count of capital sexual battery1 and one count of\n\nresisting arrest or obstructing an officer without violence by a Polk County jury in\n\n2010. He appealed, and the state appellate court affirmed his convictions and\n\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\n\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\n\nUnited States for a writ of certiorari. Thus, his conviction became final for\n\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\n\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\n\n90-day window during which petitioner could have petitioned the Supreme Court\n\n\n\n\n 1\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\n775.082(2).\n 2\n\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\n\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\n\n On April 11, 2013—289 days after the AEDPA limitations period began to\n\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\n\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\n\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\n\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\n\npostconviction motion is pending for AEDPA purposes during the period between\n\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\n\nthat decision). The state appellate court issued its mandate on December 26, 2013,\n\nthus restarting Hall’s AEDPA clock with 76 remaining days.\n\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\n\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\n\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\n\nraised eight claims of ineffective assistance counsel, the same claims Hall would\n\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\n\n3.850(n)(2), which required Hall to certify that he could understand English or that\n\nhe’d had the motion translated into a language he could understand. Consequently,\n\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\n\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\n\n\n 3\n\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\n\nsecond amended motion for postconviction relief as the court instructed on\n\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\n\non appeal. The state appellate court issued its mandate on December 4, 2014.\n\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\n\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\n\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\n\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\n\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\n\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\n\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\n\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\n\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\n\nleaving him only 16 days once the state court disposed of that motion. And\n\nbecause the state court issued its mandate on the Rule 3.850 motion on December\n\n\n\n\n 2\n It looks like the State reached this date by simply adding three months to March 26,\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\nproblem with this method of computing when Hall’s conviction became final for AEDPA\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\n 4\n\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\n\nfiled his § 2254 petition on January 13, 2015.\n\n The District Court agreed with the State and dismissed Hall’s motion. Hall\n\ntimely appealed.\n\n II.\n\n We review de novo the dismissal of a federal habeas petition as time barred\n\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\n\n1155 (11th Cir. 2014).\n\n AEDPA establishes a one-year statute of limitations for federal habeas\n\npetitions filed by state prisoners, which runs from “the date on which the judgment\n\nbecame final by the conclusion of direct review or the expiration of the time for\n\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\n\nreview includes the 90-day window in which the petitioner could have petitioned\n\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\n\n774.\n\n As for tolling, the one-year limitations period for filing a § 2254 petition is\n\ntolled during the time in “which a properly filed application for State post-\n\n\n\n\n 3\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\n 5\n\nconviction or other collateral review with respect to the pertinent judgment or\n\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\n\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\n\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\n\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\n\nwe recognize the following as “application[s] for State post-conviction or other\n\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\n\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\n\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\n\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\n\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\n\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\n\n(per curiam). Any appeals filed in a state court from the denial of these motions\n\nalso qualify as “application[s] for State post-conviction or other collateral review.”\n\nSee Ford, 296 F.3d at 1040.\n\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\n\nfiled January 9, 2014, that was later dismissed because it lacked the Rule\n\n3.850(n)(2) certification—tolled AEDPA’s statute of limitations. If it did, Hall had\n\n62 days after the state court ruled on it to file his § 2254 motion. But if the initial\n\nRule 3.850 did not toll Hall’s AEDPA clock, he only had 16 days after the state\n\n\n 6\n\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\n\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\n\nwindow.\n\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\n\nwhether that motion was a “properly filed” application for state post-conviction\n\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\n\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\n\nfor post-conviction relief under Rule 3.850 must contain a certification from the\n\ndefendant that he understands English or that he has had the motion completely\n\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\n\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\n\nfails to comply with this requirement, one’s motion is not “properly filed” under\n\n§ 2244(d)(2).\n\n This is not the first occasion we’ve been asked to determine whether a\n\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\n\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\n\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\n\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\n\ncase, the state habeas court denied the petitioner’s motion without prejudice to\n\nrefile a timely and properly sworn motion, but the petitioner chose instead to\n\n\n 7\n\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\n\nhe lost his appeal—more than a year after his conviction became final under\n\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\n\nBut by then it was too late: we held that the one-year statute of limitations under\n\nAEDPA was not tolled because the original deficient motion was not properly\n\nfiled. Id. at 1298.\n\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\n\ninitially filed an amended motion that did not comply with the oath requirement\n\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\n\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\n\nso, and the state court denied his motion on the merits, which the state appellate\n\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\n\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\n\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\n\nstatute of limitations, because it was improperly sworn. Id. It was only when the\n\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\n\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\n\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\n\n§ 2254 motion. Id. at 1247.\n\n\n\n\n 8\n\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\n\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\n\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\n\nwhen a postconviction motion is stricken with leave to amend, the amended motion\n\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\n\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\n\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\n\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\n\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\n\npetition was timely. Id.\n\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\n\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\n\nAEDPA. But the state habeas court dismissed his motion without prejudice to\n\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\n\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\n\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\n\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\n\n3.850 motion.\n\n Of course, the State tries to escape that conclusion by arguing that Hall’s\n\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\n\n\n 9\n\nof limitations under AEDPA, a state postconviction application must be both\n\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\n\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\n\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\n\ndismissed motion and the properly sworn, substitute motion. Thus, the State\n\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\n\npurposes, and only it tolled the statute of limitations.\n\n There are a couple problems with this argument. First, even if we assume\n\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\n\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\n\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\n\ncorrected one—that is, the period of time in which there was no motion “pending”\n\nbefore the state court, according to this argument—was only 10 days: from\n\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\n\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\n\n\n\n 4\n The State seems to think that its “pending” argument leads to the conclusion that the\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\nas follows:\n 10\n\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\n\nthe 10-day interval where nothing was “pending” before the state court, Hall had\n\nuntil January 26, 2015, to file his § 2254 motion. Hall met that deadline, so his\n\n§ 2254 motion was timely even if we accept the State’s argument.\n\n And that’s a big if. The State’s “pending” argument is based on the\n\n(admittedly intuitive) notion that a state postconviction motion is no longer\n\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\n\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\n\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\n\nprocedure Florida courts have developed for processing facially deficient\n\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\n\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\n\n\n\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\n the trial court because the April 30 Motion had been struck from the record, it was\n not ‘pending.’\nId. at 1268–69 (emphasis added) (footnote omitted).\n Even if we accepted the Overton approach, it would not get the State to its desired\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\nOverton.\n 11\n\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\n\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\n\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\n\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\n\nFlorida’s First District Court of Appeal explained how Spera works:\n\n The procedure articulated in Spera allows a defendant an\n opportunity to amend facially insufficient postconviction claims\n unless the claims cannot be corrected. Spera’s procedure applies\n uniformly to all insufficiently pled postconviction claims whether\n determined to be legally or facially insufficient. The trial court has\n discretion in determining the length of the defendant’s leave to amend\n and Spera suggested thirty days would be reasonable.\n ...\n [B]ased upon Spera and Nelson v. State, once the window of\n opportunity to amend expires and the defendant is unable or unwilling\n to cure the deficiency, the insufficient claim may be denied with\n prejudice.\n\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\n\ndismissing a facially insufficient postconviction motion without prejudice is not a\n\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\n\n2010). This rule—and the Spera procedure more generally—suggests that\n\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\n\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\n\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\n\n\n\n 5\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\n 12\n\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\n\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\n\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\n\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\n\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\n\nhad until February 4, 2015, to file his § 2254 petition, so his January 13, 2015\n\n§ 2254 petition was timely.\n\n III.\n\n The District Court was wrong to conclude that Hall’s § 2254 motion was\n\ntime barred. We reverse and remand for proceedings consistent with this opinion.\n\n REVERSED AND REMANDED.\n\n\n\n\n 13\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Wyndel R. Hall v. Secretary, Department of Corrections\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n[PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10767\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00108-CEH-AEP\\n\\nWYNDEL R. HALL,\\n Petitioner-Appellant,\\n\\n versus\\n\\nSECRETARY, DEPARTMENT OF CORRECTIONS,\\nATTORNEY GENERAL, STATE OF FLORIDA,\\n Respondents-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 12, 2019)\\n\\nBefore TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Wyndel R. Hall, a Florida prisoner proceeding pro se, appeals from the\\n\\nDistrict Court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. On appeal,\\n\\nhe argues that the District Court erred by failing to toll the statute of limitations of\\n\\nthe Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) from the\\n\\ndate he filed a deficient motion in state court pursuant to Florida Rule of Criminal\\n\\nProcedure 3.850. Relying on Green v. Secretary, Department of Corrections, 877\\n\\nF.3d 1244 (11th Cir. 2017), he argues that his later-filed, corrected Rule 3.850\\n\\nmotion related back to his deficient motion, thus tolling the limitations period. For\\n\\nthe reasons set forth below, we vacate the District Court’s order and remand for\\n\\nfurther proceedings.\\n\\n I.\\n\\n Hall was convicted of one count of capital sexual battery1 and one count of\\n\\nresisting arrest or obstructing an officer without violence by a Polk County jury in\\n\\n2010. He appealed, and the state appellate court affirmed his convictions and\\n\\nsentence on March 28, 2012. See Hall v. State, 96 So. 3d 895 (Fla. Dist. Ct. App.\\n\\n2012) (unpublished table opinion). He did not petition the Supreme Court of the\\n\\nUnited States for a writ of certiorari. Thus, his conviction became final for\\n\\nAEDPA purposes on June 26, 2012. See Bond v. Moore, 309 F.3d 770, 774 (11th\\n\\nCir. 2002) (holding that AEDPA’s limitations period does not begin to run until the\\n\\n90-day window during which petitioner could have petitioned the Supreme Court\\n\\n\\n\\n\\n 1\\n Capital sexual battery was formerly punishable by death. Today, it is capital only in\\nname. See Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S. Ct. 2641, 2659 (2008); Fla. Stat.\\n775.082(2).\\n 2\\n\\nof the United States for writ of certiorari expires). Unless tolled, the AEDPA\\n\\nlimitations period gave Hall until June 26, 2013, to file his federal habeas petition.\\n\\n On April 11, 2013—289 days after the AEDPA limitations period began to\\n\\nrun, with 76 days remaining—Hall filed a motion under Florida Rule of Criminal\\n\\nProcedure 3.800(a) to correct his sentence. This tolled the limitations period for\\n\\nthe entirety of the Rule 3.800(a) proceeding, including the eventual appeal. Evans\\n\\nv. Chavis, 546 U.S. 189, 191, 126 S. Ct. 846, 849 (2006) (explaining that a\\n\\npostconviction motion is pending for AEDPA purposes during the period between\\n\\nthe lower court’s adverse decision and the filing of a timely notice of appeal from\\n\\nthat decision). The state appellate court issued its mandate on December 26, 2013,\\n\\nthus restarting Hall’s AEDPA clock with 76 remaining days.\\n\\n Fourteen days later on January 9, 2014, Hall filed an amended motion for\\n\\npostconviction relief in state court pursuant to Florida Rule of Criminal Procedure\\n\\n3.850. At this point, Hall was down to 62 days. In his Rule 3.850 motion, Hall\\n\\nraised eight claims of ineffective assistance counsel, the same claims Hall would\\n\\nlater raise in his § 2254 petition. The amended motion did not comply with Rule\\n\\n3.850(n)(2), which required Hall to certify that he could understand English or that\\n\\nhe’d had the motion translated into a language he could understand. Consequently,\\n\\non February 14, 2014, the state habeas court dismissed Hall’s motion “without\\n\\nprejudice to re-file a facially sufficient amended motion within sixty (60) days.”\\n\\n\\n 3\\n\\nState v. Hall, No. 08CF-4968-XX (Fla. Cir. Ct. Feb. 14, 2014). Hall then filed a\\n\\nsecond amended motion for postconviction relief as the court instructed on\\n\\nFebruary 24, 2014. The state court denied the motion, and the denial was affirmed\\n\\non appeal. The state appellate court issued its mandate on December 4, 2014.\\n\\n Hall filed the present § 2254 petition on January 13, 2015. The State moved\\n\\nto dismiss Hall’s petition as untimely under AEDPA’s statute of limitations.\\n\\nAccording to the State, Hall’s AEDPA clock—which the State identified as having\\n\\nbegun on June 28, 20122—expired December 22, 2014, rendering his January 13,\\n\\n2015 § 2254 petition untimely. The State argued that Hall’s initial Rule 3.850\\n\\nmotion, which he filed when he was 62 days short of AEDPA’s statute of\\n\\nlimitations, was not “properly filed” for AEDPA-tolling purposes because Hall\\n\\nfailed to certify that he understood English. Instead, Hall’s AEDPA clock wasn’t\\n\\ntolled until he filed his second amended Rule 3.850 motion on February 24, 2014,\\n\\nleaving him only 16 days once the state court disposed of that motion. And\\n\\nbecause the state court issued its mandate on the Rule 3.850 motion on December\\n\\n\\n\\n\\n 2\\n It looks like the State reached this date by simply adding three months to March 26,\\n2012, i.e., the date on which the District Court of Appeal affirmed Hall’s conviction. The\\nproblem with this method of computing when Hall’s conviction became final for AEDPA\\npurposes is that not every month has exactly 30 days. Indeed, two months in this interval—\\nMarch and May—have not 30, but 31 days. See Gregorian Calendar, Wikipedia (last visited\\nMar. 25, 2019), https://en.wikipedia.org/wiki/Gregorian_calendar.\\n 4\\n\\n4, 2014, Hall’s AEDPA clock expired on December 22, 2014 3—22 days before he\\n\\nfiled his § 2254 petition on January 13, 2015.\\n\\n The District Court agreed with the State and dismissed Hall’s motion. Hall\\n\\ntimely appealed.\\n\\n II.\\n\\n We review de novo the dismissal of a federal habeas petition as time barred\\n\\nunder 28 U.S.C. § 2244(d). Cole v. Warden, Ga. State Prison, 768 F.3d 1150,\\n\\n1155 (11th Cir. 2014).\\n\\n AEDPA establishes a one-year statute of limitations for federal habeas\\n\\npetitions filed by state prisoners, which runs from “the date on which the judgment\\n\\nbecame final by the conclusion of direct review or the expiration of the time for\\n\\nseeking such review.” 28 U.S.C. § 2244(d)(1)(A). The time for seeking direct\\n\\nreview includes the 90-day window in which the petitioner could have petitioned\\n\\nthe Supreme Court of the United States for a writ of certiorari. Bond, 309 F.3d at\\n\\n774.\\n\\n As for tolling, the one-year limitations period for filing a § 2254 petition is\\n\\ntolled during the time in “which a properly filed application for State post-\\n\\n\\n\\n\\n 3\\n The sixteenth day (December 20, 2014) fell on a Saturday, so Hall’s AEDPA clock in\\nthis scenario would expire the following Monday, December 22, 2014. See Fed. R. Civ. P.\\n6(a)(1)(C) (“[I]f the last day [of the period] is a Saturday, Sunday, or legal holiday, the period\\ncontinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”).\\n 5\\n\\nconviction or other collateral review with respect to the pertinent judgment or\\n\\nclaim is pending.” 28 U.S.C. § 2244(d)(2). AEDPA does not define “collateral\\n\\nreview,” but the Supreme Court has defined “collateral review” as “judicial review\\n\\nthat occurs in a proceeding outside of the direct review process.” Wall v. Kholi,\\n\\n562 U.S. 545, 560, 131 S. Ct. 1278, 1289 (2011). Regarding Florida proceedings,\\n\\nwe recognize the following as “application[s] for State post-conviction or other\\n\\ncollateral review” under § 2244(d)(2): (1) a motion for state postconviction relief\\n\\nfiled pursuant to Rule 3.850, See Day v. Crosby, 391 F.3d 1192, 1192–93 (11th\\n\\nCir. 2004) (per curiam); (2) a motion to correct an illegal sentence filed pursuant to\\n\\nRule 3.800(a), Ford v. Moore, 296 F.3d 1035, 1036, 1040 (11th Cir. 2002) (per\\n\\ncuriam); and (3) a motion for rehearing on the denial of a motion to correct an\\n\\nillegal sentence, Nix v. Sec’y, Dep’t of Corr., 393 F.3d 1235, 1237 (11th Cir. 2004)\\n\\n(per curiam). Any appeals filed in a state court from the denial of these motions\\n\\nalso qualify as “application[s] for State post-conviction or other collateral review.”\\n\\nSee Ford, 296 F.3d at 1040.\\n\\n The issue in this case is whether Hall’s initial Rule 3.850 motion—the one\\n\\nfiled January 9, 2014, that was later dismissed because it lacked the Rule\\n\\n3.850(n)(2) certification—tolled AEDPA’s statute of limitations. If it did, Hall had\\n\\n62 days after the state court ruled on it to file his § 2254 motion. But if the initial\\n\\nRule 3.850 did not toll Hall’s AEDPA clock, he only had 16 days after the state\\n\\n\\n 6\\n\\ncourt decided the Rule 3.850 motion to file his § 2254 motion. His January 13,\\n\\n2015 § 2254 motion fell within the 62-day window, but not within the 16-day\\n\\nwindow.\\n\\n Whether the initial Rule 3.850 motion tolled Hall’s AEDPA clock turns on\\n\\nwhether that motion was a “properly filed” application for state post-conviction\\n\\nrelief. 28 U.S.C. § 2244(d)(2). This is a question of state law. See Wade v. Battle,\\n\\n379 F.3d 1254, 1260 (11th Cir. 2004) (per curiam). Under Florida law, a motion\\n\\nfor post-conviction relief under Rule 3.850 must contain a certification from the\\n\\ndefendant that he understands English or that he has had the motion completely\\n\\ntranslated into a language he understands. Fla. R. Crim. P. 3.850(n)(2). Failure to\\n\\ncomply with this requirement is grounds for dismissing the motion. Id. And if one\\n\\nfails to comply with this requirement, one’s motion is not “properly filed” under\\n\\n§ 2244(d)(2).\\n\\n This is not the first occasion we’ve been asked to determine whether a\\n\\npetitioner’s defective filing in a Florida collateral proceeding tolled AEDPA’s\\n\\nstatute of limitations. In Hurley v. Moore, 233 F.3d 1295 (11th Cir. 2000) (per\\n\\ncuriam), we held that a state prisoner’s deficient Rule 3.850 motion was not\\n\\n“properly filed” because it was missing the oath required by Rule 3.850(c). In that\\n\\ncase, the state habeas court denied the petitioner’s motion without prejudice to\\n\\nrefile a timely and properly sworn motion, but the petitioner chose instead to\\n\\n\\n 7\\n\\npursue a rehearing, and eventually an appeal, of the denial. Id. at 1296–97. After\\n\\nhe lost his appeal—more than a year after his conviction became final under\\n\\nAEDPA—the petitioner filed a properly sworn Rule 3.850 motion. Id. at 1297.\\n\\nBut by then it was too late: we held that the one-year statute of limitations under\\n\\nAEDPA was not tolled because the original deficient motion was not properly\\n\\nfiled. Id. at 1298.\\n\\n By contrast, in Green v. Secretary, Department of Corrections, the petitioner\\n\\ninitially filed an amended motion that did not comply with the oath requirement\\n\\nunder Rule 3.850(c). 877 F.3d at 1246. The state court denied the motion with\\n\\ninstructions to refile with a sufficient oath within 30 days. Id. The petitioner did\\n\\nso, and the state court denied his motion on the merits, which the state appellate\\n\\ncourt ultimately affirmed. Id. He later filed a § 2254 motion, which the District\\n\\nCourt dismissed as untimely. Id. According to the District Court, the petitioner’s\\n\\ninitial Rule 3.850 motion was not “properly filed,” and thus did not toll AEDPA’s\\n\\nstatute of limitations, because it was improperly sworn. Id. It was only when the\\n\\npetitioner filed a properly sworn Rule 3.850 motion that the AEDPA clock\\n\\nstopped. Id. at 1246–47. But once that motion was disposed of—and the AEDPA\\n\\nclock’s tick resumed—the petitioner’s limitations period expired before he filed his\\n\\n§ 2254 motion. Id. at 1247.\\n\\n\\n\\n\\n 8\\n\\n We reversed. Id. at 1249. We agreed, following Hurley, that the petitioner’s\\n\\ninitial Rule 3.850 motion was deficient under Florida law and, therefore, not\\n\\n“properly filed.” Id. at 1248. But we also recognized that “[u]nder Florida law,\\n\\nwhen a postconviction motion is stricken with leave to amend, the amended motion\\n\\nrelates back to the date of the original filing.” Id. at 1248 (citing Bryant v. State,\\n\\n901 So. 2d 810, 818 (Fla. 2005)). Thus, not only was the time between the\\n\\ncorrected Rule 3.850 motion and its disposition tolled, but so too was the time\\n\\nbetween the original, deficient Rule 3.850 motion and the filing of its properly\\n\\nsworn substitute. Id. Given that additionally tolled time, the petitioner’s § 2254\\n\\npetition was timely. Id.\\n\\n It’s not hard to see which of these cases Hall’s resembles. Hall’s initial Rule\\n\\n3.850 motion was improperly sworn and, for that reason, not “properly filed” under\\n\\nAEDPA. But the state habeas court dismissed his motion without prejudice to\\n\\nrefile, and—rather than moving for a rehearing and pursuing an appeal, à la\\n\\nHurley—Hall filed a properly sworn Rule 3.850 motion within the state court’s\\n\\nprescribed time period. After Green, it’s hard to escape the conclusion that Hall’s\\n\\ncorrected Rule 3.850 motion relates back to his initial, improperly sworn Rule\\n\\n3.850 motion.\\n\\n Of course, the State tries to escape that conclusion by arguing that Hall’s\\n\\ncase is distinguishable. Specifically, the State argues that in order to toll the statute\\n\\n\\n 9\\n\\nof limitations under AEDPA, a state postconviction application must be both\\n\\n“properly filed” and “pending.” See 28 U.S.C. § 2244(d)(2). So even if, following\\n\\nGreen, Hall’s corrected Rule 3.850 motion was “properly filed,” there was no\\n\\nmotion before the court—and hence, no motion “pending”—between Hall’s initial,\\n\\ndismissed motion and the properly sworn, substitute motion. Thus, the State\\n\\nconcludes, only Hall’s February 24, 2014 motion was “pending” for AEDPA\\n\\npurposes, and only it tolled the statute of limitations.\\n\\n There are a couple problems with this argument. First, even if we assume\\n\\nthat the AEPDA limitations period was tolled only when a motion was “pending,”\\n\\nas the State uses that term, Hall’s § 2254 motion was still timely. The period of\\n\\ntime between the dismissal of Hall’s deficient Rule 3.850 motion and his filing the\\n\\ncorrected one—that is, the period of time in which there was no motion “pending”\\n\\nbefore the state court, according to this argument—was only 10 days: from\\n\\nFebruary 14, 2014, when the faulty Rule 3.850 motion was dismissed, to February\\n\\n24, 2014, when the proper Rule 3.850 motion was filed. 4 Under this scenario,\\n\\n\\n\\n 4\\n The State seems to think that its “pending” argument leads to the conclusion that the\\nstatute of limitations was not tolled at all by Hall’s initial Rule 3.850 motion filed on January 9,\\n2014. But the district court opinion the State cites to support this argument reveals a critical flaw\\nin the State’s logic. In Overton v. Jones, 155 F. Supp. 3d 1253 (S.D. Fla. 2016), the petitioner\\nfiled a state habeas motion on April 30, 2003, that was “legally insufficient” and struck from the\\nrecord on June 12, 2003. Id. at 1265. The state court gave the petitioner leave to file another\\nmotion, and he did so on July 10, 2003. Id. In determining to what extent the first, deficient\\nstate habeas motion tolled the AEDPA statute of limitations, the District Court framed the issue\\nas follows:\\n 10\\n\\nwhere the AEDPA clock was tolled during both Rule 3.850 proceedings apart from\\n\\nthe 10-day interval where nothing was “pending” before the state court, Hall had\\n\\nuntil January 26, 2015, to file his § 2254 motion. Hall met that deadline, so his\\n\\n§ 2254 motion was timely even if we accept the State’s argument.\\n\\n And that’s a big if. The State’s “pending” argument is based on the\\n\\n(admittedly intuitive) notion that a state postconviction motion is no longer\\n\\n“pending” once dismissed. This might be true in the abstract. See Overton, 155 F.\\n\\nSupp. 3d at 1269 (“Logi[c] dictates that when [a motion] [i]s stricken from the\\n\\nrecord, the motion [i]s no longer ‘pending.’”). But this approach upends the\\n\\nprocedure Florida courts have developed for processing facially deficient\\n\\npostconviction motions. In Spera v. State, 971 So. 2d 754 (Fla. 2007), the\\n\\nSupreme Court of Florida held that a trial court abuses its discretion when it fails to\\n\\n\\n\\n [T]he issue here[] is whether the April 30 Motion was ‘pending’ for the purposes\\n of § 2244(d)(2) during the period of time [between when] the April 30 Motion\\n was struck (June 12, 2003) and when [petitioner’s] July 10 Motion was filed. . . .\\n If [petitioner’s] April 30 Motion was not going to be considered or reviewed by\\n the trial court because the April 30 Motion had been struck from the record, it was\\n not ‘pending.’\\nId. at 1268–69 (emphasis added) (footnote omitted).\\n Even if we accepted the Overton approach, it would not get the State to its desired\\noutcome. Under Overton, Hall’s deficient Rule 3.850 motion was “pending” from the time it\\nwas filed on January 9, 2014, to the time it was dismissed on February 14, 2014. His properly\\nsworn Rule 3.850 motion was then filed on February 24. Hall would, therefore, only lose 10\\ndays from his AEDPA clock, which would leave him with 52 days after the dismissal of the\\nsecond Rule 3.850 motion on December 4, 2014, to file his § 2254 motion. That 52-day period\\nwould expire January 26, 2015, because January 25, 2015 was a Sunday. See Fed. R. Civ. P.\\n6(a)(1)(C). Hall’s § 2254 motion was filed well before this deadline, so it was timely under\\nOverton.\\n 11\\n\\nprovide a Rule 3.850 petitioner at least one opportunity to amend his facially\\n\\ninsufficient Rule 3.850 motion. Id. at 761. The procedure that has evolved from\\n\\nthis holding—the eponymous “Spera procedure”—has since been fleshed out by\\n\\nFlorida state courts. In Nelson v. State, 977 So. 2d 710 (Fla. Dist. Ct. App. 2008),\\n\\nFlorida’s First District Court of Appeal explained how Spera works:\\n\\n The procedure articulated in Spera allows a defendant an\\n opportunity to amend facially insufficient postconviction claims\\n unless the claims cannot be corrected. Spera’s procedure applies\\n uniformly to all insufficiently pled postconviction claims whether\\n determined to be legally or facially insufficient. The trial court has\\n discretion in determining the length of the defendant’s leave to amend\\n and Spera suggested thirty days would be reasonable.\\n ...\\n [B]ased upon Spera and Nelson v. State, once the window of\\n opportunity to amend expires and the defendant is unable or unwilling\\n to cure the deficiency, the insufficient claim may be denied with\\n prejudice.\\n\\nId. at 711 (citations omitted). Moreover, under Florida law a state court’s order\\n\\ndismissing a facially insufficient postconviction motion without prejudice is not a\\n\\nfinal, appealable order. Russell v. State, 46 So. 3d 151, 151–52 (Fla. Dist. Ct. App.\\n\\n2010). This rule—and the Spera procedure more generally—suggests that\\n\\nFlorida’s “state collateral review process is ‘in continuance’” 5 until the court issues\\n\\na final decision on the Rule 3.850 motion. See Peterson v. Jones, No.\\n\\n3:14cv104/RV/CJK, 2015 WL 1061677, at *3–5 (N.D. Fla. Mar. 11, 2015).\\n\\n\\n\\n 5\\n Carey v. Safford, 536 U.S. 214, 219–20, 122 S. Ct. 2134, 2138 (2002).\\n 12\\n\\n Accordingly, for the purposes of tolling under 28 U.S.C. § 2244(d)(2), a\\n\\npetitioner’s Rule 3.850 motion is “pending” until it is denied with prejudice. In\\n\\nthis case, that means that Hall’s AEPDA clock was tolled from January 9, 2014—\\n\\nthe date he filed his improperly sworn Rule 3.850 motion—to December 4, 2014—\\n\\nthe date the state court rendered a decision on his substitute Rule 3.850 motion. He\\n\\nhad until February 4, 2015, to file his § 2254 petition, so his January 13, 2015\\n\\n§ 2254 petition was timely.\\n\\n III.\\n\\n The District Court was wrong to conclude that Hall’s § 2254 motion was\\n\\ntime barred. We reverse and remand for proceedings consistent with this opinion.\\n\\n REVERSED AND REMANDED.\\n\\n\\n\\n\\n 13\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1884,"cells":{"id":{"kind":"number","value":4610640,"string":"4,610,640"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Paul JOHNSON, Jr., Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Paul Johnson, Jr."},"decision_date":{"kind":"string","value":"2019-04-16"},"docket_number":{"kind":"string","value":"16-15690"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carnes, Tjoflat, Marcus, Wilson, Pryor, Martin, Jordan, Rosenbaum, Newsom, Branch, Grant\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888364/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888365/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888366/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"040dissent\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888367/\", \"author_raw\": \"\"}, {\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-15690 Date Filed: 04/16/2019 Page: 1 of 88\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-15690\\n ________________________\\n\\n D.C. Docket No. 1:15-cr-20838-UU-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nPAUL JOHNSON, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (April 16, 2019)\\n\\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\\nBRANCH, and GRANT, Circuit Judges.\\n\\nWILLIAM PRYOR, Circuit Judge, delivered the opinion of the Court, in which\\nED CARNES, Chief Judge, TJOFLAT, MARCUS, NEWSOM, BRANCH, and\\nGRANT, Circuit Judges, joined.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}, {\"author\": \"NEWSOM, Circuit Judge, filed a concurring\", \"type\": \"concurrence\", \"text\": \"NEWSOM, Circuit Judge, filed a concurring opinion.\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 2 of 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"NEWSOM, Circuit Judge, filed a concurring\"}, {\"author\": \"BRANCH, Circuit Judge, filed a concurring\", \"type\": \"concurrence\", \"text\": \"BRANCH, Circuit Judge, filed a concurring opinion, in which GRANT, Circuit\\nJudge, joined.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"BRANCH, Circuit Judge, filed a concurring\"}, {\"author\": \"JORDAN, Circuit Judge, filed a dissenting\", \"type\": \"dissent\", \"text\": \"JORDAN, Circuit Judge, filed a dissenting opinion.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"JORDAN, Circuit Judge, filed a dissenting\"}, {\"author\": \"ROSENBAUM, Circuit Judge, filed a dissenting\", \"type\": \"dissent\", \"text\": \"ROSENBAUM, Circuit Judge, filed a dissenting opinion.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"ROSENBAUM, Circuit Judge, filed a dissenting\"}, {\"author\": \"JILL PRYOR, Circuit Judge, filed a dissenting\", \"type\": \"dissent\", \"text\": \"JILL PRYOR, Circuit Judge, filed a dissenting opinion, in which WILSON,\\nMARTIN, and JORDAN, Circuit Judges, joined.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n This appeal requires us to decide whether a police officer violated the Fourth\\n\\nAmendment when he removed a round of live ammunition and a holster from the\\n\\npocket of a suspect during a protective frisk, see Terry v. Ohio, 392 U.S. 1 (1968).\\n\\nAt 4:00 a.m., the officer responded to a call about a burglary in progress in a high-\\n\\ncrime area. When the officer arrived at the scene, he saw Paul Johnson, who\\n\\nmatched the burglar’s description, standing in a dark alley. After detaining\\n\\nJohnson, the officer frisked him and immediately recognized that he had a round of\\n\\nammunition in his pocket. The officer removed the ammunition and an empty\\n\\nholster covering it. He then canvassed the area and found two pistols less than a\\n\\nfoot from where he first saw Johnson. After a grand jury indicted Johnson for\\n\\nbeing a felon in possession of a firearm and ammunition in violation of 18 U.S.C.\\n\\n§ 922(g)(1), he moved to suppress the pistols, ammunition, and holster, but the\\n\\ndistrict court denied his motion. A panel of this Court reversed. United States v.\\n\\nJohnson, 885 F.3d 1313 (11th Cir.), reh’g en banc granted, op. vacated, 892 F.3d\\n\\n\\n\\n 2\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 3 of 88\\n\\n\\n1155 (11th Cir. 2018). We then vacated that decision and ordered rehearing en\\n\\nbanc. We now affirm the denial of Johnson’s motion to suppress because the\\n\\nofficer was entitled to seize the ammunition to protect himself and others.\\n\\n I. BACKGROUND\\n\\n We review the facts adduced at the evidentiary hearings because they are\\n\\ncritical to our resolution of this case. Dwight Williams, a police officer for the City\\n\\nof Opa-Locka, Florida, sat alone in his patrol car when a call came over his radio\\n\\nshortly after 4:00 a.m. on June 14, 2015. The call reported a burglary in progress at\\n\\na nearby multi-family duplex and described the burglar as a black male wearing a\\n\\nwhite shirt. Officer Williams and another officer responded to the call. Officer\\n\\nWilliams knew from experience that responding to a burglary can be dangerous\\n\\nbecause burglars are often armed.\\n\\n The officers arrived at the duplex and started to search for the suspected\\n\\nburglar. Officer Williams saw Paul Johnson, a black male wearing a white shirt\\n\\nstanding near a fence in a dark alley at the back of the duplex. The officers asked\\n\\nJohnson to come toward them where they could “see him a little better.” Johnson\\n\\ncomplied, and as he walked toward them, another officer arrived on the scene. The\\n\\nofficers ordered Johnson to lie on the ground and handcuffed him. Officer\\n\\nWilliams then began frisking Johnson.\\n\\n\\n\\n\\n 3\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 4 of 88\\n\\n\\n While patting down Johnson’s pocket, Officer Williams felt something\\n\\nnylon covering “a small, round, hard object” that he immediately recognized as\\n\\nammunition. He reached into Johnson’s pocket and removed the round of\\n\\nammunition and an empty nylon holster. The round belonged to a .380 caliber gun.\\n\\nOfficer Williams was concerned; as he later testified, “the round that was in\\n\\n[Johnson’s] pocket and the holster led [him] to believe that there [wa]s a weapon\\n\\nthat [the] round goes to and something goes into that holster.” Based on his\\n\\nexperience that burglaries often involve more than one perpetrator, he was also\\n\\nconcerned that there was “another person in an apartment [who] m[ight] come out\\n\\nwith something.”\\n\\n As Officer Williams searched the area for a gun, Johnson told the other\\n\\nofficers that he had been trying to wake up his girlfriend, who lived at the duplex,\\n\\nby knocking loudly on her door. Johnson suggested that someone might have\\n\\nthought he was trying to break in. The officers tried to confirm Johnson’s story, but\\n\\nhis girlfriend would not answer their knock at her door.\\n\\n Meanwhile, Officer Williams found a hole in the fence close to where\\n\\nJohnson had been standing. Knowing that suspects “throw[]” away weapons “a lot\\n\\nin Opa-Locka” when they encounter the police, Officer Williams drove around the\\n\\nfence to see if a gun had been tossed on the other side. Sure enough, he found two\\n\\npistols, one .380 caliber and the other .40 caliber, less than a foot from where the\\n\\n\\n\\n 4\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 5 of 88\\n\\n\\nofficers had first seen Johnson. Officer Williams checked the serial numbers on the\\n\\npistols and determined that both had been reported as stolen.\\n\\n Johnson’s girlfriend eventually opened her door for the officers. She\\n\\nconfirmed that Johnson lived at the duplex with her and that he was trying to enter\\n\\ntheir home. The officers then arrested Johnson.\\n\\n The officers took Johnson to the police station, where he waived his rights to\\n\\nremain silent and to counsel, see Miranda v. Arizona, 384 U.S. 436 (1966).\\n\\nJohnson confessed that he was holding the pistols for his brother and cousin, even\\n\\nthough he had previously been convicted of a felony. A grand jury later indicted\\n\\nJohnson for being a felon in possession of a firearm and ammunition, 18 U.S.C.\\n\\n§ 922(g)(1).\\n\\n Johnson moved to suppress the ammunition, the holster, and the pistols,\\n\\nalong with any statements resulting from the frisk. Johnson argued that Officer\\n\\nWilliams violated the Fourth Amendment by frisking him and by seizing the\\n\\nammunition and holster. A magistrate judge held two evidentiary hearings on the\\n\\nmotion.\\n\\n The officers who detained Johnson testified that Opa-Locka is a “high-crime\\n\\narea” that receives a “high volume of calls” involving “bodily harm done to others”\\n\\nand the use of firearms “in [multiple] aspects of the crimes from burglaries to\\n\\nrobberies to home invasions.” The officers testified that, in their experience,\\n\\n\\n\\n 5\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 6 of 88\\n\\n\\nburglaries in Opa-Locka often involve more than one perpetrator. According to\\n\\nOfficer Williams, a reported burglary presents a dangerous situation for the\\n\\nofficers because, “when [the officers] arrive to the scene, [they] never know where\\n\\nthe potential [suspect] may be, . . . never know what [a suspect] has, [and] never\\n\\nknow if [they] have any lighting to see the potential [suspect].” Officer Williams\\n\\ntestified that the officers detained Johnson “because of the nature of the call and\\n\\nthe current conditions” at the scene and to “make sure that no one else was on the\\n\\npremise with him.” After the hearings, the magistrate judge issued a report and\\n\\nrecommendation concluding that Officer Williams did not violate the Fourth\\n\\nAmendment by frisking Johnson and removing the ammunition and holster from\\n\\nhis pocket.\\n\\n The district court adopted the magistrate judge’s report and recommendation\\n\\nand denied Johnson’s motion to suppress. The district court ruled that the frisk was\\n\\nconstitutional at its inception because “Officer Williams had reasonable suspicion\\n\\nto believe that his safety or the safety of others was in danger.” And it ruled that\\n\\nthe removal of the ammunition and holster “was a justified continuation of the\\n\\ninitial frisk.” The district court reasoned that “[a]n officer’s seizure of ammunition\\n\\nfollowing a lawful frisk when investigating a possible violent crime, particularly\\n\\nwhen confronted with an unsecure scene, is sufficiently connected to officer safety\\n\\n\\n\\n\\n 6\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 7 of 88\\n\\n\\nnot to run afoul of the Fourth Amendment.” Johnson pleaded guilty but reserved\\n\\nhis right to appeal the denial of his motion to suppress.\\n\\n A panel of this Court reversed. Johnson, 885 F.3d at 1324. The panel agreed\\n\\nthat the frisk was constitutional at its inception because, “[c]onsidering the totality\\n\\nof the facts, . . . Officer Williams reasonably believed that his safety, or the safety\\n\\nof his fellow officers, was at risk.” Id. at 1322. But the panel concluded that the\\n\\nremoval of the ammunition and holster from Johnson’s pocket violated the Fourth\\n\\nAmendment. Id. at 1322–24. It held “the presence of a single round of\\n\\nammunition—without facts supporting the presence, or reasonable expectation of\\n\\nthe presence, of a firearm—was insufficient to justify the seizure of the bullet and\\n\\nthe holster.” Id. at 1323–24.\\n\\n We vacated the panel’s opinion and ordered rehearing en banc. We\\n\\ninstructed the parties to address one issue: whether Officer Williams was entitled,\\n\\nwhen he felt a round of ammunition in Johnson’s pocket during a Terry frisk, to\\n\\nseize the ammunition and the holster.\\n\\n II. STANDARDS OF REVIEW\\n\\n We review the denial of a motion to suppress under a mixed standard of\\n\\nreview. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We review the\\n\\ndistrict court’s findings of fact for clear error and review the application of law to\\n\\nthe facts de novo. United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015).\\n\\n\\n\\n 7\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 8 of 88\\n\\n\\nWe view the evidence in the light most favorable to the government, as “the party\\n\\nthat prevailed in the district court.” Id. (citation and quotation marks omitted).\\n\\n III. DISCUSSION\\n\\n The Fourth Amendment guarantees “[t]he right of the people to be secure in\\n\\ntheir persons, houses, papers, and effects, against unreasonable searches and\\n\\nseizures.” U.S. Const. Amend. IV. “[R]easonableness is always the touchstone of\\n\\nFourth Amendment analysis,” Birchfield v. North Dakota, 136 S. Ct. 2160, 2186\\n\\n(2016), because “what the Constitution forbids is not all searches and seizures, but\\n\\nunreasonable searches and seizures,” Terry, 392 U.S. at 9 (quoting Elkins v. United\\n\\nStates, 364 U.S. 206, 222 (1960)).\\n\\n When an officer reasonably believes that a suspect threatens his safety or the\\n\\nsafety of others, he may search the suspect and seize concealed objects that he\\n\\nreasonably believes may be weapons or other instruments of assault. See Terry,\\n\\n392 U.S. at 27, 29. To frisk a suspect, an officer “conduct[s] a carefully limited\\n\\nsearch of the outer clothing of [the suspect] . . . to discover weapons which might\\n\\nbe used to assault him.” Id. at 30. And if an officer “feels a concealed object that\\n\\nhe reasonably believes may be a weapon,” he may continue the search beyond the\\n\\nouter clothing “by searching [the suspect’s] pocket” and removing the concealed\\n\\nobject. Clay, 483 F.3d at 743–44.\\n\\n\\n\\n\\n 8\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 9 of 88\\n\\n\\n “The sole justification of the search [of a suspect] is the protection of the\\n\\npolice officer and others nearby,” Terry, 392 U.S. at 29, so a frisk must remain\\n\\n“reasonably related in scope to the circumstances which justified the [frisk] in the\\n\\nfirst place,” id. at 20. A frisk “reasonably designed to discover guns, knives, clubs,\\n\\nor other hidden instruments for the assault of the police officer” does not exceed its\\n\\npermissible scope. Id. at 29.\\n\\n When we consider “the limitations which the Fourth Amendment places\\n\\nupon a protective seizure and search for weapons[,] . . . [we consider] the concrete\\n\\nfactual circumstances of [the] individual case[].” Id. We ask “whether a reasonably\\n\\nprudent man in the circumstances would be warranted in the belief that his safety\\n\\nor that of others was in danger.” Id. at 27. In this inquiry, “the totality of the\\n\\ncircumstances—the whole picture—must be taken into account.” United States v.\\n\\nCortez, 449 U.S. 411, 417 (1981). “[This] process does not deal with hard\\n\\ncertainties, but with probabilities.” Id. at 418. Circumstances that we consider\\n\\ninclude the time of day, the location of the scene, the lighting at the scene, the\\n\\nnumber of officers, and the nature of the alleged crime. See United States v.\\n\\nGriffin, 696 F.3d 1354, 1359–60 (11th Cir. 2012); see, e.g., United States v.\\n\\nMoore, 817 F.2d 1105, 1108 (4th Cir. 1987) (“The hour was late, the street was\\n\\ndark, the officer was alone, and the suspected crime was a burglary, a felony that\\n\\noften involves the use of weapons.”). We must assess the totality of the\\n\\n\\n\\n 9\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 10 of 88\\n\\n\\ncircumstances, “not in terms of library analysis by scholars, but as understood by\\n\\nthose versed in the field of law enforcement.” Cortez, 449 U.S. at 418.\\n\\n Consider the “concrete factual circumstances” that Officer Williams\\n\\nencountered. When Officer Williams received the call about a burglary in progress\\n\\nat 4:00 a.m., he was patrolling a “high-crime area” that receives a “high volume of\\n\\ncalls” involving “bodily harm done to others” by guns. At the scene, Officer\\n\\nWilliams saw Johnson, who matched the burglar’s description, standing in a dark\\n\\nalley. And the scene was not yet secure. See Griffin, 696 F.3d at 1359 (taking into\\n\\naccount that an officer “had not finished investigating the alleged attempted\\n\\ntheft”). Officer Williams knew both that burglars in Opa-Locka were often armed\\n\\nand that they often worked with other perpetrators. When Officer Williams\\n\\nimmediately recognized the ammunition in Johnson’s pocket during the frisk, he\\n\\n“neutralize[d] the threat of physical harm” by removing the ammunition from\\n\\nJohnson’s pocket. Terry, 392 U.S. at 24.\\n\\n As an essential part of a lethal weapon, Johnson’s ammunition threatened\\n\\nthe safety of Officer Williams and others in this circumstance. Although Johnson\\n\\nargues that his ammunition, by itself, posed no danger to the safety of Officer\\n\\nWilliams or others, his argument fails to appreciate the grave injury that could\\n\\nhave been caused by his ammunition if it had been loaded into a gun. Johnson\\n\\ncompares ammunition to “a pebble, marble, coin, gemstone, ball bearing, or rock\\n\\n\\n\\n 10\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 11 of 88\\n\\n\\nof crack cocaine.” But even Johnson acknowledges a crucial difference between\\n\\nthose other objects and a round of live ammunition: the round of ammunition is\\n\\ndesigned to become a deadly projectile. Ammunition is not a gun, but it is an\\n\\nintegral part of what makes a gun lethal.\\n\\n Examining Johnson’s ammunition also could have assisted Officer\\n\\nWilliams’s search for a .380 caliber gun that he had good reason to believe was in\\n\\nthe vicinity of the unsecure scene of a reported burglary in a high-crime area late at\\n\\nnight. When Officer Williams discovered ammunition in Johnson’s pocket, he had\\n\\nreason to believe a gun was in the vicinity because “[c]ommon sense and logic\\n\\ndictate that a bullet is often associated with a gun.” People v. Colyar, 996 N.E.2d\\n\\n575, 585 (Ill. 2013). And Officer Williams’s removal of the ammunition could\\n\\nhave informed him of what caliber or type of gun might be nearby. True, he could\\n\\nnot use the frisk to gather evidence because a frisk must remain “[]related to the\\n\\nsole justification of the search under Terry: the protection of the police officer and\\n\\nothers nearby.” Minnesota v. Dickerson, 508 U.S. 366, 378 (1993) (alterations\\n\\nadopted) (citation and quotation marks omitted). But seizing the ammunition in\\n\\nJohnson’s pocket did not “amount[] to the sort of evidentiary search that Terry\\n\\nexpressly refused to authorize”; in this circumstance, it instead amounted to the\\n\\nsort of protective search that Terry permits because Officer Williams had to find\\n\\nany gun to secure the scene and protect himself and others. Id. We reject Judge Jill\\n\\n\\n\\n 11\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 12 of 88\\n\\n\\nPryor’s suggestion that a safety measure within the scope of Terry’s rationale\\n\\nbecomes a “‘condemned’ evidentiary search[]” whenever it also provides the\\n\\nofficers with new information. Jill Pryor Dissenting Op. at 87 (quoting Dickerson,\\n\\n508 U.S. at 378).\\n\\n That an officer may seize ammunition when it threatens the safety of officers\\n\\nand others has long been the settled precedent in several jurisdictions. For\\n\\nexample, in United States v. Ward, the Eighth Circuit ruled that an officer who\\n\\nbelieved that cylindrical objects in a suspect’s pocket were shotgun shells “was\\n\\njustified in reaching into the pocket to retrieve them.” 23 F.3d 1303, 1306 (8th Cir.\\n\\n1994). In Scott v. State, the Supreme Court of Nevada ruled that, after seizing a\\n\\ngun, an officer may remove ammunition from a suspect’s pocket because “[i]t is\\n\\nreasonable for an officer, as a precautionary measure, to retrieve and separate from\\n\\na suspect during the course of a Terry stop and frisk, either weapons or\\n\\nammunition or both.” 877 P.2d 503, 509 (Nev. 1994). In State v. Smith, the\\n\\nSupreme Court of Arizona held that an officer reasonably seized “the contents of\\n\\nSmith’s pockets which were bulging with shotgun ammunition.” 665 P.2d 995, 998\\n\\n(Ariz. 1983) (en banc). And in Colyar, the Supreme Court of Illinois ruled that an\\n\\nofficer who saw ammunition in a car “could reasonably suspect the presence of a\\n\\ngun, thus implicating officer safety,” and could seize the ammunition. 996 N.E.2d\\n\\nat 585, 587. See also State v. Moton, 733 S.W.2d 449, 451 (Mo. Ct. App. 1986)\\n\\n\\n\\n 12\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 13 of 88\\n\\n\\n(holding that officer’s seizure of 13 rounds of ammunition during a frisk was\\n\\nlawful); People v. Lewis, 507 N.Y.S.2d 80, 81 (N.Y. App. Div. 1986) (holding that\\n\\nofficer responding to a call about armed robbery was entitled to seize ammunition\\n\\nand a gun from a suspect who was driving a car that matched the description of the\\n\\nrobber’s car). Indeed, we are aware of no precedential opinion to the contrary in\\n\\nany jurisdiction.\\n\\n Judge Jill Pryor suggests that “a couple of” federal-court decisions “cut\\n\\nagainst” our holding, Jill Pryor Dissenting Op. at 82, but we are not persuaded. In\\n\\nUnited States v. Miles, the Ninth Circuit held that an officer exceeded Terry’s\\n\\nlimits by shaking a small box of bullets in a suspect’s pocket because the contents\\n\\nof the box were not immediately apparent to the officer. 247 F.3d 1009, 1015 (9th\\n\\nCir. 2001). By contrast, Officer Williams testified that, when he felt the object in\\n\\nJohnson’s pocket, he “immediately thought it was ammunition.” And in United\\n\\nStates v. Lemons, the Eastern District of Wisconsin ruled that “ammunition alone\\n\\ncannot be considered contraband”—an issue not presented by this appeal. 153 F.\\n\\nSupp. 2d 948, 960 (E.D. Wis. 2001); see also id. at 957 (finding that the officer\\n\\nwho conducted the frisk “did not immediately recognize the items as bullets”).\\n\\nApart from describing ammunition as a “nonweapon[],” the district court did not\\n\\nconsider whether or in what circumstances an officer might be justified in seizing it\\n\\nas a safety measure. Id. at 959. Nor can we overlook that the opinion of a district\\n\\n\\n\\n 13\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 14 of 88\\n\\n\\ncourt is not precedential. Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A\\n\\ndecision of a federal district court judge is not binding precedent . . . .” (citation\\n\\nand internal quotation marks omitted)); accord Bryan A. Garner et al., The Law of\\n\\nJudicial Precedent § 29, at 255 (2016).\\n\\n Johnson argues that, because the scope of a frisk is limited to a search for\\n\\nweapons and ammunition is not a weapon, Officer Williams was not entitled to\\n\\nremove the ammunition from his pocket. But Johnson reads Terry as if the central\\n\\nquestion it posed were whether a given object qualifies as a “weapon” in the\\n\\nabstract and not whether removing and securing the object is reasonably related to\\n\\n“the protection of the police officer and others nearby,” 392 U.S. at 29. In Terry,\\n\\nthe Supreme Court contemplated that an officer could, of course, remove “guns,\\n\\nknives, [and] clubs,” but it never limited a frisk to those specified weapons. Id.\\n\\nInstead of creating a laundry list of particular objects that an officer may remove\\n\\nduring a frisk, the Supreme Court explained that “[t]hese limitations will have to\\n\\nbe developed in the concrete factual circumstances of individual cases.” Id. And\\n\\nwhen applying Terry in individual cases, we have ruled that officers are entitled to\\n\\nseize a variety of items that are not traditional weapons. See, e.g., Clay, 483 F.3d at\\n\\n743 (holding that an officer lawfully seized a “long, thin object,” which turned out\\n\\nto be the empty barrel of a ballpoint pen, because he thought it “might be a\\n\\nscrewdriver or something similar that could be used as a weapon”). After all, Terry\\n\\n\\n\\n 14\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 15 of 88\\n\\n\\nexplained that an officer can also remove “other hidden instruments for the assault\\n\\nof the police officer.” 392 U.S. at 29; see also Sibron v. New York, 392 U.S. 40, 65\\n\\n(1968) (Terry’s companion case also ruling that an officer may remove “concealed\\n\\nobjects which might be used as instruments of assault”).\\n\\n In considering a frisk’s proper scope, we cannot isolate Terry’s references to\\n\\n“weapons” from the “sole justification” for the frisk: “the protection of the police\\n\\nofficer and others nearby.” 392 U.S. at 29. To be sure, the scope of a frisk must be\\n\\n“carefully limited” to serve that justification, id. at 30, but it must not be so limited\\n\\nthat officers cannot take reasonable actions in furtherance of their own safety and\\n\\nthat of others. As the Terry Court made clear, we cannot “deny the officer the\\n\\npower to take necessary measures . . . to neutralize the threat of physical harm.” Id.\\n\\nat 24. In short, during a Terry frisk, an officer may remove ammunition from a\\n\\nsuspect when the removal is reasonably related to the protection of the officers and\\n\\nothers nearby. See id. at 19–20.\\n\\n Johnson argues that “the way to defuse the potential danger [posed by\\n\\nammunition] is to locate and seize the firearm that might be present,” but we\\n\\ncannot, with hindsight, dictate best practices for police officers. “A creative judge\\n\\nengaged in post hoc evaluation of police conduct can almost always imagine some\\n\\nalternative means by which the objectives of the police might have been\\n\\naccomplished.” United States v. Sharpe, 470 U.S. 675, 686–87 (1985). Instead of\\n\\n\\n\\n 15\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 16 of 88\\n\\n\\nimagining other ways to defuse the danger posed by ammunition, we assess only\\n\\nwhether an officer acted reasonably in his circumstance. See id.\\n\\n Officer Williams acted reasonably when he seized the ammunition and\\n\\nholster in Johnson’s pocket. He was entitled to “tak[e] steps to assure” himself that\\n\\nthe ammunition in Johnson’s pocket would not be loaded into “a weapon that\\n\\ncould . . . fatally be used against [him].” Maryland v. Buie, 494 U.S. 325, 333\\n\\n(1990) (discussing the protection concerns that animate a Terry frisk). When\\n\\nOfficer Williams seized the ammunition and empty holster, he had every reason to\\n\\nexpect that a matching gun was nearby. Officer Williams even testified that the\\n\\nammunition in Johnson’s pocket “led [him] to believe that there [wa]s a weapon\\n\\nthat [the] round goes to and something goes into that holster.” And he explained\\n\\nthat suspects “throw[]” away weapons “a lot in Opa-Locka” when they encounter\\n\\nthe police. When Officer Williams found only a single round of ammunition in\\n\\nJohnson’s pocket, he was left to fear where other ammunition may be, especially a\\n\\nround already loaded into a gun’s chamber.\\n\\n That Johnson was handcuffed when he was frisked did not eliminate the\\n\\ndanger posed by the ammunition. The Supreme Court has rejected as “mistaken”\\n\\nthe argument that officers cannot reasonably fear for their safety when a suspect\\n\\n“was effectively under [the officers’] control during the investigative stop and\\n\\ncould not get access to any weapons that might have been located [nearby].”\\n\\n\\n\\n 16\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 17 of 88\\n\\n\\nMichigan v. Long, 463 U.S. 1032, 1051 (1983). Handcuffs do not always work,\\n\\nand suspects have been known to reach for weapons even when handcuffed. See\\n\\nUnited States v. Sanders, 994 F.2d 200, 209–10 (5th Cir. 1993) (rejecting the\\n\\nargument “that, by handcuffing a suspect, the police instantly and completely\\n\\neliminate all risks that the suspect will . . . do them harm”).\\n\\n When Johnson was stopped and frisked, the officers had not found a gun on\\n\\nthe scene, did not know how many or what kind of guns might be on the scene, and\\n\\ndid not know whether others, who were not handcuffed, participated in the\\n\\nburglary and were still lurking in the area. But the officers did know, based on their\\n\\nexperience, that burglaries in Opa-Locka often involve guns and often involve\\n\\nmore than one person. “In view of these facts, we cannot blind ourselves to the\\n\\nneed for law enforcement officers to protect themselves . . . .” Terry, 392 U.S. at\\n\\n24.\\n\\n Although Johnson argues that Terry is inconsistent with the original\\n\\nmeaning of the Fourth Amendment and that we should apply it narrowly to “limit[]\\n\\nthe damage,” we must apply Supreme Court precedent neither narrowly nor\\n\\nliberally—only faithfully. Johnson appeals to Justice Scalia’s expressed doubts\\n\\nabout Terry, see Dickerson, 508 U.S. at 382 (Scalia, J., concurring) (opining that\\n\\nTerry did not discuss “the original state of the law” and instead represents “the\\n\\noriginal-meaning-is-irrelevant, good-policy-is-constitutional-law school of\\n\\n\\n\\n 17\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 18 of 88\\n\\n\\njurisprudence”), though Justice Scalia also recognized that a frisk might have been\\n\\n“considered permissible” when the Fourteenth Amendment was adopted or might\\n\\notherwise be considered “reasonable” now, id. But when “a precedent of [the\\n\\nSupreme] Court has direct application,” we must follow it. Rodriguez de Quijas v.\\n\\nShearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).\\n\\n To be sure, in several areas, the Supreme Court has considered the original\\n\\nmeaning of the Fourth Amendment. See, e.g., Virginia v. Moore, 553 U.S. 164, 168\\n\\n(2008) (original understanding of an officer’s authority to arrest a suspect); United\\n\\nStates v. Ramsey, 431 U.S. 606, 616 (1977) (original understanding of border\\n\\nsearches). And we have followed its approach in those areas. See, e.g., United\\n\\nStates v. Touset, 890 F.3d 1227, 1232 (11th Cir. 2018) (quoting Ramsey, 431 U.S.\\n\\nat 616–17); United States v. Phillips, 834 F.3d 1176, 1179–80 (11th Cir. 2016)\\n\\n(quoting Moore, 553 U.S. at 168). We also have determined the original meaning\\n\\nof other constitutional provisions to resolve questions of first impression. See, e.g.,\\n\\nUnited States v. Campbell, 743 F.3d 802, 810–11 (11th Cir. 2014) (original\\n\\nunderstanding of “Felonies committed on the high Seas”); United States v.\\n\\nBellaizac-Hurtado, 700 F.3d 1245, 1249–51, 1254 (11th Cir. 2012) (original\\n\\nunderstanding of “Offences against the Law of Nations”). But Terry—the\\n\\nprecedent that directly controls—explained that we must consider the need to\\n\\n\\n\\n\\n 18\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 19 of 88\\n\\n\\nprotect officer safety when evaluating the scope of a frisk without mention of\\n\\noriginal meaning. See Terry, 392 U.S. at 29.\\n\\n We cannot use originalism as a makeweight when applying that analytic\\n\\nframework. Nor can we promise that Johnson would like the result if we did have\\n\\nthe authority to approximate originalist outcomes by selectively trimming binding\\n\\nprecedent around the edges. See, e.g., Collins v. Virginia, 138 S. Ct. 1663, 1676–77\\n\\n(2018) (Thomas, J., concurring) (explaining that the law during the Founding\\n\\nperiod did not exclude illegally seized evidence and indeed “sometimes reflected\\n\\nthe inverse of the exclusionary rule” because “that someone turned out to be guilty\\n\\ncould justify an illegal seizure”) (citing Gelston v. Hoyt, 3 Wheat. 246, 310 (1818)\\n\\n(Story, J.); 2 William Hawkins, A Treatise of the Pleas of the Crown 77 (1721));\\n\\nsee also Janus v. AFSCME, 138 S. Ct. 2448, 2470 (2018) (rejecting the “halfway\\n\\noriginalism” of parties who appeal to the original meaning “only when it suits\\n\\nthem”). And we cannot use a halfway theory of judicial precedent to cut back on\\n\\nTerry while faithfully adhering to the exclusionary rule. As an “inferior” court,\\n\\nU.S. Const. Art. III, § 1, we have no such authority: “The only Court that can\\n\\nproperly cut back on Supreme Court decisions is the Supreme Court itself.” Prison\\n\\nLegal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 966 (11th Cir. 2018)\\n\\n(emphasis added).\\n\\n\\n\\n\\n 19\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 20 of 88\\n\\n\\n Judges Rosenbaum and Jill Pryor, in dissent, level an attack against an\\n\\nopinion that we have not issued. According to Judge Rosenbaum’s dissent, “we\\n\\nhold that any ammunition may always be seized during a frisk,” Rosenbaum\\n\\nDissenting Op. at 46 (emphasis added), and so transform the totality-of-the-\\n\\ncircumstances test into a “brand new rule,” id. at 68. See also Jill Pryor Dissenting\\n\\nOp. at 84–86. But we cannot decide whether Officer Williams was entitled to seize\\n\\nan object for his protection without considering the nature of that object. By\\n\\ndiscussing facts about ammunition, we do not create a categorical rule that\\n\\nammunition may always be seized. Indeed, our concurring colleagues understand\\n\\nthat we have not done so and write separately to explain that they prefer that we\\n\\nwould adopt such a categorical rule. Newsom Concurring Op. at 25; Branch\\n\\nConcurring Op. at 37. And contrary to Judge Rosenbaum’s accusation, we create\\n\\nno alternative holding, “stealth” or otherwise. Rosenbaum Dissenting Op. at 60;\\n\\nsee Garner et al., The Law of Judicial Precedent § 10, at 128–29 (“[I]t’s improper\\n\\nfor a later court to infer an alternative holding or rationale where none is\\n\\nsufficiently expressed in the precedent.”).\\n\\n Judge Rosenbaum also accuses us of circumventing the adversarial process\\n\\nby addressing an issue “that we did not ask the parties to address, that neither party\\n\\nbriefed, and that the government expressly declined to adopt at oral argument,”\\n\\nRosenbaum Dissenting Op. at 46, but even a cursory review of the en banc issue,\\n\\n\\n\\n 20\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 21 of 88\\n\\n\\nbriefs, and oral argument proves this assertion wrong. We asked the parties to\\n\\naddress one issue: “When he felt a round of ammunition in Paul Johnson Jr.’s\\n\\npocket during a Terry frisk, was Officer Dwight Williams entitled to seize the\\n\\nammunition and a nylon holster from Johnson’s pocket?” In his brief, Johnson\\n\\nargued that Officer Williams was not entitled to seize the ammunition from his\\n\\npocket because “the bullet in this particular case posed no conceivable threat to\\n\\nofficer safety.” The government argued in its brief that “Officer Williams was\\n\\njustified in retrieving the bullet because a reasonable officer under the\\n\\ncircumstances could conclude that the bullet [wa]s an instrument of assault that\\n\\ncould pose a danger to himself and other[s].” After oral argument, we now answer\\n\\nthat question in the affirmative. Notably, although she styles her opinion as a\\n\\n“dissent,” Judge Rosenbaum refuses to answer the one question—she deems it\\n\\n“non-en banc worthy”—that a majority of this Court voted to decide en banc.\\n\\nRosenbaum Dissenting Op. at 70. So, unlike Judge Rosenbaum, we answer the\\n\\nvery question the parties briefed and argued—nothing more and nothing less.\\n\\n “The language of a judicial decision must be interpreted with reference to\\n\\nthe circumstances of the particular case and the question under consideration.”\\n\\nGarner et al., The Law of Judicial Precedent § 6, at 80. “As binding authority, [a]\\n\\njudicial decision[] is inherently limited to the facts of the case then before the court\\n\\nand the questions presented to the court in the light of those facts.” New Port\\n\\n\\n\\n 21\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 22 of 88\\n\\n\\nLargo, Inc. v. Monroe Cty., 985 F.2d 1488, 1499 (11th Cir. 1993) (Edmondson, J.,\\n\\nconcurring in the judgment). As Chief Justice John Marshall explained long ago,\\n\\n“[i]t is a maxim not to be disregarded, that general expressions, in every opinion,\\n\\nare to be taken in connection with the case in which those expressions are used.”\\n\\nCohens v. Virginia, 19 U.S. 264, 399 (1821); see also Armour & Co. v. Wantock,\\n\\n323 U.S. 126, 133 (1944) (“[W]ords of our opinions are to be read in the light of\\n\\nthe facts of the case under discussion.”).\\n\\n To be sure, the reasoning of our decision generates a principle of law, the\\n\\napplication of which extends beyond the factual circumstances of this appeal. That\\n\\nresult does not arise from an abandonment of the fact-bound inquiry prescribed by\\n\\nTerry, but instead reflects how a totality-of-the-circumstances test works when\\n\\nreviewing a stop and frisk. Correctly understood, the output of a totality-of-the-\\n\\ncircumstances inquiry is necessarily a conditional legal principle: by deciding that\\n\\nparticular circumstances mandate a particular result, a court adopts a principle that\\n\\nif materially similar circumstances obtain, the same result must follow. In other\\n\\nwords, there is no either-or choice between formulating an abstract principle of law\\n\\nand applying a totality-of-the-circumstances test. Applying the latter yields the\\n\\nformer, which is all that we have done to resolve this appeal. We have adopted the\\n\\nprinciple that if an officer conducts a lawful Terry stop and frisk in materially\\n\\n\\n\\n\\n 22\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 23 of 88\\n\\n\\nsimilar circumstances, then that officer is entitled to seize ammunition from the\\n\\nsuspect.\\n\\n We have neither jettisoned Terry’s totality-of-the-circumstances approach in\\n\\nfavor of a categorical rule nor resolved a question that we did not ask the parties to\\n\\naddress. In resolving the question we posed, we necessarily adopt a principle with\\n\\npotential application to future cases. But the principle is not universally applicable\\n\\nbecause it is tethered to the concrete factual circumstances of Johnson’s stop and\\n\\nfrisk. And we cannot indulge our dissenting colleague’s call for an explanation of\\n\\nhow “courts will be able to reach any other conclusions in cases involving any\\n\\nammunition, regardless of any other circumstances,” Rosenbaum Dissenting Op. at\\n\\n54, because “[w]e are not in the business of issuing advisory opinions . . . that\\n\\nmerely opine on ‘what the law would be upon a hypothetical state of facts.’”\\n\\nGagliardi v. TJCV Land Tr., 889 F.3d 728, 733 (11th Cir. 2018) (quoting Chafin v.\\n\\nChafin, 568 U.S. 165, 172 (2013)).\\n\\n Officer Williams’s frisk remained “reasonably related in scope to the\\n\\ncircumstances which justified the [frisk] in the first place.” Terry, 392 U.S. at 20.\\n\\nOfficer Williams encountered an unsecure scene, late at night, in a high-crime area,\\n\\nwhile investigating a reported burglary. Officer Williams’s removal of the\\n\\nammunition and holster was reasonably related to the protection of the officers and\\n\\nothers. We hold that Officer Williams did not violate Johnson’s Fourth\\n\\n\\n\\n 23\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 24 of 88\\n\\n\\nAmendment rights by removing the ammunition and holster from his pocket during\\n\\nthe frisk.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM Johnson’s judgment of conviction and sentence.\\n\\n\\n\\n\\n 24\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 25 of 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"JILL PRYOR, Circuit Judge, filed a dissenting\"}, {\"author\": \"NEWSOM, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"NEWSOM, Circuit Judge, concurring:\\n\\n I agree that, in the “circumstances” that he confronted, the Fourth\\n\\nAmendment permitted Officer Williams to seize the bullet that he felt in Johnson’s\\n\\npocket, see Majority Op. at 9–10, and I therefore join the Court’s opinion. I write\\n\\nseparately to clarify that if it were up to me, rather than tying that judgment to the\\n\\nparticular situation faced by the particular officer in this particular case, I would\\n\\nsimply hold, as a prophylactic matter, that if a policeman discovers a bullet during\\n\\nthe course of an otherwise-lawful Terry stop, he can seize it as a means of\\n\\n“neutraliz[ing] the threat” to himself and others. Terry v. Ohio, 392 U.S. 1, 30\\n\\n(1968).\\n\\n My concern with a fact-bound “totality-of-the-circumstances” approach is\\n\\nsimply stated: It can leave police officers guessing—and thus potentially hesitant,\\n\\nand thus potentially vulnerable. The majority enumerates a variety of factors that\\n\\nit says justified Officer Williams’s determination that seizing the bullet was\\n\\nappropriate here: (1) it was 4:00 a.m.; (2) he was patrolling a “high-crime area”;\\n\\n(3) he had answered a call about a potentially violent residential burglary; (4) he\\n\\nencountered Johnson “in a dark alley”; and (5) “the scene was not yet secure.”\\n\\nMajority Op. at 10. That all seems perfectly sensible to me. And more than just\\n\\nsensible, given my understanding of Terry it also seems perfectly correct: In the\\n\\nlight of the particular situation that he faced—or the dark of it, as the case may\\n\\n\\n\\n 25\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 26 of 88\\n\\n\\nbe—Officer Williams reasonably concluded that there was a sufficient threat to his\\n\\n(and others’) safety to warrant confiscating the bullet.\\n\\n In fairness, though, the dissent also has a totality-of-the-circumstances story\\n\\nto tell. It highlights the following “combination of facts” known to Officer\\n\\nWilliams before he frisked Johnson: “(1) there had been no report or indication of\\n\\na weapon or an accomplice at the scene; (2) at least two other armed officers had\\n\\narrived at the scene; (3) Mr. Johnson had immediately, peacefully, and at gunpoint\\n\\ncomplied with the officers’ commands; and (4) the officers had placed Mr. Johnson\\n\\non the ground and handcuffed him.” J. Pryor Dissenting Op. at 79–80 (footnote\\n\\ncall omitted). Speaking for myself, I find the dissent’s laundry list somewhat less\\n\\ncompelling than the majority’s—it seems clear to me, for instance, that a\\n\\nhandcuffed suspect can still threaten officer safety, see, e.g., United States v.\\n\\nSanders, 994 F.2d 200, 209–10 (5th Cir. 1993)—but I certainly can’t dismiss the\\n\\ndissent’s assessment of the situation as ridiculous or groundless.\\n\\n So even in this case—and even now, more than three years after the fact,\\n\\nfrom the cozy comfort of our respective judicial chambers—we’re having a\\n\\nhealthy, good-faith debate about whether the “totality of the circumstances”\\n\\nwarranted Officer Williams’s seizure of the bullet. And although I find that the\\n\\nbalance tips in Officer Williams’s—and thus the majority’s—favor, there are, I\\n\\nmust admit, decent arguments on both sides. What I worry about is the next\\n\\n\\n\\n 26\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 27 of 88\\n\\n\\ncase—and the one after that, and the one after that—which will inevitably involve\\n\\na different mix of variables. Let’s take, for instance, “time of day,” which the\\n\\nmajority emphasizes—Officer Williams responded to the call here in the wee\\n\\nhours, around 4:00 a.m. Majority Op. at 9–10. What if, instead, he had\\n\\nencountered Johnson in broad daylight in the middle of the afternoon? Same\\n\\nresult? How about “location of the scene”? Id. Opa-Locka is apparently a pretty\\n\\ntough neighborhood—a “high-crime area.” Id. But what if we head 10 miles due\\n\\nsouth, straight down FL-953, to Coral Gables? (For our Alabama readers, think\\n\\nMountain Brook or Vestavia Hills; for the Georgians, Milton or Sandy Springs.)\\n\\nSeizure still permissible? Now consider a few of the factors that the dissent brings\\n\\nto bear. By the time the bullet was seized, there were a total of three armed\\n\\nofficers on the scene. See J. Pryor Dissenting Op. at 77–78. But what if an officer\\n\\nconfronts a suspect alone? Still a Fourth Amendment violation? The dissent also\\n\\nstresses that Johnson was handcuffed—and thus essentially incapable of retrieving\\n\\nand deploying the stashed ammo. Id. Different result if the suspect isn’t yet\\n\\nsecurely restrained at the time the officer feels the bullet?\\n\\n You get my point. Even we judges—with the luxury of time for study and\\n\\nreflection—can’t say for certain how we would crunch those factors in future\\n\\ncases. Where in the world does that leave responding officers? Policemen and\\n\\nwomen are tasked with the often-unenviable task of protecting the public safety,\\n\\n\\n\\n 27\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 28 of 88\\n\\n\\nand in so doing they must make split-second judgments about how best to secure a\\n\\nscene or situation. I would rather not require them to work their way through a\\n\\nmulti-factor Fourth Amendment balancing analysis in order to determine whether\\n\\nthe decision to confiscate a bullet—a bullet!—will stand up to after-the-fact\\n\\njudicial second-guessing. I would prefer—and I believe Supreme Court precedent\\n\\nsupports—a clear rule authorizing the seizure. The Court “repeatedly has\\n\\nacknowledged,” in all manner of cases, “the difficulties created for courts, police,\\n\\nand citizens by an ad hoc, case-by-case definition of Fourth Amendment standards\\n\\nto be applied in differing factual circumstances.” Oliver v. United States, 466 U.S.\\n\\n170, 181 (1984). Such totality-of-the-circumstances balancing, the Court has\\n\\nstressed, “not only makes it difficult for the policeman to discern the scope of his\\n\\nauthority”—the thrust of my critique here—but “also creates a danger that\\n\\nconstitutional rights will be arbitrarily and inequitably enforced.” Id. at 181–82.1\\n\\n\\n\\n\\n1\\n Cf., e.g., Georgia v. Randolph, 547 U.S. 103, 121 (2006) (“This is the line we draw, and we\\nthink the formalism is justified.”); Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001)\\n(“Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the\\nmoment, and the object in implementing its command of reasonableness is to draw standards\\nsufficiently clear and simple to be applied with a fair prospect of surviving judicial second-\\nguessing months and years after an arrest or search is made.”); Dunaway v. New York, 442 U.S.\\n200, 213–14 (1979) (“A single, familiar standard is essential to guide police officers, who have\\nonly limited time and expertise to reflect on and balance the social and individual interests\\ninvolved in the specific circumstances they confront.”); United States v. Robinson, 414 U.S. 218,\\n235 (1973) (“A police officer’s determination as to how and where to search the person of a\\nsuspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth\\nAmendment does not require to be broken down in each instance into an analysis of each step in\\nthe search.”).\\n\\n\\n 28\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 29 of 88\\n\\n\\n Now I recognize, of course, that in Terry the Supreme Court excused itself\\n\\nfrom “develop[ing] at length” the Fourth Amendment rules that govern the sorts of\\n\\nsearches at issue here, saying that they could instead be worked out in “the\\n\\nconcrete factual circumstances of individual cases.” 392 U.S. at 29. The Court,\\n\\nthough, didn’t leave everything in a state of totality-of-the-circumstances limbo.\\n\\nInstead, in the very same paragraph, the Court both clarified an overarching\\n\\nprinciple—namely, that protective searches must be justified by a concern for “the\\n\\nprotection of the police officer and others nearby”—and then identified an\\n\\nillustrative list of items whose seizure would, as a per se matter, be deemed to\\n\\nserve that purpose: “guns, knives, clubs, [and] other hidden instruments for the\\n\\nassault of the police officer.” Id. To be clear, no one thinks that when an officer\\n\\nconducting a Terry frisk identifies a “gun” he has to pause to brainstorm whether\\n\\nthe particular circumstances in which he finds himself warrant a seizure; he can\\n\\nsimply take it. Same for a “knife” or a “club”—take it. The question for me,\\n\\ntherefore—since I’m the one advocating a clear rule to guide officer conduct—is\\n\\nwhether a bullet fairly fits within Terry’s catch-all category, “other hidden\\n\\ninstruments for the assault of the police officer.” I think it does. An “instrument”\\n\\nis an “object, device, or apparatus designed or used for a particular purpose or\\n\\ntask.” Oxford English Dictionary (online ed.) Simply as a matter of plain\\n\\nlanguage, it doesn’t seem to me too far a stretch to conclude that a bullet qualifies\\n\\n\\n\\n 29\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 30 of 88\\n\\n\\nas an “object” that can be “used” to assault a police officer. And that seems to me\\n\\nall the more true given Terry’s unmistakable focus on officer safety.\\n\\n So in the next “bullet case,” rather than asking—or worse, requiring the\\n\\nresponding officer to ask—whether the neighborhood is sufficiently scary, the hour\\n\\nsufficiently late, the light sufficiently dim, and the suspect and scene sufficiently\\n\\nsecure, I would simply hold that the Fourth Amendment permits the protective\\n\\nseizure.\\n\\n\\n\\n\\n 30\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 31 of 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"NEWSOM, Circuit Judge, concurring\"}, {\"author\": \"BRANCH, Circuit Judge, joined by GRANT, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BRANCH, Circuit Judge, joined by GRANT, Circuit Judge, concurring:\\n\\n I join the majority opinion in full. The Fourth Amendment certainly\\n\\nauthorized Officer Williams to seize the ammunition from Paul Johnson, Jr.’s\\n\\npocket. I agree with Judge Newsom’s concurrence insofar as it recognizes that a\\n\\nbullet falls within the list of items that Terry authorized an officer to seize during a\\n\\nlawful frisk—“guns, knives, clubs, [and] other hidden instruments for the assault\\n\\nof the police officer.” Terry v. Ohio, 392 U.S. 1, 29 (1968). I write separately to\\n\\nclarify two points: (1) the totality of the circumstances analysis in Terry applies\\n\\nonly when the officer is determining whether (a) to stop and (b) then to frisk the\\n\\ndetained person; and (2) if the officer conducting the frisk complies with the scope\\n\\nof the search permitted by Terry and feels what the officer reasonably believes is a\\n\\nbullet, the officer may in all circumstances seize it.\\n\\n The Fourth Amendment guarantees “[t]he right of the people to be secure in\\n\\ntheir persons, houses, papers, and effects, against unreasonable searches and\\n\\nseizures.” U.S. Const. Amend. IV. The Fourth Amendment prohibits only\\n\\nunreasonable searches and seizures. Terry, 392 U.S. at 9 (quoting Elkins v. United\\n\\nStates, 364 U.S. 206, 222 (1960)). An officer may stop an individual for\\n\\nquestioning upon reasonable suspicion that criminal activity “may be afoot.” Id. at\\n\\n30. The reasonable suspicion inquiry which justifies a Terry stop must be assessed\\n\\nby taking into account “the totality of the circumstances—the whole picture.”\\n\\n\\n\\n 31\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 32 of 88\\n\\n\\nUnited States v. Cortez, 449 U.S. 411, 417 (1981). Once an officer makes a Terry\\n\\nstop, if the officer also believes, based on the surrounding circumstances, that the\\n\\nindividual “is armed and presently dangerous to the officer or to others,” the\\n\\nofficer may conduct a search of the suspect’s outer clothing “to discover weapons\\n\\nwhich might be used to assault him,” Terry, 392 U.S. at 30.\\n\\n The search must be limited in scope based on the sole justification of the\\n\\nsearch—the protection of the police officer and others nearby—and therefore, must\\n\\nbe “reasonably designed to discover guns, knives, clubs, or other hidden\\n\\ninstruments for the assault of the police officer.” Id. at 29. If, during the pat down,\\n\\nthe officer “feels a concealed object that he reasonably believes may be a weapon,”\\n\\nhe may extend the search by reaching into the suspect’s pocket and removing the\\n\\nobject. United States v. Clay, 483 F.3d 739, 743–44 (11th Cir. 2007).\\n\\n The initiation of the stop and the initiation of the pat down are the only two\\n\\npoints in the encounter at which the officer’s reasonable belief must be assessed\\n\\nbased on the totality of the circumstances. See State v. Smith, 665 P.2d 995, 998\\n\\n(Ariz. 1983) (finding that an officer was justified in conducting a pat down based\\n\\non the “circumstances,” and that “the police reasonably decided to inspect [and\\n\\nseize] the contents of [the suspect’s] pockets which were bulging with shotgun\\n\\nammunition”). Once the officer is authorized to conduct the pat down, the only\\n\\nquestions are whether the limited scope of the pat down is proper under Terry and\\n\\n\\n\\n 32\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 33 of 88\\n\\n\\nwhether, during the lawful pat down, the officer “feels a concealed object that he\\n\\nreasonably believes may be a weapon,” Clay, 483 F.3d at 743. See United States v.\\n\\nRochin, 662 F.3d 1272, 1273 (10th Cir. 2011) (“the [Fourth] Amendment’s ever-\\n\\npresent reasonableness requirement places strict limits on the scope or nature of the\\n\\nfrisk an officer may administer”). If he does not reasonably believe the object is a\\n\\nweapon, he is not entitled to extend the search beyond the pat down of the\\n\\nsuspect’s outer clothing, for instance, by reaching into a pocket. Sibron v. New\\n\\nYork, 392 U.S. 40, 65 (1968) (holding that an officer who reached into a pocket\\n\\nand found narcotics without first detecting a weapon exceeded the bounds of a\\n\\nlawful Terry search). If he does reasonably believe the object is a weapon, he is\\n\\nentitled to extend the search by “reach[ing] for and remov[ing]” the weapon.\\n\\nTerry, 392 U.S. at 29–30.\\n\\n Determining whether the object the officer feels is a weapon does not\\n\\ndepend on the totality of the circumstances but on whether the officer reasonably\\n\\nconcludes based on feel that the object is a weapon. See Minnesota v. Dickerson,\\n\\n508 U.S. 366, 376 (1993) (explaining that “[t]he very premise of Terry . . . is that\\n\\nofficers will be able to detect the presence of weapons through the sense of\\n\\ntouch”). Provided that the officer was justified in stopping the suspect and\\n\\nconducting a pat down and provided that the pat down did not exceed the “scope of\\n\\na protected frisk,” the “one question” is “did [the officer] act unreasonably when\\n\\n\\n\\n 33\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 34 of 88\\n\\n\\nhe removed” the object. United States v. Holmes, 385 F.3d 786, 789–91 (D.C. Cir.\\n\\n2004) (concluding that an officer acted reasonably in removing a “hard, square\\n\\nobject” from the suspect’s jacket pocket that turned out to be a scale).\\n\\n In the Terry frisk context, a bullet is an “instrument[] for the assault of the\\n\\npolice officer,” Terry, 392 U.S. at 29, that an officer may reasonably remove\\n\\npursuant to a pat down. As Judge Newsom points out, no one would question that\\n\\nan officer conducting a Terry frisk may always remove a gun he discovers during\\n\\nthe search—regardless of the surrounding circumstances. See id. at 29–30; see\\n\\nalso Pennsylvania v. Mimms, 434 U.S. 106, 111–12 (1977) (concluding that an\\n\\nofficer who observed a bulge in a suspect’s jacket was authorized to conduct a\\n\\nTerry pat down and seize the gun); United States v. White, 593 F.3d 1199, 1202\\n\\n(11th Cir. 2010) (affirming the denial of a motion to suppress a gun found during a\\n\\nTerry frisk pursuant to an authorized Terry stop and frisk). The same reasoning\\n\\napplies to a bullet. Guns and bullets are of a piece; they go together. And one is\\n\\nno use without the other. In a Terry frisk context, a bullet poses substantially the\\n\\nsame risk that a gun does—that it will be used as part of a dangerous combination\\n\\nto assault the officer. An officer seizing a gun does not know whether that gun is\\n\\nloaded, yet no one would dispute that the seizure of a gun is lawful even if it turns\\n\\n\\n\\n\\n 34\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 35 of 88\\n\\n\\nout that the gun is unloaded.1 Similarly, an officer seizing a bullet may not know\\n\\nin a particular instance whether there is a gun nearby or if he missed a gun in the\\n\\nfrisk. Of course he would know that the bullet is not presently in a gun and must\\n\\nfirst be loaded into a gun but the risk remains largely the same. Therefore, an\\n\\nofficer conducting a Terry frisk that is authorized by a reasonable belief that the\\n\\nsuspect is armed is entitled to seize a bullet to the same extent he is entitled to seize\\n\\na gun—regardless of the surrounding circumstances. It does not matter whether\\n\\nthe frisk occurs in daylight hours or at night; nor does it matter if it occurs in high\\n\\ncrime area or a relatively safe area of town. If an officer discovers a bullet during a\\n\\nfrisk lawful under Terry, the officer is entitled to seize the bullet as it is an\\n\\ninstrument of assault in all circumstances.\\n\\n One of the reasons we do not look to the surrounding circumstances in cases\\n\\nconcerning the weapons listed in Terry is that, aside from removing the object, no\\n\\nprecaution can eliminate the danger. For instance, the Supreme Court has rejected\\n\\nthe argument that a suspect who is effectively under the control of the officers\\n\\ncannot gain access to weapons located nearby. Michigan v. Long, 463 U.S. 1032,\\n\\n1051 (1983); see also United States v. Sanders, 994 F.2d 200, 209–10 (5th Cir.\\n\\n1993) (rejecting the argument that “by handcuffing a suspect, the police instantly\\n\\n\\n1\\n An unloaded gun, unlike most rounds of ammunition in civilian use, can nonetheless be used as\\na weapon (i.e., a club) but certainly an officer seizing a gun is primarily doing so because its\\nintended purpose presents the gravest threat to the officer.\\n\\n\\n 35\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 36 of 88\\n\\n\\nand completely eliminate all risks that the suspect will . . . do them harm.”).\\n\\nFurther, even the presence of multiple officers does not eliminate, though it may\\n\\nreduce, the risk that a suspect will obtain a gun and fire it at the officer.\\n\\n Moreover, a bullet is an instrument of assault because its only purpose is to\\n\\nbe used with a firearm. Like a gun, a bullet located during a Terry frisk poses an\\n\\ninherent risk to the safety of the officer and others nearby, and the police officer\\n\\nshould not be required to assume such “unnecessary risks in the performance of\\n\\ntheir duties.” Terry, 392 U.S. at 23. For those reasons, having found a bullet\\n\\npursuant to a Terry frisk, an officer is permitted to seize it in the same manner as\\n\\nhe would a gun.\\n\\n This is not to say that the Fourth Amendment provides no protection against\\n\\nthe unreasonable seizure of a bullet. But those protections come at the initiation of\\n\\nthe encounter when the officer must have reasonable suspicion of criminal activity\\n\\nin order to initiate the stop and a reasonable belief that the individual is armed and\\n\\npresently dangerous in order to conduct the pat down. Id. at 24, 30. It is also not\\n\\nto say that the totality of the circumstances has no role in the Terry context, of\\n\\ncourse it does, but that role is limited to the initiation of the stop and frisk. After\\n\\nhaving made those determinations, an officer is authorized to remove a concealed\\n\\nobject that he reasonably believes is a weapon or other instrument of assault based\\n\\non the pat down. And because a bullet is an instrument of assault in the Terry\\n\\n\\n\\n 36\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 37 of 88\\n\\n\\ncontext, it is reasonable under all circumstances for the officer to protect his safety\\n\\nand that of others nearby by removing the bullet.\\n\\n Because I conclude that a bullet falls in to the category of “guns, knives,\\n\\nclubs, or other hidden instruments for the assault of the police officer,” id. at 29,\\n\\nand cannot logically be separated from a gun for Terry purposes, I would find that\\n\\nanytime an officer conducts a lawful Terry frisk, the officer may seize any bullet\\n\\nlocated during the frisk.\\n\\n\\n\\n\\n 37\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 38 of 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"BRANCH, Circuit Judge, joined by GRANT, Circuit Judge, concurring\"}, {\"author\": \"JORDAN, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"JORDAN, Circuit Judge, dissenting.\\n\\n\\n This appeal presents an interesting case study for originalism, a set of related\\n\\ntheories which (broadly speaking) call for constitutional provisions to be interpreted\\n\\nin accord with their understanding and meaning at the time of enactment or in accord\\n\\nwith the intent of their framers. See, e.g., McDonald v. City of Chicago, 561 U.S.\\n\\n742, 813-38 (2010) (Thomas, J., concurring in part and concurring in the judgment);\\n\\nRandy Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev.\\n\\n101, 105-08 (2001); Edwin Meese, III, Speech Before the American Bar Association\\n\\non July 9, 1985, in Steven Calabresi, Originalism: A Quarter-Century of Debate 53-\\n\\n54 (2007); Antonin Scalia, A Matter of Interpretation 38 (1997); Robert H. Bork,\\n\\nThe Tempting of America: The Political Seduction of the Law 144 (1990); Raoul\\n\\nBerger, Government by Judiciary: The Transformation of the Fourteenth\\n\\nAmendment 363-73 (1977). I write separately to discuss the majority’s failure to\\n\\naddress, in any meaningful way, Mr. Johnson’s originalist argument for limiting the\\n\\nreach of Terry v. Ohio, 392 U.S. 1 (1968).\\n\\n *******\\n\\n A quarter century ago, Justice Scalia concluded that the “frisk” aspect of\\n\\nTerry, 392 U.S. at 25-27—which allows the police to conduct pat-downs for\\n\\nweapons based only on reasonable suspicion—could not be justified on originalist\\n\\ngrounds. See Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J.,\\n\\n 38\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 39 of 88\\n\\n\\nconcurring) (finding “no English authority” and “no clear support at common law”\\n\\nfor physical searches of suspects absent probable cause). Some subsequent\\n\\nscholarship appears to validate Justice Scalia’s view. See, e.g., Thomas K. Clancy,\\n\\nThe Fourth Amendment: Its History and Interpretation 40-41 (2d ed. 2014)\\n\\n(asserting that in America and England during the period preceding the American\\n\\nRevolution, “[w]arrantless searches and seizures were virtually nonexistent or at\\n\\nleast uncontroversial,” and “[o]nly one type of warrantless seizure may have been\\n\\ncommon, that is, the arrest of a suspected felon”); Heather Winter, Resurrecting the\\n\\n“Dead Hand” of the Common Law Rule of 1789: Why Terry v. Ohio is in Jeopardy,\\n\\n42 Crim. L. Bull. 564, 565 (2006) (“The historical evidence reveals that Terry frisks\\n\\ndid not occur at common law and would have been viewed unfavorably by the\\n\\nConstitution’s framers.”); George C. Thomas III, Time Travel, Hovercrafts, and the\\n\\nFramers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80\\n\\nNotre Dame L. Rev. 1451, 1515 (2005) (concluding that Terry, insofar as it permits\\n\\na warrantless frisk on the street without probable cause, “would have baffled the\\n\\nFramers”). 1\\n\\n\\n\\n1\\n Surveying Fourth Amendment law in the early 20th century, Justice Cardozo essentially came to\\nthe same conclusion while serving on the New York Court of Appeals: “Search of the person is\\nunlawful when the seizure of the body is a trespass, and the purpose of the search is to discover\\ngrounds as yet unknown for arrest or accusation[.] Search of the person becomes lawful when\\ngrounds for arrest and accusation have been discovered, and the law is in the act of subjecting the\\nbody of the accused to its physical dominion.” People v. Chiagles, 237 N.Y. 193, 197, 142 N.E.\\n583 (1923) (citation omitted).\\n\\n\\n 39\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 40 of 88\\n\\n\\n Relying on Justice Scalia’s originalist position, Mr. Johnson argues that we\\n\\nshould construe Terry narrowly, and not extend it to allow the seizure and removal\\n\\nof items that are neither weapons nor contraband. See Mr. Johnson’s En Banc Br.\\n\\nat 18-23. But the majority barely acknowledges this argument, and declines to\\n\\naddress its merits. According to the majority, we are bound by Terry, and must\\n\\ntherefore ignore the original understanding of the Fourth Amendment. 2\\n\\n The majority is correct that Terry constitutes binding precedent, and that no\\n\\none on this court can wish it away. But accepting Terry does not require extending\\n\\nits reach on an issue of first impression. Terry permitted pat-downs for weapons,\\n\\nand only weapons. See Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) (“Nothing in\\n\\nTerry can be understood to allow . . . any search whatever for anything but\\n\\nweapons.”). By allowing officers to seize a stand-alone bullet from an unarmed\\n\\nsuspect who is in handcuffs and being held at gunpoint by several officers, the\\n\\nmajority expands Terry beyond its “narrow scope.” Dunaway v. New York, 442 U.S.\\n\\n200, 210 (1979).3\\n\\n\\n2\\n The majority is not alone in refusing to address the merits of Mr. Johnson’s originalist argument.\\nThe government has chosen to proceed as if the argument were never made. See Govt.’s En Banc\\nBr. at 21-50. So have the concurring opinions.\\n3\\n None of our sister circuits has expanded Terry this far. The majority cites United States v. Ward,\\n23 F.3d 1303 (8th Cir. 1994), for the proposition that “an officer may seize ammunition when it\\nthreatens the safety of officers.” Maj. Op. at 12. But in Ward, unlike here, the pat-down uncovered\\na sawed-off shotgun in addition to ammunition. See Ward, 23 F.3d at 1304. The majority also\\ncites cases from state courts for the same proposition, but in all of those cases there were facts\\nshowing or suggesting that the suspect was armed or had a firearm nearby. See, e.g., Scott v. State,\\n877 P.2d 503, 504-05 (Nev. 1994) (police seized 12-gauge shotgun shells from defendant who had\\n\\n\\n 40\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 41 of 88\\n\\n\\n There are ways to deal with a precedent whose pedigree is questionable. If\\n\\nTerry rests on a shaky originalist foundation, something the majority does not\\n\\ndispute, there is always the option of declining to broaden it—of “refus[ing] to\\n\\nextend it one inch beyond its previous contours.” Richard Epstein, The Classical\\n\\nLiberal Alternative to Progressive and Conservative Constitutionalism, 77 U. Chi.\\n\\nL. Rev. 887, 903 (2010) (proposing a “proper” originalist response to the Supreme\\n\\nCourt’s New Deal jurisprudence). See also Bork, The Tempting of America 158-59\\n\\n(arguing that even where questionable precedential decisions “cannot be overruled .\\n\\n. . they can be confined to the subject areas they concern.”); Troxel v. Granville, 530\\n\\nU.S. 57, 92 (2000) (Scalia, J., dissenting) (“While I would not now overrule those\\n\\n[erroneous] earlier cases . . . neither would I extend the theory upon which they\\n\\nrested to this new context.”). Why not then stop where Terry and its progeny stop,\\n\\nand prohibit, absent probable cause, the seizure of items which are neither weapons\\n\\nnor contraband?\\n\\n *******\\n\\n The majority’s decision to sidestep Mr. Johnson’s originalist argument is\\n\\nparticularly perplexing given the Supreme Court’s instruction that “[i]n determining\\n\\nwhether a search or seizure is unreasonable, we begin with history,” and “look to the\\n\\n\\n\\n\\nbeen sitting in the rear seat of a vehicle which “contained firearms, including a loaded 12-gauge\\nshotgun on the floor of the rear seat”). There are no such facts here.\\n\\n\\n 41\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 42 of 88\\n\\n\\nstatutes and common law of the founding era to determine the norms that the Fourth\\n\\nAmendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164, 168 (2008)\\n\\n(emphasis added). The majority appears to believe that Terry is an exception to this\\n\\ninterpretive approach, and focuses instead on a pragmatic balancing of individual\\n\\nprivacy and officer safety. See Maj. Op. at 18-19 (asserting that in the Terry context\\n\\nwe “consider the need to protect officer safety” without regard to original meaning).4\\n\\n But this suggestion—that we consider history in some Fourth Amendment\\n\\ncases, and not in others—is precisely the type of “halfway originalism” that the\\n\\nmajority purports to reject. See Maj. Op. at 19 (quoting Janus v. AFSCME, 138 S.\\n\\nCt. 2448, 2470 (2018)). And this approach is difficult to square with our\\n\\nconsideration of history in analyzing the scope of various constitutional provisions\\n\\n(including the Fourth Amendment itself). See, e.g., United States v. Gecas, 120 F.3d\\n\\n1419, 1435-57 (11th Cir. 1997) (en banc) (Fifth Amendment privilege against self-\\n\\nincrimination); Evans v. Stephens, 387 F.3d 1220, 1222-27 (11th Cir. 2004) (en\\n\\nbanc) (President’s power to “fill . . . Vacancies” under Art. II, § 2, cl. 3 of the\\n\\nConstitution); United States v. Bellaizic-Hurtado, 700 F.3d 1245, 1249-51, 1254\\n\\n\\n\\n4\\n The majority’s framework leads to a question. If officer safety is the raison d'être of Terry, on\\nwhat rationale does the majority uphold the seizure of the nylon holster from Mr. Johnson’s\\npocket? We are not told. Cf. United States v. Hirsch, 493 F.2d 465, 466 (5th Cir. 1971)\\n(suppressing firearm, holster and bullets seized during a 2:00 a.m. Terry frisk of a driver because,\\ndespite his “standing around nervously and giving confused explanations for his presence in the\\nneighborhood,” the officers were not in fear for their safety and had no basis to believe the driver\\nwas armed or dangerous).\\n\\n\\n 42\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 43 of 88\\n\\n\\n(11th Cir. 2012) (Congress’ authority to define “Offences against the Law of\\n\\nNations” under Art. I, § 8, cl. 10 of the Constitution); United States v. Touset, 890\\n\\nF.3d 1227, 1232 (11th Cir. 2018) (Fourth Amendment).\\n\\n Defending its ahistorical approach, the majority warns Mr. Johnson that he\\n\\nmight not “like the result” if history were front and center. See Maj. Op. at 19. It\\n\\nsays that, under the original understanding of the Fourth Amendment, Mr. Johnson’s\\n\\nmotion to suppress would be doomed because courts would not be required to\\n\\nexclude unlawfully obtained evidence. But this rhetorical challenge, though nicely\\n\\nput, is an empty one. We are bound by directly controlling Supreme Court precedent\\n\\nto recognize and apply the exclusionary rule—whatever its originalist pedigree—in\\n\\nthe context of Terry pat-downs. See, e.g., Terry, 392 U.S. at 12; Dickerson, 508 U.S.\\n\\nat 372. No similar precedent compels the expansion of Terry to permit the seizure\\n\\nof items that are neither weapons nor contraband under the circumstances present\\n\\nhere.\\n\\n The majority wants to make it seem that its holding results a priori from Terry\\n\\nand its progeny. That is not so. Under similar circumstances other federal courts\\n\\nhave concluded that the seizure of ammunition from a suspect’s clothing exceeded\\n\\nthe scope of a Terry pat-down. See United States v. Miles, 247 F.3d 1009, 1015 (9th\\n\\nCir. 2001); United States v. Lemons, 153 F. Supp. 2d 948, 962 (E.D. Wisc. 2001).\\n\\n\\n\\n\\n 43\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 44 of 88\\n\\n\\nThe majority may not like these cases, but they are no less relevant than the\\n\\nauthorities cited in its opinion.\\n\\n *******\\n\\n Originalism, we are told, is a preferable mode of constitutional interpretation\\n\\nbecause it provides “an objective basis for judgment that does not merely reflect the\\n\\njudge’s own ideological stance.” Michael W. McConnell, Active Liberty: A\\n\\nProgressive Alternative to Textualism and Originalism?, 119 Harv. L. Rev. 2387,\\n\\n2415 (2006). See also Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.\\n\\nRev. 849, 863-64 (1989) (“[Originalism] establishes a historical criterion that is\\n\\nconceptually quite separate from the preferences of the judge himself.”); Lillian R.\\n\\nBeVier, The Integrity and Impersonality of Originalism, 18 Harv. J.L. & Pub. Pol’y\\n\\n283, 291 (1996) (“The criteria of originalism constrain all the participants in the\\n\\ngame—including, most especially, the referees.”). By choosing to avoid Mr.\\n\\nJohnson’s originalist argument against the extension of Terry and its progeny, the\\n\\nmajority gives credence to those who have noted that originalism, when applied\\n\\nselectively, can be just as subjective (and just as subject to manipulation) as other\\n\\ncompeting theories of constitutional interpretation:\\n\\n [H]ot-and-cold originalism grants the [judge] the discretion to decide\\n when pragmatic considerations, whatever they may be, allow a\\n departure from originalist orthodoxy. And . . . this discretion dilutes\\n originalism’s constraining power.\\n\\n\\n\\n\\n 44\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 45 of 88\\n\\n\\nJ. Harvie Wilkinson, III, Cosmic Constitutional Theory 56 (2012). See also Frank\\n\\nCross, The Failed Promise of Originalism 188 (2013) (“[I]n realistic practice, all of\\n\\nthe justices pick and choose when to use originalism, and none are faithful acolytes\\n\\nto the method.”).\\n\\n Some may view the majority’s holding as properly balancing the interest that\\n\\nindividuals have in privacy against the interest that officers have in safety. But the\\n\\nmajority’s balancing is of a 21st-century variety, without so much as a nod to history.\\n\\nTime will tell whether originalism, in one of its various forms, will continue to make\\n\\nad hoc appearances in the opinions of this court.\\n\\n\\n\\n\\n 45\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 46 of 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"JORDAN, Circuit Judge, dissenting\"}, {\"author\": \"ROSENBAUM, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"ROSENBAUM, Circuit Judge, dissenting:\\n\\n Today we hold that any ammunition may always be seized during a frisk when\\n\\nthe searching officer immediately identifies it as ammunition, regardless of any\\n\\nsurrounding circumstances. This is a new rule that we did not ask the parties to\\n\\naddress, that neither party briefed, and that the government expressly declined to\\n\\nadopt at oral argument.\\n\\n Indeed, during oral argument, the Court asked the government, “Once you\\n\\nfeel the bullet, the officer can seize the bullet. Is that the government’s position?”\\n\\nRecording of Oral Argument dated Oct. 24, 2018, at 38:58. And the government\\n\\nresponded without equivocation, “No, Your Honor.” Id. Then the government\\n\\nexplicitly stated, “We are not asking the Court to rule that a bullet in isolation in all\\n\\ncircumstances would be sufficient to reach in [to the pocket and seize]; we are asking\\n\\nthe Court to apply the facts-specific Fourth Amendment tests that this Court has\\n\\napplied and other courts have applied . . . under the totality of the circumstances.”\\n\\nId. at 51:34.1\\n\\n Because we operate only “as arbiters of legal questions presented and argued\\n\\nby the parties,” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10\\n\\n\\n 1\\n See also Majority Op. at 21 (describing Johnson as having argued in his brief that “Officer\\nWilliams was not entitled to seize the ammunition from his pocket because ‘the bullet in this\\nparticular case posed no conceivable threat to officer safety’” and the government as having\\nargued in its brief that “‘Officer Williams was justified in retrieving the bullet because a reasonable\\nofficer under the circumstances could conclude that the bullet [wa]s an instrument of assault that\\ncould pose a danger to himself and other[s].’”) (emphasis added).\\n\\n\\n 46\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 47 of 88\\n\\n\\n(2011) (citations and internal quotation marks omitted), once the government\\n\\ndisclaimed the per se rule at oral argument, we were left with only two permissible\\n\\noptions: apply a true totality-of-the-circumstances test or rehear the case, ask the\\n\\nper se question to the parties and, if necessary, appointed counsel, and analyze the\\n\\narguments presented. Instead, the Majority Opinion takes a third route and adopts\\n\\nthe new per se rule on its own. That new rule may well be correct. Or it may not.\\n\\nBut if we wanted to consider such a rule, we should have asked the parties to brief\\n\\nand argue it in this en banc proceeding, instead of asking them to brief and argue a\\n\\nmore discrete question. 2\\n\\n I organize my dissent from the Majority Opinion’s decision to issue a rule on\\n\\na question that was not before us, into three substantive parts. In Section I, I show\\n\\nthat, despite the Majority Opinion’s insistence to the contrary, the Majority Opinion\\n\\ncreates the new rule that ammunition is always seizable during a proper Terry frisk,\\n\\nwithout consideration of the surrounding circumstances. In Section II, I recount the\\n\\n\\n 2\\n Judge Newsom’s and Judge Branch’s opinions openly acknowledge that they endorse this\\nnew per se rule. Without opining on the substance of the Newsom and Branch Opinions, but from\\na judicial-procedure perspective only, I respectfully disagree that in these en banc proceedings, we\\nshould adopt the new per se rule they advocate. Nevertheless, I don’t take issue with suggesting\\nnew theories in non-majority opinions, as they can initiate thought and trigger development of the\\nlaw in future cases. I also applaud Judge Newsom’s and Judge Branch’s Opinions’ transparency\\nabout their reasoning and consequences. In contrast, the Majority Opinion declines to\\nacknowledge that it adopts the same rule for which the Newsom and Branch Opinions advocate.\\nBut that does not mean that the Majority Opinion does not so hold. As Section I of this dissent\\ndemonstrates, the Majority Opinion necessarily sanctions this new rule as much as the Newsom\\nand Branch Opinions do. And because this new rule will always require the conclusion that the\\nseizure of ammunition was permissible in any given proper Terry frisk, regardless of the\\nsurrounding circumstances, that is the only holding that matters today.\\n\\n\\n 47\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 48 of 88\\n\\n\\nmany ways we could have avoided ruling on a question that was not before us, and\\n\\nI note the consequences of engaging in such a review. And in Section III, I explain\\n\\nthat I do not opine on the question that actually was before us because the Majority\\n\\nOpinion’s new rule makes that question moot.\\n\\n I.\\n\\n This section demonstrates that today’s Majority Opinion necessarily renders\\n\\nammunition always seizable in a proper Terry3 frisk. But before I get to that, I must\\n\\nacknowledge an awkward fact: the Majority Opinion insists that it has not\\n\\nestablished such a new rule. So of course, any reader likely and understandably will\\n\\napproach my dissent with some skepticism. In fact, my colleagues’ views gave me\\n\\nserious pause—as they should have—that perhaps I had misread the Majority\\n\\nOpinion. So I have spent a lot of time closely reviewing and re-reviewing the\\n\\nMajority Opinion. But every reading has led me to the same conclusion: the\\n\\nMajority Opinion necessarily establishes the new rule that ammunition is always\\n\\nseizable in a Terry frisk. And district courts that must apply the lessons from the\\n\\nMajority Opinion will not logically be able to ever reach the conclusion that\\n\\nammunition is not seizable in a permissible Terry frisk—no matter the\\n\\ncircumstances.\\n\\n\\n\\n\\n 3\\n Terry v. Ohio, 392 U.S. 1 (1968).\\n\\n\\n 48\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 49 of 88\\n\\n\\n One other note to keep in mind while considering the practical holding of\\n\\ntoday’s Majority Opinion: the Majority Opinion easily could have avoided creating\\n\\nits new rule today that all ammunition is always seizable in a Terry frisk. All it\\n\\nwould have had to do is include one additional sentence limiting the broad principles\\n\\nthat otherwise necessarily flow from the Majority Opinion’s reasoning. But the\\n\\nMajority Opinion has refused to do so. I hope readers will ask themselves why. In\\n\\nthe meantime, though, in Part A of this section, I describe the problematic aspects of\\n\\nthe Majority Opinion and explain the easy fix that would prevent us from issuing\\n\\nour new rule today that ammunition is always seizable in a Terry frisk. In Part B, I\\n\\ndiscuss the problems with a stealth holding like the one the Majority Opinion\\n\\nnecessarily produces today.\\n\\n A.\\n\\n The difficulties the Majority Opinion’s reasoning creates begin at the second\\n\\nparagraph on page 10 of the Majority Opinion (beginning “As an essential part of a\\n\\nlethal weapon . . .”) and continue through the top of page 12. They arise because, in\\n\\nand of itself, the reasoning in question dictates today’s holding that Johnson’s bullet\\n\\nwas properly seized—without reference to any actual circumstances existing at the\\n\\ntime officers seized Johnson’s bullet. So that same reasoning that made Johnson’s\\n\\nbullet seizable here necessarily requires the conclusion that ammunition is always\\n\\nseizable during a proper Terry frisk. And under our prior-precedent rule, a holding\\n\\n\\n\\n 49\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 50 of 88\\n\\n\\nthat sneaks into our jurisprudence through the back door of reasoning is every bit as\\n\\nbinding as one that openly announces its presence as it enters through the front door.\\n\\nSmith v. GTE Corp., 236 F.3d 1292, 1304 (11th Cir. 2001) (“The fact that the [prior\\n\\npanel of the Court] did not explicitly say ‘there is no common and undivided interest\\n\\nin a class claim for punitive damages’ does not undermine the clear reasoning and\\n\\nresult of that decision nor does it vitiate the resulting rule.”). So unfortunately, the\\n\\nMajority Opinion’s refusal to expressly own its holding today that all ammunition is\\n\\nalways seizable during a permissible Terry frisk does not render the holding any less\\n\\nbinding.\\n\\n In particular, to justify its determination that the ammunition here was\\n\\nseizable, the Majority Opinion reasons that when a bullet is present, so is a gun,\\n\\n“because common sense and logic dictate that a bullet is often associated with a gun”\\n\\n(the “bullet-means-gun” argument). Maj. Op. at 11 (citation, quotation marks, and\\n\\nalteration omitted). The Majority Opinion then goes on to opine that knowing the\\n\\ncaliber of a bullet can be useful to determining the type of gun that might be present\\n\\nat the scene. Id. For this reason, the Majority Opinion concludes, the bullet was\\n\\nseizable since “Officer Williams had to find any gun to secure the scene and protect\\n\\nhimself and others.” Id. But there are two big problems with trying to glom this\\n\\nrationale onto the totality-of-the-circumstances test.\\n\\n\\n\\n\\n 50\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 51 of 88\\n\\n\\n First, as the Majority Opinion implicitly concedes, this reasoning is based on\\n\\nhypothetical “facts.” See Maj. Op. at 11 (“Officer Williams’s removal of the\\n\\nammunition could have informed him of what caliber or type of gun might be\\n\\nnearby.”) (emphasis added). Despite testifying at two separate evidentiary hearings,\\n\\nneither Officer Williams nor any other law-enforcement officer ever said that he or\\n\\nshe sought to use or that he or she did in fact consult the caliber of the seized bullet\\n\\nto ascertain what type of gun might be lying around.4 So it is simply not accurate to\\n\\n\\n\\n 4\\n Of course, it’s impossible to cite a part of the testimony that proves that no officer testified\\nthat he or she actually consulted the caliber of the gun to assist in finding a weapon with a matching\\ncaliber. So instead, I quote the part of Officer Williams’s testimony that comes closest. Yet even\\nthe most careful review of that testimony reveals that it still does not support the idea that Officer\\nWilliams actually consulted the caliber of the bullet and then used knowledge of the bullet’s caliber\\nto assist in finding a gun of that same caliber:\\n Q: After you found the ammunition and the holster, what did you do?\\n A: I then retrieved it and notified the officers in the area and asked him was\\n there any more weapons or anything near that this ammunition and this\\n holster goes to.\\n Q: What did the defendant say?\\n A: He said no.\\n Q: Finding a person at 5 in the morning with ammunition and a holster in their\\n pocket, what did you think to do next?\\n A: Canvas the area to see if the weapon was possibly thrown. We have that a\\n lot in Opa-Locka.\\n Q: Why would you be looking for weapons to have been thrown? Can you\\n explain that?\\n A: I was looking for the weapons to be thrown because the round that was in\\n his pocket and the holster led me to believe that there is a weapon that the\\n round goes to and something goes into that holster.\\n Q: So ultimately, Officer, what did you continue to do?\\n A: Officer Holborow then looked in the west side of the neighbor’s yard to see\\n if he had possibly thrown anything over there. I then walked towards the\\n back where I found a—to the back of the listed location where I found a\\n hole in the fence. I then got in my car and drove around the block to the\\n north side of that duplex across the fence where I found two pistols laying\\n near the hole.\\n\\n\\n 51\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 52 of 88\\n\\n\\nsuggest that Officer Williams seized the bullet to somehow aid him in identifying\\n\\nthe “caliber or type of gun” for which he was looking. Id. Consequently, the\\n\\nrationale that the ammunition was seizable so it could assist the officer in identifying\\n\\nand then locating a strewn weapon literally bears no relationship to the actual\\n\\ncircumstances in Johnson’s case.\\n\\n Because it is divorced from the circumstances of this case, the bullet-means-\\n\\ngun rationale cannot even arguably be viewed as part of any alleged totality-of-the-\\n\\ncircumstances rationale for seizing the bullet here. Rather, it supports adoption of a\\n\\nper se rule. Instead of evaluating “the concrete factual circumstances that Officer\\n\\nWilliams encountered,” id. at 10, the Opinion “weighs” an abstract fact that, while\\n\\nalways true, was never actually considered here, under the guise of a circumstance-\\n\\ndependent test.\\n\\n But a second problem also plagues the bullet-means-gun argument. By the\\n\\nMajority Opinion’s reasoning, every piece of ammunition will always give rise to\\n\\nthe deduction that “a gun [is] in the vicinity,” and every officer will always have to\\n\\nfind any gun to secure the scene and protect himself and others. So if, as the Majority\\n\\nOpinion asserts, a bullet means a gun is present, and knowing the caliber of the bullet\\n\\nis important to “find[ing] any gun to secure the scene and protect [the officer] and\\n\\n\\n\\n\\nRather, Officer Williams’s testimony shows only that he relied on the fact that he found a bullet\\nin general to conclude that a gun in general might be around.\\n\\n\\n 52\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 53 of 88\\n\\n\\nothers,” in the absence of any limitation on these principles, the presence of a bullet\\n\\nand the corresponding need to know the caliber of it to assist in identifying the gun\\n\\nwill always be sufficient, in and of themselves, to support seizure of the\\n\\nammunition—regardless of any circumstances of the particular Terry stop.\\n\\n Nor is the bullet-means-gun argument the only one the Majority Opinion\\n\\nrelies on that suffers from this problem. The Majority Opinion also justifies its\\n\\ndetermination that the bullet here was seizable on the ground that ammunition\\n\\nthreatens the safety of officers and others because it is “an essential part of a lethal\\n\\nweapon,” and “grave injury . . . could [] be[] caused by . . . ammunition if . . . loaded\\n\\ninto a gun” (the “intrinsic-danger” argument). Id. at 10. But what bullet is that not\\n\\ntrue of?\\n\\n To be sure, the Majority Opinion mentions “Johnson’s ammunition” and “in\\n\\nthese circumstances” in discussing the intrinsic-danger argument. See id. But the\\n\\nspecified characteristics of ammunition on which the Majority Opinion actually\\n\\nrelies in this argument are not unique to Johnson’s single bullet. And even the most\\n\\nthorough of reviews reveals no effort whatsoever by the Majority Opinion to relate\\n\\nthese general characteristics of all ammunition to the particular circumstances of\\n\\nJohnson’s Terry frisk. As a result, the Majority Opinion’s camouflage cannot and\\n\\ndoes not limit the reasoning wearing it.\\n\\n\\n\\n\\n 53\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 54 of 88\\n\\n\\n Rather, these intrinsic-danger characteristics of Johnson’s ammunition are\\n\\nalways true of all ammunition. So under the intrinsic-danger rationale, in the\\n\\nabsence of any express limitation on the principle, all ammunition will always be\\n\\nseizable because, intrinsically, it always “threatens the safety of officers and others.”\\n\\nId. at 12. And because ammunition is seizable when it “threatens the safety of\\n\\nofficers and others,” and all ammunition always threatens “the safety of officers and\\n\\nothers” under the intrinsic-danger rationale, all ammunition is always seizable\\n\\nduring a permissible Terry frisk, without regard to any other considerations.\\n\\n So all courts in this Circuit are now bound to uphold the seizure of ammunition\\n\\nduring a Terry frisk—whether the officer seizes the ammunition on a crowded street\\n\\nin the highest-crime neighborhood just before dawn and while the suspect is wearing\\n\\nbulky clothing and is unsecured, or whether the officer seizes the ammunition on a\\n\\nsunny day at an empty beach while the suspect is secured and clad in nothing more\\n\\nthan a bikini. And it is pure sophistry to suggest that courts will be able to reach any\\n\\nother conclusions in cases involving ammunition, regardless of any other\\n\\ncircumstances. Perhaps that is why the Majority Opinion does not even attempt to\\n\\nexplain how any other answer is possible.5\\n\\n\\n 5\\n The Majority Opinion asserts it does not answer this question because “we are not in the\\nbusiness of issuing advisory opinions . . . that merely opine on what the law would be upon a\\nhypothetical state of facts.” Majority Op. at 23 (citations and alterations omitted). I agree that we\\ncannot issue advisory opinions. But that’s not what this question calls for. Though it is certainly\\nhypothetical that the officers here relied on the caliber of the bullet to help them identify the type\\nof firearm for which they were looking—despite the Majority Opinion’s reliance on this\\n\\n\\n 54\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 55 of 88\\n\\n\\n Nor is it any answer to this dilemma to simply note, as the Majority Opinion\\n\\ndoes, that to determine whether an officer may properly seize an item during a Terry\\n\\nfrisk, we must “consider[] the nature of that object.” Id. at 20. Of course, that is\\n\\ntrue.\\n\\n But significantly, the inquiry we must conduct about the nature of the item\\n\\nunder the totality-of-the-circumstances framework is whether the nature of the\\n\\nseized item created a threat to the safety of officers and others under the particular\\n\\ncircumstances the officer encountered—not whether the nature of the item always\\n\\nposes a threat to the safety of officers and others. The latter is a question we could\\n\\nask if we were deciding whether to scrap the totality-of-the-circumstances test as\\n\\napplied to ammunition, as the Newsom and Branch Opinions openly advocate doing.\\n\\n In fact, the Branch Opinion—which expressly concludes that ammunition is\\n\\nalways seizable during a proper Terry frisk because “a bullet is an instrument for the\\n\\nassault of the police officer,” Branch Op. at 34 (citation, internal quotation marks,\\n\\nand alteration omitted)—relies on the very same intrinsic-danger reasoning as the\\n\\nMajority Opinion to reach its conclusion. According to the Branch Opinion’s\\n\\nreasoning, “aside from removing [ammunition], no precaution can eliminate the\\n\\n\\nsupposition—there is nothing hypothetical about the general proposition that a bullet often means\\na gun is in the vicinity or that knowing the caliber of ammunition can assist in finding a matching\\nfirearm. Nor is there anything hypothetical about the general proposition that ammunition makes\\nguns lethal. And since the Majority Opinion refuses to limit its holding by saying these\\ncharacteristics about ammunition are not, alone or in combination only with each other,\\ndeterminative of whether ammunition may be seized, see infra at 56, no other facts matter.\\n\\n\\n 55\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 56 of 88\\n\\n\\ndanger” ammunition poses, since a bullet’s “only purpose is to be used with a\\n\\nfirearm,” and “a bullet located during a Terry frisk poses an inherent risk to the safety\\n\\nof the officers and the others nearby.” Branch Op. at 35-36. In other words, the\\n\\nBranch Opinion employs the intrinsic-danger rationale to expressly hold what the\\n\\nMajority Opinion implicitly (and necessarily) holds through the very same\\n\\nreasoning.\\n\\n The Majority Opinion easily could have avoided this problem and could have\\n\\nlimited itself to holding only that the seizure of Johnson’s ammunition was\\n\\nappropriate under the totality of the circumstances here, if it wanted to do so. All it\\n\\nneeded to do is simply state that the bullet-means-gun and intrinsic-danger\\n\\narguments, alone or in combination with only each other, are not enough, in and of\\n\\nthemselves, to warrant seizure of ammunition during a permissible Terry frisk. A\\n\\nsingle sentence would do that trick. That’s it.\\n\\n In fact, I expressly invited the Majority Opinion to do just that. And by this\\n\\ndissent, I renew my call.\\n\\n Tellingly, though, the Majority Opinion refuses to add any such language. We\\n\\nshould ask ourselves why. If the Majority Opinion believes that the bullet-means-\\n\\ngun and intrinsic-danger arguments, alone or in combination with only each other,\\n\\nare not enough to warrant seizure of ammunition during a Terry stop, why will it not\\n\\njust say so?\\n\\n\\n\\n 56\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 57 of 88\\n\\n\\n Because the Majority Opinion refuses to limit its reasoning today, under our\\n\\nprior-precedent rule, the Majority Opinion’s bullet-means-gun and intrinsic-danger\\n\\nreasoning—which are applicable to all ammunition in all circumstances and not\\n\\nlimited to the facts of Johnson’s case—bind all courts in the Eleventh Circuit to rule\\n\\nammunition always seizable during a proper Terry frisk.\\n\\n Even the Branch Opinion implicitly recognizes as much. True, the Branch\\n\\nOpinion states that it “join[s] the Majority Opinion in full.” But significantly, that\\n\\nendorsement is qualified with two “clarif[ications]. Branch Opinion at 31. And\\n\\nthose “clarif[ications]” preclude the Branch Opinion’s analysis from supporting the\\n\\nMajority Opinion’s totality-of-the-circumstances alternative holding. In particular,\\n\\nthe Branch Opinion necessarily qualifies its endorsement of the Majority Opinion\\n\\nwith the following two “clarif[ications]”: that “(1) the totality of the circumstances\\n\\nanalysis in Terry applies only when the officer is determining whether (a) to stop\\n\\nand (b) then to frisk the detained person; and (2) if the officer conducting the frisk\\n\\ncomplies with the scope of the search permitted by Terry and feels what the officer\\n\\nreasonably believes is a bullet, the officer may in all circumstances seize it.” Id.\\n\\n(emphasis added). In other words, the Branch Opinion expressly disavows the idea\\n\\n\\n\\n\\n 57\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 58 of 88\\n\\n\\nthat the totality-of-the-circumstances test governs—or even applies in any way to—\\n\\nthe question of whether ammunition may be seized during a permissible Terry frisk.6\\n\\n So the Branch Opinion’s “clarif[ication]”—that the totality-of-the-\\n\\ncircumstances analysis does not govern whether ammunition is seizable during a\\n\\npermissible Terry frisk because ammunition is always seizable during a permissible\\n\\nTerry frisk, regardless of the circumstances—cannot peacefully coexist with the\\n\\nMajority Opinion’s claimed sole holding—that Johnson’s ammunition was properly\\n\\nseized under an analysis of the totality of the circumstances existing after the frisk\\n\\nhad already been properly embarked upon and at the time Williams recognized a\\n\\nbullet was in Johnson’s pocket. Either the totality-of-the-circumstances analysis\\n\\ngoverns whether ammunition is seizable during a permissible Terry frisk, or it\\n\\ndoesn’t. And if it does, ammunition cannot then always be seizable during a proper\\n\\nTerry frisk. Otherwise, employing the totality-of-the-circumstances analysis to\\n\\nascertain whether seizure of ammunition is allowed during a given permissible Terry\\n\\nfrisk would be an utter waste of time.\\n\\n\\n\\n 6\\n See also id. at 32 (“The initiation of the stop and the initiation of the pat down are the\\nonly two points in the encounter at which the officer’s reasonable belief must be assessed based\\non the totality of the circumstances.”); 35 (“If an officer discovers a bullet during a frisk lawful\\nunder Terry, the officer is entitled to seize the bullet as it is an instrument of assault in all\\ncircumstances.”) (emphasis added); 36-37 (“[H]aving found a bullet pursuant to a Terry frisk, an\\nofficer is permitted to seize it in the same manner as he would a gun.”), (“[I]t is reasonable under\\nall circumstances for the officer to protect his safety and that of others nearby by removing the\\nbullet.”) (emphasis added); 37 (“[A]nytime an officer conducts a lawful Terry frisk, the officer\\nmay seize any bullet located during the frisk.”).\\n\\n\\n 58\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 59 of 88\\n\\n\\n Rather, if a totality-of-the-circumstances analysis governs, that necessarily\\n\\nmeans that in at least some circumstances, ammunition will not be seizable. So the\\n\\nBranch Opinion’s “clarif[ication]” of the Majority Opinion that ammunition is\\n\\nalways seizable during a proper Terry frisk is not a “clarif[ication]” at all. Instead,\\n\\nit is necessarily an acknowledgment of the Branch Opinion’s understanding that the\\n\\nMajority Opinion renders ammunition always seizable during a proper Terry frisk,\\n\\nwithout regard to the totality-of-the-circumstances test.\\n\\n What’s more, two of the seven judges in the Majority signed the Branch\\n\\nOpinion, which endorses only the ammunition-is-always-seizable theory and\\n\\nnecessarily repudiates the applicability of the totality-of-the-circumstances test to\\n\\ndetermining whether ammunition is seizable during a permissible Terry frisk. And\\n\\nsince the Majority Opinion has two holdings, including that ammunition is always\\n\\nseizable during a proper Terry frisk, the only rationale receiving seven votes today\\n\\nis the Branch Opinion’s rationale. It makes no difference that the Branch Opinion\\n\\nstates that it “join[s] the majority opinion in full” because the Branch Opinion’s\\n\\n“clarif[ication]” of the Majority Opinion necessarily means the Branch Opinion’s\\n\\nconcurrence in the Majority Opinion is qualified to endorse only the ammunition-is-\\n\\nalways-seizable theory.\\n\\n Plus, even if we could overlook the fact that the Branch Opinion’s\\n\\n“clarif[ications]” of the Majority Opinion necessarily qualify its concurrence in the\\n\\n\\n\\n 59\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 60 of 88\\n\\n\\nMajority Opinion to supporting only the ammunition-is-always-seizable holding, the\\n\\nMajority Opinion would have two alternative holdings: the narrow one it trumpets—\\n\\nthat the bullet here was seizable under the totality of the circumstances—and the\\n\\nbroad one it declines to expressly acknowledge—that all ammunition is always\\n\\nseizable in a Terry frisk.\\n\\n And under those circumstances, make no mistake: as a practical matter, the\\n\\nMajority Opinion’s stealth holding that ammunition is always seizable in a Terry\\n\\nfrisk is the only holding that counts, regardless of whether the Majority Opinion\\n\\nopenly admits that. Though alternative holdings are equally binding if they receive\\n\\nthe support of a majority of judges considering the issue, see Bravo v. United States,\\n\\n532 F.3d 1154, 1162 (11th Cir. 2008), the ammunition-is-always-seizable holding\\n\\nnecessarily will devour the totality-of-the-circumstances holding in every case. So\\n\\nif the two holdings produce different answers to the question of whether ammunition\\n\\nis seizable in a Terry frisk in any given case, the holding that the ammunition is\\n\\nalways seizable will always demand the overall conclusion that the ammunition is\\n\\nseizable. See United States v. Leon, 468 U.S. 897 (1984) (fruit of impermissible\\n\\nsearch admissible where officers reasonably believed in good faith that the search\\n\\nwas valid).\\n\\n The Majority Opinion has no answer to this problem. Instead, it invokes\\n\\neveryone from Chief Justice John Marshall to Bryan Garner for the truism that\\n\\n\\n\\n 60\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 61 of 88\\n\\n\\njudicial decisions are limited to the facts of the case before the court. See Majority\\n\\nOp. at 21-22. But that does not respond to the problem here.\\n\\n Indeed, Garner’s The Law of Judicial Precedent, which the Majority Opinion\\n\\nrelies on, see Maj. Op. at 21, explains that while a court decides only the case before\\n\\nit, “the rationale that carries the force of precedent is that without which the judgment\\n\\nin the case could not have been given, and not the reasoning articulated by the court,”\\n\\nBryan A. Garner, et al., The Law of Judicial Precedent, § 6, at 83 (2016) (citation\\n\\nand internal quotation marks omitted). In other words, our prior-precedent rule\\n\\ndictates an opinion’s holding.\\n\\n Yet the Majority Opinion fails to account in any way for the prior-precedent\\n\\nrule, which today requires the conclusion that all ammunition is always seizable\\n\\nduring a permissible Terry frisk. In fact, the Majority Opinion does not even\\n\\nmention the prior-precedent rule.\\n\\n So in sum, the bullet-means-gun and intrinsic-danger rationales apply to all\\n\\nammunition, regardless of any surrounding factual circumstances, and we have\\n\\ndeclared today that each of these rationales requires the conclusion that ammunition\\n\\nrepresents a threat to the safety of officers or others. Since a threat to the safety of\\n\\nofficers or others always justifies the seizure of an item during a permissible Terry\\n\\nfrisk, in the absence of limiting principles, under our prior-precedent rule, the bullet-\\n\\nmeans-gun and intrinsic-danger rationales necessarily require all courts in this\\n\\n\\n\\n 61\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 62 of 88\\n\\n\\nCircuit to now rule valid the seizure of ammunition during a proper Terry frisk,\\n\\nwithout consideration of any surrounding circumstances.\\n\\n The new rule we adopt may or may not ultimately be the right answer. But\\n\\nwe should at least be forthright about what we are holding and about the\\n\\nconsequences of today’s decision. And we should ask for and consider the parties’\\n\\npositions in the process.\\n\\n B.\\n\\n A reader may wonder what difference it makes whether we openly announce\\n\\nour holding that ammunition is always seizable if the holding is nonetheless\\n\\nascertainable from our reasoning today? In my view, a lot.\\n\\n It matters because we are a United States Court, and forthrightness is our stock\\n\\nin trade. We have a duty to be open and honest with Johnson, officers, members of\\n\\nthe public, and federal courts about the practical legal consequences of our decision\\n\\ntoday.\\n\\n It matters because officers and members of the public who have not had reason\\n\\nto think about the practical legal consequences of the Majority Opinion’s reasoning\\n\\nmay be under the misimpression after today that ammunition is not always seizable\\n\\nin a Terry frisk. As a result, officers may (now unnecessarily) spend time weighing\\n\\nhow dark it is or how much crime has been committed in a given locale before\\n\\ndeciding whether to seize ammunition, potentially imperiling their safety if the\\n\\n\\n\\n 62\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 63 of 88\\n\\n\\nMajority Opinion’s rationale rendering all ammunition seizable is correct. And it\\n\\nmatters to the privacy rights of the public who may (now mistakenly) believe that\\n\\nofficers are not entitled to seize ammunition from their pockets in some scenarios.\\n\\n It matters because now busy courts in this Circuit will have to waste their time\\n\\ngoing through the motions of applying the totality-of-the-circumstances test to\\n\\ndetermine whether ammunition is seizable in a Terry frisk, only to ultimately have\\n\\nto hold in every single case that it is, regardless of the outcome of the totality-of-the-\\n\\ncircumstances analysis.\\n\\n It matters because if Johnson wishes to seek certiorari on the question of\\n\\nwhether ammunition is, in fact, always seizable under Terry or whether instead\\n\\nammunition is seizable only if the totality of the circumstances warrants it, he will\\n\\nhave to spend several pages of his petition just proving that the Majority Opinion\\n\\nestablishes this rule.\\n\\n It matters because if members of the public knew we were going to consider\\n\\nannouncing a rule that ammunition is always seizable in a Terry frisk, some—such\\n\\nas advocacy organizations for civil rights, law-enforcement officers, and gun\\n\\nenthusiasts, as well as criminal-defense-attorney organizations—may have wished\\n\\nto have filed amicus curiae briefs to assist us in evaluating the legal advisability of\\n\\nthat position.\\n\\n\\n\\n\\n 63\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 64 of 88\\n\\n\\n And it matters because if, outside the strictures of our adversarial system, we\\n\\nare going to adopt a new rule no party advocated for, we have a duty to plainly state\\n\\nthat that is what we are doing. And then we have a duty to explain why that\\n\\nextraordinary measure is necessary. If we can’t, we should not adopt a new rule in\\n\\nthis way.\\n\\n II.\\n\\n Perhaps the Majority Opinion does not expressly acknowledge its\\n\\nammunition-is-always-seizable holding because we never asked the parties to brief\\n\\nthe question it answers, neither party argued the ammunition-is-always-seizable\\n\\nposition that the Majority Opinion’s new rule adopts today, and the government\\n\\nexpressly disavowed it during oral argument. In other words, we never subjected\\n\\ntoday’s new rule to the adversarial process.\\n\\n Had we done so, we could have had more confidence in the Court’s new rule.\\n\\nAs Justice Gorsuch has explained, “[N]ormally . . . the crucible of adversarial testing\\n\\nis crucial to sound judicial decisionmaking. We rely on it to yield insights (or reveal\\n\\npitfalls) we cannot muster guided only by our own lights.” Sessions v. Dimaya, 138\\n\\nS. Ct. 1204, 1232-33 (2018) (Gorsuch, J., concurring in part and concurring in the\\n\\njudgment) (citation and internal quotation marks omitted); see also Greenlaw v.\\n\\nUnited States, 554 U.S. 237, 244 (2008) (“[W]e normally decide only questions\\n\\npresented by the parties. Counsel almost always know a great deal more about their\\n\\n\\n\\n 64\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 65 of 88\\n\\n\\ncases than we do, and this must be particularly true of counsel for the United States,\\n\\nthe richest, most powerful, and best represented litigant to appear before us.”)\\n\\n(citation and quotation marks omitted); Maslenjak v. United States, 137 S. Ct. 1918,\\n\\n1931-32 (Gorsuch, J., concurring in part and concurring in the judgment) (joined by\\n\\nThomas, J.).\\n\\n Not only that, but “[t]he premise of our adversarial system is that appellate\\n\\ncourts do not sit as self-directed boards of legal inquiry and research, but essentially\\n\\nas arbiters of legal questions presented and argued by the parties before them.”\\n\\nNelson, 562 U.S. at 148 n.10 (2011) (quoting Carducci v. Regan, 714 F.2d 171, 177\\n\\n(D.C. Cir. 1983) (opinion for the court by Scalia, J.)). And the “doctrine of judicial\\n\\nself-restraint requires us to exercise the utmost care whenever we . . . break new\\n\\nground . . . .” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).\\n\\n This is especially true when we decide on the scope of a constitutional right.\\n\\nSee, e.g., Nelson, 562 U.S. at 148 n.10 (“In this case, petitioners did not ask us to\\n\\nhold that there is no constitutional right to informational privacy, and respondents .\\n\\n. . thus understandably refrained from addressing that issue in detail. It is undesirable\\n\\nfor us to decide a matter of this importance in a case in which we do not have the\\n\\nbenefit of briefing by the parties . . . .”). And that is the case even more so when we\\n\\ndetermine the scope of a constitutional right while sitting en banc on rehearing.\\n\\nIndeed, “[a]n en banc . . . rehearing is not favored and ordinarily will not be ordered\\n\\n\\n\\n 65\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 66 of 88\\n\\n\\nunless . . . the proceeding involves a question of exceptional importance.” Fed. R.\\n\\nApp. P. 35(a)(2). When a case “involves a question of exceptional importance,”\\n\\nemploying the powerful adversarial-testing tool is even more crucial to ensure we\\n\\nreach the best possible answer under the law. But we did not do that here.\\n\\n We could have. In fact, it was entirely within our control to do so.\\n\\n We are the ones who decide the question the parties must address for en banc\\n\\nrehearing. So we could have asked the parties to brief whether an officer may always\\n\\nseize ammunition when that officer immediately recognizes it during a Terry frisk\\n\\nor whether instead we must always apply Terry’s totality-of-the-circumstances\\n\\nanalysis to determine whether the seizure of ammunition is reasonable under the\\n\\nspecific facts of a particular situation. But we did not ask that question.\\n\\n Left to their own devices, the parties argued over application of Terry’s\\n\\ntotality-of-the-circumstances test to the specific facts of this case—that is, whether\\n\\nOfficer Williams’s seizure of the single bullet was reasonable in light of the\\n\\nparticular factual scenario that arose here. When we saw that neither party’s briefing\\n\\nadvocated for—or even addressed—a rule that would allow officers to always seize\\n\\nammunition upon immediately recognizing it during a Terry frisk, we could have\\n\\ngiven the parties a supplemental-briefing instruction requiring them to comment on\\n\\nthe issue. But we did not do that.\\n\\n\\n\\n\\n 66\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 67 of 88\\n\\n\\n We also could have appointed counsel to argue the position that no party chose\\n\\nto take: that an officer may always seize ammunition upon immediately recognizing\\n\\nit during a Terry frisk. To be sure, we have embraced the appointed-counsel\\n\\nprocedure in the past when no party has adopted a particular side of a given issue.\\n\\nSee, e.g., McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1079\\n\\n(11th Cir. 2017) (en banc) (listing court-appointed amicus curiae). But we did not\\n\\nappoint counsel here.\\n\\n And even after oral en banc arguments, when it became clear a majority of\\n\\nthis Court decided that it was considering affirming on the basis of today’s new rule,\\n\\nit was not too late to solicit the parties’ opinions and appoint counsel if necessary.\\n\\nWe reserve time in our annual schedule for at least three en banc sessions every year.\\n\\nSometimes we use them all; sometimes we don’t. But they are always available. So\\n\\nwe easily could have reset the case for a new en banc rehearing to occur in January—\\n\\njust three months after the first one.7 Then we could have directed the parties to\\n\\nbrief the question the Court decides without their input (or approval) today. If no\\n\\none took today’s Majority’s position, we could have appointed counsel to brief it.\\n\\nBut we did not do that, either.\\n\\n\\n\\n\\n 7\\n Or if we thought the issue just couldn’t wait three months, we could have done what we\\ndid this past summer, when we added an en banc argument that we heard at a time that was not\\npreviously on our annual schedule. See, e.g., Ovalles v. United States, 905 F.3d 1231 (11th Cir.\\n2018) (en banc) (argued July 9, 2018).\\n\\n\\n 67\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 68 of 88\\n\\n\\n Yet now, without the benefit of briefing on this rule by any party before the\\n\\nCourt—or even a decision from the district court here mentioning this rule—and\\n\\nover the government’s disavowal at oral argument of the rule we adopt, we embrace\\n\\na brand new rule. And this rule isn’t new to just us. This rule is new to federal\\n\\nappellate jurisprudence: in the fifty years since the Supreme Court issued Terry, no\\n\\nother Circuit has adopted or expressly rejected this rule.8 In fact, no other Circuit\\n\\nhas even considered the precise question of whether an officer may always seize\\n\\nammunition when that officer immediately recognizes it during a Terry frisk, or\\n\\nwhether instead we must always apply Terry’s totality-of-the-circumstances analysis\\n\\nto determine whether the seizure of ammunition is reasonable under the specific facts\\n\\nof a particular situation.9 That makes subjecting the new rule to adversarial testing\\n\\neven more critical.\\n\\n\\n 8\\n The Majority Opinion cites United States v. Ward, 23 F.3d 1303, 1306 (8th Cir. 1994),\\nfor the proposition that “an officer may seize ammunition when it threatens the safety of officers\\nand others.” See Majority. Op. at 12. I agree with this general proposition, but whether\\nammunition threatens the safety of officers and others has, until now, been assessed in light of the\\ntotality of the circumstances. And in Ward, the Eighth Circuit upheld the seizure of shotgun shells\\nseized from a suspect’s pocket based on the fact that, under the circumstances of that case, they\\nwere contraband—not based on the idea that ammunition is always seizable because it is\\nammunition. See Ward, 23 F.3d at 1306 (citing Minnesota v. Dickerson, 508 U.S. 366 (1993), for\\nthe proposition that “contraband may be seized during a Terry stop”).\\n 9\\n Of the five state jurisdictions the Majority Opinion cites, see Majority. Op. at 12-13, only\\nNevada has issued a holding consistent with the Majority’s conclusion today that ammunition is\\nalways seizable. In Scott v. State, 877 P.2d 503, 509 (Nev. 1994), Nevada’s Supreme Court upheld\\nthe retrieval of ammunition from the suspect’s pocket and noted that “it is reasonable for an officer,\\nas a precautionary measure, to retrieve and separate from a suspect during the course of a Terry\\nstop and frisk, either weapons or ammunition or both.” In doing so, it offered no analysis of how\\nTerry fits into the picture or of anything beyond Scott’s single statement quoted above and in the\\nMajority Opinion. Instead, it relied on Ward, State v. Smith, 665 P.2d 995, 998 (Ariz. 1983) (en\\n\\n\\n 68\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 69 of 88\\n\\n\\n But instead, the Majority has skipped the adversarial testing and on its own\\n\\ncreated the rule we adopt today. I think adversarial testing is a pretty important part\\n\\nof our judicial process—and we easily could have done it here. My colleagues offer\\n\\nno reason for why it is appropriate to avoid adversarial testing in this case, and I am\\n\\nnot aware of one, either. So I cannot join my colleagues in announcing the Court’s\\n\\nnew rule.\\n\\n III.\\n\\n Instead of asking the parties to address whether ammunition is always seizable\\n\\nin a Terry frisk, without regard to the particular circumstances, we asked the parties\\n\\nto brief and argue whether the bullet here was reasonably seized under Terry’s\\n\\ntotality-of-the-circumstances framework.10 So the Majority’s decision making all\\n\\n\\n\\nbanc), People v. Lewis, 123 A.D.2d 716 (N.Y. App. Div. 1986), and State v. Moton, 733 S.W.2d\\n449, 451 (Mo. Ct. App. 1986). But the courts in each of those cases upheld the seizure of the\\nammunition based on the totality of the particular circumstances—not on the fact that what was\\nseized was ammunition. The same is true of the other state-court case the Majority Opinion cites,\\nPeople v. Colyar, 996 N.E.2d 575 (Ill. 2013).\\n 10\\n In my view, as argued, this is not an en-banc-worthy issue. While it is certainly a good\\nthing to provide clarity to police officers doing their jobs, the question we asked necessarily turns\\non the specific facts of the given case. So no answer can give broad instruction to officers trying\\nto ascertain when it is appropriate to seize ammunition in the course of a Terry frisk. As a result,\\nas the issue has been argued here, this case does not raise a question of “exceptional importance,”\\nFed. R. App. P. 35(a)(2), as that term of art is understood. See Bostock v. Clayton Cty. Bd. of\\nComm’rs, 894 F.3d 1335, 1336 n.1 (11th Cir. 2018) (Rosenbaum, J., dissenting from the denial of\\nrehearing en banc); see also Mendoza v. Borden, Inc., 195 F.3d 1238, 1269 n.12 (Tjoflat, J.,\\nconcurring in part and dissenting in part) (opining that a hostile-work-environment sexual-\\nharassment case was not en banc-worthy because it “was a rather routine decision that rested on\\nan extremely fact-intensive review”). And based on the Majority Opinion’s new rule that all\\nammunition is always seizable in a Terry frisk, regardless of the circumstances—a rule that moots\\nthe totality-of-the-circumstances test when it comes to ammunition—the Majority Opinion\\napparently agrees that the question as framed was not, in and of itself, en-banc worthy.\\n\\n\\n 69\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 70 of 88\\n\\n\\nammunition seizable under all conditions, without regard to the totality-of-the-\\n\\ncircumstances test poses a dilemma: I can either (1) substantively analyze and opine\\n\\non the advisability of a rule that we did not ask the parties to brief, that that they did\\n\\nnot argue, and that the government expressly disavowed—and in an en banc case,\\n\\nno less; or (2) analyze how the totality-of-the-circumstances test applies to the\\n\\nammunition here in light of the particular circumstances adduced through the\\n\\nevidentiary hearings—the (non-en banc worthy) question we did ask the parties to\\n\\nbrief and they did argue—even though in this Circuit, as a result of the Majority\\n\\nOpinion’s new rule, that test has now become forever moot as it relates to\\n\\nammunition.\\n\\n An important consequence arises from choosing which question to answer:\\n\\nthe question reviewed limits the universe of answers we can reach.\\n\\n For example, the first question—whether ammunition is always seizable in a\\n\\nproper Terry frisk when the officer identifies ammunition—assumes that it may be\\n\\npossible under Terry for all ammunition as a class to be ruled seizable, without\\n\\nregard to any circumstances. As a result, the universe of potential answers to that\\n\\nquestion includes the conclusion that all ammunition as a class is seizable under\\n\\nTerry, without regard to any circumstances.\\n\\n But that answer is not possible in the universe defined by the second\\n\\nquestion—whether the totality of the circumstances here made it permissible for\\n\\n\\n\\n 70\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 71 of 88\\n\\n\\nOfficer Williams to seize the bullet from Johnson’s pocket at the time he so\\n\\nidentified it. The second question, which requires application of the totality-of-the-\\n\\ncircumstances framework, necessarily anticipates that items subject to it will not be\\n\\nseizable under at least some circumstances. Indeed, if a certain type of item subject\\n\\nto the totality-of-the-circumstances test were always seizable based solely on the\\n\\nnature of the item itself, the particular circumstances under which it was seized\\n\\nwould never matter, and the test would be meaningless as applied to that type of\\n\\nitem. So under the second question—the only one we asked the parties to answer—\\n\\nif a certain type of item (such as ammunition) is subject to the totality-of-the-\\n\\ncircumstances test, it must not be seizable in at least some circumstances.\\n\\n The Majority’s answer in this case—which creates the rule that ammunition\\n\\nis always seizable, regardless of the circumstances—does not fall within the universe\\n\\nof possible answers we ourselves created for this en banc proceeding when we asked\\n\\nthe parties to brief the totality-of-the-circumstances question. That brings me back\\n\\nto my dilemma: I can substantively analyze a question that was never at issue in\\n\\nthese en banc proceedings, or I can apply a now-meaningless test (as it relates to\\n\\nammunition) that is not capable of coming to the Majority Opinion’s ultimate\\n\\nanswer—that ammunition is always seizable.\\n\\n For the reasons I have explained in Section II, I am uncomfortable with the\\n\\nfirst course of action. I therefore respectfully decline to participate in it.\\n\\n\\n\\n 71\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 72 of 88\\n\\n\\n As for the second, since the Majority Opinion effectively banishes the totality-\\n\\nof-the-circumstances test (when it comes to ammunition) to the Eleventh Circuit’s\\n\\nattic, applying that now-defunct test to the particular circumstances surrounding the\\n\\nseizure of the single bullet here is an exercise that can serve no practical purpose. It\\n\\ncannot determine the outcome of this case, and it cannot even arguably make points\\n\\nthat future courts considering motions to suppress ammunition seized in Terry frisks\\n\\nmight find helpful, since the test no longer matters as it pertains to ammunition.\\n\\n The Majority Opinion criticizes this dissent for “refus[ing] to answer the one\\n\\nquestion [posed to the parties] that a majority of this Court voted to decide en\\n\\nbanc.”11 Maj. Op. at 21. But notably, the question we asked the parties to brief and\\n\\nthey in fact briefed sought resolution of the case by applying the totality-of-the-\\n\\ncircumstances test to the specific facts here. Though the Majority Opinion claims to\\n\\n“answer the very question the parties briefed and argued,” id., as I have explained,\\n\\nsee supra at Section I, the Majority Opinion’s alternative ammunition-is-always-\\n\\nseizable holding—the only one that matters since it extinguishes the vitality of the\\n\\n\\n\\n 11\\n The Majority Opinion further seems to imply that I do not answer because I “deem[] [the\\nquestion of whether the bullet was properly seized under the totality-of-the-circumstances\\nframework] non-en-banc worthy.” Id. at 21. Not so. True, I do fully believe that the issue we\\nasked the parties to brief and argue is not en-banc worthy by the standard Rule 35(a)(2) imposes—\\nand even more so as Circuit Courts have construed this standard. See supra at 69 n.10. But that\\nhas nothing to do with why I do not apply the totality-of-the-circumstances test today. Rather, as\\nI have explained, I respectfully decline to apply the totality-of-the-circumstances test because in\\nthis Circuit, it is now a relic as applied to ammunition, so nothing I write on that test’s application\\nto these facts can possibly be useful.\\n\\n\\n 72\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 73 of 88\\n\\n\\ntotality-of-the-circumstances test as applied to ammunition in this Circuit—applies\\n\\nthe totality-of-the-circumstances test no more than this dissent does.\\n\\n Charades may be fun at parties, but not in judicial opinions where officer\\n\\nsafety and privacy rights hang in the balance. I therefore respectfully decline to\\n\\nengage in that activity. 12\\n\\n IV.\\n\\n Today we issue a new rule we did not ask the parties to brief, they did not\\n\\nbrief, and the government expressly disavowed. And we do this even though we\\n\\ncould have obtained the parties’ input on the question we decide today. I respectfully\\n\\ndecline to participate in that activity. The parties’ testing of the issues we decide is\\n\\nand should be the engine that drives our adversarial system.\\n\\n\\n\\n\\n 12\\n I understand and respect my colleagues’ Dissents, which have chosen to apply or\\notherwise comment on the test we asked the parties to brief, even though the Majority Opinion\\ntoday moots it. Judges Jill Pryor and Jordan were on the original panel that understandably applied\\nthe totality-of-the-circumstances test, and it makes sense why they would want to explain the\\nreasons supporting that panel’s decision. I, however, was not a part of that panel and have not\\npreviously applied the totality-of-the-circumstances test to the particular facts of the case before\\nus. And I see little reason under the circumstances to apply that test to the single bullet here for\\nthe first time now that the test effectively has no meaning in this Circuit when it comes to\\nammunition.\\n\\n\\n 73\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 74 of 88\\n\\n\\nJILL PRYOR, Circuit Judge, joined by WILSON, MARTIN, and JORDAN,\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"ROSENBAUM, Circuit Judge, dissenting\"}, {\"author\": \"Circuit Judges, dissenting\", \"type\": \"dissent\", \"text\": \"Circuit Judges, dissenting.\\n\\n A beat cop’s job isn’t easy, and it comes with substantial personal risk. Our\\n\\nlaw must provide police officers with sufficient discretion, and room for mistakes,\\n\\nthat they can keep themselves safe. But officer safety is not the only interest at\\n\\nplay here. The people whom officers police and protect have a Fourth Amendment\\n\\nright to be free from unreasonable searches and seizures. This case stands at the\\n\\ncrossroads of these two very compelling interests. It’s a crossroads where courts\\n\\noften find themselves. For more than half a century, the Supreme Court, faced\\n\\nwith resolving the tension between these two interests, has adhered to the principle\\n\\nthat after conducting an investigatory stop of a person “a law enforcement officer,\\n\\nfor his own protection and safety, may conduct a patdown to find weapons that he\\n\\nreasonably believes or suspects are then in the possession of the person he has\\n\\naccosted.” Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (emphasis added) (explaining\\n\\nthe rule announced in Terry v. Ohio, 392 U.S. 1 (1968)).1 It has equally held fast\\n\\n\\n 1\\n The only other item besides weapons that the Fourth Amendment permits a police\\nofficer to seize during a Terry stop and frisk is “contraband” detected by plain feel, if the officer\\nis acting within the bounds of Terry at the moment the officer develops probable cause to believe\\ncontraband is present. Minnesota v. Dickerson, 508 U.S. 366, 374-76 (1993). Neither the\\ngovernment nor the majority believes that the freestanding bullet was contraband in this case,\\nand I agree.\\n Mr. Johnson previously had been convicted of a felony, so he could not lawfully possess\\na gun or ammunition. But his prior felony conviction did not justify seizure of a single bullet\\nfound in Mr. Johnson’s pocket as contraband because at the time the officers seized the bullet,\\nthe officers had no information that Mr. Johnson was a convicted felon. They therefore had no\\nprobable cause to believe that a single bullet would be contraband in Mr. Johnson’s possession.\\n\\n\\n 74\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 75 of 88\\n\\n\\nto the corresponding principle that the permissible scope of a Terry frisk is\\n\\n“narrow,” and “[n]othing in Terry can be understood to allow . . . any search\\n\\nwhatever for anything but weapons.” Id. at 93-94 (internal quotation marks\\n\\nomitted); see United States v. Valerio, 718 F.3d 1321, 1324 (11th Cir. 2013)\\n\\n(characterizing Terry as a “narrow exception to the probable cause requirement”\\n\\nthat typically applies when an individual’s Fourth Amendment rights are\\n\\nimplicated).\\n\\n In this case, police officers lawfully stopped Paul Johnson, Jr., placed him\\n\\non the ground, handcuffed him, and held him at gunpoint while one officer frisked\\n\\nhim. During the frisk, Officer Dwight Williams felt a single bullet and a nylon\\n\\nholster in Mr. Johnson’s front pants pocket and then reached into the pocket to\\n\\nseize these items. The seizure of the bullet and holster was unlawful under Terry.\\n\\nIn holding otherwise, the majority has unjustifiably broadened the scope of Terry’s\\n\\nnarrow exception, tipping the balance too far in favor of law enforcement’s desire\\n\\nto collect evidence and against the Fourth Amendment rights of the people they\\n\\npolice. I respectfully dissent.\\n\\n\\n\\n\\nSee id. at 375-76; United States v. Blom, 242 F.3d 799, 808 (8th Cir. 2001) (“reject[ing] [any]\\nsuggestion that a police officer with no knowledge of a citizen’s criminal history may\\nconstitutionally seize firearms or ammunition without a warrant, so long as the citizen turns out\\nto be, in hindsight, a convicted felon”).\\n\\n\\n 75\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 76 of 88\\n\\n\\n My dissent proceeds in three parts. First, I explain why, under the totality of\\n\\nthe circumstances in this case, the officers were not permitted to seize the bullet\\n\\nand holster from Mr. Johnson’s pocket. Second, I explain why the majority’s\\n\\ndecision effectively—and wrongly, I say—creates a categorical rule that a\\n\\nfreestanding bullet may be seized under Terry. Third, I explain my view that the\\n\\nmajority opinion permits Terry frisks to be used for evidence gathering—\\n\\nsomething the Supreme Court expressly has forbidden.\\n\\n I. The Totality of the Circumstances Requires Suppression of the\\n Bullet and Holster.\\n\\n The Fourth Amendment protects people “against unreasonable searches and\\n\\nseizures.” U.S. Const. amend. IV (emphasis added). Interpreting that foundational\\n\\nprinciple, the Supreme Court has affirmed that “[t]he reasonableness of a search\\n\\ndepends on the totality of the circumstances, including the nature and purpose of\\n\\nthe search and the extent to which the search intrudes upon reasonable privacy\\n\\nexpectations.” Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015). In the\\n\\ncontext of a stop and frisk, “in justifying the particular intrusion the police officer\\n\\nmust be able to point to specific and articulable facts which, taken together with\\n\\nrational inferences from those facts, reasonably warrant that intrusion.” Terry, 392\\n\\nU.S. at 21.\\n\\n A Terry frisk “must . . . be confined in scope to an intrusion reasonably\\n\\ndesigned to discover guns, knives, clubs, or other hidden instruments for the\\n\\n 76\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 77 of 88\\n\\n\\nassault of [a] police officer” or “others nearby.” Id. at 29. That is because\\n\\nsafety—of officers on the scene and the public at large—is the bedrock of Terry,\\n\\nthe only valid purpose for a Terry frisk. Id. To determine whether a frisk was\\n\\nreasonable in its scope, we consider the totality of the circumstances. United\\n\\nStates v. Cortez, 449 U.S. 411, 417 (1981).\\n\\n Here are the circumstances of the frisk of Mr. Johnson. In the early morning\\n\\nhours in Opa-Locka, Florida—a high-crime area—the local police department\\n\\nreceived a 911 call about a possible burglary in progress at a four-unit home. The\\n\\n911 caller reported that a “person [was] trying to get through the window of [a]\\n\\nneighbor’s house,” and the dispatcher relayed to the police that the suspect was a\\n\\nblack male wearing a white shirt. Doc. 22 at 6, 19.2 Two officers, both of whom\\n\\nreceived the description of the person in question, arrived on the scene. There,\\n\\nthey saw Mr. Johnson, a black male in a white shirt, coming from the back of the\\n\\nbuilding where the reported incident had taken place. The officers drew their\\n\\nweapons, pointed them at Mr. Johnson, and ordered him to approach with his\\n\\nhands up. Mr. Johnson immediately complied. At this point, a third officer\\n\\narrived. Officer Williams, who was one of the first two officers on the scene, told\\n\\nMr. Johnson that he was being detained until the officers could “figure things out.”\\n\\nId. at 33. Another officer ordered Mr. Johnson to the ground near the parking area\\n\\n\\n 2\\n Doc. # refers to the numbered entry on the district court’s docket.\\n\\n\\n 77\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 78 of 88\\n\\n\\nat the front of the building, Mr. Johnson immediately complied, and then Officer\\n\\nWilliams handcuffed him while the other officers trained their weapons on him.\\n\\nOfficer Williams then frisked Mr. Johnson. To recap: during the frisk, Mr.\\n\\nJohnson was handcuffed, lying on the ground, and surrounded by three armed\\n\\nofficers.\\n\\n Officer Williams felt in Mr. Johnson’s front pants pocket “a nylon piece of\\n\\nmaterial; and then, underneath it, a round, hard-like, oval-shaped object, which led\\n\\n[him] to believe it was ammunition.” Doc. 30 at 6. He reached into Mr. Johnson’s\\n\\npocket and removed a black nylon pistol holster and a single round of .380 caliber\\n\\nammunition. When asked whether there were any “weapons or anything near that\\n\\nthis ammunition and this holster goes to,” Mr. Johnson said no. Doc. 22 at 10.\\n\\nThe officers began sweeping the area for weapons that might have been thrown.\\n\\nAt that point a fourth officer arrived and saw Mr. Johnson handcuffed on the\\n\\nground, the bullet and holster lying next to him, and another officer standing over\\n\\nMr. Johnson with his gun drawn. Officer Williams walked toward the back of the\\n\\nbuilding, found a hole in the fence separating that property and the property behind\\n\\nit, and then found two firearms lying near the hole on the other side of the fence.\\n\\n\\n\\n\\n 78\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 79 of 88\\n\\n\\n Viewed in their totality, the circumstances of this case require suppression of\\n\\nthe bullet 3 because no officer reasonably could have believed that a single bullet—\\n\\nwithout any accompanying indication or reasonable expectation of the presence of\\n\\na firearm Mr. Johnson could access—posed a present safety threat.4 I view as\\n\\ncritical the combination of facts that before Officer Williams felt the bullet in Mr.\\n\\nJohnson’s pocket, (1) there had been no report or indication of a weapon or an\\n\\naccomplice at the scene;5 (2) at least two other armed officers had arrived at the\\n\\nscene; (3) Mr. Johnson had immediately, peacefully, and at gunpoint complied\\n\\nwith the officers’ commands; and (4) the officers had placed Mr. Johnson on the\\n\\n\\n 3\\n Given the evidence in this case—including testimony that Officer Williams realized\\nduring the frisk that Mr. Johnson had a bullet in his pocket and that Opa-Locka officers always\\ncanvass the area where a person suspected of possessing weapons is detained—it seems to me\\nthat the firearms inevitably would have been discovered by law enforcement, thereby dooming\\nMr. Johnson’s request for suppression. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (“[T]he\\ninevitable discovery doctrine allows for the admission of evidence that would have been\\ndiscovered even without the unconstitutional source.”); United States v. Lemons, 153 F. Supp. 2d\\n948, 965-67 (E.D. Wisc. 2001) (applying the inevitable discovery doctrine to deny suppression\\nof a firearm found after an unconstitutional seizure of bullets under circumstances similar to\\nthose in this case). But the government did not press this theory in the district court, choosing\\ninstead to argue only that Officer Williams’s seizure of the bullet and holster from Mr. Johnson’s\\npocket (before any firearms were discovered) was within the scope of Officer Williams’s Terry\\nfrisk. So we must decide this case based on whether the seizure of the bullet and holster came\\nwithin the permissible scope of a Terry frisk.\\n 4\\n Neither the officers nor the majority attempts to justify the removal of the nylon holster,\\nan item Officer Williams never suspected was a weapon or contraband. See Jordan Dissenting\\nOp. at 42 n.4.\\n 5\\n True, the officers testified that in their experience armed burglaries in the area often\\nwere committed by more than one person. They did not, however, testify that most of the\\nburglaries they encountered were armed—just that some were. At any rate, the officers’ general\\nexperience was belied by the facts confronting them: a 911 call reporting one individual with no\\nmention of a weapon and, at the scene, a single individual who appeared—and was confirmed—\\nto be unarmed.\\n\\n\\n 79\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 80 of 88\\n\\n\\nground and handcuffed him. See, e.g., United States v. Miles, 247 F.3d 1009,\\n\\n1011, 1015 (9th Cir. 2001) (reversing the district court and ordering suppression of\\n\\na box of ammunition removed from a defendant’s pocket during a Terry frisk,\\n\\nreasoning: “Having already used significant force to secure the scene for safety\\n\\npurposes [including handcuffing the suspect and having him kneel down], the\\n\\nofficers cannot leverage the safety rationale into a justification for a full-scale\\n\\nsearch [of the suspect’s pocket].”); United States v. Reid, 351 F. Supp. 714, 718\\n\\n(E.D.N.Y. 1972) (“With the weaponry in the hands of the agents trained on the\\n\\nsuspects, a slapjack could hardly have been a threat to the arresting agents.”).\\n\\n The majority opinion relies on other circumstances, including the time of\\n\\nday and accompanying darkness and the location of the incident in a high-crime\\n\\narea. Maj. Op. at 10; see Newsom Concurring Op. at 25. Those facts, which the\\n\\nofficers knew at the moment they initiated the stop, undoubtedly are “relevant\\n\\ncontextual considerations” for the officers’ decisions to stop, frisk, and seize a\\n\\nbullet from Mr. Johnson. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The\\n\\nsame is true of the fact that Mr. Johnson matched the vague description given by\\n\\nthe 911 caller. But by the time Officer Williams reached his hand into Mr.\\n\\nJohnson’s pocket, he had much more specific information than he did when the\\n\\nofficers initiated the stop and frisk. Officer Williams found no firearm or other\\n\\nweapon on Mr. Johnson’s person. And, critically, Mr. Johnson was completely\\n\\n\\n\\n 80\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 81 of 88\\n\\n\\nrestrained and fully compliant, and the officers had neither obtained any\\n\\ninformation about nor observed any other person on the scene, much less a\\n\\nsuspected accomplice. So at the time of the bullet’s seizure, the general contextual\\n\\nconsiderations upon which the majority opinion relies provided little if any support\\n\\nfor a “rational inference[]” that a single bullet in Mr. Johnson’s pocket would pose\\n\\na danger. See Terry, 392 U.S. at 21, 27.\\n\\n For the bullet to amount to a threat, Mr. Johnson, lying on the ground with\\n\\nhis hands handcuffed behind his back, would have had to escape his handcuffs like\\n\\nHoudini, retrieve the bullet from the front pocket of his pants, escape from custody\\n\\nwith guns trained on him, and find a matching gun to use the bullet. Or, under the\\n\\nmajority opinion’s accomplice theory, Maj. Op. at 17, under the same conditions\\n\\nMr. Johnson would have had to escape the handcuffs, retrieve the bullet, and then\\n\\nthrow the single bullet—in the dark—to an accomplice waiting with a matching\\n\\nunloaded gun or receive a gun from a hidden and unreported accomplice and load\\n\\nthe gun with the single bullet. None of these scenarios is plausible, much less\\n\\nreasonable. Neither supports a “rational inference[]” that the single bullet had to\\n\\nbe seized for safety purposes. 6 See Terry, 392 U.S. at 21, 27.\\n\\n\\n\\n 6\\n Although it is immaterial to our reasonable suspicion analysis—an objective inquiry—\\nthe officers in this case worried so little about the bullet after seizing it that they left it on the\\nground near Mr. Johnson. If a bullet, in and of itself, creates a safety concern, leaving it on the\\nground near a handcuffed suspect makes the situation no safer than leaving the bullet in his\\npocket.\\n\\n\\n 81\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 82 of 88\\n\\n\\n The majority opinion cites cases from other jurisdictions for the proposition\\n\\nthat Terry authorizes officers to seize ammunition during a frisk. See Maj. Op. at\\n\\n12-13. But in all of these cases, unlike here, the facts established or at least\\n\\nstrongly suggested the immediate presence or possession of a firearm. In most, the\\n\\nofficers directly observed a gun before or during the frisk. See, e.g., United States\\n\\nv. Ward, 23 F.3d 1303, 1304-06 (8th Cir. 1994) (frisk by a single officer of a\\n\\n“jumpy” and “nervous” suspect uncovered both a sawed-off shotgun and shotgun\\n\\nshells); State v. Smith, 665 P.2d 995, 996-98 (Ariz. 1983) (officers observed that\\n\\nthe suspect, who matched the description of a person seen threatening people with\\n\\na sawed-off shotgun, had such a shotgun in his car); Scott v. State, 877 P.2d 503,\\n\\n505 (Nev. 1994) (frisk took place after a firearm was observed in the suspect’s\\n\\ncar); see also State v. Moton, 733 S.W.2d 449, 450-51 (Mo. Ct. App. 1986) (single\\n\\npolice officer responding to a domestic violence call performed frisk after hearing\\n\\nsuspect threaten to commit murder and seeing him toss aside a metallic object).\\n\\nThese cases might provide glancing support for the majority opinion’s holding, but\\n\\nthey are too different on the relevant facts to be persuasive in Mr. Johnson’s case.\\n\\n Perhaps realizing that these cases do not convincingly support its decision,\\n\\nthe majority says that it is “aware of no precedential opinion to the contrary in any\\n\\njurisdiction.” Maj. Op. at 13. In fact, though, there are at least a couple of federal\\n\\ncases that cut against the majority’s holding. See Miles, 247 F.3d at 1014-15\\n\\n\\n\\n 82\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 83 of 88\\n\\n\\n(ordering suppression of a box of ammunition found in a suspect’s jacket pocket\\n\\nduring a Terry frisk, even though the suspect met the description of a person who\\n\\nhad fired a gun, because “[w]hile the officer may have been patting down for a\\n\\nweapon, he had reached the outer limits of his patdown authority when it was clear\\n\\nthat the object was a small box and could not possibly be a weapon. . . . At that\\n\\npoint, the officer’s further manipulation of the box was impermissible.”); United\\n\\nStates v. Lemons, 153 F. Supp. 2d 948, 951, 959-62 (E.D. Wisc. 2001) (ordering\\n\\nsuppression of 12 rounds of ammunition found in a sock in a suspect’s pocket\\n\\nduring a Terry frisk, even though a witness had said the suspect was in possession\\n\\nof a gun, because: “Sterling immediately knew upon patting Lemons down that\\n\\nthe items in Lemons’s pocket were not a weapon [and] did not immediately\\n\\nidentify them as bullets until he squeezed[;] [thus] he went beyond the scope of a\\n\\nTerry pat-down search.”). Although these cases differ from this one in that the\\n\\nofficers suspected but were not positive that the items felt in the frisk were\\n\\nammunition, the courts readily concluded that the items were not weapons and\\n\\ncould not be further manipulated or seized as such. I find them compelling,\\n\\nparticularly given Miles’s similarities to this case—the late hour, a high-crime area,\\n\\na report of a crime, and a handcuffed suspect—and its differences, too—fewer\\n\\nofficers present, officers outnumbered by nearby observers, the report of a violent\\n\\ncrime and a firearm at the scene, and the firearm ultimately found six feet from\\n\\n\\n\\n 83\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 84 of 88\\n\\n\\nwhere the officers first spotted Mr. Miles. Miles, 247 F.3d at 1010-13. There, as\\n\\nshould be the case here, the Ninth Circuit determined that “[h]aving already used\\n\\nsignificant force to secure the scene for safety purposes, the officers cannot\\n\\nleverage the safety rationale into a justification for a full-scale search.” Id. at\\n\\n1015. 7\\n\\n II. A Bullet Is Neither a Weapon Nor a Hidden Instrument for the\\n Assault of an Officer, so Officers Cannot Categorically Seize One.\\n\\n To repeat, because it’s critically important, Terry is intended to be a “narrow\\n\\nexception” to the requirement that an officer have probable cause to search a\\n\\nperson or seize his property. Valerio, 718 F.3d at 1324. In concluding that Officer\\n\\nWilliams was entitled to seize a single bullet from Mr. Johnson’s pocket under the\\n\\ncircumstances of this case, the majority opinion effectively creates a categorical\\n\\nrule permitting officers to seize a freestanding bullet even absent reasonable cause\\n\\nto believe officer or bystander safety is at risk. 8\\n\\n\\n 7\\n Though the majority opinion correctly notes that handcuffs are not always secure, Maj.\\nOp. at 17, it’s a bridge too far to say that it’s reasonable for officers to assume in every case that\\na handcuffed suspect is unsecured. And, in any event, plenty of additional facts in this case\\nindicated the officers’ safety and the scene’s security: three officers were present, their weapons\\nwere drawn and trained on Mr. Johnson, Mr. Johnson was completely compliant throughout the\\nencounter, the officers perceived no other individuals in the area, and no firearm was ever\\nreported or observed before or during the frisk. When the guns ultimately were found, they were\\nfound beyond Mr. Johnson’s reach. If Miles was a difficult case, this is an easier one.\\n 8\\n To be clear, a decision that hewed closely to Terry would not prevent officers from\\nseizing bullets or prosecutors from initiating prosecutions such as the one initiated here under\\n18 U.S.C. § 922(g). They could do both provided they had probable cause for the seizure. See 4\\nWayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.6(c) (5th ed.\\nOct. 2018 update) (“Assuming the object discovered in the pat-down does not feel like a weapon,\\n\\n\\n 84\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 85 of 88\\n\\n\\n The majority opinion reasons that a bullet may be seized during a Terry frisk\\n\\nbecause it is an “essential part of a lethal weapon” and “an integral part of what\\n\\nmakes a gun lethal.” Maj. Op. at 10, 11. But Terry was careful to carve out an\\n\\nexception for weapons, not parts of weapons—no matter how integral to the\\n\\nweapon those parts might be. 392 U.S. at 24 (“[I]t would appear to be clearly\\n\\nunreasonable to deny the officer the power to take necessary measures to\\n\\ndetermine whether the person is in fact carrying a weapon and to neutralize the\\n\\nthreat of physical harm.” (emphasis added)); id. at 27 (“[T]here must be a narrowly\\n\\ndrawn authority to permit a reasonable search for weapons for the protection of the\\n\\npolice officer.” (emphasis added)). And a freestanding bullet is neither a weapon\\n\\nnor lethal. As Judge Rosenbaum points out in her dissent, if a bullet always\\n\\nsuggests a gun, then it is difficult to see when a bullet would be off limits to\\n\\nseizure. Rosenbaum Dissenting Op. at 52-53. Further, the proposition that\\n\\nregardless of the surrounding circumstances a bullet necessarily suggests a gun,\\n\\nMaj. Op. at 11, such that seizure of a bullet is warranted, contradicts Terry’s\\n\\nmandate that an officer have “specific and articulable” facts rendering reasonable\\n\\nhis belief that the bullet could get into a gun to threaten the safety of police officers\\n\\n\\n\\nthis only means that a further search may not be justified under a Terry analysis. There remains\\nthe possibility that the feel of the object, together with other suspicious circumstances, will\\namount to probable cause that the object is contraband or some other item subject to seizure, in\\nwhich case there may be a further search based upon that probable cause.”).\\n\\n\\n 85\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 86 of 88\\n\\n\\nor others. Terry, 392 U.S. at 21. The majority opinion has no satisfactory\\n\\nexplanation for why it was reasonable for the officers here to believe they were in\\n\\ndanger when Mr. Johnson was handcuffed on the ground with multiple officers\\n\\npointing their weapons at him and no firearm was found on Mr. Johnson or within\\n\\n“those areas to which [Mr. Johnson] would generally have immediate control.”\\n\\nMichigan v. Long, 463 U.S. 1032, 1050-51 (1983).\\n\\n Judge Branch in her concurrence expressly advocates for a categorical rule\\n\\nthat officers are entitled to seize a freestanding bullet in the name of officer safety.\\n\\nShe argues that just as we consider a gun without a bullet to be a weapon under\\n\\nTerry, we should consider a bullet without a gun “an instrument of assault in all\\n\\ncircumstances.” Branch Concurrence at 35. I am not persuaded. First, Terry\\n\\nexpressly allows the seizure of guns, but we’re having this discussion because it\\n\\ndoes not expressly allow seizure of a freestanding bullet. Terry, 392 U.S. at 29.\\n\\nSecond, an officer who feels a bullet in a suspect’s pocket can discern different\\n\\nfacts than an officer who feels a gun. The former can readily observe that the\\n\\nbullet is not loaded into a gun, but the latter cannot readily observe that the gun has\\n\\nnot been loaded with one or more bullets. Terry’s requirement that a seizure be\\n\\nbased on specific and articulable facts takes into account that some circumstances\\n\\nmay counsel against seizure. Thoroughly frisking a person and finding what feels\\n\\nlike a freestanding bullet but no gun may be one of those circumstances. And\\n\\n\\n\\n 86\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 87 of 88\\n\\n\\nthird, from the standpoint of safety—the sine qua non of Terry—it makes sense\\n\\nthat we don’t require officers to rely on the possibility that a gun in a person’s\\n\\npocket is not loaded. Although Judge Branch is entirely correct that a bullet has no\\n\\nuse except as part of an instrument of assault, it doesn’t follow that a freestanding\\n\\nbullet is “an instrument of assault in all circumstances.” Such a bright line rule\\n\\nruns afoul of the particularized analysis Terry requires and of the principles\\n\\nanimating Terry’s narrow exception. See Grady, 135 S. Ct. at 1371 (“The\\n\\nreasonableness of a search depends on the totality of the circumstances . . . .”);\\n\\nCortez, 449 U.S. at 417 (“[T]he totality of the circumstances—the whole picture—\\n\\nmust be taken into account.”).\\n\\n III. The Majority Opinion Permits Terry Frisks to Be Used to Gather\\n Evidence, Contrary to the Supreme Court’s Clear Directive.\\n\\n Make no mistake: the majority opinion’s conclusion that a single\\n\\nfreestanding bullet could be used as a weapon is a significant extension of Terry,\\n\\none unwarranted under Terry’s safety rationale. That is not all. The Supreme\\n\\nCourt has “condemned” evidentiary searches conducted under the guise of Terry,\\n\\nMinnesota v. Dickerson, 508 U.S. 366, 378 (1993), and yet that is exactly what the\\n\\nmajority opinion countenances today. Instead of considering the bullet to be a\\n\\nsafety threat, Officer Williams left it on the ground near Mr. Johnson. He testified\\n\\nthat he used the seizure of the bullet to search the area for a gun that the bullet\\n\\n“goes to,” Doc. 22 at 10; in other words, he used the frisk to initiate the precise sort\\n\\n 87\\n\\n Case: 16-15690 Date Filed: 04/16/2019 Page: 88 of 88\\n\\n\\nof search that Terry forbids. Rather than running from this fact, the majority relies\\n\\non it—explaining that removing and examining the bullet in Mr. Johnson’s pocket\\n\\nmight have expedited the officers’ search for a .380 caliber gun in the vicinity.\\n\\nMaj. Op. at 11. The Supreme Court “has been sensitive to the danger that officers\\n\\nwill enlarge a specific authorization . . . into the equivalent of a general warrant to\\n\\nrummage and seize at will.” Dickerson, 508 U.S. at 378 (alteration adopted)\\n\\n(internal quotation marks omitted). Unfortunately, the majority opinion is not\\n\\nsensitive to that danger today.\\n\\n * * *\\n\\n The panel correctly held that the seizure of a bullet and holster from the\\n\\npocket of Mr. Johnson—who was compliant with officers’ commands, on the\\n\\nground, handcuffed behind his back, and held at gunpoint by several officers—\\n\\nconstituted an unreasonable seizure under Terry and its progeny. See United States\\n\\nv. Johnson, 885 F.3d 1313, 1323-24 (11th Cir. 2018). With respect, I dissent from\\n\\nthe majority opinion’s contrary holding.\\n\\n\\n\\n\\n 88\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4387893/\", \"author_raw\": \"Circuit Judges, dissenting\"}]}"},"judge1":{"kind":"string","value":"CARNES"},"judge2":{"kind":"string","value":"TJOFLAT"},"judge3":{"kind":"string","value":"MARCUS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":"WILSON; PRYOR; MARTIN; JORDAN; ROSENBAUM; NEWSOM; BRANCH; GRANT"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":15,"string":"15"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":8,"string":"8"},"concurrence_count":{"kind":"number","value":5,"string":"5"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4610640/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":2,"string":"2"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Paul JOHNSON, Jr., Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-16\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-15690 Date Filed: 04/16/2019 Page: 1 of 88\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-15690\n ________________________\n\n D.C. Docket No. 1:15-cr-20838-UU-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nPAUL JOHNSON, JR.,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (April 16, 2019)\n\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\nBRANCH, and GRANT, Circuit Judges.\n\nWILLIAM PRYOR, Circuit Judge, delivered the opinion of the Court, in which\nED CARNES, Chief Judge, TJOFLAT, MARCUS, NEWSOM, BRANCH, and\nGRANT, Circuit Judges, joined.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Paul JOHNSON, Jr., Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-16\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-15690 Date Filed: 04/16/2019 Page: 1 of 88\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-15690\\n ________________________\\n\\n D.C. Docket No. 1:15-cr-20838-UU-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nPAUL JOHNSON, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (April 16, 2019)\\n\\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\\nBRANCH, and GRANT, Circuit Judges.\\n\\nWILLIAM PRYOR, Circuit Judge, delivered the opinion of the Court, in which\\nED CARNES, Chief Judge, TJOFLAT, MARCUS, NEWSOM, BRANCH, and\\nGRANT, Circuit Judges, joined.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1885,"cells":{"id":{"kind":"number","value":4610756,"string":"4,610,756"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Tanganica CORBETT, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Tanganica Corbett"},"decision_date":{"kind":"string","value":"2019-04-17"},"docket_number":{"kind":"string","value":"18-13203"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Newsom, Vratil\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-13203 Date Filed: 04/17/2019 Page: 1 of 22\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-13203\\n ________________________\\n\\n D.C. Docket No. 6:18-cr-00035-GAP-GJK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n Plaintiff-Appellee,\\n\\n versus\\n\\nTANGANICA CORBETT,\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (April 17, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District\\nJudge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n*\\n Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by\\ndesignation.\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 2 of 22\\n\\n\\n This appeal requires us to review two sentencing enhancements for plain\\n\\nerror and to reverse one of them. After Tanganica Corbett pleaded guilty to\\n\\nparticipation in an identity-fraud conspiracy, the district court enhanced her offense\\n\\nlevel under the Sentencing Guidelines two levels for an offense involving ten or\\n\\nmore victims and ten levels for an offense that caused a loss that exceeds $150,000\\n\\nbut does not exceed $250,000. See United States Sentencing Guidelines Manual\\n\\n§ 2B1.1(b)(1)(F), (b)(2)(A)(i) (Nov. 2016). Corbett objected to each enhancement\\n\\nin the district court, but on different grounds from her arguments on appeal, so we\\n\\nreview each issue for plain error only. We agree with Corbett that the district court\\n\\ncommitted plain error in its application of the ten-or-more-victims enhancement\\n\\nbecause, contrary to our precedent, United States v. Hall, 704 F.3d 1317 (11th Cir.\\n\\n2013), the district court counted as a victim any individual whose means of\\n\\nidentification was stolen regardless of whether it was “used” as a means of\\n\\nidentification. See U.S.S.G. § 2B1.1 cmt. n.4(E). But Corbett identifies no plain\\n\\nerror in the application of the loss-amount enhancement. We vacate Corbett’s\\n\\nsentence and remand with instructions for resentencing.\\n\\n I. BACKGROUND\\n\\n Tanganica Corbett and Kevin Weaver II worked at Florida Hospital near\\n\\nOrlando, Florida. From July 2012 to July 2013, Weaver held the position of\\n\\nrelease-of-information specialist. During that time, Weaver downloaded patients’\\n\\n\\n\\n 2\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 3 of 22\\n\\n\\n“face sheets”—profiles that include a patient’s name, health information, date of\\n\\nbirth, Social Security number, and insurance details—without the authority to do\\n\\nso. He then sold them to an unidentified co-conspirator who, the government\\n\\nbelieved, intended to use the information to open credit-card accounts and to\\n\\ncommit other forms of identity fraud.\\n\\n In July 2013, Corbett took over Weaver’s position as release-of-information\\n\\nspecialist. He solicited her to obtain face sheets without authority and to pass them\\n\\non to him. She complied. In March 2014, Weaver paid her about $150 to $200 for\\n\\nher assistance.\\n\\n A grand jury charged Corbett and Weaver with conspiracy to obtain and\\n\\ndisclose individually identifiable health information for commercial advantage,\\n\\npersonal gain, or malicious harm. See 42 U.S.C. § 1320d-6(a)(2)–(3), (b)(3); 18\\n\\nU.S.C. § 371. The indictment also charged each defendant with two substantive\\n\\ncounts of obtaining and disclosing such information. Both defendants pleaded\\n\\nguilty.\\n\\n Using the 2016 edition of the Sentencing Guidelines Manual, the probation\\n\\nofficer assigned Corbett a total offense level of 22 based on a base offense level of\\n\\n6 and four enhancements, two of which Corbett objects to in this appeal. See\\n\\nU.S.S.G. § 2B1.1(a)(2) (prescribing the base offense level). First, the probation\\n\\nofficer found that “the defendants,” collectively, “unlawfully accessed more than\\n\\n\\n\\n 3\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 4 of 22\\n\\n\\n1,700 means of identification,” so the probation officer applied the two-level\\n\\nenhancement for an offense that “involved 10 or more victims.”\\n\\nId. § 2B1.1(b)(2)(A)(i). Second, the probation officer found that Florida Hospital\\n\\nincurred a loss of $232,068.64 in “costs associated with identifying and notifying\\n\\npatients whose individually identifiable health information was viewed without\\n\\nauthorization,” so the probation officer applied the ten-level enhancement for a\\n\\nloss amount exceeding $150,000 but not exceeding $250,000. See\\n\\nid. § 2B1.1(b)(1)(F). Combining Corbett’s total offense level of 22 with a criminal-\\n\\nhistory category of I based on zero criminal-history points, the probation officer\\n\\ncalculated an applicable sentencing range of 41 to 51 months of imprisonment. But\\n\\nthe probation officer recommended a variant sentence of 24 months based on\\n\\nCorbett’s lack of criminal history and her family responsibilities.\\n\\n Among other timely objections to the probation officer’s Guidelines\\n\\ncalculations, Corbett objected to the probation officer’s calculation of the loss\\n\\namount on the ground that it did not limit her relevant conduct as required by\\n\\nsection 1B1.3 of the Guidelines. Corbett also objected to the probation officer’s\\n\\nfailure to apply a three-level reduction for acceptance of responsibility. See\\n\\nid. § 3E1.1. But, apart from a stray, unexplained reference in her sentencing brief,\\n\\nCorbett expressed no objection to the ten-or-more-victims enhancement before the\\n\\nsentencing hearing.\\n\\n\\n\\n 4\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 5 of 22\\n\\n\\n At the sentencing hearing, Corbett confirmed that she had “no objections to\\n\\nthe facts” in the presentence investigation report, but she presented her “legal\\n\\nobjections” to the probation officer’s calculations under the Guidelines, including\\n\\nher objections to the loss amount and the ten-or-more-victims enhancement. With\\n\\nrespect to the loss amount, Corbett did not press her relevant-conduct argument\\n\\nbased on section 1B1.3 but instead argued that Florida Hospital’s expenses should\\n\\nhave been excluded as “costs incurred by victims primarily to aid the government\\n\\nin[] the prosecution and criminal investigation of an offense.” Id. § 2B1.1 cmt.\\n\\nn.3(D)(ii). The district court replied, “Well, I think more appropriately it was the\\n\\ncost they had to expend to deal with this enormous problem that your client helped\\n\\ncreate. So that objection’s overruled.” With respect to the ten-or-more-victims\\n\\nenhancement, Corbett argued that, although 1,700 people had had their information\\n\\ncompromised, the government had identified only a handful of people, at most,\\n\\nwho had suffered any identifiable financial harm as a result of the conspiracy. The\\n\\ndistrict court overruled that objection, stating, “I think there are a lot more than 10\\n\\nvictims. I think anybody’s information who was stolen is a victim.” But the district\\n\\ncourt agreed with Corbett that the acceptance-of-responsibility reduction was\\n\\nwarranted, resulting in a total offense level of 19 and a sentencing range of 30 to\\n\\n37 months.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 6 of 22\\n\\n\\n The district court sentenced Corbett to three concurrent terms of 12 months\\n\\nand one day of imprisonment and three years of supervised release. The district\\n\\ncourt said that the severity of the offense—“by far the worst” identity-theft case it\\n\\nhad ever seen—was “a major aggravating factor.” But it found “significant\\n\\nmitigating factors” in that Corbett “up until this event had been a productive person\\n\\nwith no criminal conduct,” was “clearly less culpable than . . . Weaver,” may not\\n\\nhave fully understood “that she was doing wrong,” was “remorseful,” and had\\n\\n“cooperated with the Government.” The district court remarked favorably that\\n\\nCorbett had “maintained employment notwithstanding these difficulties,”\\n\\nrecognized her “family obligations,” and deemed her unlikely to reoffend. The\\n\\ndistrict court also took note that Corbett’s financial gain was “minuscule.”\\n\\nObserving that the probation officer had recommended a variant sentence of 24\\n\\nmonths before the acceptance-of-responsibility adjustment had been applied, the\\n\\ndistrict court reasoned, “based on that, the probation officer’s recommendation\\n\\nunder [the district court’s] calculation of the guideline score would be probably\\n\\ncloser to 12 to 18 months.” The district court stated that, “[u]nder normal\\n\\ncircumstances,” it might “find probation to be appropriate . . . based on these\\n\\nsignificant mitigating factors,” but that, “[u]nfortunately, that mitigation [was]\\n\\noutweighed by the seriousness of this offense.” Corbett maintained her objections\\n\\nto the loss amount and to the ten-or-more-victims enhancement.\\n\\n\\n\\n 6\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 7 of 22\\n\\n\\n II. STANDARDS OF REVIEW\\n\\n We review Corbett’s sentence “under an abuse-of-discretion standard.” Gall\\n\\nv. United States, 552 U.S. 38, 51 (2007). Corbett does not challenge the substantive\\n\\nreasonableness of her sentence, so we will not vacate the sentence unless the\\n\\ndistrict court committed “significant procedural error, such as . . . improperly\\n\\ncalculating[] the Guidelines range.” Id. “We review a district court’s interpretation\\n\\nof the Sentencing Guidelines de novo, and the determination of the amount of loss\\n\\ninvolved in the offense for clear error.” United States v. Maxwell, 579 F.3d 1282,\\n\\n1305 (11th Cir. 2009). “When a defendant challenges one of the factual bases of\\n\\nhis sentence, the government must prove the disputed fact by a preponderance of\\n\\nthe evidence.” United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).\\n\\n We review unpreserved sentencing objections only for plain error. United\\n\\nStates v. Joyner, 899 F.3d 1199, 1207 (11th Cir. 2018). To establish plain error,\\n\\n“there must be an error that has not been intentionally relinquished or abandoned”;\\n\\n“the error must be plain—that is to say, clear or obvious”; and “the error must have\\n\\naffected the defendant’s substantial rights, which in the ordinary case means he or\\n\\nshe must show a reasonable probability that, but for the error, the outcome of the\\n\\nproceeding would have been different.” Molina-Martinez v. United States, 136 S.\\n\\nCt. 1338, 1343 (2016) (citation and internal quotation marks omitted). If these\\n\\nconditions are met, we “should exercise [our] discretion to correct the forfeited\\n\\n\\n\\n 7\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 8 of 22\\n\\n\\nerror if the error seriously affects the fairness, integrity or public reputation of\\n\\njudicial proceedings.” Id. (citation and internal quotation marks omitted). We have\\n\\nexplained that, “where the explicit language of a statute or rule does not\\n\\nspecifically resolve an issue, there can be no plain error where there is no\\n\\nprecedent from the Supreme Court or this Court directly resolving it.” United\\n\\nStates v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in two parts. First, we explain that the district court\\n\\nplainly erred when it applied the ten-or-more-victims enhancement. Second, we\\n\\nexplain that Corbett has established no plain error in the application of the loss-\\n\\namount enhancement.\\n\\n A. The District Court Plainly Erred when It Applied the Ten-or-More-\\n Victims Enhancement.\\n Section 2B1.1 of the Sentencing Guidelines provides a two-level\\n\\nenhancement for an offense that “involved 10 or more victims.” U.S.S.G.\\n\\n§ 2B1.1(b)(2)(A)(i). In general, a “victim” is a person who suffered an “actual\\n\\nloss” or an individual who “sustained bodily injury as a result of the offense.” Id.\\n\\n§ 2B1.1 cmt. n.1. But, “in a case involving means of identification,” the term\\n\\n“victim” also includes “any individual whose means of identification was used\\n\\nunlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). The district court did not\\n\\nfind that any victims besides Florida Hospital had suffered an actual loss or that\\n\\n\\n 8\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 9 of 22\\n\\n\\nanyone had sustained bodily injury due to the offense, so only the last category of\\n\\n“victims,” those “whose means of identification [were] used,” is in question.\\n\\n Based on our decision in United States v. Hall, Corbett argues that the\\n\\ndistrict court erred when it counted all 1,700 or more individuals whose face sheets\\n\\nwere compromised as victims because the government did not prove that all of\\n\\ntheir means of identification had been “used” within the meaning of the relevant\\n\\ndefinition. As a threshold matter, we agree with the government that Corbett did\\n\\nnot preserve this objection for appeal and that plain error is the correct standard of\\n\\nreview. Corbett’s only objection to the ten-or-more-victims enhancement in the\\n\\ndistrict court was that the government had not proved that ten people suffered a\\n\\nfinancial loss. She made no argument based on Hall or on the meaning of the word\\n\\n“used.”\\n\\n But we agree with Corbett that the district court committed plain error. In\\n\\nHall, we considered whether an almost identically situated defendant—a medical\\n\\noffice assistant who, like Corbett, stole patients’ identifying information and sold it\\n\\nto co-conspirators who in turn sold it to the primary identity fraudsters in the\\n\\nconspiracy—had “used” patients’ means of identification. See 704 F.3d at 1319.\\n\\nThe government argued that Hall “used” every means of identification that she\\n\\nsold or transferred to her co-conspirators. See id. at 1319–20. The district court in\\n\\n\\n\\n\\n 9\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 10 of 22\\n\\n\\nHall agreed, ruling that “the intentional transfer of information in exchange for\\n\\nconsideration constituted actual use.” Id. at 1320. We rejected that definition.\\n\\n Based on the plain meaning of the word “used” in the context of the relevant\\n\\ndefinition of “victim,” we held that the “mere sale or transfer” of identifying\\n\\ninformation was not “equivalent to [its] actual use.” Id. at 1323. We explained that\\n\\n“‘use’ is the ‘application or employment of something for the purpose for which it\\n\\nis adapted.’” Id. at 1322 (alteration adopted) (quoting Use, Black’s Law Dictionary\\n\\n(9th ed. 2009)). We observed the disjunctive use of the words “use” and “transfer”\\n\\nelsewhere in the same section of the Guidelines. See id.; see also U.S.S.G.\\n\\n§ 2B1.1(b)(11)(C)(i) (“the unauthorized transfer or use of any means of\\n\\nidentification”). And we observed that another part of the application notes\\n\\ncontemplates that a means of identification is “used” when it is employed “to\\n\\nproduce or obtain another means of identification.” Hall, 704 F.3d at 1322; see\\n\\nU.S.S.G. § 2B1.1 cmt. n.10(C)(i). We concluded that the only patients whose\\n\\nidentifying information had been “used”—and who, as a result, counted as\\n\\n“victims”—were those whose information had been employed to procure\\n\\nfraudulent credit cards, “the purpose of the conspiracy.” Hall, 704 F.3d at 1322;\\n\\nsee also id. at 1323. “[T]he plain language of the sentencing guideline at issue,” we\\n\\nheld, “does not apply to Hall’s mere sale or transfer of the patients’ identifying\\n\\n\\n\\n\\n 10\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 11 of 22\\n\\n\\ninformation” to her co-conspirators: almost exactly the same conduct for which\\n\\nCorbett was convicted. Id. at 1323.\\n\\n The government’s argument for distinguishing Hall is untenable. Taking\\n\\nHall’s references to “the purpose of the conspiracy” out of context and treating\\n\\nthem as the core of its holding, the government points out that the indictment\\n\\ncharged that “the purpose of the conspiracy” between Corbett and Weaver was for\\n\\nthem to “unlawfully enrich themselves by . . . stealing . . . and selling the patients’\\n\\ninformation,” not to obtain fraudulent credit cards, and the government argues that\\n\\nCorbett “used” patients’ information to that end when she sold it to Weaver. But a\\n\\nsimilar argument could have been made about the defendant in Hall, who, after all,\\n\\nalso intended to enrich herself by selling the information she had stolen. Indeed,\\n\\nthat argument was made, and we rejected it. See id. at 1319–20, 1323. Instead, Hall\\n\\nheld that the “mere sale or transfer” of a means of identification does not constitute\\n\\nits “use,” based on the plain meaning of the words and their context. Id. at 1323. In\\n\\nother words, Hall’s definition of “use” is one that excludes certain conduct: “mere\\n\\nsale or transfer.” See United States v. Sammour, 816 F.3d 1328, 1340 (11th Cir.\\n\\n2016) (“The word ‘used’ . . . does not include the ‘mere transfer without more.’”\\n\\n(alteration adopted) (quoting Hall, 704 F.3d at 1322)).\\n\\n The government’s contrary reading of Hall makes little conceptual sense. If\\n\\n“the purpose of the conspiracy” determined whether identical conduct did or did\\n\\n\\n\\n 11\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 12 of 22\\n\\n\\nnot qualify as “use” of a means of identification, then we would need to know how\\n\\nto define the decisive “purpose.” Purposes can be described at varying levels of\\n\\ngenerality—remote or proximate, abstract or granular—but Hall provided no\\n\\nmethod for selecting the right one. And the proposal on which the government’s\\n\\nargument depends—that the sentencing court should simply adopt, in haec verba,\\n\\nthe description of “the purpose of the conspiracy” in the indictment—has no basis\\n\\nin Hall or in logic. The indictment’s description of “the purpose of the conspiracy”\\n\\nserved a narrative function; it did not recite an element of the offense. So the grand\\n\\njury was not required to describe Corbett and Weaver’s goals at any particular\\n\\nlevel of generality or with any particular amount of detail. And nothing in Hall\\n\\nsuggests that the ten-or-more-victims sentencing enhancement depends on the level\\n\\nof generality the grand jury happens to select or the amount of detail it happens to\\n\\ninclude in its description of a defendant’s aims. After all, Hall interpreted the word\\n\\n“used” in the context of a definition of “victim” that applies to identity-theft-\\n\\nrelated crimes. Every reasonable reader of the Guidelines would expect that\\n\\nwhether someone counts as a “victim” of such a crime depends on what was done\\n\\nwith his or her information—that is, on the defendant’s conduct.\\n\\n Although Hall explained that the defendant’s conduct was not the use of\\n\\nmeans of identification, it made clear what was use: the “employ[ment of] that\\n\\ninformation” to “procure[] . . . fraudulent credit cards and cash advances.” Id. at\\n\\n\\n\\n 12\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 13 of 22\\n\\n\\n1322. “[W]hen the conspirators used . . . 12 patients’ identifying information to\\n\\nobtain the fraudulent credit cards,” we explained, “[a]t that point, th[ose] 12\\n\\nindividuals . . . became victims.” Id. at 1322, 1323. To put it simply, we held in\\n\\nHall that a means of identification is “used” for purposes of section 2B1.1 when it\\n\\nis used as a means of identification. See id. at 1322–23; see also Smith v. United\\n\\nStates, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“To use an instrumentality\\n\\nordinarily means to use it for its intended purpose.”).\\n\\n It follows that the district court erred when it counted every individual\\n\\nwhose information was illegally downloaded as a “victim,” regardless of whether\\n\\nthat individual’s information was ever fraudulently “used” for any purpose to\\n\\nwhich it was adapted as a means of identification. And we reject the government’s\\n\\nargument that the error was not plain because our opinion in Hall left “room for\\n\\ndoubt” about the issue. To be sure, when the governing text is unclear about a\\n\\nspecific question, “there can be no plain error where there is no precedent from the\\n\\nSupreme Court or this Court directly resolving it.” Lejarde-Rada, 319 F.3d at\\n\\n1291. But even if the text of the Guidelines were unclear, a question we need not\\n\\nanswer, our precedent in Hall directly resolves the question whether Corbett’s\\n\\nconduct was the “use” of patients’ information. That it is possible to misunderstand\\n\\nHall, based on a superficial reading, is irrelevant to what it held.\\n\\n\\n\\n\\n 13\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 14 of 22\\n\\n\\n Although we will not correct even a plain error if it does not affect any\\n\\nparty’s substantial rights, see Fed. R. Crim. P. 52(b), the record establishes a\\n\\nreasonable probability that Corbett would have received a different sentence if the\\n\\ndistrict court had not erroneously applied the two-level enhancement for an offense\\n\\ninvolving ten or more victims. See Molina-Martinez, 136 S. Ct. at 1343. To be\\n\\nsure, the district court’s significant downward variance from the sentencing range\\n\\nunder the Guidelines means that this sentencing error is unusual. The district court\\n\\ncalculated that Corbett’s sentencing range was 30 to 37 months based on a total\\n\\noffense level of 19 and a criminal-history category of I. If the district court had\\n\\nomitted the two-level enhancement, resulting in a total offense level of 17,\\n\\nCorbett’s sentencing range would have been 24 to 30 months. See U.S.S.G. ch. 5\\n\\npt. A. Corbett’s sentence of 12 months and a day falls well below either range,\\n\\nraising a serious question whether the district court’s error, however plain, was\\n\\nharmless.\\n\\n At least in some circumstances, a sentence well below any possible\\n\\nsentencing range can be a powerful indicator that a miscalculated range did not\\n\\naffect a defendant’s substantial rights, and the decision in Molina-Martinez is not\\n\\nto the contrary. In Molina-Martinez, the Supreme Court reasoned that, “[i]n the\\n\\nusual case,” “the systemic function of the selected Guidelines range will affect the\\n\\nsentence,” so, “[i]n most cases[,] a defendant who has shown that the district court\\n\\n\\n\\n 14\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 15 of 22\\n\\n\\nmistakenly deemed applicable an incorrect, higher Guidelines range has\\n\\ndemonstrated a reasonable probability of a different outcome.” 136 S. Ct. at 1346.\\n\\n“This is so even if the ultimate sentence falls within both the correct [lower] and\\n\\nincorrect [higher] range.” Id. at 1345. Even so, “[t]here may be instances when,\\n\\ndespite application of an erroneous Guidelines range, a reasonable probability of\\n\\nprejudice does not exist.” Id. at 1346. The paradigmatic example is when the\\n\\nsentencing judge provides “a detailed explanation of the reasons the selected\\n\\nsentence is appropriate” that “make[s] it clear that the judge based the sentence . . .\\n\\non factors independent of the Guidelines.” Id. at 1346–47. But the Court\\n\\nacknowledged that even when “the record is silent as to what the district court\\n\\nmight have done had it considered the correct Guidelines range,” “unusual\\n\\ncircumstances” might prevent an error alone from establishing a reasonable\\n\\nprobability of a different outcome. Id. at 1347. Ultimately, “a reviewing court must\\n\\nconsider the facts and circumstances of the case before it” to determine whether\\n\\nsubstantial rights were affected. Id. at 1346.\\n\\n We conclude there is a reasonable probability that the district court’s error\\n\\naffected Corbett’s sentence because, even though the district court varied\\n\\ndownward from its calculated sentencing range, its sentencing decision remained\\n\\ntethered to what it believed to be the correct range under the Guidelines. More\\n\\nspecifically, its sentencing decision was tethered to the variant sentence that it\\n\\n\\n\\n 15\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 16 of 22\\n\\n\\nthought the probation officer, who had originally recommended a 24-month\\n\\nsentence based on a calculated range of 41 to 51 months, would recommend after\\n\\nthe district court’s application of the acceptance-of-responsibility reduction\\n\\nlowered the range to 30 to 37 months. “[B]ased on that [calculation],” the district\\n\\ncourt reasoned at the sentencing hearing, “the probation officer’s recommendation\\n\\n. . . would be probably closer to 12 to 18 months,” and the district court imposed a\\n\\nsentence within that range. On this record, we cannot rule out the reasonable\\n\\nprobability that the district court would have imposed a lesser sentence if it had\\n\\nexcluded the two-level ten-or-more-victims enhancement, calculated a range of 24\\n\\nto 30 months, and then estimated the probation officer’s recommended variance\\n\\nbased on that calculation.\\n\\n The use of the ten-or-more-victims enhancement to calculate Corbett’s total\\n\\noffense level was erroneous, the error was plain, and it affected Corbett’s\\n\\nsubstantial rights. “In the ordinary case, proof of a plain Guidelines error that\\n\\naffects the defendant’s substantial rights” satisfies the defendant’s “burden to\\n\\npersuade the court that the error seriously affected the fairness, integrity or public\\n\\nreputation of judicial proceedings,” and the government has not argued that\\n\\nCorbett’s case is out of the ordinary in this respect. Rosales-Mireles v. United\\n\\nStates, 138 S. Ct. 1897, 1909 n.4 (2018) (alteration adopted) (citation and internal\\n\\nquotation marks omitted). But, because Corbett did not dispute in the district court\\n\\n\\n\\n 16\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 17 of 22\\n\\n\\nhow many individuals’ means of identification were “used” and presented no\\n\\nfactual objections to the probation officer’s calculations under the Guidelines, the\\n\\ndistrict court on remand should permit the government the opportunity to introduce\\n\\nnew evidence to prove that Corbett’s offense involved ten or more victims. See\\n\\nUnited States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).\\n\\n B. Corbett Has Established No Plain Error in the Application of the Loss-\\n Amount Enhancement.\\n Section 2B1.1 of the Guidelines also provides for a ten-level enhancement if\\n\\nthe loss resulting from an offense exceeds $150,000 but does not exceed $250,000.\\n\\nU.S.S.G. § 2B1.1(b)(1)(F). In general, “loss is the greater of actual loss,” namely\\n\\n“the reasonably foreseeable pecuniary harm that resulted from the offense,” and\\n\\n“intended loss,” which “means the pecuniary harm that the defendant purposely\\n\\nsought to inflict.” Id. § 2B1.1 cmt. n.3(A)–(A)(ii)(I). Pecuniary harm is “harm that\\n\\nis monetary or that otherwise is readily measurable in money,” id. § 2B1.1 cmt.\\n\\nn.3(A)(iii), and is reasonably foreseeable if “the defendant knew or, under the\\n\\ncircumstances, reasonably should have known,” that it “was a potential result of\\n\\nthe offense,” id. § 2B1.1 cmt. n.3(A)(iv). “Costs to the government of, and costs\\n\\nincurred by victims primarily to aid the government in, the prosecution and\\n\\ncriminal investigation of an offense” are excluded from the calculation of the loss\\n\\namount. Id. § 2B1.1 cmt. n.3(D)(ii). An exact calculation is not required; “[t]he\\n\\n\\n\\n\\n 17\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 18 of 22\\n\\n\\ncourt need only make a reasonable estimate of the loss” “based on available\\n\\ninformation.” Id. § 2B1.1 cmt. n.3(C).\\n\\n Corbett argues that the district court committed significant procedural error\\n\\nin applying this enhancement because it failed to “hold[] the government to its\\n\\nburden of proving a disputed sentencing fact,” but Corbett fails to clarify what\\n\\n“sentencing fact” related to the loss amount was “disputed.” After all, Corbett\\n\\nexpressed “no objection to the facts” of the presentence investigation report. Her\\n\\nobjections to the probation officer’s calculations under the Guidelines were only\\n\\n“legal objections.” And Corbett’s argument on appeal confusingly intertwines\\n\\nthree distinct rationales for objecting to the enhancement.\\n\\n First, as the centerpiece of her appellate argument, Corbett appears to\\n\\ncontend that Florida Hospital’s losses were not “reasonably foreseeable” to her, an\\n\\nargument she never presented in the district court. See U.S.S.G. § 2B1.1 cmt.\\n\\nn.3(A)(iv). The probation officer found that, “[a]s a result of Weaver, Corbett and\\n\\nthe co-conspirators’ conduct, Florida Hospital incurred costs associated with\\n\\nidentifying and notifying patients whose individually identifiable health\\n\\ninformation was viewed without authority by Weaver and his co-conspirators. The\\n\\nloss incurred by Florida Hospital as a result of this conduct is $232,068.64.”\\n\\nBecause Corbett “did not specifically and clearly object to these factual\\n\\nstatements”—or to any of the probation officer’s factual findings—“[s]he is\\n\\n\\n\\n 18\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 19 of 22\\n\\n\\ndeemed to have admitted them and the district court was entitled to rely on them\\n\\neven in the absence of supporting evidence.” Aguilar-Ibarra, 740 F.3d at 592. In\\n\\nother words, if Corbett intended to raise a factual dispute about how much of the\\n\\n$232,068.64 spent by Florida Hospital was “associated with identifying and\\n\\nnotifying patients” whose information was compromised, then she failed to do so,\\n\\nand the government had no burden to prove a fact she had admitted. And if\\n\\nCorbett’s argument is that the district court erred as a matter of law by treating\\n\\n“costs associated with identifying and notifying patients” whose information was\\n\\ncompromised as “reasonably foreseeable,” then she cannot establish plain error.\\n\\nThat a hospital will spend resources to investigate and remedy the theft of the\\n\\nidentifying and medical information of thousands of its patients is virtually the\\n\\ndefinition of “reasonably foreseeable.”\\n\\n Second, Corbett’s argument contains echoes of the objection she raised at\\n\\nthe sentencing hearing, that Florida Hospital’s losses should have been excluded as\\n\\n“costs incurred . . . primarily to aid the government in[] the prosecution and\\n\\ncriminal investigation of an offense.” U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). Again, by\\n\\nfailing to object to the facts in the presentence investigation report, Corbett\\n\\nadmitted that Florida Hospital incurred $232,068.64 in “costs associated with\\n\\nidentifying and notifying patients” whose information Weaver and Corbett had\\n\\ncompromised, so she placed no burden on the government to prove as a factual\\n\\n\\n\\n 19\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 20 of 22\\n\\n\\nmatter that any part of that amount was not incurred “primarily to aid the\\n\\ngovernment.” And if Corbett’s argument is that “costs associated with identifying\\n\\nand notifying patients” are indistinct from costs incurred “primarily to aid the\\n\\ngovernment” as a matter of law, then it fails on its face.\\n\\n Finally, in a single paragraph of her initial brief, Corbett suggests that she\\n\\n“should not be held responsible for the costs of investigating any data breaches that\\n\\noccurred prior to July 28, 2013,” the date she took over Weaver’s job as release-of-\\n\\ninformation specialist. This suggestion corresponds to Corbett’s original objection\\n\\nto the loss-amount enhancement: that the probation officer did not limit Corbett’s\\n\\nrelevant conduct to the acts and omissions for which she was responsible under\\n\\nsection 1B1.3 of the Guidelines. See U.S.S.G. § 1B1.3 cmt. n.3(B) (explaining,\\n\\namong other principles, that “[a] defendant’s relevant conduct does not include the\\n\\nconduct of members of a conspiracy prior to the defendant joining the\\n\\nconspiracy”); see also, e.g., United States v. Hunter, 323 F.3d 1314, 1319–22 (11th\\n\\nCir. 2003). But Corbett did not pursue this theory at the sentencing hearing, instead\\n\\npressing the criminal-investigation argument as the basis of her objection to the\\n\\nloss amount, so the district court did not rule on this theory. And Corbett’s initial\\n\\nbrief fails properly to raise this distinct argument on appeal. Corbett does not cite\\n\\nsection 1B1.3, and any hint of an argument based on the Guidelines’ definition of\\n\\n\\n\\n\\n 20\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 21 of 22\\n\\n\\nrelevant conduct is at best “buried within [her] other arguments.” Sapuppo v.\\n\\nAllstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014).\\n\\n We remind the defense bar of the importance of specific factual and legal\\n\\nargumentation at every stage of sentencing proceedings. A defendant should\\n\\n“specifically and clearly object” to any facts in a presentence report that she does\\n\\nnot intend to admit and that she wishes to require the government to prove by a\\n\\npreponderance of the evidence. Aguilar-Ibarra, 740 F.3d at 592. To preserve an\\n\\nissue for appeal, a defendant must first present it to the district court, “rais[ing] that\\n\\npoint in such clear and simple language that the trial court may not misunderstand\\n\\nit.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quoting United\\n\\nStates v. Riggs, 967 F.2d 561, 565 (11th Cir. 1992)). “When the statement is not\\n\\nclear enough to inform the district court of the legal basis for the objection, . . . the\\n\\nobjection is not properly preserved.” Id. An issue also is not preserved when its\\n\\n“factual predicates” are in the record “but were presented to the district court under\\n\\na different legal theory.” Id. And, at the appellate stage, a defendant abandons an\\n\\nobjection to her sentence “when [s]he does not ‘plainly and prominently’ raise it”\\n\\nin the argument section of her initial brief, when she “raises it in a perfunctory\\n\\nmanner without supporting arguments and authority,” and when she makes only\\n\\n“passing references” to it that are “background to other arguments or [are] buried\\n\\nwithin other arguments, or both.” Sapuppo, 739 F.3d at 681–82. At this stage too,\\n\\n\\n\\n 21\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 22 of 22\\n\\n\\nto present an issue properly for our review, an appellant must make explicit “the\\n\\nlegal basis for the objection” and the “legal theory” that supports it. Massey, 443\\n\\nF.3d at 819. Corbett has properly raised no argument establishing plain error in the\\n\\napplication of the loss-amount enhancement.\\n\\n IV. CONCLUSION\\n\\n We VACATE Corbett’s sentence and REMAND for resentencing.\\n\\n\\n\\n\\n 22\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4388009/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"VRATIL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4610756/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Tanganica CORBETT, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-13203 Date Filed: 04/17/2019 Page: 1 of 22\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-13203\n ________________________\n\n D.C. Docket No. 6:18-cr-00035-GAP-GJK-1\n\n\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellee,\n\n versus\n\nTANGANICA CORBETT,\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n _______________________\n\n (April 17, 2019)\n\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District\nJudge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n*\n Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by\ndesignation.\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 2 of 22\n\n\n This appeal requires us to review two sentencing enhancements for plain\n\nerror and to reverse one of them. After Tanganica Corbett pleaded guilty to\n\nparticipation in an identity-fraud conspiracy, the district court enhanced her offense\n\nlevel under the Sentencing Guidelines two levels for an offense involving ten or\n\nmore victims and ten levels for an offense that caused a loss that exceeds $150,000\n\nbut does not exceed $250,000. See United States Sentencing Guidelines Manual\n\n§ 2B1.1(b)(1)(F), (b)(2)(A)(i) (Nov. 2016). Corbett objected to each enhancement\n\nin the district court, but on different grounds from her arguments on appeal, so we\n\nreview each issue for plain error only. We agree with Corbett that the district court\n\ncommitted plain error in its application of the ten-or-more-victims enhancement\n\nbecause, contrary to our precedent, United States v. Hall, 704 F.3d 1317 (11th Cir.\n\n2013), the district court counted as a victim any individual whose means of\n\nidentification was stolen regardless of whether it was “used” as a means of\n\nidentification. See U.S.S.G. § 2B1.1 cmt. n.4(E). But Corbett identifies no plain\n\nerror in the application of the loss-amount enhancement. We vacate Corbett’s\n\nsentence and remand with instructions for resentencing.\n\n I. BACKGROUND\n\n Tanganica Corbett and Kevin Weaver II worked at Florida Hospital near\n\nOrlando, Florida. From July 2012 to July 2013, Weaver held the position of\n\nrelease-of-information specialist. During that time, Weaver downloaded patients’\n\n\n\n 2\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 3 of 22\n\n\n“face sheets”—profiles that include a patient’s name, health information, date of\n\nbirth, Social Security number, and insurance details—without the authority to do\n\nso. He then sold them to an unidentified co-conspirator who, the government\n\nbelieved, intended to use the information to open credit-card accounts and to\n\ncommit other forms of identity fraud.\n\n In July 2013, Corbett took over Weaver’s position as release-of-information\n\nspecialist. He solicited her to obtain face sheets without authority and to pass them\n\non to him. She complied. In March 2014, Weaver paid her about $150 to $200 for\n\nher assistance.\n\n A grand jury charged Corbett and Weaver with conspiracy to obtain and\n\ndisclose individually identifiable health information for commercial advantage,\n\npersonal gain, or malicious harm. See 42 U.S.C. § 1320d-6(a)(2)–(3), (b)(3); 18\n\nU.S.C. § 371. The indictment also charged each defendant with two substantive\n\ncounts of obtaining and disclosing such information. Both defendants pleaded\n\nguilty.\n\n Using the 2016 edition of the Sentencing Guidelines Manual, the probation\n\nofficer assigned Corbett a total offense level of 22 based on a base offense level of\n\n6 and four enhancements, two of which Corbett objects to in this appeal. See\n\nU.S.S.G. § 2B1.1(a)(2) (prescribing the base offense level). First, the probation\n\nofficer found that “the defendants,” collectively, “unlawfully accessed more than\n\n\n\n 3\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 4 of 22\n\n\n1,700 means of identification,” so the probation officer applied the two-level\n\nenhancement for an offense that “involved 10 or more victims.”\n\nId. § 2B1.1(b)(2)(A)(i). Second, the probation officer found that Florida Hospital\n\nincurred a loss of $232,068.64 in “costs associated with identifying and notifying\n\npatients whose individually identifiable health information was viewed without\n\nauthorization,” so the probation officer applied the ten-level enhancement for a\n\nloss amount exceeding $150,000 but not exceeding $250,000. See\n\nid. § 2B1.1(b)(1)(F). Combining Corbett’s total offense level of 22 with a criminal-\n\nhistory category of I based on zero criminal-history points, the probation officer\n\ncalculated an applicable sentencing range of 41 to 51 months of imprisonment. But\n\nthe probation officer recommended a variant sentence of 24 months based on\n\nCorbett’s lack of criminal history and her family responsibilities.\n\n Among other timely objections to the probation officer’s Guidelines\n\ncalculations, Corbett objected to the probation officer’s calculation of the loss\n\namount on the ground that it did not limit her relevant conduct as required by\n\nsection 1B1.3 of the Guidelines. Corbett also objected to the probation officer’s\n\nfailure to apply a three-level reduction for acceptance of responsibility. See\n\nid. § 3E1.1. But, apart from a stray, unexplained reference in her sentencing brief,\n\nCorbett expressed no objection to the ten-or-more-victims enhancement before the\n\nsentencing hearing.\n\n\n\n 4\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 5 of 22\n\n\n At the sentencing hearing, Corbett confirmed that she had “no objections to\n\nthe facts” in the presentence investigation report, but she presented her “legal\n\nobjections” to the probation officer’s calculations under the Guidelines, including\n\nher objections to the loss amount and the ten-or-more-victims enhancement. With\n\nrespect to the loss amount, Corbett did not press her relevant-conduct argument\n\nbased on section 1B1.3 but instead argued that Florida Hospital’s expenses should\n\nhave been excluded as “costs incurred by victims primarily to aid the government\n\nin[] the prosecution and criminal investigation of an offense.” Id. § 2B1.1 cmt.\n\nn.3(D)(ii). The district court replied, “Well, I think more appropriately it was the\n\ncost they had to expend to deal with this enormous problem that your client helped\n\ncreate. So that objection’s overruled.” With respect to the ten-or-more-victims\n\nenhancement, Corbett argued that, although 1,700 people had had their information\n\ncompromised, the government had identified only a handful of people, at most,\n\nwho had suffered any identifiable financial harm as a result of the conspiracy. The\n\ndistrict court overruled that objection, stating, “I think there are a lot more than 10\n\nvictims. I think anybody’s information who was stolen is a victim.” But the district\n\ncourt agreed with Corbett that the acceptance-of-responsibility reduction was\n\nwarranted, resulting in a total offense level of 19 and a sentencing range of 30 to\n\n37 months.\n\n\n\n\n 5\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 6 of 22\n\n\n The district court sentenced Corbett to three concurrent terms of 12 months\n\nand one day of imprisonment and three years of supervised release. The district\n\ncourt said that the severity of the offense—“by far the worst” identity-theft case it\n\nhad ever seen—was “a major aggravating factor.” But it found “significant\n\nmitigating factors” in that Corbett “up until this event had been a productive person\n\nwith no criminal conduct,” was “clearly less culpable than . . . Weaver,” may not\n\nhave fully understood “that she was doing wrong,” was “remorseful,” and had\n\n“cooperated with the Government.” The district court remarked favorably that\n\nCorbett had “maintained employment notwithstanding these difficulties,”\n\nrecognized her “family obligations,” and deemed her unlikely to reoffend. The\n\ndistrict court also took note that Corbett’s financial gain was “minuscule.”\n\nObserving that the probation officer had recommended a variant sentence of 24\n\nmonths before the acceptance-of-responsibility adjustment had been applied, the\n\ndistrict court reasoned, “based on that, the probation officer’s recommendation\n\nunder [the district court’s] calculation of the guideline score would be probably\n\ncloser to 12 to 18 months.” The district court stated that, “[u]nder normal\n\ncircumstances,” it might “find probation to be appropriate . . . based on these\n\nsignificant mitigating factors,” but that, “[u]nfortunately, that mitigation [was]\n\noutweighed by the seriousness of this offense.” Corbett maintained her objections\n\nto the loss amount and to the ten-or-more-victims enhancement.\n\n\n\n 6\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 7 of 22\n\n\n II. STANDARDS OF REVIEW\n\n We review Corbett’s sentence “under an abuse-of-discretion standard.” Gall\n\nv. United States, 552 U.S. 38, 51 (2007). Corbett does not challenge the substantive\n\nreasonableness of her sentence, so we will not vacate the sentence unless the\n\ndistrict court committed “significant procedural error, such as . . . improperly\n\ncalculating[] the Guidelines range.” Id. “We review a district court’s interpretation\n\nof the Sentencing Guidelines de novo, and the determination of the amount of loss\n\ninvolved in the offense for clear error.” United States v. Maxwell, 579 F.3d 1282,\n\n1305 (11th Cir. 2009). “When a defendant challenges one of the factual bases of\n\nhis sentence, the government must prove the disputed fact by a preponderance of\n\nthe evidence.” United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).\n\n We review unpreserved sentencing objections only for plain error. United\n\nStates v. Joyner, 899 F.3d 1199, 1207 (11th Cir. 2018). To establish plain error,\n\n“there must be an error that has not been intentionally relinquished or abandoned”;\n\n“the error must be plain—that is to say, clear or obvious”; and “the error must have\n\naffected the defendant’s substantial rights, which in the ordinary case means he or\n\nshe must show a reasonable probability that, but for the error, the outcome of the\n\nproceeding would have been different.” Molina-Martinez v. United States, 136 S.\n\nCt. 1338, 1343 (2016) (citation and internal quotation marks omitted). If these\n\nconditions are met, we “should exercise [our] discretion to correct the forfeited\n\n\n\n 7\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 8 of 22\n\n\nerror if the error seriously affects the fairness, integrity or public reputation of\n\njudicial proceedings.” Id. (citation and internal quotation marks omitted). We have\n\nexplained that, “where the explicit language of a statute or rule does not\n\nspecifically resolve an issue, there can be no plain error where there is no\n\nprecedent from the Supreme Court or this Court directly resolving it.” United\n\nStates v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).\n\n III. DISCUSSION\n\n We divide our discussion in two parts. First, we explain that the district court\n\nplainly erred when it applied the ten-or-more-victims enhancement. Second, we\n\nexplain that Corbett has established no plain error in the application of the loss-\n\namount enhancement.\n\n A. The District Court Plainly Erred when It Applied the Ten-or-More-\n Victims Enhancement.\n Section 2B1.1 of the Sentencing Guidelines provides a two-level\n\nenhancement for an offense that “involved 10 or more victims.” U.S.S.G.\n\n§ 2B1.1(b)(2)(A)(i). In general, a “victim” is a person who suffered an “actual\n\nloss” or an individual who “sustained bodily injury as a result of the offense.” Id.\n\n§ 2B1.1 cmt. n.1. But, “in a case involving means of identification,” the term\n\n“victim” also includes “any individual whose means of identification was used\n\nunlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). The district court did not\n\nfind that any victims besides Florida Hospital had suffered an actual loss or that\n\n\n 8\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 9 of 22\n\n\nanyone had sustained bodily injury due to the offense, so only the last category of\n\n“victims,” those “whose means of identification [were] used,” is in question.\n\n Based on our decision in United States v. Hall, Corbett argues that the\n\ndistrict court erred when it counted all 1,700 or more individuals whose face sheets\n\nwere compromised as victims because the government did not prove that all of\n\ntheir means of identification had been “used” within the meaning of the relevant\n\ndefinition. As a threshold matter, we agree with the government that Corbett did\n\nnot preserve this objection for appeal and that plain error is the correct standard of\n\nreview. Corbett’s only objection to the ten-or-more-victims enhancement in the\n\ndistrict court was that the government had not proved that ten people suffered a\n\nfinancial loss. She made no argument based on Hall or on the meaning of the word\n\n“used.”\n\n But we agree with Corbett that the district court committed plain error. In\n\nHall, we considered whether an almost identically situated defendant—a medical\n\noffice assistant who, like Corbett, stole patients’ identifying information and sold it\n\nto co-conspirators who in turn sold it to the primary identity fraudsters in the\n\nconspiracy—had “used” patients’ means of identification. See 704 F.3d at 1319.\n\nThe government argued that Hall “used” every means of identification that she\n\nsold or transferred to her co-conspirators. See id. at 1319–20. The district court in\n\n\n\n\n 9\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 10 of 22\n\n\nHall agreed, ruling that “the intentional transfer of information in exchange for\n\nconsideration constituted actual use.” Id. at 1320. We rejected that definition.\n\n Based on the plain meaning of the word “used” in the context of the relevant\n\ndefinition of “victim,” we held that the “mere sale or transfer” of identifying\n\ninformation was not “equivalent to [its] actual use.” Id. at 1323. We explained that\n\n“‘use’ is the ‘application or employment of something for the purpose for which it\n\nis adapted.’” Id. at 1322 (alteration adopted) (quoting Use, Black’s Law Dictionary\n\n(9th ed. 2009)). We observed the disjunctive use of the words “use” and “transfer”\n\nelsewhere in the same section of the Guidelines. See id.; see also U.S.S.G.\n\n§ 2B1.1(b)(11)(C)(i) (“the unauthorized transfer or use of any means of\n\nidentification”). And we observed that another part of the application notes\n\ncontemplates that a means of identification is “used” when it is employed “to\n\nproduce or obtain another means of identification.” Hall, 704 F.3d at 1322; see\n\nU.S.S.G. § 2B1.1 cmt. n.10(C)(i). We concluded that the only patients whose\n\nidentifying information had been “used”—and who, as a result, counted as\n\n“victims”—were those whose information had been employed to procure\n\nfraudulent credit cards, “the purpose of the conspiracy.” Hall, 704 F.3d at 1322;\n\nsee also id. at 1323. “[T]he plain language of the sentencing guideline at issue,” we\n\nheld, “does not apply to Hall’s mere sale or transfer of the patients’ identifying\n\n\n\n\n 10\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 11 of 22\n\n\ninformation” to her co-conspirators: almost exactly the same conduct for which\n\nCorbett was convicted. Id. at 1323.\n\n The government’s argument for distinguishing Hall is untenable. Taking\n\nHall’s references to “the purpose of the conspiracy” out of context and treating\n\nthem as the core of its holding, the government points out that the indictment\n\ncharged that “the purpose of the conspiracy” between Corbett and Weaver was for\n\nthem to “unlawfully enrich themselves by . . . stealing . . . and selling the patients’\n\ninformation,” not to obtain fraudulent credit cards, and the government argues that\n\nCorbett “used” patients’ information to that end when she sold it to Weaver. But a\n\nsimilar argument could have been made about the defendant in Hall, who, after all,\n\nalso intended to enrich herself by selling the information she had stolen. Indeed,\n\nthat argument was made, and we rejected it. See id. at 1319–20, 1323. Instead, Hall\n\nheld that the “mere sale or transfer” of a means of identification does not constitute\n\nits “use,” based on the plain meaning of the words and their context. Id. at 1323. In\n\nother words, Hall’s definition of “use” is one that excludes certain conduct: “mere\n\nsale or transfer.” See United States v. Sammour, 816 F.3d 1328, 1340 (11th Cir.\n\n2016) (“The word ‘used’ . . . does not include the ‘mere transfer without more.’”\n\n(alteration adopted) (quoting Hall, 704 F.3d at 1322)).\n\n The government’s contrary reading of Hall makes little conceptual sense. If\n\n“the purpose of the conspiracy” determined whether identical conduct did or did\n\n\n\n 11\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 12 of 22\n\n\nnot qualify as “use” of a means of identification, then we would need to know how\n\nto define the decisive “purpose.” Purposes can be described at varying levels of\n\ngenerality—remote or proximate, abstract or granular—but Hall provided no\n\nmethod for selecting the right one. And the proposal on which the government’s\n\nargument depends—that the sentencing court should simply adopt, in haec verba,\n\nthe description of “the purpose of the conspiracy” in the indictment—has no basis\n\nin Hall or in logic. The indictment’s description of “the purpose of the conspiracy”\n\nserved a narrative function; it did not recite an element of the offense. So the grand\n\njury was not required to describe Corbett and Weaver’s goals at any particular\n\nlevel of generality or with any particular amount of detail. And nothing in Hall\n\nsuggests that the ten-or-more-victims sentencing enhancement depends on the level\n\nof generality the grand jury happens to select or the amount of detail it happens to\n\ninclude in its description of a defendant’s aims. After all, Hall interpreted the word\n\n“used” in the context of a definition of “victim” that applies to identity-theft-\n\nrelated crimes. Every reasonable reader of the Guidelines would expect that\n\nwhether someone counts as a “victim” of such a crime depends on what was done\n\nwith his or her information—that is, on the defendant’s conduct.\n\n Although Hall explained that the defendant’s conduct was not the use of\n\nmeans of identification, it made clear what was use: the “employ[ment of] that\n\ninformation” to “procure[] . . . fraudulent credit cards and cash advances.” Id. at\n\n\n\n 12\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 13 of 22\n\n\n1322. “[W]hen the conspirators used . . . 12 patients’ identifying information to\n\nobtain the fraudulent credit cards,” we explained, “[a]t that point, th[ose] 12\n\nindividuals . . . became victims.” Id. at 1322, 1323. To put it simply, we held in\n\nHall that a means of identification is “used” for purposes of section 2B1.1 when it\n\nis used as a means of identification. See id. at 1322–23; see also Smith v. United\n\nStates, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“To use an instrumentality\n\nordinarily means to use it for its intended purpose.”).\n\n It follows that the district court erred when it counted every individual\n\nwhose information was illegally downloaded as a “victim,” regardless of whether\n\nthat individual’s information was ever fraudulently “used” for any purpose to\n\nwhich it was adapted as a means of identification. And we reject the government’s\n\nargument that the error was not plain because our opinion in Hall left “room for\n\ndoubt” about the issue. To be sure, when the governing text is unclear about a\n\nspecific question, “there can be no plain error where there is no precedent from the\n\nSupreme Court or this Court directly resolving it.” Lejarde-Rada, 319 F.3d at\n\n1291. But even if the text of the Guidelines were unclear, a question we need not\n\nanswer, our precedent in Hall directly resolves the question whether Corbett’s\n\nconduct was the “use” of patients’ information. That it is possible to misunderstand\n\nHall, based on a superficial reading, is irrelevant to what it held.\n\n\n\n\n 13\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 14 of 22\n\n\n Although we will not correct even a plain error if it does not affect any\n\nparty’s substantial rights, see Fed. R. Crim. P. 52(b), the record establishes a\n\nreasonable probability that Corbett would have received a different sentence if the\n\ndistrict court had not erroneously applied the two-level enhancement for an offense\n\ninvolving ten or more victims. See Molina-Martinez, 136 S. Ct. at 1343. To be\n\nsure, the district court’s significant downward variance from the sentencing range\n\nunder the Guidelines means that this sentencing error is unusual. The district court\n\ncalculated that Corbett’s sentencing range was 30 to 37 months based on a total\n\noffense level of 19 and a criminal-history category of I. If the district court had\n\nomitted the two-level enhancement, resulting in a total offense level of 17,\n\nCorbett’s sentencing range would have been 24 to 30 months. See U.S.S.G. ch. 5\n\npt. A. Corbett’s sentence of 12 months and a day falls well below either range,\n\nraising a serious question whether the district court’s error, however plain, was\n\nharmless.\n\n At least in some circumstances, a sentence well below any possible\n\nsentencing range can be a powerful indicator that a miscalculated range did not\n\naffect a defendant’s substantial rights, and the decision in Molina-Martinez is not\n\nto the contrary. In Molina-Martinez, the Supreme Court reasoned that, “[i]n the\n\nusual case,” “the systemic function of the selected Guidelines range will affect the\n\nsentence,” so, “[i]n most cases[,] a defendant who has shown that the district court\n\n\n\n 14\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 15 of 22\n\n\nmistakenly deemed applicable an incorrect, higher Guidelines range has\n\ndemonstrated a reasonable probability of a different outcome.” 136 S. Ct. at 1346.\n\n“This is so even if the ultimate sentence falls within both the correct [lower] and\n\nincorrect [higher] range.” Id. at 1345. Even so, “[t]here may be instances when,\n\ndespite application of an erroneous Guidelines range, a reasonable probability of\n\nprejudice does not exist.” Id. at 1346. The paradigmatic example is when the\n\nsentencing judge provides “a detailed explanation of the reasons the selected\n\nsentence is appropriate” that “make[s] it clear that the judge based the sentence . . .\n\non factors independent of the Guidelines.” Id. at 1346–47. But the Court\n\nacknowledged that even when “the record is silent as to what the district court\n\nmight have done had it considered the correct Guidelines range,” “unusual\n\ncircumstances” might prevent an error alone from establishing a reasonable\n\nprobability of a different outcome. Id. at 1347. Ultimately, “a reviewing court must\n\nconsider the facts and circumstances of the case before it” to determine whether\n\nsubstantial rights were affected. Id. at 1346.\n\n We conclude there is a reasonable probability that the district court’s error\n\naffected Corbett’s sentence because, even though the district court varied\n\ndownward from its calculated sentencing range, its sentencing decision remained\n\ntethered to what it believed to be the correct range under the Guidelines. More\n\nspecifically, its sentencing decision was tethered to the variant sentence that it\n\n\n\n 15\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 16 of 22\n\n\nthought the probation officer, who had originally recommended a 24-month\n\nsentence based on a calculated range of 41 to 51 months, would recommend after\n\nthe district court’s application of the acceptance-of-responsibility reduction\n\nlowered the range to 30 to 37 months. “[B]ased on that [calculation],” the district\n\ncourt reasoned at the sentencing hearing, “the probation officer’s recommendation\n\n. . . would be probably closer to 12 to 18 months,” and the district court imposed a\n\nsentence within that range. On this record, we cannot rule out the reasonable\n\nprobability that the district court would have imposed a lesser sentence if it had\n\nexcluded the two-level ten-or-more-victims enhancement, calculated a range of 24\n\nto 30 months, and then estimated the probation officer’s recommended variance\n\nbased on that calculation.\n\n The use of the ten-or-more-victims enhancement to calculate Corbett’s total\n\noffense level was erroneous, the error was plain, and it affected Corbett’s\n\nsubstantial rights. “In the ordinary case, proof of a plain Guidelines error that\n\naffects the defendant’s substantial rights” satisfies the defendant’s “burden to\n\npersuade the court that the error seriously affected the fairness, integrity or public\n\nreputation of judicial proceedings,” and the government has not argued that\n\nCorbett’s case is out of the ordinary in this respect. Rosales-Mireles v. United\n\nStates, 138 S. Ct. 1897, 1909 n.4 (2018) (alteration adopted) (citation and internal\n\nquotation marks omitted). But, because Corbett did not dispute in the district court\n\n\n\n 16\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 17 of 22\n\n\nhow many individuals’ means of identification were “used” and presented no\n\nfactual objections to the probation officer’s calculations under the Guidelines, the\n\ndistrict court on remand should permit the government the opportunity to introduce\n\nnew evidence to prove that Corbett’s offense involved ten or more victims. See\n\nUnited States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).\n\n B. Corbett Has Established No Plain Error in the Application of the Loss-\n Amount Enhancement.\n Section 2B1.1 of the Guidelines also provides for a ten-level enhancement if\n\nthe loss resulting from an offense exceeds $150,000 but does not exceed $250,000.\n\nU.S.S.G. § 2B1.1(b)(1)(F). In general, “loss is the greater of actual loss,” namely\n\n“the reasonably foreseeable pecuniary harm that resulted from the offense,” and\n\n“intended loss,” which “means the pecuniary harm that the defendant purposely\n\nsought to inflict.” Id. § 2B1.1 cmt. n.3(A)–(A)(ii)(I). Pecuniary harm is “harm that\n\nis monetary or that otherwise is readily measurable in money,” id. § 2B1.1 cmt.\n\nn.3(A)(iii), and is reasonably foreseeable if “the defendant knew or, under the\n\ncircumstances, reasonably should have known,” that it “was a potential result of\n\nthe offense,” id. § 2B1.1 cmt. n.3(A)(iv). “Costs to the government of, and costs\n\nincurred by victims primarily to aid the government in, the prosecution and\n\ncriminal investigation of an offense” are excluded from the calculation of the loss\n\namount. Id. § 2B1.1 cmt. n.3(D)(ii). An exact calculation is not required; “[t]he\n\n\n\n\n 17\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 18 of 22\n\n\ncourt need only make a reasonable estimate of the loss” “based on available\n\ninformation.” Id. § 2B1.1 cmt. n.3(C).\n\n Corbett argues that the district court committed significant procedural error\n\nin applying this enhancement because it failed to “hold[] the government to its\n\nburden of proving a disputed sentencing fact,” but Corbett fails to clarify what\n\n“sentencing fact” related to the loss amount was “disputed.” After all, Corbett\n\nexpressed “no objection to the facts” of the presentence investigation report. Her\n\nobjections to the probation officer’s calculations under the Guidelines were only\n\n“legal objections.” And Corbett’s argument on appeal confusingly intertwines\n\nthree distinct rationales for objecting to the enhancement.\n\n First, as the centerpiece of her appellate argument, Corbett appears to\n\ncontend that Florida Hospital’s losses were not “reasonably foreseeable” to her, an\n\nargument she never presented in the district court. See U.S.S.G. § 2B1.1 cmt.\n\nn.3(A)(iv). The probation officer found that, “[a]s a result of Weaver, Corbett and\n\nthe co-conspirators’ conduct, Florida Hospital incurred costs associated with\n\nidentifying and notifying patients whose individually identifiable health\n\ninformation was viewed without authority by Weaver and his co-conspirators. The\n\nloss incurred by Florida Hospital as a result of this conduct is $232,068.64.”\n\nBecause Corbett “did not specifically and clearly object to these factual\n\nstatements”—or to any of the probation officer’s factual findings—“[s]he is\n\n\n\n 18\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 19 of 22\n\n\ndeemed to have admitted them and the district court was entitled to rely on them\n\neven in the absence of supporting evidence.” Aguilar-Ibarra, 740 F.3d at 592. In\n\nother words, if Corbett intended to raise a factual dispute about how much of the\n\n$232,068.64 spent by Florida Hospital was “associated with identifying and\n\nnotifying patients” whose information was compromised, then she failed to do so,\n\nand the government had no burden to prove a fact she had admitted. And if\n\nCorbett’s argument is that the district court erred as a matter of law by treating\n\n“costs associated with identifying and notifying patients” whose information was\n\ncompromised as “reasonably foreseeable,” then she cannot establish plain error.\n\nThat a hospital will spend resources to investigate and remedy the theft of the\n\nidentifying and medical information of thousands of its patients is virtually the\n\ndefinition of “reasonably foreseeable.”\n\n Second, Corbett’s argument contains echoes of the objection she raised at\n\nthe sentencing hearing, that Florida Hospital’s losses should have been excluded as\n\n“costs incurred . . . primarily to aid the government in[] the prosecution and\n\ncriminal investigation of an offense.” U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). Again, by\n\nfailing to object to the facts in the presentence investigation report, Corbett\n\nadmitted that Florida Hospital incurred $232,068.64 in “costs associated with\n\nidentifying and notifying patients” whose information Weaver and Corbett had\n\ncompromised, so she placed no burden on the government to prove as a factual\n\n\n\n 19\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 20 of 22\n\n\nmatter that any part of that amount was not incurred “primarily to aid the\n\ngovernment.” And if Corbett’s argument is that “costs associated with identifying\n\nand notifying patients” are indistinct from costs incurred “primarily to aid the\n\ngovernment” as a matter of law, then it fails on its face.\n\n Finally, in a single paragraph of her initial brief, Corbett suggests that she\n\n“should not be held responsible for the costs of investigating any data breaches that\n\noccurred prior to July 28, 2013,” the date she took over Weaver’s job as release-of-\n\ninformation specialist. This suggestion corresponds to Corbett’s original objection\n\nto the loss-amount enhancement: that the probation officer did not limit Corbett’s\n\nrelevant conduct to the acts and omissions for which she was responsible under\n\nsection 1B1.3 of the Guidelines. See U.S.S.G. § 1B1.3 cmt. n.3(B) (explaining,\n\namong other principles, that “[a] defendant’s relevant conduct does not include the\n\nconduct of members of a conspiracy prior to the defendant joining the\n\nconspiracy”); see also, e.g., United States v. Hunter, 323 F.3d 1314, 1319–22 (11th\n\nCir. 2003). But Corbett did not pursue this theory at the sentencing hearing, instead\n\npressing the criminal-investigation argument as the basis of her objection to the\n\nloss amount, so the district court did not rule on this theory. And Corbett’s initial\n\nbrief fails properly to raise this distinct argument on appeal. Corbett does not cite\n\nsection 1B1.3, and any hint of an argument based on the Guidelines’ definition of\n\n\n\n\n 20\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 21 of 22\n\n\nrelevant conduct is at best “buried within [her] other arguments.” Sapuppo v.\n\nAllstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014).\n\n We remind the defense bar of the importance of specific factual and legal\n\nargumentation at every stage of sentencing proceedings. A defendant should\n\n“specifically and clearly object” to any facts in a presentence report that she does\n\nnot intend to admit and that she wishes to require the government to prove by a\n\npreponderance of the evidence. Aguilar-Ibarra, 740 F.3d at 592. To preserve an\n\nissue for appeal, a defendant must first present it to the district court, “rais[ing] that\n\npoint in such clear and simple language that the trial court may not misunderstand\n\nit.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quoting United\n\nStates v. Riggs, 967 F.2d 561, 565 (11th Cir. 1992)). “When the statement is not\n\nclear enough to inform the district court of the legal basis for the objection, . . . the\n\nobjection is not properly preserved.” Id. An issue also is not preserved when its\n\n“factual predicates” are in the record “but were presented to the district court under\n\na different legal theory.” Id. And, at the appellate stage, a defendant abandons an\n\nobjection to her sentence “when [s]he does not ‘plainly and prominently’ raise it”\n\nin the argument section of her initial brief, when she “raises it in a perfunctory\n\nmanner without supporting arguments and authority,” and when she makes only\n\n“passing references” to it that are “background to other arguments or [are] buried\n\nwithin other arguments, or both.” Sapuppo, 739 F.3d at 681–82. At this stage too,\n\n\n\n 21\n\f Case: 18-13203 Date Filed: 04/17/2019 Page: 22 of 22\n\n\nto present an issue properly for our review, an appellant must make explicit “the\n\nlegal basis for the objection” and the “legal theory” that supports it. Massey, 443\n\nF.3d at 819. Corbett has properly raised no argument establishing plain error in the\n\napplication of the loss-amount enhancement.\n\n IV. CONCLUSION\n\n We VACATE Corbett’s sentence and REMAND for resentencing.\n\n\n\n\n 22\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Tanganica CORBETT, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-13203 Date Filed: 04/17/2019 Page: 1 of 22\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-13203\\n ________________________\\n\\n D.C. Docket No. 6:18-cr-00035-GAP-GJK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n Plaintiff-Appellee,\\n\\n versus\\n\\nTANGANICA CORBETT,\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (April 17, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District\\nJudge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n*\\n Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by\\ndesignation.\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 2 of 22\\n\\n\\n This appeal requires us to review two sentencing enhancements for plain\\n\\nerror and to reverse one of them. After Tanganica Corbett pleaded guilty to\\n\\nparticipation in an identity-fraud conspiracy, the district court enhanced her offense\\n\\nlevel under the Sentencing Guidelines two levels for an offense involving ten or\\n\\nmore victims and ten levels for an offense that caused a loss that exceeds $150,000\\n\\nbut does not exceed $250,000. See United States Sentencing Guidelines Manual\\n\\n§ 2B1.1(b)(1)(F), (b)(2)(A)(i) (Nov. 2016). Corbett objected to each enhancement\\n\\nin the district court, but on different grounds from her arguments on appeal, so we\\n\\nreview each issue for plain error only. We agree with Corbett that the district court\\n\\ncommitted plain error in its application of the ten-or-more-victims enhancement\\n\\nbecause, contrary to our precedent, United States v. Hall, 704 F.3d 1317 (11th Cir.\\n\\n2013), the district court counted as a victim any individual whose means of\\n\\nidentification was stolen regardless of whether it was “used” as a means of\\n\\nidentification. See U.S.S.G. § 2B1.1 cmt. n.4(E). But Corbett identifies no plain\\n\\nerror in the application of the loss-amount enhancement. We vacate Corbett’s\\n\\nsentence and remand with instructions for resentencing.\\n\\n I. BACKGROUND\\n\\n Tanganica Corbett and Kevin Weaver II worked at Florida Hospital near\\n\\nOrlando, Florida. From July 2012 to July 2013, Weaver held the position of\\n\\nrelease-of-information specialist. During that time, Weaver downloaded patients’\\n\\n\\n\\n 2\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 3 of 22\\n\\n\\n“face sheets”—profiles that include a patient’s name, health information, date of\\n\\nbirth, Social Security number, and insurance details—without the authority to do\\n\\nso. He then sold them to an unidentified co-conspirator who, the government\\n\\nbelieved, intended to use the information to open credit-card accounts and to\\n\\ncommit other forms of identity fraud.\\n\\n In July 2013, Corbett took over Weaver’s position as release-of-information\\n\\nspecialist. He solicited her to obtain face sheets without authority and to pass them\\n\\non to him. She complied. In March 2014, Weaver paid her about $150 to $200 for\\n\\nher assistance.\\n\\n A grand jury charged Corbett and Weaver with conspiracy to obtain and\\n\\ndisclose individually identifiable health information for commercial advantage,\\n\\npersonal gain, or malicious harm. See 42 U.S.C. § 1320d-6(a)(2)–(3), (b)(3); 18\\n\\nU.S.C. § 371. The indictment also charged each defendant with two substantive\\n\\ncounts of obtaining and disclosing such information. Both defendants pleaded\\n\\nguilty.\\n\\n Using the 2016 edition of the Sentencing Guidelines Manual, the probation\\n\\nofficer assigned Corbett a total offense level of 22 based on a base offense level of\\n\\n6 and four enhancements, two of which Corbett objects to in this appeal. See\\n\\nU.S.S.G. § 2B1.1(a)(2) (prescribing the base offense level). First, the probation\\n\\nofficer found that “the defendants,” collectively, “unlawfully accessed more than\\n\\n\\n\\n 3\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 4 of 22\\n\\n\\n1,700 means of identification,” so the probation officer applied the two-level\\n\\nenhancement for an offense that “involved 10 or more victims.”\\n\\nId. § 2B1.1(b)(2)(A)(i). Second, the probation officer found that Florida Hospital\\n\\nincurred a loss of $232,068.64 in “costs associated with identifying and notifying\\n\\npatients whose individually identifiable health information was viewed without\\n\\nauthorization,” so the probation officer applied the ten-level enhancement for a\\n\\nloss amount exceeding $150,000 but not exceeding $250,000. See\\n\\nid. § 2B1.1(b)(1)(F). Combining Corbett’s total offense level of 22 with a criminal-\\n\\nhistory category of I based on zero criminal-history points, the probation officer\\n\\ncalculated an applicable sentencing range of 41 to 51 months of imprisonment. But\\n\\nthe probation officer recommended a variant sentence of 24 months based on\\n\\nCorbett’s lack of criminal history and her family responsibilities.\\n\\n Among other timely objections to the probation officer’s Guidelines\\n\\ncalculations, Corbett objected to the probation officer’s calculation of the loss\\n\\namount on the ground that it did not limit her relevant conduct as required by\\n\\nsection 1B1.3 of the Guidelines. Corbett also objected to the probation officer’s\\n\\nfailure to apply a three-level reduction for acceptance of responsibility. See\\n\\nid. § 3E1.1. But, apart from a stray, unexplained reference in her sentencing brief,\\n\\nCorbett expressed no objection to the ten-or-more-victims enhancement before the\\n\\nsentencing hearing.\\n\\n\\n\\n 4\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 5 of 22\\n\\n\\n At the sentencing hearing, Corbett confirmed that she had “no objections to\\n\\nthe facts” in the presentence investigation report, but she presented her “legal\\n\\nobjections” to the probation officer’s calculations under the Guidelines, including\\n\\nher objections to the loss amount and the ten-or-more-victims enhancement. With\\n\\nrespect to the loss amount, Corbett did not press her relevant-conduct argument\\n\\nbased on section 1B1.3 but instead argued that Florida Hospital’s expenses should\\n\\nhave been excluded as “costs incurred by victims primarily to aid the government\\n\\nin[] the prosecution and criminal investigation of an offense.” Id. § 2B1.1 cmt.\\n\\nn.3(D)(ii). The district court replied, “Well, I think more appropriately it was the\\n\\ncost they had to expend to deal with this enormous problem that your client helped\\n\\ncreate. So that objection’s overruled.” With respect to the ten-or-more-victims\\n\\nenhancement, Corbett argued that, although 1,700 people had had their information\\n\\ncompromised, the government had identified only a handful of people, at most,\\n\\nwho had suffered any identifiable financial harm as a result of the conspiracy. The\\n\\ndistrict court overruled that objection, stating, “I think there are a lot more than 10\\n\\nvictims. I think anybody’s information who was stolen is a victim.” But the district\\n\\ncourt agreed with Corbett that the acceptance-of-responsibility reduction was\\n\\nwarranted, resulting in a total offense level of 19 and a sentencing range of 30 to\\n\\n37 months.\\n\\n\\n\\n\\n 5\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 6 of 22\\n\\n\\n The district court sentenced Corbett to three concurrent terms of 12 months\\n\\nand one day of imprisonment and three years of supervised release. The district\\n\\ncourt said that the severity of the offense—“by far the worst” identity-theft case it\\n\\nhad ever seen—was “a major aggravating factor.” But it found “significant\\n\\nmitigating factors” in that Corbett “up until this event had been a productive person\\n\\nwith no criminal conduct,” was “clearly less culpable than . . . Weaver,” may not\\n\\nhave fully understood “that she was doing wrong,” was “remorseful,” and had\\n\\n“cooperated with the Government.” The district court remarked favorably that\\n\\nCorbett had “maintained employment notwithstanding these difficulties,”\\n\\nrecognized her “family obligations,” and deemed her unlikely to reoffend. The\\n\\ndistrict court also took note that Corbett’s financial gain was “minuscule.”\\n\\nObserving that the probation officer had recommended a variant sentence of 24\\n\\nmonths before the acceptance-of-responsibility adjustment had been applied, the\\n\\ndistrict court reasoned, “based on that, the probation officer’s recommendation\\n\\nunder [the district court’s] calculation of the guideline score would be probably\\n\\ncloser to 12 to 18 months.” The district court stated that, “[u]nder normal\\n\\ncircumstances,” it might “find probation to be appropriate . . . based on these\\n\\nsignificant mitigating factors,” but that, “[u]nfortunately, that mitigation [was]\\n\\noutweighed by the seriousness of this offense.” Corbett maintained her objections\\n\\nto the loss amount and to the ten-or-more-victims enhancement.\\n\\n\\n\\n 6\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 7 of 22\\n\\n\\n II. STANDARDS OF REVIEW\\n\\n We review Corbett’s sentence “under an abuse-of-discretion standard.” Gall\\n\\nv. United States, 552 U.S. 38, 51 (2007). Corbett does not challenge the substantive\\n\\nreasonableness of her sentence, so we will not vacate the sentence unless the\\n\\ndistrict court committed “significant procedural error, such as . . . improperly\\n\\ncalculating[] the Guidelines range.” Id. “We review a district court’s interpretation\\n\\nof the Sentencing Guidelines de novo, and the determination of the amount of loss\\n\\ninvolved in the offense for clear error.” United States v. Maxwell, 579 F.3d 1282,\\n\\n1305 (11th Cir. 2009). “When a defendant challenges one of the factual bases of\\n\\nhis sentence, the government must prove the disputed fact by a preponderance of\\n\\nthe evidence.” United States v. Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014).\\n\\n We review unpreserved sentencing objections only for plain error. United\\n\\nStates v. Joyner, 899 F.3d 1199, 1207 (11th Cir. 2018). To establish plain error,\\n\\n“there must be an error that has not been intentionally relinquished or abandoned”;\\n\\n“the error must be plain—that is to say, clear or obvious”; and “the error must have\\n\\naffected the defendant’s substantial rights, which in the ordinary case means he or\\n\\nshe must show a reasonable probability that, but for the error, the outcome of the\\n\\nproceeding would have been different.” Molina-Martinez v. United States, 136 S.\\n\\nCt. 1338, 1343 (2016) (citation and internal quotation marks omitted). If these\\n\\nconditions are met, we “should exercise [our] discretion to correct the forfeited\\n\\n\\n\\n 7\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 8 of 22\\n\\n\\nerror if the error seriously affects the fairness, integrity or public reputation of\\n\\njudicial proceedings.” Id. (citation and internal quotation marks omitted). We have\\n\\nexplained that, “where the explicit language of a statute or rule does not\\n\\nspecifically resolve an issue, there can be no plain error where there is no\\n\\nprecedent from the Supreme Court or this Court directly resolving it.” United\\n\\nStates v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).\\n\\n III. DISCUSSION\\n\\n We divide our discussion in two parts. First, we explain that the district court\\n\\nplainly erred when it applied the ten-or-more-victims enhancement. Second, we\\n\\nexplain that Corbett has established no plain error in the application of the loss-\\n\\namount enhancement.\\n\\n A. The District Court Plainly Erred when It Applied the Ten-or-More-\\n Victims Enhancement.\\n Section 2B1.1 of the Sentencing Guidelines provides a two-level\\n\\nenhancement for an offense that “involved 10 or more victims.” U.S.S.G.\\n\\n§ 2B1.1(b)(2)(A)(i). In general, a “victim” is a person who suffered an “actual\\n\\nloss” or an individual who “sustained bodily injury as a result of the offense.” Id.\\n\\n§ 2B1.1 cmt. n.1. But, “in a case involving means of identification,” the term\\n\\n“victim” also includes “any individual whose means of identification was used\\n\\nunlawfully or without authority.” Id. § 2B1.1 cmt. n.4(E). The district court did not\\n\\nfind that any victims besides Florida Hospital had suffered an actual loss or that\\n\\n\\n 8\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 9 of 22\\n\\n\\nanyone had sustained bodily injury due to the offense, so only the last category of\\n\\n“victims,” those “whose means of identification [were] used,” is in question.\\n\\n Based on our decision in United States v. Hall, Corbett argues that the\\n\\ndistrict court erred when it counted all 1,700 or more individuals whose face sheets\\n\\nwere compromised as victims because the government did not prove that all of\\n\\ntheir means of identification had been “used” within the meaning of the relevant\\n\\ndefinition. As a threshold matter, we agree with the government that Corbett did\\n\\nnot preserve this objection for appeal and that plain error is the correct standard of\\n\\nreview. Corbett’s only objection to the ten-or-more-victims enhancement in the\\n\\ndistrict court was that the government had not proved that ten people suffered a\\n\\nfinancial loss. She made no argument based on Hall or on the meaning of the word\\n\\n“used.”\\n\\n But we agree with Corbett that the district court committed plain error. In\\n\\nHall, we considered whether an almost identically situated defendant—a medical\\n\\noffice assistant who, like Corbett, stole patients’ identifying information and sold it\\n\\nto co-conspirators who in turn sold it to the primary identity fraudsters in the\\n\\nconspiracy—had “used” patients’ means of identification. See 704 F.3d at 1319.\\n\\nThe government argued that Hall “used” every means of identification that she\\n\\nsold or transferred to her co-conspirators. See id. at 1319–20. The district court in\\n\\n\\n\\n\\n 9\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 10 of 22\\n\\n\\nHall agreed, ruling that “the intentional transfer of information in exchange for\\n\\nconsideration constituted actual use.” Id. at 1320. We rejected that definition.\\n\\n Based on the plain meaning of the word “used” in the context of the relevant\\n\\ndefinition of “victim,” we held that the “mere sale or transfer” of identifying\\n\\ninformation was not “equivalent to [its] actual use.” Id. at 1323. We explained that\\n\\n“‘use’ is the ‘application or employment of something for the purpose for which it\\n\\nis adapted.’” Id. at 1322 (alteration adopted) (quoting Use, Black’s Law Dictionary\\n\\n(9th ed. 2009)). We observed the disjunctive use of the words “use” and “transfer”\\n\\nelsewhere in the same section of the Guidelines. See id.; see also U.S.S.G.\\n\\n§ 2B1.1(b)(11)(C)(i) (“the unauthorized transfer or use of any means of\\n\\nidentification”). And we observed that another part of the application notes\\n\\ncontemplates that a means of identification is “used” when it is employed “to\\n\\nproduce or obtain another means of identification.” Hall, 704 F.3d at 1322; see\\n\\nU.S.S.G. § 2B1.1 cmt. n.10(C)(i). We concluded that the only patients whose\\n\\nidentifying information had been “used”—and who, as a result, counted as\\n\\n“victims”—were those whose information had been employed to procure\\n\\nfraudulent credit cards, “the purpose of the conspiracy.” Hall, 704 F.3d at 1322;\\n\\nsee also id. at 1323. “[T]he plain language of the sentencing guideline at issue,” we\\n\\nheld, “does not apply to Hall’s mere sale or transfer of the patients’ identifying\\n\\n\\n\\n\\n 10\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 11 of 22\\n\\n\\ninformation” to her co-conspirators: almost exactly the same conduct for which\\n\\nCorbett was convicted. Id. at 1323.\\n\\n The government’s argument for distinguishing Hall is untenable. Taking\\n\\nHall’s references to “the purpose of the conspiracy” out of context and treating\\n\\nthem as the core of its holding, the government points out that the indictment\\n\\ncharged that “the purpose of the conspiracy” between Corbett and Weaver was for\\n\\nthem to “unlawfully enrich themselves by . . . stealing . . . and selling the patients’\\n\\ninformation,” not to obtain fraudulent credit cards, and the government argues that\\n\\nCorbett “used” patients’ information to that end when she sold it to Weaver. But a\\n\\nsimilar argument could have been made about the defendant in Hall, who, after all,\\n\\nalso intended to enrich herself by selling the information she had stolen. Indeed,\\n\\nthat argument was made, and we rejected it. See id. at 1319–20, 1323. Instead, Hall\\n\\nheld that the “mere sale or transfer” of a means of identification does not constitute\\n\\nits “use,” based on the plain meaning of the words and their context. Id. at 1323. In\\n\\nother words, Hall’s definition of “use” is one that excludes certain conduct: “mere\\n\\nsale or transfer.” See United States v. Sammour, 816 F.3d 1328, 1340 (11th Cir.\\n\\n2016) (“The word ‘used’ . . . does not include the ‘mere transfer without more.’”\\n\\n(alteration adopted) (quoting Hall, 704 F.3d at 1322)).\\n\\n The government’s contrary reading of Hall makes little conceptual sense. If\\n\\n“the purpose of the conspiracy” determined whether identical conduct did or did\\n\\n\\n\\n 11\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 12 of 22\\n\\n\\nnot qualify as “use” of a means of identification, then we would need to know how\\n\\nto define the decisive “purpose.” Purposes can be described at varying levels of\\n\\ngenerality—remote or proximate, abstract or granular—but Hall provided no\\n\\nmethod for selecting the right one. And the proposal on which the government’s\\n\\nargument depends—that the sentencing court should simply adopt, in haec verba,\\n\\nthe description of “the purpose of the conspiracy” in the indictment—has no basis\\n\\nin Hall or in logic. The indictment’s description of “the purpose of the conspiracy”\\n\\nserved a narrative function; it did not recite an element of the offense. So the grand\\n\\njury was not required to describe Corbett and Weaver’s goals at any particular\\n\\nlevel of generality or with any particular amount of detail. And nothing in Hall\\n\\nsuggests that the ten-or-more-victims sentencing enhancement depends on the level\\n\\nof generality the grand jury happens to select or the amount of detail it happens to\\n\\ninclude in its description of a defendant’s aims. After all, Hall interpreted the word\\n\\n“used” in the context of a definition of “victim” that applies to identity-theft-\\n\\nrelated crimes. Every reasonable reader of the Guidelines would expect that\\n\\nwhether someone counts as a “victim” of such a crime depends on what was done\\n\\nwith his or her information—that is, on the defendant’s conduct.\\n\\n Although Hall explained that the defendant’s conduct was not the use of\\n\\nmeans of identification, it made clear what was use: the “employ[ment of] that\\n\\ninformation” to “procure[] . . . fraudulent credit cards and cash advances.” Id. at\\n\\n\\n\\n 12\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 13 of 22\\n\\n\\n1322. “[W]hen the conspirators used . . . 12 patients’ identifying information to\\n\\nobtain the fraudulent credit cards,” we explained, “[a]t that point, th[ose] 12\\n\\nindividuals . . . became victims.” Id. at 1322, 1323. To put it simply, we held in\\n\\nHall that a means of identification is “used” for purposes of section 2B1.1 when it\\n\\nis used as a means of identification. See id. at 1322–23; see also Smith v. United\\n\\nStates, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting) (“To use an instrumentality\\n\\nordinarily means to use it for its intended purpose.”).\\n\\n It follows that the district court erred when it counted every individual\\n\\nwhose information was illegally downloaded as a “victim,” regardless of whether\\n\\nthat individual’s information was ever fraudulently “used” for any purpose to\\n\\nwhich it was adapted as a means of identification. And we reject the government’s\\n\\nargument that the error was not plain because our opinion in Hall left “room for\\n\\ndoubt” about the issue. To be sure, when the governing text is unclear about a\\n\\nspecific question, “there can be no plain error where there is no precedent from the\\n\\nSupreme Court or this Court directly resolving it.” Lejarde-Rada, 319 F.3d at\\n\\n1291. But even if the text of the Guidelines were unclear, a question we need not\\n\\nanswer, our precedent in Hall directly resolves the question whether Corbett’s\\n\\nconduct was the “use” of patients’ information. That it is possible to misunderstand\\n\\nHall, based on a superficial reading, is irrelevant to what it held.\\n\\n\\n\\n\\n 13\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 14 of 22\\n\\n\\n Although we will not correct even a plain error if it does not affect any\\n\\nparty’s substantial rights, see Fed. R. Crim. P. 52(b), the record establishes a\\n\\nreasonable probability that Corbett would have received a different sentence if the\\n\\ndistrict court had not erroneously applied the two-level enhancement for an offense\\n\\ninvolving ten or more victims. See Molina-Martinez, 136 S. Ct. at 1343. To be\\n\\nsure, the district court’s significant downward variance from the sentencing range\\n\\nunder the Guidelines means that this sentencing error is unusual. The district court\\n\\ncalculated that Corbett’s sentencing range was 30 to 37 months based on a total\\n\\noffense level of 19 and a criminal-history category of I. If the district court had\\n\\nomitted the two-level enhancement, resulting in a total offense level of 17,\\n\\nCorbett’s sentencing range would have been 24 to 30 months. See U.S.S.G. ch. 5\\n\\npt. A. Corbett’s sentence of 12 months and a day falls well below either range,\\n\\nraising a serious question whether the district court’s error, however plain, was\\n\\nharmless.\\n\\n At least in some circumstances, a sentence well below any possible\\n\\nsentencing range can be a powerful indicator that a miscalculated range did not\\n\\naffect a defendant’s substantial rights, and the decision in Molina-Martinez is not\\n\\nto the contrary. In Molina-Martinez, the Supreme Court reasoned that, “[i]n the\\n\\nusual case,” “the systemic function of the selected Guidelines range will affect the\\n\\nsentence,” so, “[i]n most cases[,] a defendant who has shown that the district court\\n\\n\\n\\n 14\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 15 of 22\\n\\n\\nmistakenly deemed applicable an incorrect, higher Guidelines range has\\n\\ndemonstrated a reasonable probability of a different outcome.” 136 S. Ct. at 1346.\\n\\n“This is so even if the ultimate sentence falls within both the correct [lower] and\\n\\nincorrect [higher] range.” Id. at 1345. Even so, “[t]here may be instances when,\\n\\ndespite application of an erroneous Guidelines range, a reasonable probability of\\n\\nprejudice does not exist.” Id. at 1346. The paradigmatic example is when the\\n\\nsentencing judge provides “a detailed explanation of the reasons the selected\\n\\nsentence is appropriate” that “make[s] it clear that the judge based the sentence . . .\\n\\non factors independent of the Guidelines.” Id. at 1346–47. But the Court\\n\\nacknowledged that even when “the record is silent as to what the district court\\n\\nmight have done had it considered the correct Guidelines range,” “unusual\\n\\ncircumstances” might prevent an error alone from establishing a reasonable\\n\\nprobability of a different outcome. Id. at 1347. Ultimately, “a reviewing court must\\n\\nconsider the facts and circumstances of the case before it” to determine whether\\n\\nsubstantial rights were affected. Id. at 1346.\\n\\n We conclude there is a reasonable probability that the district court’s error\\n\\naffected Corbett’s sentence because, even though the district court varied\\n\\ndownward from its calculated sentencing range, its sentencing decision remained\\n\\ntethered to what it believed to be the correct range under the Guidelines. More\\n\\nspecifically, its sentencing decision was tethered to the variant sentence that it\\n\\n\\n\\n 15\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 16 of 22\\n\\n\\nthought the probation officer, who had originally recommended a 24-month\\n\\nsentence based on a calculated range of 41 to 51 months, would recommend after\\n\\nthe district court’s application of the acceptance-of-responsibility reduction\\n\\nlowered the range to 30 to 37 months. “[B]ased on that [calculation],” the district\\n\\ncourt reasoned at the sentencing hearing, “the probation officer’s recommendation\\n\\n. . . would be probably closer to 12 to 18 months,” and the district court imposed a\\n\\nsentence within that range. On this record, we cannot rule out the reasonable\\n\\nprobability that the district court would have imposed a lesser sentence if it had\\n\\nexcluded the two-level ten-or-more-victims enhancement, calculated a range of 24\\n\\nto 30 months, and then estimated the probation officer’s recommended variance\\n\\nbased on that calculation.\\n\\n The use of the ten-or-more-victims enhancement to calculate Corbett’s total\\n\\noffense level was erroneous, the error was plain, and it affected Corbett’s\\n\\nsubstantial rights. “In the ordinary case, proof of a plain Guidelines error that\\n\\naffects the defendant’s substantial rights” satisfies the defendant’s “burden to\\n\\npersuade the court that the error seriously affected the fairness, integrity or public\\n\\nreputation of judicial proceedings,” and the government has not argued that\\n\\nCorbett’s case is out of the ordinary in this respect. Rosales-Mireles v. United\\n\\nStates, 138 S. Ct. 1897, 1909 n.4 (2018) (alteration adopted) (citation and internal\\n\\nquotation marks omitted). But, because Corbett did not dispute in the district court\\n\\n\\n\\n 16\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 17 of 22\\n\\n\\nhow many individuals’ means of identification were “used” and presented no\\n\\nfactual objections to the probation officer’s calculations under the Guidelines, the\\n\\ndistrict court on remand should permit the government the opportunity to introduce\\n\\nnew evidence to prove that Corbett’s offense involved ten or more victims. See\\n\\nUnited States v. Washington, 714 F.3d 1358, 1362 (11th Cir. 2013).\\n\\n B. Corbett Has Established No Plain Error in the Application of the Loss-\\n Amount Enhancement.\\n Section 2B1.1 of the Guidelines also provides for a ten-level enhancement if\\n\\nthe loss resulting from an offense exceeds $150,000 but does not exceed $250,000.\\n\\nU.S.S.G. § 2B1.1(b)(1)(F). In general, “loss is the greater of actual loss,” namely\\n\\n“the reasonably foreseeable pecuniary harm that resulted from the offense,” and\\n\\n“intended loss,” which “means the pecuniary harm that the defendant purposely\\n\\nsought to inflict.” Id. § 2B1.1 cmt. n.3(A)–(A)(ii)(I). Pecuniary harm is “harm that\\n\\nis monetary or that otherwise is readily measurable in money,” id. § 2B1.1 cmt.\\n\\nn.3(A)(iii), and is reasonably foreseeable if “the defendant knew or, under the\\n\\ncircumstances, reasonably should have known,” that it “was a potential result of\\n\\nthe offense,” id. § 2B1.1 cmt. n.3(A)(iv). “Costs to the government of, and costs\\n\\nincurred by victims primarily to aid the government in, the prosecution and\\n\\ncriminal investigation of an offense” are excluded from the calculation of the loss\\n\\namount. Id. § 2B1.1 cmt. n.3(D)(ii). An exact calculation is not required; “[t]he\\n\\n\\n\\n\\n 17\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 18 of 22\\n\\n\\ncourt need only make a reasonable estimate of the loss” “based on available\\n\\ninformation.” Id. § 2B1.1 cmt. n.3(C).\\n\\n Corbett argues that the district court committed significant procedural error\\n\\nin applying this enhancement because it failed to “hold[] the government to its\\n\\nburden of proving a disputed sentencing fact,” but Corbett fails to clarify what\\n\\n“sentencing fact” related to the loss amount was “disputed.” After all, Corbett\\n\\nexpressed “no objection to the facts” of the presentence investigation report. Her\\n\\nobjections to the probation officer’s calculations under the Guidelines were only\\n\\n“legal objections.” And Corbett’s argument on appeal confusingly intertwines\\n\\nthree distinct rationales for objecting to the enhancement.\\n\\n First, as the centerpiece of her appellate argument, Corbett appears to\\n\\ncontend that Florida Hospital’s losses were not “reasonably foreseeable” to her, an\\n\\nargument she never presented in the district court. See U.S.S.G. § 2B1.1 cmt.\\n\\nn.3(A)(iv). The probation officer found that, “[a]s a result of Weaver, Corbett and\\n\\nthe co-conspirators’ conduct, Florida Hospital incurred costs associated with\\n\\nidentifying and notifying patients whose individually identifiable health\\n\\ninformation was viewed without authority by Weaver and his co-conspirators. The\\n\\nloss incurred by Florida Hospital as a result of this conduct is $232,068.64.”\\n\\nBecause Corbett “did not specifically and clearly object to these factual\\n\\nstatements”—or to any of the probation officer’s factual findings—“[s]he is\\n\\n\\n\\n 18\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 19 of 22\\n\\n\\ndeemed to have admitted them and the district court was entitled to rely on them\\n\\neven in the absence of supporting evidence.” Aguilar-Ibarra, 740 F.3d at 592. In\\n\\nother words, if Corbett intended to raise a factual dispute about how much of the\\n\\n$232,068.64 spent by Florida Hospital was “associated with identifying and\\n\\nnotifying patients” whose information was compromised, then she failed to do so,\\n\\nand the government had no burden to prove a fact she had admitted. And if\\n\\nCorbett’s argument is that the district court erred as a matter of law by treating\\n\\n“costs associated with identifying and notifying patients” whose information was\\n\\ncompromised as “reasonably foreseeable,” then she cannot establish plain error.\\n\\nThat a hospital will spend resources to investigate and remedy the theft of the\\n\\nidentifying and medical information of thousands of its patients is virtually the\\n\\ndefinition of “reasonably foreseeable.”\\n\\n Second, Corbett’s argument contains echoes of the objection she raised at\\n\\nthe sentencing hearing, that Florida Hospital’s losses should have been excluded as\\n\\n“costs incurred . . . primarily to aid the government in[] the prosecution and\\n\\ncriminal investigation of an offense.” U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). Again, by\\n\\nfailing to object to the facts in the presentence investigation report, Corbett\\n\\nadmitted that Florida Hospital incurred $232,068.64 in “costs associated with\\n\\nidentifying and notifying patients” whose information Weaver and Corbett had\\n\\ncompromised, so she placed no burden on the government to prove as a factual\\n\\n\\n\\n 19\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 20 of 22\\n\\n\\nmatter that any part of that amount was not incurred “primarily to aid the\\n\\ngovernment.” And if Corbett’s argument is that “costs associated with identifying\\n\\nand notifying patients” are indistinct from costs incurred “primarily to aid the\\n\\ngovernment” as a matter of law, then it fails on its face.\\n\\n Finally, in a single paragraph of her initial brief, Corbett suggests that she\\n\\n“should not be held responsible for the costs of investigating any data breaches that\\n\\noccurred prior to July 28, 2013,” the date she took over Weaver’s job as release-of-\\n\\ninformation specialist. This suggestion corresponds to Corbett’s original objection\\n\\nto the loss-amount enhancement: that the probation officer did not limit Corbett’s\\n\\nrelevant conduct to the acts and omissions for which she was responsible under\\n\\nsection 1B1.3 of the Guidelines. See U.S.S.G. § 1B1.3 cmt. n.3(B) (explaining,\\n\\namong other principles, that “[a] defendant’s relevant conduct does not include the\\n\\nconduct of members of a conspiracy prior to the defendant joining the\\n\\nconspiracy”); see also, e.g., United States v. Hunter, 323 F.3d 1314, 1319–22 (11th\\n\\nCir. 2003). But Corbett did not pursue this theory at the sentencing hearing, instead\\n\\npressing the criminal-investigation argument as the basis of her objection to the\\n\\nloss amount, so the district court did not rule on this theory. And Corbett’s initial\\n\\nbrief fails properly to raise this distinct argument on appeal. Corbett does not cite\\n\\nsection 1B1.3, and any hint of an argument based on the Guidelines’ definition of\\n\\n\\n\\n\\n 20\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 21 of 22\\n\\n\\nrelevant conduct is at best “buried within [her] other arguments.” Sapuppo v.\\n\\nAllstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014).\\n\\n We remind the defense bar of the importance of specific factual and legal\\n\\nargumentation at every stage of sentencing proceedings. A defendant should\\n\\n“specifically and clearly object” to any facts in a presentence report that she does\\n\\nnot intend to admit and that she wishes to require the government to prove by a\\n\\npreponderance of the evidence. Aguilar-Ibarra, 740 F.3d at 592. To preserve an\\n\\nissue for appeal, a defendant must first present it to the district court, “rais[ing] that\\n\\npoint in such clear and simple language that the trial court may not misunderstand\\n\\nit.” United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quoting United\\n\\nStates v. Riggs, 967 F.2d 561, 565 (11th Cir. 1992)). “When the statement is not\\n\\nclear enough to inform the district court of the legal basis for the objection, . . . the\\n\\nobjection is not properly preserved.” Id. An issue also is not preserved when its\\n\\n“factual predicates” are in the record “but were presented to the district court under\\n\\na different legal theory.” Id. And, at the appellate stage, a defendant abandons an\\n\\nobjection to her sentence “when [s]he does not ‘plainly and prominently’ raise it”\\n\\nin the argument section of her initial brief, when she “raises it in a perfunctory\\n\\nmanner without supporting arguments and authority,” and when she makes only\\n\\n“passing references” to it that are “background to other arguments or [are] buried\\n\\nwithin other arguments, or both.” Sapuppo, 739 F.3d at 681–82. At this stage too,\\n\\n\\n\\n 21\\n\\f Case: 18-13203 Date Filed: 04/17/2019 Page: 22 of 22\\n\\n\\nto present an issue properly for our review, an appellant must make explicit “the\\n\\nlegal basis for the objection” and the “legal theory” that supports it. Massey, 443\\n\\nF.3d at 819. Corbett has properly raised no argument establishing plain error in the\\n\\napplication of the loss-amount enhancement.\\n\\n IV. CONCLUSION\\n\\n We VACATE Corbett’s sentence and REMAND for resentencing.\\n\\n\\n\\n\\n 22\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1886,"cells":{"id":{"kind":"number","value":4610957,"string":"4,610,957"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Juan Fletcher GORDILLO, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Juan Fletcher Gordillo"},"decision_date":{"kind":"string","value":"2019-04-17"},"docket_number":{"kind":"string","value":"18-12095"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Black, Walker\", \"parties\": \"\", \"opinions\": [{\"author\": \"MARCUS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-12095 Date Filed: 04/17/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-12095\\n ________________________\\n\\n D.C. Docket No. 0:17-cr-60312-JIC-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nJUAN FLETCHER GORDILLO,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 17, 2019)\\n\\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\n\\n*\\n Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by\\ndesignation.\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 2 of 16\\n\\n\\n Juan Fletcher Gordillo pled guilty to a single count charging him with\\n\\npossession of a firearm and ammunition by a prohibited person -- an alien unlawfully\\n\\nin the United States -- in violation of 18 U.S.C. § 922(g)(5)(A). At sentencing,\\n\\nGordillo objected to the base offense level set forth in the Presentence Investigation\\n\\nReport. Under the United States Sentencing Guidelines, a base offense level of 20\\n\\naccrues where the defendant was a prohibited person at the time of the offense and\\n\\nthe offense involved a semiautomatic firearm in “close proximity” to a high-capacity\\n\\nmagazine. U.S.S.G. § 2K2.1, App. Notes 2. Gordillo’s locked Colt AR-15 was in a\\n\\ngun case in his bedroom, and high-capacity magazines were in a gun-range bag no\\n\\nmore than ten feet away. Because we see no error in the district court’s finding that\\n\\nthe magazines were in close proximity to the firearm, we affirm.\\n\\n I.\\n\\n Defendant Juan Fletcher Gordillo (“Gordillo”) is a Guatemalan citizen who\\n\\ninitially entered the United States on a non-immigrant visitor visa on July 18, 2004.\\n\\nGordillo’s visa expired on January 17, 2006. He applied for a visa extension on\\n\\nJanuary 19, 2006, and though his application was denied, he remained in the United\\n\\nStates without authorization. On November 27, 2017, Immigration and Customs\\n\\nEnforcement (“ICE”) Enforcement and Removal Operations officers executed an\\n\\narrest warrant for Gordillo’s wife, Flor De Maria Cabrera Cortez (“Cortez”), at the\\n\\ncouple’s home in Fort Lauderdale, Florida. When the officers arrived, they\\n\\n\\n 2\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 3 of 16\\n\\n\\nencountered Gordillo and Cortez leaving the residence. Neither had identification\\n\\non them, but Cortez authorized the ICE officers to enter the residence to retrieve her\\n\\npassport and identification. Before they initiated a protective sweep of the home,\\n\\nGordillo admitted that there were firearms inside. During the protective sweep, the\\n\\nofficers recovered four weapons: a Berretta Px4 Storm .45 caliber pistol and a\\n\\nFabrique Nationale FNS-9 9mm pistol in the family room, and a Colt AR-15 rifle\\n\\nand a Keltec KSG 12-gauge shotgun in the master bedroom. Three of the firearms\\n\\n-- the pistols and the AR-15 -- were manufactured outside of the State of Florida.\\n\\nOfficers also found four 30-round magazines in a gun-range bag in the small master\\n\\nbedroom some ten feet from the gun case.\\n\\n Department of Homeland Security (“DHS”) Investigations special agents\\n\\nresponded to the scene, and requested permission from Gordillo and his wife to\\n\\nconduct an additional search of the residence. Both Gordillo and Cortez consented\\n\\nto the search, and Gordillo admitted that there was a box of ammunition in the\\n\\nkitchen. During the search, the agents located 50 cartridges of 9mm pistol rounds in\\n\\nthe kitchen.\\n\\n Gordillo was transported to the DHS Investigations office in Fort Lauderdale\\n\\nand read his Miranda rights. After signing a waiver of those rights, he was\\n\\ninterviewed and admitted to possessing the firearms and ammunition with the\\n\\n\\n\\n\\n 3\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 4 of 16\\n\\n\\nknowledge that he was not authorized to purchase or possess firearms in the United\\n\\nStates due to his immigration status.\\n\\n II.\\n\\n On December 15, 2017, a grand jury sitting in the Southern District of Florida\\n\\nindicted Gordillo in one count with possession of a firearm and ammunition by a\\n\\nprohibited person -- an alien unlawfully in the United States -- in violation of 18\\n\\nU.S.C. § 922(g)(5)(A). The statute makes it unlawful for “any person . . . being an\\n\\nalien . . . illegally or unlawfully in the United States . . . to ship or transport in\\n\\ninterstate or foreign commerce, or possess in or affecting commerce, any firearm or\\n\\nammunition.” Soon thereafter, Gordillo entered a guilty plea to the single count in\\n\\nthe indictment. There was no written plea agreement.\\n\\n The Presentence Investigation Report (“PSI”) calculated Gordillo’s base\\n\\noffense level at 20, pursuant to the Sentencing Guidelines § 2K2.1(a)(4)(B)(i)–(ii),\\n\\nbecause the offense involved a semiautomatic firearm that is capable of accepting a\\n\\nlarge-capacity magazine and the defendant was a “prohibited person” at the time of\\n\\nthe offense. Since the offense involved three to seven firearms, the base offense\\n\\nlevel was increased by two points pursuant to § 2K2.1(b)(1)(A). But because\\n\\nGordillo accepted responsibility and because he assisted the authorities in the\\n\\ninvestigation of his own misconduct, his offense level was decreased by two and one\\n\\npoints, respectively. This left Gordillo with a total offense level of 19.\\n\\n\\n 4\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 5 of 16\\n\\n\\n Gordillo had no criminal history, thereby yielding a Guidelines imprisonment\\n\\nrange of 30 to 37 months. Since he was charged with a Class C Felony, the\\n\\nGuidelines range for supervised release was one to three years. The PSI identified\\n\\nno factors warranting a departure or variance from the Guidelines calculations.\\n\\n Gordillo objected to the PSI on the ground that his crime did not involve a\\n\\nsemiautomatic weapon within the meaning of the Guidelines. The Guidelines set a\\n\\nbase offense level of 20 where the defendant was a prohibited person at the time of\\n\\nthe offense and the offense “involved a . . . semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine.” U.S.S.G. § 2K2.1(a)(4)(B)(i)–(ii). The\\n\\nGuidelines’ Application Notes define “semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\\n\\nto fire many rounds without reloading because at the time of the offense (A) the\\n\\nfirearm had attached to it a magazine or similar device that could accept more than\\n\\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\\n\\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\\n\\n§ 2K2.1, App. Note 2.\\n\\n Gordillo urged that his base offense level should instead be calculated under\\n\\n§ 2K2.1(a)(6), which provides a base offense level of 14 for a federal firearms\\n\\noffense where the defendant was a prohibited person and committed the offense with\\n\\nknowledge. He claimed that there was neither a high-capacity magazine attached to\\n\\n\\n 5\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 6 of 16\\n\\n\\nthe semiautomatic weapon, which is undisputed, nor one in “close proximity,”\\n\\nasserting that the magazine in a separate bag across the room from the gun, which\\n\\nwas itself locked with a gun lock and inside a case, did not qualify. He also argued\\n\\nthat certain factors militated in favor of a departure from the advisory Guidelines\\n\\nrange. Gordillo noted his complete and swift cooperation with law enforcement, the\\n\\nfact that he and his wife had entered the United States and overstayed their visas\\n\\nbecause his wife required eyesight-saving surgeries over a number of years that she\\n\\ncould obtain only at the Bascom Palmer Eye Institute in Miami, and his\\n\\nextraordinary family ties and responsibilities.\\n\\n At the sentencing hearing, DHS Investigations Agent Clancy Dunnigan\\n\\ntestified that the two officers who conducted the initial protective sweep of the home\\n\\ntold Dunnigan that the magazines were “found with the weapon.” Dunnigan took\\n\\nthis to mean the magazines were found either in the gun case with the firearm, or in\\n\\nthe range bag some eight feet away. On cross examination, Agent Dunnigan\\n\\nconceded that he didn’t know if the magazines were found in the gun case and that\\n\\nhe was estimating the distance based on the small room size (what he thought was\\n\\napproximately ten feet). Dunnigan said the gun was in a hard case with hard clip\\n\\nlocks, which were clipped, though he didn’t know if they were actually locked.\\n\\nGordillo also testified at the hearing that the magazines were in the gun-range bag\\n\\nseparate from the firearm, and that the bag was “about 10 feet away” from the gun\\n\\n\\n 6\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 7 of 16\\n\\n\\ncase. Gordillo explained that the gun itself was locked, though he was not asked nor\\n\\ndid he assert that the hard case was locked too. Gordillo’s counsel argued that\\n\\nbecause “it was a locked gun, possibly the case it was in was locked, and the\\n\\nmagazine was found separate from that weapon,” the two were not in “close\\n\\nproximity” and therefore could not trigger the increased base offense level.\\n\\n The district court varied downward slightly, but overruled Gordillo’s\\n\\nobjection to the base offense level. The sentencing judge found by a preponderance\\n\\nof the evidence that the AR-15 is a semiautomatic weapon capable of accepting a\\n\\nlarge-capacity magazine and that the magazine was found, “in the defendant’s own\\n\\nword[s] in his testimony, 10 feet away from the AR-15.” The court concluded that\\n\\nthe magazine was in “close proximity” to the firearm for Guidelines purposes, and\\n\\nsentenced Gordillo to a 24-month term of imprisonment, followed by three years of\\n\\nsupervised release, and a $2,000 fine.\\n\\n This timely appeal ensued.\\n\\n III.\\n\\n “We review the district court’s application of the Sentencing Guidelines de\\n\\nnovo and its findings of fact for clear error.” United States v. Smith, 231 F.3d 800,\\n\\n806 (11th Cir. 2000). “Clear error review is deferential, and ‘we will not disturb a\\n\\ndistrict court’s findings unless we are left with a definite and firm conviction that a\\n\\nmistake has been committed.’” United States v. Cruickshank, 837 F.3d 1182, 1192\\n\\n\\n 7\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 8 of 16\\n\\n\\n(11th Cir. 2016) (quoting United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.\\n\\n2010)).\\n\\n “When interpreting the Guidelines, a ‘guideline’s meaning is derived first\\n\\nfrom its plain language and, absent ambiguity, no additional inquiry is necessary.’”\\n\\nUnited States v. Cruz, 713 F.3d 600, 607 (11th Cir. 2013) (quoting United States v.\\n\\nTurner, 626 F.3d 566, 573 (11th Cir. 2010)). “[C]ommentary in the Guidelines\\n\\nManual that interprets or explains a guideline is authoritative unless it violates the\\n\\nConstitution or a federal statute, or is inconsistent with, or a plainly erroneous\\n\\nreading of, that guideline.” Id. (quoting Stinson v. United States, 508 U.S. 36, 38\\n\\n(1993)). Moreover, “[o]ur interpretation of the sentencing guidelines and\\n\\naccompanying commentary is governed by traditional rules of statutory\\n\\nconstruction.” United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004).\\n\\n The Guidelines yield a base offense level of 20 where the defendant was a\\n\\nprohibited person at the time of the offense and the offense “involved a . . .\\n\\nsemiautomatic firearm that is capable of accepting a large capacity magazine.” The\\n\\nGuidelines Application Notes define “semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\\n\\nto fire many rounds without reloading because at the time of the offense (A) the\\n\\nfirearm had attached to it a magazine or similar device that could accept more than\\n\\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\\n\\n\\n 8\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 9 of 16\\n\\n\\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\\n\\n§ 2K2.1, App. Note 2.\\n\\n There is no dispute either that Gordillo was a “prohibited person” at the time\\n\\nof the offense or that there was no magazine physically attached to the firearm,\\n\\nmaking subsection (A) of Application Note 2 inapplicable. The only question for us\\n\\nto decide, then, is whether a high-capacity magazine in a bag is in “close proximity”\\n\\nto a locked firearm in a case ten feet away in the same room. This Court has never\\n\\nanalyzed the meaning of “close proximity” in § 2K2.1(a). Applying our usual mode\\n\\nof statutory interpretation, we begin with the plain language of the authoritative\\n\\nApplication Notes. The phrase “close proximity” denotes nearness in either physical\\n\\nspace or time. See WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2018)\\n\\n(defining “close” as “with little space between” or “near together” and defining\\n\\n“proximity” as “the state or quality of being near; nearness in space, time, etc.”);\\n\\nWEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) (defining “close” as\\n\\n“in proximity of space or time” and defining “proximity” as “the quality or state of\\n\\nbeing proximate, next, or very near (as in time, place, relationship)”); THE\\n\\nAMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1976) (defining\\n\\n“close” as “[p]roximate in time, space, or relation; near” and defining “proximity”\\n\\nas “[t]he state, quality, or fact of being near or next; closeness”).\\n\\n\\n\\n\\n 9\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 10 of 16\\n\\n\\n The current version of § 2K2.1 and its corresponding Application Note 2 were\\n\\nadopted in the 2006 amendments to the Guidelines. See U.S.S.G. App. C, Amend.\\n\\n691 (Nov. 2006); see also United States v. Davis, 668 F.3d 576, 577–78 (8th Cir.\\n\\n2012) (explaining the amendment history of § 2K2.1 to answer the distinct question\\n\\nof whether a temporarily inoperable firearm constitutes a semiautomatic weapon\\n\\nunder the provision). Before the 2006 amendments, the Guidelines simply cross-\\n\\nreferenced the statutory definition of a semiautomatic weapon contained in the\\n\\nfederal assault weapons ban, 18 U.S.C. § 921(a)(30) -- that is, the Guidelines\\n\\nprovided for a base offense level of 22 when an offense “involved a firearm\\n\\ndescribed in . . . 18 U.S.C. § 921(a)(30)” and the offender was at the time of the\\n\\noffense a “prohibited person.” See U.S.S.G App. C, Amend. 691 (Nov. 2006). The\\n\\nassault weapons ban, in turn, defined “semiautomatic assault weapon” as any of\\n\\nseveral enumerated firearms -- including the Colt AR-15 -- or, alternatively, as a\\n\\nfirearm “that has an ability to accept a detachable magazine” and at least two other\\n\\ncharacteristics enumerated in the statute. 18 U.S.C. § 921(a)(30) (2004).\\n\\n The 2006 amendments were intended to clarify that the enhanced base offense\\n\\nlevels continued to apply in the wake of the sunset of the federal assault weapons\\n\\nban in 2004. Explaining the “reason for amendment,” the Commission noted that it\\n\\nhad “received information regarding inconsistent application as to whether the\\n\\nenhanced base offense levels apply to these types of firearms in light of the ban’s\\n\\n\\n 10\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 11 of 16\\n\\n\\nexpiration.” U.S.S.G. App. C, Amend. 691 (Nov. 2006). The amendment history\\n\\nsays nothing explicit about the “close proximity” requirement. But to the extent the\\n\\namendment history tells us anything, it is that the Commission believed the enhanced\\n\\nbase offense levels should continue to apply to “these types of firearms.” Id.\\n\\n(emphasis added). This suggests the Commission was concerned with identifying\\n\\nthe type of gun -- making sure the component parts were all present and could be\\n\\nidentified as part of a corresponding firearm and magazine.\\n\\n Although we have never addressed the meaning of “close proximity” in the\\n\\ncontext of § 2K2.1(a), we have addressed proximity between guns and drugs in\\n\\nrelation to the specific offense characteristic enhancements found in § 2K2.1(b)\\n\\n(enhancements for firearms offenses) and in § 2D1.1(b) (enhancements for drug\\n\\noffenses). Section 2K2.1(b)(6)(B) provides for an enhancement where the defendant\\n\\n“used or possessed any firearm or ammunition in connection with another felony\\n\\noffense.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Application Note 14\\n\\nexplains that the enhancement applies “in the case of a drug trafficking offense in\\n\\nwhich a firearm is found in close proximity to drugs, drug-manufacturing materials,\\n\\nor drug paraphernalia.” U.S.S.G. § 2K2.1, App. Note 14(B) (emphasis added). The\\n\\nenhancement is warranted based on proximity, the Note explains, “because the\\n\\npresence of the firearm has the potential of facilitating” the drug offense. Id. This\\n\\nlanguage was also added in the 2006 amendments, in response to a circuit split as to\\n\\n\\n 11\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 12 of 16\\n\\n\\nwhat constituted possession of a firearm “in connection with” burglary or drug\\n\\noffenses. U.S.S.G. App. C, Amend. 691 (Nov. 2006). The Commission noted that\\n\\nit intended to conform the Guidelines to Smith v. United States, 508 U.S. 223 (1993),\\n\\nwhich had held that 18 U.S.C. § 924(c)(1)’s “use” requirement meant that the gun\\n\\nbe used to “facilitate[] or further[] the drug crime.” Smith, 508 U.S. at 232. In other\\n\\nwords, “close proximity” was intended to be a proxy for the potential of the gun to\\n\\nfacilitate the drug crime. “A firearm found in close proximity to drugs or drug-\\n\\nrelated items simply ‘has’ -- without any requirement for additional evidence -- the\\n\\npotential to facilitate the drug offense.” United States v. Carillo-Ayala, 713 F.3d 82,\\n\\n92 (11th Cir. 2013). Similarly, § 2D1.1(b) provides an enhancement when a\\n\\ndangerous weapon is possessed during certain drug trafficking offenses, and\\n\\nApplication Note 11(A) clarifies that “[t]he enhancement should be applied if the\\n\\nweapon was present, unless it is clearly improbable that the weapon was connected\\n\\nwith the offense.” U.S.S.G. § 2D1.1(b), App. Note 11(A).\\n\\n We have discussed proximity between firearms and drugs in a number of\\n\\ncases, but have never explicitly elaborated on its meaning. Rather, in each of those\\n\\ncases we have applied the phrase’s plain meaning and looked to both the physical\\n\\ndistance between the firearm and the drugs or drug-related items and the accessibility\\n\\nof the firearm. See, e.g., United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th\\n\\nCir. 2009) (analyzing whether a prior conviction would have constituted a violation\\n\\n\\n 12\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 13 of 16\\n\\n\\nof § 924(c), noting that “when he was apprehended for the drug offense, [the\\n\\ndefendant] was found under the covers of a bed, along with the gun, a quantity of\\n\\nmethamphetamine, and several hundred dollars in cash” and explaining that “[t]he\\n\\nnexus between the gun and the drug trafficking here is plainly established by, for\\n\\nexample, the accessibility of the firearm to [the defendant], and the proximity of the\\n\\ngun to the drugs and the drug profits”) (emphasis added); United States v. Trujillo,\\n\\n146 F.3d 838, 847 (11th Cir. 1998) (firearm found in front office of warehouse in\\n\\nwhich 300 kilograms of cocaine was stored); United States v. Flennory, 145 F.3d\\n\\n1264, 1270 (11th Cir. 1998) (gun located in a car across the street from a vacant lot\\n\\nwhere the defendant was selling drugs was possessed “in connection with” the\\n\\noffense because the defendant “could have easily and quickly retrieved the weapon\\n\\nfrom the vehicle if it became necessary to avoid an arrest, or to defend himself from\\n\\na theft of the cocaine or the money he received from his sales”), superseded on other\\n\\ngrounds as recognized by United States v. Brown, 332 F.3d 1341 (11th Cir. 2003);\\n\\nUnited States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per curiam) (handgun\\n\\nfound in dresser drawer in same bedroom with scales, a ziplock bag containing\\n\\ncocaine residue, and a purse containing $12,000 in cash).\\n\\n Because “[o]ur interpretation of the sentencing guidelines and accompanying\\n\\ncommentary is governed by traditional rules of statutory construction[,] . . . [w]here\\n\\nthe same language appears in two guidelines, it is generally presumed that the\\n\\n\\n 13\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 14 of 16\\n\\n\\nlanguage bears the same meaning in both.” Perez, 366 F.3d at 1182; see also\\n\\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 170 (2012) (describing the\\n\\ncanon of consistent usage). The phrase “close proximity” means the same thing in\\n\\nApplication Note 2 (semiautomatic weapons) as it does in Application Note 14\\n\\n(connection between drugs and guns). This presumption is all the more appropriate\\n\\nwhere the language appears not in two different guidelines, but within the\\n\\nApplication Notes of the same guideline section. Indeed, Application Notes 2 and\\n\\n14 using the phrase “close proximity” were added simultaneously, in the 2006\\n\\namendments. There is no reason to believe the Sentencing Commission meant\\n\\nanything other than the plain meaning afforded “close proximity” in both situations.\\n\\n At bottom, physical distance is one component of accessibility, and in both\\n\\nthe guns and drugs context and in the semiautomatic weapon and high-capacity\\n\\nmagazine context, we are looking for a close connection between the items. Physical\\n\\ndistance, a component of accessibility, is a powerful indicator that two items are\\n\\nrelated. Is the firearm close enough and accessible enough to have the potential to\\n\\nbe used in the drug crime? And is the high-capacity magazine close enough and\\n\\naccessible enough to be used in the weapon capable of receiving it?\\n\\n Ultimately, we think that, as its plain language suggests and as our analysis of\\n\\nproximity in the related cases dealing with guns and drugs indicates, “close\\n\\nproximity” encompasses both physical distance and accessibility. In both contexts,\\n\\n\\n 14\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 15 of 16\\n\\n\\nwe are looking for a close connection between the items. Physical distance alone\\n\\nmay not dispositive. If, for example, a semi-automatic weapon were found in one\\n\\nhome of a duplex apartment and a high-capacity magazine in the separately owned\\n\\nhome next door just on the other side of a shared wall, even very close physical\\n\\ndistance would not necessarily place those items in close proximity for Guidelines\\n\\npurposes. Physical proximity is necessary to find accessibility, but physical distance\\n\\nmay not end the story.\\n\\n Under a definition of “close proximity” that accounts for both physical\\n\\ndistance and accessibility, a semiautomatic weapon -- even a locked firearm inside\\n\\na case -- is in “close proximity” to a high-capacity magazine in a bag no more than\\n\\nten feet away in the same small bedroom. We have little doubt that ten feet is close\\n\\nphysical proximity. Relying on the idea of accessibility (but nevertheless rejecting\\n\\nany analogy to the guns and drugs cases), Gordillo argues that the critical facts\\n\\nmilitating against a finding of close proximity are that the gun was locked and in a\\n\\ncase and the magazines were found in a separate bag. He made no specific claim to\\n\\nthe district court -- and indeed none in his briefing to us -- about how long it would\\n\\ntake to retrieve the magazines from the bag, unlock the case, and insert a magazine\\n\\ninto the firearm. And he does not claim that those high-capacity magazines were not\\n\\nintended for use in the Colt AR-15. The firearm and magazines were ten feet apart\\n\\nin the same room. They were both physically proximate and readily accessible.\\n\\n\\n 15\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 16 of 16\\n\\n\\n Under Gordillo’s preferred reading, however, anytime a semiautomatic\\n\\nweapon is locked and in a gun case and a high-capacity magazine is in a separate\\n\\ncontainer, the enhanced base offense level in the Guidelines would be inapplicable.\\n\\nBut the Guidelines are not a safe-storage law. They are intended to punish firearms\\n\\ncrimes involving particularly dangerous types of weapons. Gordillo does not dispute\\n\\nthat those four high-capacity magazines were in physical proximity to the firearm or\\n\\nthat they were actually intended for use in that firearm. His safe-storage practices\\n\\nnotwithstanding, Gordillo is subject to the enhanced base offense level under\\n\\n§ 2K2.1(a)(4)(B)(i)–(ii).\\n\\n We can find no basis on which to overturn the district court’s factual findings\\n\\nregarding the proximity of the AR-15 to the magazines, nor its legal conclusion that\\n\\nthe relationship of the two constituted “close proximity” for Guidelines’ purposes.\\n\\nAccordingly, we affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4388210/\", \"author_raw\": \"MARCUS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"BLACK"},"judge3":{"kind":"string","value":"WALKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4610957/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Juan Fletcher GORDILLO, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-12095 Date Filed: 04/17/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-12095\n ________________________\n\n D.C. Docket No. 0:17-cr-60312-JIC-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\nversus\n\nJUAN FLETCHER GORDILLO,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 17, 2019)\n\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\n\nMARCUS, Circuit Judge:\n\n\n*\n Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by\ndesignation.\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 2 of 16\n\n\n Juan Fletcher Gordillo pled guilty to a single count charging him with\n\npossession of a firearm and ammunition by a prohibited person -- an alien unlawfully\n\nin the United States -- in violation of 18 U.S.C. § 922(g)(5)(A). At sentencing,\n\nGordillo objected to the base offense level set forth in the Presentence Investigation\n\nReport. Under the United States Sentencing Guidelines, a base offense level of 20\n\naccrues where the defendant was a prohibited person at the time of the offense and\n\nthe offense involved a semiautomatic firearm in “close proximity” to a high-capacity\n\nmagazine. U.S.S.G. § 2K2.1, App. Notes 2. Gordillo’s locked Colt AR-15 was in a\n\ngun case in his bedroom, and high-capacity magazines were in a gun-range bag no\n\nmore than ten feet away. Because we see no error in the district court’s finding that\n\nthe magazines were in close proximity to the firearm, we affirm.\n\n I.\n\n Defendant Juan Fletcher Gordillo (“Gordillo”) is a Guatemalan citizen who\n\ninitially entered the United States on a non-immigrant visitor visa on July 18, 2004.\n\nGordillo’s visa expired on January 17, 2006. He applied for a visa extension on\n\nJanuary 19, 2006, and though his application was denied, he remained in the United\n\nStates without authorization. On November 27, 2017, Immigration and Customs\n\nEnforcement (“ICE”) Enforcement and Removal Operations officers executed an\n\narrest warrant for Gordillo’s wife, Flor De Maria Cabrera Cortez (“Cortez”), at the\n\ncouple’s home in Fort Lauderdale, Florida. When the officers arrived, they\n\n\n 2\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 3 of 16\n\n\nencountered Gordillo and Cortez leaving the residence. Neither had identification\n\non them, but Cortez authorized the ICE officers to enter the residence to retrieve her\n\npassport and identification. Before they initiated a protective sweep of the home,\n\nGordillo admitted that there were firearms inside. During the protective sweep, the\n\nofficers recovered four weapons: a Berretta Px4 Storm .45 caliber pistol and a\n\nFabrique Nationale FNS-9 9mm pistol in the family room, and a Colt AR-15 rifle\n\nand a Keltec KSG 12-gauge shotgun in the master bedroom. Three of the firearms\n\n-- the pistols and the AR-15 -- were manufactured outside of the State of Florida.\n\nOfficers also found four 30-round magazines in a gun-range bag in the small master\n\nbedroom some ten feet from the gun case.\n\n Department of Homeland Security (“DHS”) Investigations special agents\n\nresponded to the scene, and requested permission from Gordillo and his wife to\n\nconduct an additional search of the residence. Both Gordillo and Cortez consented\n\nto the search, and Gordillo admitted that there was a box of ammunition in the\n\nkitchen. During the search, the agents located 50 cartridges of 9mm pistol rounds in\n\nthe kitchen.\n\n Gordillo was transported to the DHS Investigations office in Fort Lauderdale\n\nand read his Miranda rights. After signing a waiver of those rights, he was\n\ninterviewed and admitted to possessing the firearms and ammunition with the\n\n\n\n\n 3\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 4 of 16\n\n\nknowledge that he was not authorized to purchase or possess firearms in the United\n\nStates due to his immigration status.\n\n II.\n\n On December 15, 2017, a grand jury sitting in the Southern District of Florida\n\nindicted Gordillo in one count with possession of a firearm and ammunition by a\n\nprohibited person -- an alien unlawfully in the United States -- in violation of 18\n\nU.S.C. § 922(g)(5)(A). The statute makes it unlawful for “any person . . . being an\n\nalien . . . illegally or unlawfully in the United States . . . to ship or transport in\n\ninterstate or foreign commerce, or possess in or affecting commerce, any firearm or\n\nammunition.” Soon thereafter, Gordillo entered a guilty plea to the single count in\n\nthe indictment. There was no written plea agreement.\n\n The Presentence Investigation Report (“PSI”) calculated Gordillo’s base\n\noffense level at 20, pursuant to the Sentencing Guidelines § 2K2.1(a)(4)(B)(i)–(ii),\n\nbecause the offense involved a semiautomatic firearm that is capable of accepting a\n\nlarge-capacity magazine and the defendant was a “prohibited person” at the time of\n\nthe offense. Since the offense involved three to seven firearms, the base offense\n\nlevel was increased by two points pursuant to § 2K2.1(b)(1)(A). But because\n\nGordillo accepted responsibility and because he assisted the authorities in the\n\ninvestigation of his own misconduct, his offense level was decreased by two and one\n\npoints, respectively. This left Gordillo with a total offense level of 19.\n\n\n 4\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 5 of 16\n\n\n Gordillo had no criminal history, thereby yielding a Guidelines imprisonment\n\nrange of 30 to 37 months. Since he was charged with a Class C Felony, the\n\nGuidelines range for supervised release was one to three years. The PSI identified\n\nno factors warranting a departure or variance from the Guidelines calculations.\n\n Gordillo objected to the PSI on the ground that his crime did not involve a\n\nsemiautomatic weapon within the meaning of the Guidelines. The Guidelines set a\n\nbase offense level of 20 where the defendant was a prohibited person at the time of\n\nthe offense and the offense “involved a . . . semiautomatic firearm that is capable of\n\naccepting a large capacity magazine.” U.S.S.G. § 2K2.1(a)(4)(B)(i)–(ii). The\n\nGuidelines’ Application Notes define “semiautomatic firearm that is capable of\n\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\n\nto fire many rounds without reloading because at the time of the offense (A) the\n\nfirearm had attached to it a magazine or similar device that could accept more than\n\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\n\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\n\n§ 2K2.1, App. Note 2.\n\n Gordillo urged that his base offense level should instead be calculated under\n\n§ 2K2.1(a)(6), which provides a base offense level of 14 for a federal firearms\n\noffense where the defendant was a prohibited person and committed the offense with\n\nknowledge. He claimed that there was neither a high-capacity magazine attached to\n\n\n 5\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 6 of 16\n\n\nthe semiautomatic weapon, which is undisputed, nor one in “close proximity,”\n\nasserting that the magazine in a separate bag across the room from the gun, which\n\nwas itself locked with a gun lock and inside a case, did not qualify. He also argued\n\nthat certain factors militated in favor of a departure from the advisory Guidelines\n\nrange. Gordillo noted his complete and swift cooperation with law enforcement, the\n\nfact that he and his wife had entered the United States and overstayed their visas\n\nbecause his wife required eyesight-saving surgeries over a number of years that she\n\ncould obtain only at the Bascom Palmer Eye Institute in Miami, and his\n\nextraordinary family ties and responsibilities.\n\n At the sentencing hearing, DHS Investigations Agent Clancy Dunnigan\n\ntestified that the two officers who conducted the initial protective sweep of the home\n\ntold Dunnigan that the magazines were “found with the weapon.” Dunnigan took\n\nthis to mean the magazines were found either in the gun case with the firearm, or in\n\nthe range bag some eight feet away. On cross examination, Agent Dunnigan\n\nconceded that he didn’t know if the magazines were found in the gun case and that\n\nhe was estimating the distance based on the small room size (what he thought was\n\napproximately ten feet). Dunnigan said the gun was in a hard case with hard clip\n\nlocks, which were clipped, though he didn’t know if they were actually locked.\n\nGordillo also testified at the hearing that the magazines were in the gun-range bag\n\nseparate from the firearm, and that the bag was “about 10 feet away” from the gun\n\n\n 6\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 7 of 16\n\n\ncase. Gordillo explained that the gun itself was locked, though he was not asked nor\n\ndid he assert that the hard case was locked too. Gordillo’s counsel argued that\n\nbecause “it was a locked gun, possibly the case it was in was locked, and the\n\nmagazine was found separate from that weapon,” the two were not in “close\n\nproximity” and therefore could not trigger the increased base offense level.\n\n The district court varied downward slightly, but overruled Gordillo’s\n\nobjection to the base offense level. The sentencing judge found by a preponderance\n\nof the evidence that the AR-15 is a semiautomatic weapon capable of accepting a\n\nlarge-capacity magazine and that the magazine was found, “in the defendant’s own\n\nword[s] in his testimony, 10 feet away from the AR-15.” The court concluded that\n\nthe magazine was in “close proximity” to the firearm for Guidelines purposes, and\n\nsentenced Gordillo to a 24-month term of imprisonment, followed by three years of\n\nsupervised release, and a $2,000 fine.\n\n This timely appeal ensued.\n\n III.\n\n “We review the district court’s application of the Sentencing Guidelines de\n\nnovo and its findings of fact for clear error.” United States v. Smith, 231 F.3d 800,\n\n806 (11th Cir. 2000). “Clear error review is deferential, and ‘we will not disturb a\n\ndistrict court’s findings unless we are left with a definite and firm conviction that a\n\nmistake has been committed.’” United States v. Cruickshank, 837 F.3d 1182, 1192\n\n\n 7\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 8 of 16\n\n\n(11th Cir. 2016) (quoting United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.\n\n2010)).\n\n “When interpreting the Guidelines, a ‘guideline’s meaning is derived first\n\nfrom its plain language and, absent ambiguity, no additional inquiry is necessary.’”\n\nUnited States v. Cruz, 713 F.3d 600, 607 (11th Cir. 2013) (quoting United States v.\n\nTurner, 626 F.3d 566, 573 (11th Cir. 2010)). “[C]ommentary in the Guidelines\n\nManual that interprets or explains a guideline is authoritative unless it violates the\n\nConstitution or a federal statute, or is inconsistent with, or a plainly erroneous\n\nreading of, that guideline.” Id. (quoting Stinson v. United States, 508 U.S. 36, 38\n\n(1993)). Moreover, “[o]ur interpretation of the sentencing guidelines and\n\naccompanying commentary is governed by traditional rules of statutory\n\nconstruction.” United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004).\n\n The Guidelines yield a base offense level of 20 where the defendant was a\n\nprohibited person at the time of the offense and the offense “involved a . . .\n\nsemiautomatic firearm that is capable of accepting a large capacity magazine.” The\n\nGuidelines Application Notes define “semiautomatic firearm that is capable of\n\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\n\nto fire many rounds without reloading because at the time of the offense (A) the\n\nfirearm had attached to it a magazine or similar device that could accept more than\n\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\n\n\n 8\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 9 of 16\n\n\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\n\n§ 2K2.1, App. Note 2.\n\n There is no dispute either that Gordillo was a “prohibited person” at the time\n\nof the offense or that there was no magazine physically attached to the firearm,\n\nmaking subsection (A) of Application Note 2 inapplicable. The only question for us\n\nto decide, then, is whether a high-capacity magazine in a bag is in “close proximity”\n\nto a locked firearm in a case ten feet away in the same room. This Court has never\n\nanalyzed the meaning of “close proximity” in § 2K2.1(a). Applying our usual mode\n\nof statutory interpretation, we begin with the plain language of the authoritative\n\nApplication Notes. The phrase “close proximity” denotes nearness in either physical\n\nspace or time. See WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2018)\n\n(defining “close” as “with little space between” or “near together” and defining\n\n“proximity” as “the state or quality of being near; nearness in space, time, etc.”);\n\nWEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) (defining “close” as\n\n“in proximity of space or time” and defining “proximity” as “the quality or state of\n\nbeing proximate, next, or very near (as in time, place, relationship)”); THE\n\nAMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1976) (defining\n\n“close” as “[p]roximate in time, space, or relation; near” and defining “proximity”\n\nas “[t]he state, quality, or fact of being near or next; closeness”).\n\n\n\n\n 9\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 10 of 16\n\n\n The current version of § 2K2.1 and its corresponding Application Note 2 were\n\nadopted in the 2006 amendments to the Guidelines. See U.S.S.G. App. C, Amend.\n\n691 (Nov. 2006); see also United States v. Davis, 668 F.3d 576, 577–78 (8th Cir.\n\n2012) (explaining the amendment history of § 2K2.1 to answer the distinct question\n\nof whether a temporarily inoperable firearm constitutes a semiautomatic weapon\n\nunder the provision). Before the 2006 amendments, the Guidelines simply cross-\n\nreferenced the statutory definition of a semiautomatic weapon contained in the\n\nfederal assault weapons ban, 18 U.S.C. § 921(a)(30) -- that is, the Guidelines\n\nprovided for a base offense level of 22 when an offense “involved a firearm\n\ndescribed in . . . 18 U.S.C. § 921(a)(30)” and the offender was at the time of the\n\noffense a “prohibited person.” See U.S.S.G App. C, Amend. 691 (Nov. 2006). The\n\nassault weapons ban, in turn, defined “semiautomatic assault weapon” as any of\n\nseveral enumerated firearms -- including the Colt AR-15 -- or, alternatively, as a\n\nfirearm “that has an ability to accept a detachable magazine” and at least two other\n\ncharacteristics enumerated in the statute. 18 U.S.C. § 921(a)(30) (2004).\n\n The 2006 amendments were intended to clarify that the enhanced base offense\n\nlevels continued to apply in the wake of the sunset of the federal assault weapons\n\nban in 2004. Explaining the “reason for amendment,” the Commission noted that it\n\nhad “received information regarding inconsistent application as to whether the\n\nenhanced base offense levels apply to these types of firearms in light of the ban’s\n\n\n 10\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 11 of 16\n\n\nexpiration.” U.S.S.G. App. C, Amend. 691 (Nov. 2006). The amendment history\n\nsays nothing explicit about the “close proximity” requirement. But to the extent the\n\namendment history tells us anything, it is that the Commission believed the enhanced\n\nbase offense levels should continue to apply to “these types of firearms.” Id.\n\n(emphasis added). This suggests the Commission was concerned with identifying\n\nthe type of gun -- making sure the component parts were all present and could be\n\nidentified as part of a corresponding firearm and magazine.\n\n Although we have never addressed the meaning of “close proximity” in the\n\ncontext of § 2K2.1(a), we have addressed proximity between guns and drugs in\n\nrelation to the specific offense characteristic enhancements found in § 2K2.1(b)\n\n(enhancements for firearms offenses) and in § 2D1.1(b) (enhancements for drug\n\noffenses). Section 2K2.1(b)(6)(B) provides for an enhancement where the defendant\n\n“used or possessed any firearm or ammunition in connection with another felony\n\noffense.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Application Note 14\n\nexplains that the enhancement applies “in the case of a drug trafficking offense in\n\nwhich a firearm is found in close proximity to drugs, drug-manufacturing materials,\n\nor drug paraphernalia.” U.S.S.G. § 2K2.1, App. Note 14(B) (emphasis added). The\n\nenhancement is warranted based on proximity, the Note explains, “because the\n\npresence of the firearm has the potential of facilitating” the drug offense. Id. This\n\nlanguage was also added in the 2006 amendments, in response to a circuit split as to\n\n\n 11\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 12 of 16\n\n\nwhat constituted possession of a firearm “in connection with” burglary or drug\n\noffenses. U.S.S.G. App. C, Amend. 691 (Nov. 2006). The Commission noted that\n\nit intended to conform the Guidelines to Smith v. United States, 508 U.S. 223 (1993),\n\nwhich had held that 18 U.S.C. § 924(c)(1)’s “use” requirement meant that the gun\n\nbe used to “facilitate[] or further[] the drug crime.” Smith, 508 U.S. at 232. In other\n\nwords, “close proximity” was intended to be a proxy for the potential of the gun to\n\nfacilitate the drug crime. “A firearm found in close proximity to drugs or drug-\n\nrelated items simply ‘has’ -- without any requirement for additional evidence -- the\n\npotential to facilitate the drug offense.” United States v. Carillo-Ayala, 713 F.3d 82,\n\n92 (11th Cir. 2013). Similarly, § 2D1.1(b) provides an enhancement when a\n\ndangerous weapon is possessed during certain drug trafficking offenses, and\n\nApplication Note 11(A) clarifies that “[t]he enhancement should be applied if the\n\nweapon was present, unless it is clearly improbable that the weapon was connected\n\nwith the offense.” U.S.S.G. § 2D1.1(b), App. Note 11(A).\n\n We have discussed proximity between firearms and drugs in a number of\n\ncases, but have never explicitly elaborated on its meaning. Rather, in each of those\n\ncases we have applied the phrase’s plain meaning and looked to both the physical\n\ndistance between the firearm and the drugs or drug-related items and the accessibility\n\nof the firearm. See, e.g., United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th\n\nCir. 2009) (analyzing whether a prior conviction would have constituted a violation\n\n\n 12\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 13 of 16\n\n\nof § 924(c), noting that “when he was apprehended for the drug offense, [the\n\ndefendant] was found under the covers of a bed, along with the gun, a quantity of\n\nmethamphetamine, and several hundred dollars in cash” and explaining that “[t]he\n\nnexus between the gun and the drug trafficking here is plainly established by, for\n\nexample, the accessibility of the firearm to [the defendant], and the proximity of the\n\ngun to the drugs and the drug profits”) (emphasis added); United States v. Trujillo,\n\n146 F.3d 838, 847 (11th Cir. 1998) (firearm found in front office of warehouse in\n\nwhich 300 kilograms of cocaine was stored); United States v. Flennory, 145 F.3d\n\n1264, 1270 (11th Cir. 1998) (gun located in a car across the street from a vacant lot\n\nwhere the defendant was selling drugs was possessed “in connection with” the\n\noffense because the defendant “could have easily and quickly retrieved the weapon\n\nfrom the vehicle if it became necessary to avoid an arrest, or to defend himself from\n\na theft of the cocaine or the money he received from his sales”), superseded on other\n\ngrounds as recognized by United States v. Brown, 332 F.3d 1341 (11th Cir. 2003);\n\nUnited States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per curiam) (handgun\n\nfound in dresser drawer in same bedroom with scales, a ziplock bag containing\n\ncocaine residue, and a purse containing $12,000 in cash).\n\n Because “[o]ur interpretation of the sentencing guidelines and accompanying\n\ncommentary is governed by traditional rules of statutory construction[,] . . . [w]here\n\nthe same language appears in two guidelines, it is generally presumed that the\n\n\n 13\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 14 of 16\n\n\nlanguage bears the same meaning in both.” Perez, 366 F.3d at 1182; see also\n\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 170 (2012) (describing the\n\ncanon of consistent usage). The phrase “close proximity” means the same thing in\n\nApplication Note 2 (semiautomatic weapons) as it does in Application Note 14\n\n(connection between drugs and guns). This presumption is all the more appropriate\n\nwhere the language appears not in two different guidelines, but within the\n\nApplication Notes of the same guideline section. Indeed, Application Notes 2 and\n\n14 using the phrase “close proximity” were added simultaneously, in the 2006\n\namendments. There is no reason to believe the Sentencing Commission meant\n\nanything other than the plain meaning afforded “close proximity” in both situations.\n\n At bottom, physical distance is one component of accessibility, and in both\n\nthe guns and drugs context and in the semiautomatic weapon and high-capacity\n\nmagazine context, we are looking for a close connection between the items. Physical\n\ndistance, a component of accessibility, is a powerful indicator that two items are\n\nrelated. Is the firearm close enough and accessible enough to have the potential to\n\nbe used in the drug crime? And is the high-capacity magazine close enough and\n\naccessible enough to be used in the weapon capable of receiving it?\n\n Ultimately, we think that, as its plain language suggests and as our analysis of\n\nproximity in the related cases dealing with guns and drugs indicates, “close\n\nproximity” encompasses both physical distance and accessibility. In both contexts,\n\n\n 14\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 15 of 16\n\n\nwe are looking for a close connection between the items. Physical distance alone\n\nmay not dispositive. If, for example, a semi-automatic weapon were found in one\n\nhome of a duplex apartment and a high-capacity magazine in the separately owned\n\nhome next door just on the other side of a shared wall, even very close physical\n\ndistance would not necessarily place those items in close proximity for Guidelines\n\npurposes. Physical proximity is necessary to find accessibility, but physical distance\n\nmay not end the story.\n\n Under a definition of “close proximity” that accounts for both physical\n\ndistance and accessibility, a semiautomatic weapon -- even a locked firearm inside\n\na case -- is in “close proximity” to a high-capacity magazine in a bag no more than\n\nten feet away in the same small bedroom. We have little doubt that ten feet is close\n\nphysical proximity. Relying on the idea of accessibility (but nevertheless rejecting\n\nany analogy to the guns and drugs cases), Gordillo argues that the critical facts\n\nmilitating against a finding of close proximity are that the gun was locked and in a\n\ncase and the magazines were found in a separate bag. He made no specific claim to\n\nthe district court -- and indeed none in his briefing to us -- about how long it would\n\ntake to retrieve the magazines from the bag, unlock the case, and insert a magazine\n\ninto the firearm. And he does not claim that those high-capacity magazines were not\n\nintended for use in the Colt AR-15. The firearm and magazines were ten feet apart\n\nin the same room. They were both physically proximate and readily accessible.\n\n\n 15\n\f Case: 18-12095 Date Filed: 04/17/2019 Page: 16 of 16\n\n\n Under Gordillo’s preferred reading, however, anytime a semiautomatic\n\nweapon is locked and in a gun case and a high-capacity magazine is in a separate\n\ncontainer, the enhanced base offense level in the Guidelines would be inapplicable.\n\nBut the Guidelines are not a safe-storage law. They are intended to punish firearms\n\ncrimes involving particularly dangerous types of weapons. Gordillo does not dispute\n\nthat those four high-capacity magazines were in physical proximity to the firearm or\n\nthat they were actually intended for use in that firearm. His safe-storage practices\n\nnotwithstanding, Gordillo is subject to the enhanced base offense level under\n\n§ 2K2.1(a)(4)(B)(i)–(ii).\n\n We can find no basis on which to overturn the district court’s factual findings\n\nregarding the proximity of the AR-15 to the magazines, nor its legal conclusion that\n\nthe relationship of the two constituted “close proximity” for Guidelines’ purposes.\n\nAccordingly, we affirm.\n\n AFFIRMED.\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Juan Fletcher GORDILLO, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-12095 Date Filed: 04/17/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-12095\\n ________________________\\n\\n D.C. Docket No. 0:17-cr-60312-JIC-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nJUAN FLETCHER GORDILLO,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 17, 2019)\\n\\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\n\\n*\\n Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by\\ndesignation.\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 2 of 16\\n\\n\\n Juan Fletcher Gordillo pled guilty to a single count charging him with\\n\\npossession of a firearm and ammunition by a prohibited person -- an alien unlawfully\\n\\nin the United States -- in violation of 18 U.S.C. § 922(g)(5)(A). At sentencing,\\n\\nGordillo objected to the base offense level set forth in the Presentence Investigation\\n\\nReport. Under the United States Sentencing Guidelines, a base offense level of 20\\n\\naccrues where the defendant was a prohibited person at the time of the offense and\\n\\nthe offense involved a semiautomatic firearm in “close proximity” to a high-capacity\\n\\nmagazine. U.S.S.G. § 2K2.1, App. Notes 2. Gordillo’s locked Colt AR-15 was in a\\n\\ngun case in his bedroom, and high-capacity magazines were in a gun-range bag no\\n\\nmore than ten feet away. Because we see no error in the district court’s finding that\\n\\nthe magazines were in close proximity to the firearm, we affirm.\\n\\n I.\\n\\n Defendant Juan Fletcher Gordillo (“Gordillo”) is a Guatemalan citizen who\\n\\ninitially entered the United States on a non-immigrant visitor visa on July 18, 2004.\\n\\nGordillo’s visa expired on January 17, 2006. He applied for a visa extension on\\n\\nJanuary 19, 2006, and though his application was denied, he remained in the United\\n\\nStates without authorization. On November 27, 2017, Immigration and Customs\\n\\nEnforcement (“ICE”) Enforcement and Removal Operations officers executed an\\n\\narrest warrant for Gordillo’s wife, Flor De Maria Cabrera Cortez (“Cortez”), at the\\n\\ncouple’s home in Fort Lauderdale, Florida. When the officers arrived, they\\n\\n\\n 2\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 3 of 16\\n\\n\\nencountered Gordillo and Cortez leaving the residence. Neither had identification\\n\\non them, but Cortez authorized the ICE officers to enter the residence to retrieve her\\n\\npassport and identification. Before they initiated a protective sweep of the home,\\n\\nGordillo admitted that there were firearms inside. During the protective sweep, the\\n\\nofficers recovered four weapons: a Berretta Px4 Storm .45 caliber pistol and a\\n\\nFabrique Nationale FNS-9 9mm pistol in the family room, and a Colt AR-15 rifle\\n\\nand a Keltec KSG 12-gauge shotgun in the master bedroom. Three of the firearms\\n\\n-- the pistols and the AR-15 -- were manufactured outside of the State of Florida.\\n\\nOfficers also found four 30-round magazines in a gun-range bag in the small master\\n\\nbedroom some ten feet from the gun case.\\n\\n Department of Homeland Security (“DHS”) Investigations special agents\\n\\nresponded to the scene, and requested permission from Gordillo and his wife to\\n\\nconduct an additional search of the residence. Both Gordillo and Cortez consented\\n\\nto the search, and Gordillo admitted that there was a box of ammunition in the\\n\\nkitchen. During the search, the agents located 50 cartridges of 9mm pistol rounds in\\n\\nthe kitchen.\\n\\n Gordillo was transported to the DHS Investigations office in Fort Lauderdale\\n\\nand read his Miranda rights. After signing a waiver of those rights, he was\\n\\ninterviewed and admitted to possessing the firearms and ammunition with the\\n\\n\\n\\n\\n 3\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 4 of 16\\n\\n\\nknowledge that he was not authorized to purchase or possess firearms in the United\\n\\nStates due to his immigration status.\\n\\n II.\\n\\n On December 15, 2017, a grand jury sitting in the Southern District of Florida\\n\\nindicted Gordillo in one count with possession of a firearm and ammunition by a\\n\\nprohibited person -- an alien unlawfully in the United States -- in violation of 18\\n\\nU.S.C. § 922(g)(5)(A). The statute makes it unlawful for “any person . . . being an\\n\\nalien . . . illegally or unlawfully in the United States . . . to ship or transport in\\n\\ninterstate or foreign commerce, or possess in or affecting commerce, any firearm or\\n\\nammunition.” Soon thereafter, Gordillo entered a guilty plea to the single count in\\n\\nthe indictment. There was no written plea agreement.\\n\\n The Presentence Investigation Report (“PSI”) calculated Gordillo’s base\\n\\noffense level at 20, pursuant to the Sentencing Guidelines § 2K2.1(a)(4)(B)(i)–(ii),\\n\\nbecause the offense involved a semiautomatic firearm that is capable of accepting a\\n\\nlarge-capacity magazine and the defendant was a “prohibited person” at the time of\\n\\nthe offense. Since the offense involved three to seven firearms, the base offense\\n\\nlevel was increased by two points pursuant to § 2K2.1(b)(1)(A). But because\\n\\nGordillo accepted responsibility and because he assisted the authorities in the\\n\\ninvestigation of his own misconduct, his offense level was decreased by two and one\\n\\npoints, respectively. This left Gordillo with a total offense level of 19.\\n\\n\\n 4\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 5 of 16\\n\\n\\n Gordillo had no criminal history, thereby yielding a Guidelines imprisonment\\n\\nrange of 30 to 37 months. Since he was charged with a Class C Felony, the\\n\\nGuidelines range for supervised release was one to three years. The PSI identified\\n\\nno factors warranting a departure or variance from the Guidelines calculations.\\n\\n Gordillo objected to the PSI on the ground that his crime did not involve a\\n\\nsemiautomatic weapon within the meaning of the Guidelines. The Guidelines set a\\n\\nbase offense level of 20 where the defendant was a prohibited person at the time of\\n\\nthe offense and the offense “involved a . . . semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine.” U.S.S.G. § 2K2.1(a)(4)(B)(i)–(ii). The\\n\\nGuidelines’ Application Notes define “semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\\n\\nto fire many rounds without reloading because at the time of the offense (A) the\\n\\nfirearm had attached to it a magazine or similar device that could accept more than\\n\\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\\n\\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\\n\\n§ 2K2.1, App. Note 2.\\n\\n Gordillo urged that his base offense level should instead be calculated under\\n\\n§ 2K2.1(a)(6), which provides a base offense level of 14 for a federal firearms\\n\\noffense where the defendant was a prohibited person and committed the offense with\\n\\nknowledge. He claimed that there was neither a high-capacity magazine attached to\\n\\n\\n 5\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 6 of 16\\n\\n\\nthe semiautomatic weapon, which is undisputed, nor one in “close proximity,”\\n\\nasserting that the magazine in a separate bag across the room from the gun, which\\n\\nwas itself locked with a gun lock and inside a case, did not qualify. He also argued\\n\\nthat certain factors militated in favor of a departure from the advisory Guidelines\\n\\nrange. Gordillo noted his complete and swift cooperation with law enforcement, the\\n\\nfact that he and his wife had entered the United States and overstayed their visas\\n\\nbecause his wife required eyesight-saving surgeries over a number of years that she\\n\\ncould obtain only at the Bascom Palmer Eye Institute in Miami, and his\\n\\nextraordinary family ties and responsibilities.\\n\\n At the sentencing hearing, DHS Investigations Agent Clancy Dunnigan\\n\\ntestified that the two officers who conducted the initial protective sweep of the home\\n\\ntold Dunnigan that the magazines were “found with the weapon.” Dunnigan took\\n\\nthis to mean the magazines were found either in the gun case with the firearm, or in\\n\\nthe range bag some eight feet away. On cross examination, Agent Dunnigan\\n\\nconceded that he didn’t know if the magazines were found in the gun case and that\\n\\nhe was estimating the distance based on the small room size (what he thought was\\n\\napproximately ten feet). Dunnigan said the gun was in a hard case with hard clip\\n\\nlocks, which were clipped, though he didn’t know if they were actually locked.\\n\\nGordillo also testified at the hearing that the magazines were in the gun-range bag\\n\\nseparate from the firearm, and that the bag was “about 10 feet away” from the gun\\n\\n\\n 6\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 7 of 16\\n\\n\\ncase. Gordillo explained that the gun itself was locked, though he was not asked nor\\n\\ndid he assert that the hard case was locked too. Gordillo’s counsel argued that\\n\\nbecause “it was a locked gun, possibly the case it was in was locked, and the\\n\\nmagazine was found separate from that weapon,” the two were not in “close\\n\\nproximity” and therefore could not trigger the increased base offense level.\\n\\n The district court varied downward slightly, but overruled Gordillo’s\\n\\nobjection to the base offense level. The sentencing judge found by a preponderance\\n\\nof the evidence that the AR-15 is a semiautomatic weapon capable of accepting a\\n\\nlarge-capacity magazine and that the magazine was found, “in the defendant’s own\\n\\nword[s] in his testimony, 10 feet away from the AR-15.” The court concluded that\\n\\nthe magazine was in “close proximity” to the firearm for Guidelines purposes, and\\n\\nsentenced Gordillo to a 24-month term of imprisonment, followed by three years of\\n\\nsupervised release, and a $2,000 fine.\\n\\n This timely appeal ensued.\\n\\n III.\\n\\n “We review the district court’s application of the Sentencing Guidelines de\\n\\nnovo and its findings of fact for clear error.” United States v. Smith, 231 F.3d 800,\\n\\n806 (11th Cir. 2000). “Clear error review is deferential, and ‘we will not disturb a\\n\\ndistrict court’s findings unless we are left with a definite and firm conviction that a\\n\\nmistake has been committed.’” United States v. Cruickshank, 837 F.3d 1182, 1192\\n\\n\\n 7\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 8 of 16\\n\\n\\n(11th Cir. 2016) (quoting United States v. Ghertler, 605 F.3d 1256, 1267 (11th Cir.\\n\\n2010)).\\n\\n “When interpreting the Guidelines, a ‘guideline’s meaning is derived first\\n\\nfrom its plain language and, absent ambiguity, no additional inquiry is necessary.’”\\n\\nUnited States v. Cruz, 713 F.3d 600, 607 (11th Cir. 2013) (quoting United States v.\\n\\nTurner, 626 F.3d 566, 573 (11th Cir. 2010)). “[C]ommentary in the Guidelines\\n\\nManual that interprets or explains a guideline is authoritative unless it violates the\\n\\nConstitution or a federal statute, or is inconsistent with, or a plainly erroneous\\n\\nreading of, that guideline.” Id. (quoting Stinson v. United States, 508 U.S. 36, 38\\n\\n(1993)). Moreover, “[o]ur interpretation of the sentencing guidelines and\\n\\naccompanying commentary is governed by traditional rules of statutory\\n\\nconstruction.” United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004).\\n\\n The Guidelines yield a base offense level of 20 where the defendant was a\\n\\nprohibited person at the time of the offense and the offense “involved a . . .\\n\\nsemiautomatic firearm that is capable of accepting a large capacity magazine.” The\\n\\nGuidelines Application Notes define “semiautomatic firearm that is capable of\\n\\naccepting a large capacity magazine” as “a semiautomatic firearm that has the ability\\n\\nto fire many rounds without reloading because at the time of the offense (A) the\\n\\nfirearm had attached to it a magazine or similar device that could accept more than\\n\\n15 rounds of ammunition; or (B) a magazine or similar device that could accept more\\n\\n\\n 8\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 9 of 16\\n\\n\\nthan 15 rounds of ammunition was in close proximity to the firearm.” U.S.S.G.\\n\\n§ 2K2.1, App. Note 2.\\n\\n There is no dispute either that Gordillo was a “prohibited person” at the time\\n\\nof the offense or that there was no magazine physically attached to the firearm,\\n\\nmaking subsection (A) of Application Note 2 inapplicable. The only question for us\\n\\nto decide, then, is whether a high-capacity magazine in a bag is in “close proximity”\\n\\nto a locked firearm in a case ten feet away in the same room. This Court has never\\n\\nanalyzed the meaning of “close proximity” in § 2K2.1(a). Applying our usual mode\\n\\nof statutory interpretation, we begin with the plain language of the authoritative\\n\\nApplication Notes. The phrase “close proximity” denotes nearness in either physical\\n\\nspace or time. See WEBSTER’S NEW WORLD COLLEGE DICTIONARY (5th ed. 2018)\\n\\n(defining “close” as “with little space between” or “near together” and defining\\n\\n“proximity” as “the state or quality of being near; nearness in space, time, etc.”);\\n\\nWEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) (defining “close” as\\n\\n“in proximity of space or time” and defining “proximity” as “the quality or state of\\n\\nbeing proximate, next, or very near (as in time, place, relationship)”); THE\\n\\nAMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1976) (defining\\n\\n“close” as “[p]roximate in time, space, or relation; near” and defining “proximity”\\n\\nas “[t]he state, quality, or fact of being near or next; closeness”).\\n\\n\\n\\n\\n 9\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 10 of 16\\n\\n\\n The current version of § 2K2.1 and its corresponding Application Note 2 were\\n\\nadopted in the 2006 amendments to the Guidelines. See U.S.S.G. App. C, Amend.\\n\\n691 (Nov. 2006); see also United States v. Davis, 668 F.3d 576, 577–78 (8th Cir.\\n\\n2012) (explaining the amendment history of § 2K2.1 to answer the distinct question\\n\\nof whether a temporarily inoperable firearm constitutes a semiautomatic weapon\\n\\nunder the provision). Before the 2006 amendments, the Guidelines simply cross-\\n\\nreferenced the statutory definition of a semiautomatic weapon contained in the\\n\\nfederal assault weapons ban, 18 U.S.C. § 921(a)(30) -- that is, the Guidelines\\n\\nprovided for a base offense level of 22 when an offense “involved a firearm\\n\\ndescribed in . . . 18 U.S.C. § 921(a)(30)” and the offender was at the time of the\\n\\noffense a “prohibited person.” See U.S.S.G App. C, Amend. 691 (Nov. 2006). The\\n\\nassault weapons ban, in turn, defined “semiautomatic assault weapon” as any of\\n\\nseveral enumerated firearms -- including the Colt AR-15 -- or, alternatively, as a\\n\\nfirearm “that has an ability to accept a detachable magazine” and at least two other\\n\\ncharacteristics enumerated in the statute. 18 U.S.C. § 921(a)(30) (2004).\\n\\n The 2006 amendments were intended to clarify that the enhanced base offense\\n\\nlevels continued to apply in the wake of the sunset of the federal assault weapons\\n\\nban in 2004. Explaining the “reason for amendment,” the Commission noted that it\\n\\nhad “received information regarding inconsistent application as to whether the\\n\\nenhanced base offense levels apply to these types of firearms in light of the ban’s\\n\\n\\n 10\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 11 of 16\\n\\n\\nexpiration.” U.S.S.G. App. C, Amend. 691 (Nov. 2006). The amendment history\\n\\nsays nothing explicit about the “close proximity” requirement. But to the extent the\\n\\namendment history tells us anything, it is that the Commission believed the enhanced\\n\\nbase offense levels should continue to apply to “these types of firearms.” Id.\\n\\n(emphasis added). This suggests the Commission was concerned with identifying\\n\\nthe type of gun -- making sure the component parts were all present and could be\\n\\nidentified as part of a corresponding firearm and magazine.\\n\\n Although we have never addressed the meaning of “close proximity” in the\\n\\ncontext of § 2K2.1(a), we have addressed proximity between guns and drugs in\\n\\nrelation to the specific offense characteristic enhancements found in § 2K2.1(b)\\n\\n(enhancements for firearms offenses) and in § 2D1.1(b) (enhancements for drug\\n\\noffenses). Section 2K2.1(b)(6)(B) provides for an enhancement where the defendant\\n\\n“used or possessed any firearm or ammunition in connection with another felony\\n\\noffense.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis added). Application Note 14\\n\\nexplains that the enhancement applies “in the case of a drug trafficking offense in\\n\\nwhich a firearm is found in close proximity to drugs, drug-manufacturing materials,\\n\\nor drug paraphernalia.” U.S.S.G. § 2K2.1, App. Note 14(B) (emphasis added). The\\n\\nenhancement is warranted based on proximity, the Note explains, “because the\\n\\npresence of the firearm has the potential of facilitating” the drug offense. Id. This\\n\\nlanguage was also added in the 2006 amendments, in response to a circuit split as to\\n\\n\\n 11\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 12 of 16\\n\\n\\nwhat constituted possession of a firearm “in connection with” burglary or drug\\n\\noffenses. U.S.S.G. App. C, Amend. 691 (Nov. 2006). The Commission noted that\\n\\nit intended to conform the Guidelines to Smith v. United States, 508 U.S. 223 (1993),\\n\\nwhich had held that 18 U.S.C. § 924(c)(1)’s “use” requirement meant that the gun\\n\\nbe used to “facilitate[] or further[] the drug crime.” Smith, 508 U.S. at 232. In other\\n\\nwords, “close proximity” was intended to be a proxy for the potential of the gun to\\n\\nfacilitate the drug crime. “A firearm found in close proximity to drugs or drug-\\n\\nrelated items simply ‘has’ -- without any requirement for additional evidence -- the\\n\\npotential to facilitate the drug offense.” United States v. Carillo-Ayala, 713 F.3d 82,\\n\\n92 (11th Cir. 2013). Similarly, § 2D1.1(b) provides an enhancement when a\\n\\ndangerous weapon is possessed during certain drug trafficking offenses, and\\n\\nApplication Note 11(A) clarifies that “[t]he enhancement should be applied if the\\n\\nweapon was present, unless it is clearly improbable that the weapon was connected\\n\\nwith the offense.” U.S.S.G. § 2D1.1(b), App. Note 11(A).\\n\\n We have discussed proximity between firearms and drugs in a number of\\n\\ncases, but have never explicitly elaborated on its meaning. Rather, in each of those\\n\\ncases we have applied the phrase’s plain meaning and looked to both the physical\\n\\ndistance between the firearm and the drugs or drug-related items and the accessibility\\n\\nof the firearm. See, e.g., United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th\\n\\nCir. 2009) (analyzing whether a prior conviction would have constituted a violation\\n\\n\\n 12\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 13 of 16\\n\\n\\nof § 924(c), noting that “when he was apprehended for the drug offense, [the\\n\\ndefendant] was found under the covers of a bed, along with the gun, a quantity of\\n\\nmethamphetamine, and several hundred dollars in cash” and explaining that “[t]he\\n\\nnexus between the gun and the drug trafficking here is plainly established by, for\\n\\nexample, the accessibility of the firearm to [the defendant], and the proximity of the\\n\\ngun to the drugs and the drug profits”) (emphasis added); United States v. Trujillo,\\n\\n146 F.3d 838, 847 (11th Cir. 1998) (firearm found in front office of warehouse in\\n\\nwhich 300 kilograms of cocaine was stored); United States v. Flennory, 145 F.3d\\n\\n1264, 1270 (11th Cir. 1998) (gun located in a car across the street from a vacant lot\\n\\nwhere the defendant was selling drugs was possessed “in connection with” the\\n\\noffense because the defendant “could have easily and quickly retrieved the weapon\\n\\nfrom the vehicle if it became necessary to avoid an arrest, or to defend himself from\\n\\na theft of the cocaine or the money he received from his sales”), superseded on other\\n\\ngrounds as recognized by United States v. Brown, 332 F.3d 1341 (11th Cir. 2003);\\n\\nUnited States v. Hall, 46 F.3d 62, 63–64 (11th Cir. 1995) (per curiam) (handgun\\n\\nfound in dresser drawer in same bedroom with scales, a ziplock bag containing\\n\\ncocaine residue, and a purse containing $12,000 in cash).\\n\\n Because “[o]ur interpretation of the sentencing guidelines and accompanying\\n\\ncommentary is governed by traditional rules of statutory construction[,] . . . [w]here\\n\\nthe same language appears in two guidelines, it is generally presumed that the\\n\\n\\n 13\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 14 of 16\\n\\n\\nlanguage bears the same meaning in both.” Perez, 366 F.3d at 1182; see also\\n\\nANTONIN SCALIA & BRYAN A. GARNER, READING LAW 170 (2012) (describing the\\n\\ncanon of consistent usage). The phrase “close proximity” means the same thing in\\n\\nApplication Note 2 (semiautomatic weapons) as it does in Application Note 14\\n\\n(connection between drugs and guns). This presumption is all the more appropriate\\n\\nwhere the language appears not in two different guidelines, but within the\\n\\nApplication Notes of the same guideline section. Indeed, Application Notes 2 and\\n\\n14 using the phrase “close proximity” were added simultaneously, in the 2006\\n\\namendments. There is no reason to believe the Sentencing Commission meant\\n\\nanything other than the plain meaning afforded “close proximity” in both situations.\\n\\n At bottom, physical distance is one component of accessibility, and in both\\n\\nthe guns and drugs context and in the semiautomatic weapon and high-capacity\\n\\nmagazine context, we are looking for a close connection between the items. Physical\\n\\ndistance, a component of accessibility, is a powerful indicator that two items are\\n\\nrelated. Is the firearm close enough and accessible enough to have the potential to\\n\\nbe used in the drug crime? And is the high-capacity magazine close enough and\\n\\naccessible enough to be used in the weapon capable of receiving it?\\n\\n Ultimately, we think that, as its plain language suggests and as our analysis of\\n\\nproximity in the related cases dealing with guns and drugs indicates, “close\\n\\nproximity” encompasses both physical distance and accessibility. In both contexts,\\n\\n\\n 14\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 15 of 16\\n\\n\\nwe are looking for a close connection between the items. Physical distance alone\\n\\nmay not dispositive. If, for example, a semi-automatic weapon were found in one\\n\\nhome of a duplex apartment and a high-capacity magazine in the separately owned\\n\\nhome next door just on the other side of a shared wall, even very close physical\\n\\ndistance would not necessarily place those items in close proximity for Guidelines\\n\\npurposes. Physical proximity is necessary to find accessibility, but physical distance\\n\\nmay not end the story.\\n\\n Under a definition of “close proximity” that accounts for both physical\\n\\ndistance and accessibility, a semiautomatic weapon -- even a locked firearm inside\\n\\na case -- is in “close proximity” to a high-capacity magazine in a bag no more than\\n\\nten feet away in the same small bedroom. We have little doubt that ten feet is close\\n\\nphysical proximity. Relying on the idea of accessibility (but nevertheless rejecting\\n\\nany analogy to the guns and drugs cases), Gordillo argues that the critical facts\\n\\nmilitating against a finding of close proximity are that the gun was locked and in a\\n\\ncase and the magazines were found in a separate bag. He made no specific claim to\\n\\nthe district court -- and indeed none in his briefing to us -- about how long it would\\n\\ntake to retrieve the magazines from the bag, unlock the case, and insert a magazine\\n\\ninto the firearm. And he does not claim that those high-capacity magazines were not\\n\\nintended for use in the Colt AR-15. The firearm and magazines were ten feet apart\\n\\nin the same room. They were both physically proximate and readily accessible.\\n\\n\\n 15\\n\\f Case: 18-12095 Date Filed: 04/17/2019 Page: 16 of 16\\n\\n\\n Under Gordillo’s preferred reading, however, anytime a semiautomatic\\n\\nweapon is locked and in a gun case and a high-capacity magazine is in a separate\\n\\ncontainer, the enhanced base offense level in the Guidelines would be inapplicable.\\n\\nBut the Guidelines are not a safe-storage law. They are intended to punish firearms\\n\\ncrimes involving particularly dangerous types of weapons. Gordillo does not dispute\\n\\nthat those four high-capacity magazines were in physical proximity to the firearm or\\n\\nthat they were actually intended for use in that firearm. His safe-storage practices\\n\\nnotwithstanding, Gordillo is subject to the enhanced base offense level under\\n\\n§ 2K2.1(a)(4)(B)(i)–(ii).\\n\\n We can find no basis on which to overturn the district court’s factual findings\\n\\nregarding the proximity of the AR-15 to the magazines, nor its legal conclusion that\\n\\nthe relationship of the two constituted “close proximity” for Guidelines’ purposes.\\n\\nAccordingly, we affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1887,"cells":{"id":{"kind":"number","value":4611850,"string":"4,611,850"},"name":{"kind":"string","value":"A&M GERBER CHIROPRACTIC LLC, as Assignee of Conor Carruthers, on Behalf of Itself and All Others Similarly Situated, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant."},"name_abbreviation":{"kind":"string","value":"A&M Gerber Chiropractic LLC v. Geico General Insurance Company"},"decision_date":{"kind":"string","value":"2019-04-19"},"docket_number":{"kind":"string","value":"17-15606"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"VINSON, District Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-15606 Date Filed: 04/19/2019 Page: 1 of 23\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15606\\n ________________________\\n\\n D.C. Docket No. 0:16-cv-62610-BB\\n\\n\\nA&M GERBER CHIROPRACTIC LLC,\\nas assignee of Conor Carruthers, on behalf\\nof itself and all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nGEICO GENERAL INSURANCE COMPANY,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 19, 2019)\\n\\nBefore WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.\\n\\n\\n\\n ∗Honorable C. Roger Vinson, United States District Judge for the Northern District of\\nFlorida, sitting by designation.\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 2 of 23\\n\\n\\nVINSON, District Judge:\\n\\n Conor Carruthers was involved in a car accident on March 18, 2015, after\\n\\nwhich he sought medical services from A&M Gerber Chiropractic LLC. At the\\n\\ntime, Carruthers was covered under an automobile insurance policy issued by\\n\\nGEICO General Insurance Company. Pursuant to Florida’s Motor Vehicle No-\\n\\nFault Law, the policy provided him with $10,000 in personal injury protection\\n\\n(PIP) benefits. See Fla. Stat. § 627.736(1) (mandating that automobile insurers\\n\\nprovide PIP benefits “to a limit of $10,000”). To be entitled to the full $10,000,\\n\\nhowever, the statute required that Carruthers—like all PIP beneficiaries—be\\n\\ndiagnosed by an authorized health care provider with an “emergency medical\\n\\ncondition” (EMC); without such a diagnosis, he was limited to $2,500 in benefits.\\n\\nSee id. at § 627.736(1)(a)(3)-(4); Robbins v. Garrison Prop. & Cas. Ins. Co., 809\\n\\nF.3d 583, 587-88 (11th Cir. 2015) (holding in consolidated appeal that “[b]ecause\\n\\nneither Robbins’ nor Enivert’s claim was supported by [an EMC determination],\\n\\nneither Garrison nor Progressive violated Fla. Stat. § 627.736 by limiting benefits\\n\\nto $2,500”); accord, e.g., Progressive Am. Ins. Co. v. Eduardo J. Garrido D.C.,\\n\\nP.A., 211 So.3d 1086, 1093 (Fla. 3d DCA 2017); Medical Ctr. of Palm Beaches v.\\n\\nUSAA Cas. Ins. Co., 202 So.3d 88, 92-93 (Fla. 4th DCA 2016); McCarty v. Myers,\\n\\n125 So.3d 333, 335 (Fla. 1st DCA 2013).\\n\\n\\n\\n\\n 2\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 3 of 23\\n\\n\\n It is undisputed that Carruthers was not diagnosed with an EMC at the time\\n\\nthis case was filed. It is also undisputed that, despite the lack of an EMC finding,\\n\\nGEICO paid Carruthers/Gerber $7,311 in PIP benefits pre-suit, well in excess of\\n\\nthe $2,500 cap. Even though Carruthers received almost triple the amount in PIP\\n\\nbenefits that he was entitled to, Gerber believed that GEICO had misinterpreted\\n\\ncertain language in its automobile policies and that this misinterpretation resulted\\n\\nin GEICO consistently underpaying PIP benefits as a “general business practice.”\\n\\n Specifically, the policy contains an endorsement identified as FLPIP (01-\\n\\n13), and that endorsement (under the heading “PAYMENTS WE WILL MAKE”)\\n\\nreferences fee schedules pursuant to which GEICO will pay 80% of benefits that\\n\\nare medically necessary. The endorsement goes on to state: “For all other medical\\n\\nservices, supplies, and care [GEICO will pay] 200 percent of the allowable amount\\n\\nunder [a Medicare Part B fee schedule],” subject to a limitation of 80% of the\\n\\n“maximum reimbursable allowance under workers’ compensation . . . .” Below\\n\\nthat statement, GEICO added the following: “A charge submitted by a provider,\\n\\nfor an amount less than the amount allowed above, shall be paid in the amount of\\n\\nthe charge submitted.” The underlying dispute in this case hinges on whether this\\n\\nsingle sentence is the operative language of the policy for health care provider bills\\n\\nof less than 200% of the fee schedule.\\n\\n\\n\\n\\n 3\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 4 of 23\\n\\n\\n GEICO has taken the position that the policy is an “80/20 policy” pursuant\\n\\nto which it was required to pay the lower of 80% of the fee schedule amount or\\n\\n80% of the charged amount, while insureds are required to pay the remaining 20%\\n\\nas co-insurance. To supports its position, GEICO relied, inter alia, on a document\\n\\nmailed or provided to its PIP policyholders effective on or after January 1, 2013,\\n\\nand identified as M608 (01-13). This document was titled\\n\\n IMPORTANT NOTICE\\n\\n FEE SCHEDULE ENDORSEMENT\\n\\nand it provides in relevant part that “in no event will the Company pay more than\\n\\n80 percent” of properly billed medical expenses. GEICO asserts that M608 (01-\\n\\n13) is an endorsement and, thus, part of the policy. Gerber has argued that M608\\n\\n(01-13) is not an endorsement/part of the policy, and it further argues that FLPIP\\n\\n(01-13) provides that when a health care provider bills for services at an amount\\n\\nless than 200% of the fee schedule, GEICO must pay the charge as billed (that is,\\n\\n“in the amount of the charge submitted”) without the 20% reduction.\\n\\n Carruthers assigned his rights to his treating chiropractic clinic, Gerber,\\n\\nwhich later filed a declaratory judgment class action suit in Florida state court in\\n\\nSeptember 2016. The complaint sought certification of a class (with Gerber as the\\n\\nclass representative) along with a declaration (a) that GEICO’s interpretation of its\\n\\npolicy language was wrong, and (b) that the misinterpretation “constitutes a breach\\n\\n\\n 4\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 5 of 23\\n\\n\\nof the insurance Policy.” Although the complaint sought a declaration that GEICO\\n\\nhad breached the policy, the complaint stated that “there is no claim for monetary\\n\\nrelief” in the case.\\n\\n GEICO removed the case to the United States District Court for the\\n\\nSouthern District of Florida in November 2016, pursuant to the Class Action\\n\\nFairness Act, and Gerber filed an unsuccessful motion to remand the case for lack\\n\\nof Article III standing. The District Court appointed Gerber as class\\n\\nrepresentative, and it certified the class to include:\\n\\n All health care providers that received an assignment of\\n benefits from a claimant and thereafter, pursuant to that\\n assignment, submitted claims for no-fault benefits under\\n GEICO PIP policies to which Endorsement FLPIP (01–\\n 13) applies, and any subsequent policies with\\n substantially similar language that were in effect since\\n January 1, 2013, where GEICO utilized the Code BA\\n [billed amount] with respect to the payment of any\\n claims.\\n\\n Shortly after the action was removed to federal court, and while its motion to\\n\\nremand was pending, Gerber filed an amended complaint. The amended complaint\\n\\nwas largely the same as the original complaint, but it added another sentence to re-\\n\\nemphasize that “this action does not assert a claim for any monetary relief,” and it\\n\\ndeleted the request for a declaration that GEICO’s misinterpretation of the disputed\\n\\npolicy language “constitutes a breach of the insurance Policy.” Thus, as amended,\\n\\nthe complaint clarified that it only sought declaratory relief and that there was no\\n\\n\\n 5\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 6 of 23\\n\\n\\nclaim for breach of contract or request for money damages related thereto. In July\\n\\n2017—more than two years after the underlying car accident, and ten months after\\n\\nthe litigation was filed—Carruthers obtained an EMC medical diagnosis.\\n\\n On cross motions for summary judgment, GEICO argued, inter alia, that\\n\\nGerber lacked standing at the outset of the lawsuit because it was undisputed that\\n\\nGEICO had paid Gerber more than $2,500 before the case was filed, even though\\n\\nhe had not been diagnosed with an EMC at that time. By order dated November\\n\\n17, 2017, the District Court disagreed with GEICO and found there was standing.\\n\\nIt also ruled that M608 (01-13) was not an endorsement (but rather was merely a\\n\\nnotice) and, thus, it was not part of the policy. Applying a textual interpretation of\\n\\nthe FLPIP (01-13) endorsement, the District Court granted summary judgment for\\n\\nGerber and held that, “under the disputed provision, when a health care provider\\n\\nbills for covered services in an amount less than 200% of the fee schedule, GEICO\\n\\nis required to pay the charge as billed without any reduction.”\\n\\n GEICO now appeals, arguing that Gerber lacked standing to bring this case.\\n\\nIt further argues that the District Court erred in certifying the class; in limiting the\\n\\ndocuments that comprise the policy (that is, in failing to treat M608 (01-13) as an\\n\\nendorsement); and in ruling for Gerber on the merits as to the policy interpretation\\n\\nquestion.\\n\\n I.\\n\\n\\n 6\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 7 of 23\\n\\n\\n We must begin with the question of standing. See Kondrat’yev v. City of\\n\\nPensacola, Fla., 903 F.3d 1169, 1172 (11th Cir. 2018). If there is no standing, we\\n\\nmust end there, too. University of S. Ala. v. American Tobacco Co., 168 F.3d 405,\\n\\n410 (11th Cir. 1999) (“Simply put, once a federal court determines that [the\\n\\nplaintiff has no standing], the court is powerless to continue.”).\\n\\n We review standing determinations de novo. See, e.g., SEC v. Quest Energy\\n\\nMgmt. Group, Inc., 768 F.3d 1106, 1108 (11th Cir. 2014) (citing CAMP Legal Def.\\n\\nFund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006)). After de novo\\n\\nreview—and with the benefit of oral argument—we conclude that Gerber lacks\\n\\nstanding.\\n\\n II.\\n\\n Article III of the Constitution limits federal courts to adjudicating actual\\n\\n“cases” and “controversies.” See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984),\\n\\nabrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components,\\n\\nInc., 572 U.S. 118 (2014). The case-or-controversy requirement sets fundamental\\n\\nlimits on federal judicial power. Id. “Perhaps the most important of the Article III\\n\\ndoctrines grounded in the case-or-controversy requirement is that of standing.”\\n\\nWooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir.\\n\\n2001). Standing cannot be waived or conceded by the parties, and it may be raised\\n\\n(even by the court sua sponte) at any stage of the case. See Bender v. Williamsport\\n\\n\\n 7\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 8 of 23\\n\\n\\nArea Sch. Dist., 475 U.S. 534, 541 (1986); Harris v. Evans, 20 F.3d 1118, 1121 n.4\\n\\n(11th Cir. 1994).\\n\\n “In essence the question of standing is whether the litigant is entitled to\\n\\nhave the court decide the merits of the dispute or of particular issues.” Warth v.\\n\\nSeldin, 422 U.S. 490, 498 (1975); see also Yellow Pages Photos, Inc. v. Ziplocal,\\n\\nLP, 795 F.3d 1255, 1264 (11th Cir. 2015) (same). “The party who invokes a\\n\\nfederal court’s authority must show, at an ‘irreducible minimum,’ that at the time\\n\\nthe complaint was filed, he has suffered some actual or threatened injury resulting\\n\\nfrom the defendant’s conduct, that the injury fairly can be traced to the challenged\\n\\naction, and that the injury is likely to be redressed by favorable court disposition.”\\n\\nAtlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995).\\n\\n Echoing the “case or controversy” requirement of Article III, the Declaratory\\n\\nJudgment Act “provides that a declaratory judgment may only be issued in the case\\n\\nof an actual controversy.” See Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.\\n\\n1985) (citing 28 U.S.C. § 2201); see also Atlanta Gas Light, 68 F.3d at 414 (“In all\\n\\ncases arising under the Declaratory Judgment Act, . . . the threshold question is\\n\\nwhether a justiciable controversy exists.”). “That is, under the facts alleged, there\\n\\nmust be a substantial continuing controversy between parties having adverse legal\\n\\ninterests.” Emory, 756 F.2d at 1552. The controversy between the parties cannot\\n\\nbe “conjectural, hypothetical, or contingent; it must be real and immediate, and\\n\\n\\n 8\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 9 of 23\\n\\n\\ncreate a definite, rather than speculative threat of future injury.” Id. In order to\\n\\ndemonstrate that there is a case or controversy that satisfies Article III’s standing\\n\\nrequirement when a plaintiff is seeking declaratory relief—as opposed to seeking\\n\\ndamages for past harm—the plaintiff must allege facts from which it appears that\\n\\nthere is a “substantial likelihood that he will suffer injury in the future.” Malowney\\n\\nv. Federal Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999); accord\\n\\nStrickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (“Where the plaintiff\\n\\nseeks declaratory or injunctive relief, as opposed to damages for injuries already\\n\\nsuffered, . . . the injury-in-fact requirement insists that a plaintiff ‘allege facts from\\n\\nwhich it appears there is a substantial likelihood that he will suffer injury in the\\n\\nfuture.’”) (quoting Malowney, 193 F.3d at 1346). “Thus, in order for this Court to\\n\\nhave jurisdiction to issue a declaratory judgment, . . . [the plaintiffs] must assert a\\n\\nreasonable expectation that the injury they have suffered will continue or will be\\n\\nrepeated in the future.” Malowney, 193 F.3d at 1347; see also id. at 1348 (“Injury\\n\\nin the past . . . does not support a finding of an Article III case or controversy when\\n\\nthe only relief sought is a declaratory judgment.”). Accordingly, if a plaintiff does\\n\\nnot assert a reasonable expectation of future injury, he “lack[s] standing to bring an\\n\\naction for declaratory relief[.]” See id. at 1348.\\n\\n In this case, Gerber, as assignee, stands in Carruthers’ shoes. Houk v. C.I.R.,\\n\\n173 F.2d 821, 825 (5th Cir. 1949) (“[A]n assignee . . . stands in the same position\\n\\n\\n 9\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 10 of 23\\n\\n\\nas its assignor had stood.”). 1 It necessarily follows, then, that if Carruthers had no\\n\\nstanding to file this case against GEICO, Gerber has no standing either. Crossman\\n\\nv. Fontainebleau Hotel Corp., 273 F.2d 720, 725 (5th Cir. 1959) (“An assignee has\\n\\nno greater rights than his assignor[.]”).\\n\\n It is well-settled that “if none of the named plaintiffs purporting to represent\\n\\na class establishes the requisite of a case or controversy with the defendants, none\\n\\nmay seek relief on behalf of himself or any other member of the class.” O’Shea v.\\n\\nLittleton, 414 U.S. 488, 494 (1974); see also Prado-Steiman ex rel. Prado v. Bush,\\n\\n221 F.3d 1266, 1279-80 (11th Cir. 2000) (class representative must have individual\\n\\nstanding to raise class claims); Wooden, 247 F.3d at 1288 (claim cannot be asserted\\n\\nfor a class “‘unless at least one named plaintiff has suffered the injury that gives\\n\\nrise to that claim’”) (quoting Prado-Steiman, 221 F.3d at 1280). As we have said:\\n\\n Under elementary principles of standing, a plaintiff must\\n allege and show that he personally suffered injury. If he\\n cannot show personal injury, then no article III case or\\n controversy exists, and a federal court is powerless to\\n hear his grievance. This individual injury requirement is\\n not met by alleging that injury has been suffered by\\n other, unidentified members of the class to which the\\n plaintiff belongs and which he purports to represent.\\n Thus, a plaintiff cannot include class action allegations in\\n a complaint and expect to be relieved of personally\\n meeting the requirements of constitutional standing, even\\n if the persons described in the class definition would\\n\\n 1\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted\\nas binding precedent all Fifth Circuit decisions rendered prior to the close of business on September\\n30, 1981.\\n 10\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 11 of 23\\n\\n\\n have standing themselves to sue. A named plaintiff in a\\n class action who cannot establish the requisite case or\\n controversy between himself and the defendants simply\\n cannot seek relief for anyone—not for himself, and not\\n for any other member of the class.\\n\\nGriffin v. Dugger, 823 F.2d 1476, 1482-83 (11th Cir. 1987) (multiple citations,\\n\\nquotation marks, and brackets omitted).\\n\\n Importantly, Article III standing must be determined as of the time that the\\n\\nplaintiff’s complaint is filed. See, e.g., Arcia v. Florida Sec’y of State, 772 F.3d\\n\\n1335, 1340 (11th Cir. 2014); Focus on the Family v. Pinellas Suncoast Transit\\n\\nAuth., 344 F.3d 1263, 1275 (11th Cir. 2003) (collecting multiple cases); Atlanta\\n\\nGas Light, 68 F.3d at 414 (in determining whether there is an Article III case or\\n\\ncontroversy, “we ‘look to the state of affairs as of the filing of the complaint; a\\n\\njusticiable controversy must have existed at that time’”) (citation omitted); accord\\n\\nMorrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 616 (6th Cir. 2008) (stating\\n\\nthat standing must be evaluated “at the time the plaintiff filed his or her complaint\\n\\nand not at anytime thereafter”) (citation omitted). Florida’s standing requirement\\n\\nis the same in this respect. See Progressive Exp. Ins. Co. v. McGrath Community\\n\\nChiropractic, 913 So.2d 1281, 1284-85 (Fla. 2d DCA 2005) (citing and discussing\\n\\ncases and noting that “[a]s these cases demonstrate, the plaintiff’s lack of standing\\n\\nat the inception of the case is not a defect that may be cured by the acquisition of\\n\\nstanding after the case is filed”).\\n\\n\\n 11\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 12 of 23\\n\\n\\n III.\\n\\n GEICO argues on appeal, as it did below, that Carruthers was only entitled\\n\\nto $2,500 in PIP benefits under the policy because there was no EMC diagnosis at\\n\\nthe time the complaint was filed. Consequently, Gerber (as Carruthers’ assignee)\\n\\nwas not entitled to benefits beyond $2,500. Because GEICO paid much more than\\n\\nthat amount, Carruthers/Gerber didn’t suffer harm as a result of GEICO’s alleged\\n\\nmisapplication of its policy. According to GEICO, no matter how we interpret the\\n\\ndisputed policy language, Gerber will not be able to recover anything from GEICO\\n\\n(i.e., there was no injury to Carruthers resulting from GEICO’s conduct that can be\\n\\nfairly traced to the challenged action and redressed by a favorable court ruling),\\n\\nthereby eliminating the existence of a case or controversy. GEICO is correct.\\n\\n When an insurance company has “paid all benefits in full . . . [t]here is no\\n\\ncase or controversy[.]” Harrison v. United Mine Workers of Am. 1974 Ben. Plan\\n\\n& Trust, 941 F.2d 1190, 1193 (11th Cir. 1991); 2 accord Progressive Am. Ins. Co.\\n\\n\\n\\n 2\\n We recognize that there was “no case or controversy” in Harrison because the case was\\nrendered moot after the insurer paid benefits in full while the case was pending, unlike this case\\nwhere the benefits were paid in full pre-suit. But that is a distinction without a difference. As\\nProfessor Monaghan has observed, the justiciability doctrines of standing and mootness “share\\nthe same root.” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale\\nL.J. 1363, 1384 (1973). The Supreme Court has described mootness as merely “‘the doctrine of\\nstanding set in a time frame: The requisite personal interest that must exist at the commencement\\nof the litigation (standing) must continue throughout its existence (mootness).’” United States\\nParole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, supra). If a case\\nbecomes non-justiciable because an insurer has paid full benefits while the case is pending (as in\\nHarrison), the case should be non-justiciable if it is undisputed that the benefits were paid before\\nthe case was even filed (as here). To hold otherwise would mean that if GEICO had denied PIP\\n 12\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 13 of 23\\n\\n\\nv. Stand-Up MRI of Orlando, 990 So.2d 3, 4 (Fla. 5th DCA 2008) (“a PIP insurer is\\n\\nnot liable for benefits once benefits have been exhausted”); Neighborhood Health\\n\\nP’ship Inc. v. Fischer, 913 So.2d 703, 705 (Fla. 3d DCA 2005) (trial court abused\\n\\nits discretion in certifying a class action “where the uncontroverted evidence is\\n\\nclear that Dr. Fischer lacks standing to serve as a class representative because he\\n\\nhas no claim for damages against NHP, and, indeed, may in fact owe a refund to\\n\\nNHP for claims overpaid to him”); Graham v. State Farm Fire & Cas. Co., 813\\n\\nSo.2d 273, 274 (Fla. 5th DCA 2002) (“The conceded facts show that the Grahams\\n\\nwere paid in full two years prior to the filing of the class claims. . . . Based on the\\n\\nconceded facts, there is no existing dispute between the Grahams and State Farm\\n\\nthat would give the Grahams standing to proceed on behalf of other potential\\n\\nplaintiffs with similar disputes.”); Ramon v. Aries Ins. Co., 769 So.2d 1053 (Fla.\\n\\n3d DCA 2000) (policyholder who received full payment of PIP benefits lacked\\n\\nstanding to pursue class action claim).\\n\\n In finding that Gerber had standing in the order under review, the District\\n\\nCourt relied on a single case: Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir.\\n\\n2008). Based on that case, the District Court held that GEICO’s pre-suit (and pre-\\n\\nEMC) payment in excess of the statutory cap didn’t implicate standing, but, rather,\\n\\n\\n\\nbenefits pre-suit but then paid Gerber $7,311 shortly after the case was filed, the case would have\\nbecome moot and thus non-justiciable, but undisputed evidence showing that those same benefits\\nwere paid before the case was filed wouldn’t raise any justiciability concerns.\\n 13\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 14 of 23\\n\\n\\nit was an exhaustion of benefits affirmative defense. The District Court’s reliance\\n\\non Mills was misplaced.\\n\\n The plaintiffs in that case, Dale and Diane Mills, owned a mobile home that\\n\\nwas insured under a policy issued by the defendant, Foremost Insurance Company.\\n\\nThey filed a class action alleging that Foremost had failed to pay them (and other\\n\\ninsureds) for overhead, profit, and taxes after they sustained hurricane-damaged\\n\\nlosses, and they sought compensation for those “Withheld Payments.” Notably—\\n\\nand in contrast to this action—the plaintiffs in Mills were seeking both declaratory\\n\\nrelief and damages for breach of contract. The defendant argued that the plaintiffs\\n\\nhad failed to satisfy certain preconditions in the policy that allegedly required them\\n\\nto complete repair or replacement of their damaged property first and then submit a\\n\\nrepair or replacement cost claim to the insurance company before entitling them to\\n\\nthe Withheld Payments. Foremost argued that the Millses’ failure to do so\\n\\ndeprived them of standing, and the District Court agreed.\\n\\n In reversing, we began by holding the District Court erred in interpreting the\\n\\npolicy to require that the Millses jump through the aforementioned hoops. See 511\\n\\nF.3d at 1304-06 (rejecting the district court’s conclusion that preconditions in the\\n\\npolicy required the Millses to complete repair or replacement of their damaged\\n\\nproperty and to submit such a replacement cost claim to be entitled to the Withheld\\n\\nPayments). We then continued:\\n\\n\\n 14\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 15 of 23\\n\\n\\n The district court also erred in treating these particular\\n insurance coverage issues under the Policy as standing\\n issues. The complaint alleges that the Millses had a\\n mobile home, that Foremost issued an insurance policy\\n covering hurricane damage to the mobile home, that a\\n hurricane damaged the Millses’ mobile home, that the\\n Millses made a claim under the Policy for those damages,\\n and that Foremost paid less on the claim than the Millses\\n contend they are owed. Thus, the Millses clearly had\\n standing to sue for damages under the Policy. See\\n Wooden v. Bd. of Regents, 247 F.3d 1262, 1273-74 (11th\\n Cir. 2001) (stating that standing is essentially a\\n determination of “whether the litigant is entitled to have\\n the court decide the merits of the dispute or of particular\\n issues,” and requires that a plaintiff have suffered a\\n concrete, particularized injury that is caused by the\\n challenged action of the defendant and can be redressed\\n by a favorable court decision).\\n\\n Whether the Withheld Payments were covered by the\\n Policy is an issue of whether the Millses’ complaint fails\\n to state a claim for relief under the Policy—not a\\n standing issue. Whether the Millses’ complaint pled\\n sufficient facts is likewise a failure-to-state-a-claim issue.\\n We thus reject Foremost’s standing arguments as to the\\n Millses’ individual claims against Foremost on this basis\\n as well.\\n\\n\\nId. at 1306-07 (emphasis added).\\n\\n Therefore, Mills was not (as here) an exhaustion of benefits case. Rather, it\\n\\nwas a coverage dispute that included a breach of contract claim seeking damages\\n\\narising out of that dispute. This distinction is critical because if the plaintiffs had\\n\\nprevailed in Mills, they would have been entitled to the Withheld Payments. Thus,\\n\\nwe found there that “the Millses clearly had standing to sue for damages under the\\n 15\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 16 of 23\\n\\n\\nPolicy” because the plaintiffs alleged that the insurer “paid [them] less on the claim\\n\\nthan [they] contend they are owed,” and a ruling in their favor on that point would\\n\\nentitle them to the money owed. 511 F.3d at 1307 (emphasis added). By contrast,\\n\\nwhen insurance benefits are fully exhausted (as here, and as in certain of the cases\\n\\ncited supra), there is no case or controversy because no money is owed regardless\\n\\nof how the case is ultimately decided. See, e.g., Harrison, 941 F.2d at 1193. Mills\\n\\nwould apply if Gerber alleged breach of contract and sought damages. But, it\\n\\nspecifically tailored its complaint to avoid such allegations. 3\\n\\n\\n\\n 3\\n In her concurring opinion, Judge Branch believes it is irrelevant that GEICO paid in\\nexcess of the PIP limit because Gerber is not seeking money damages. While it is true—as we\\nhave noted several times—that Gerber is not seeking money damages for unpaid benefits in this\\ncase, Gerber has made clear in its brief, in its notice of supplemental authority, and during oral\\nargument that the declaratory relief it seeks is merely a precursor to a claim for money damages\\nin subsequent cases. See Appellee Brief at 45 (“declaratory relief may serve ‘as a predicate for\\nlater monetary relief’”) (quoting Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th\\nCir. 2012)); Notice of Supplemental Authority, dated December 5, 2018 (noting “‘a declaratory\\njudgment is normally a prelude to a request for other relief’”) (quoting Berger v. Xerox Corp.\\nRetirement Income Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003)); Oral Argument\\n18:40-18:56 (“The declaratory relief, as we say in the cases cited in the supplemental authority\\n[Berger] and in the Gooch case from the Sixth Circuit that I want to focus on, all make it clear\\nthat there’s nothing unusual about having declaratory relief as a precursor to monetary relief”).\\nConsistent with the foregoing, counsel for Gerber expressly said at oral argument that if their\\ninterpretation of GEICO’s policy is correct and Gerber prevails in this lawsuit, the “monetary\\nclaims . . . will come” later. Oral Argument 20:30-20:35. We understand this argument (that\\nthere are viable claims for damages that will be raised in the future) to potentially implicate the\\nstanding issue. If Gerber were to win on the merits, monetary claims may indeed come later\\n(and there may be standing) for class members who were underpaid as the result of GEICO’s\\nmisinterpretation of its policy language. However, it is undisputed that when the complaint was\\nfiled (the only time that matters) Carruthers (the only person who matters) was paid more in PIP\\nbenefits than he was entitled to. See, e.g., Appellee Brief at 29 (acknowledging that GEICO\\n“voluntarily pa[id] Gerber $7,311 with no EMC determination when Gerber made its insurance\\nclaims”). Thus, there is no monetary claim for Gerber as Carruthers’ assignee, and there will be\\nno such claim in the future for Carruthers—even though he was diagnosed with an EMC after\\nthis case was filed—because standing must be determined as of the time of filing. That is why\\n 16\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 17 of 23\\n\\n\\n This is not to say, of course, that to have standing to pursue a declaratory\\n\\njudgment action the complaint must seek monetary relief. It doesn’t have to seek\\n\\nsuch relief. As earlier noted, however, when a plaintiff is seeking declaratory\\n\\nrelief without a claim for money damages for injuries already suffered, the plaintiff\\n\\nmust allege facts from which it appears that there is a substantial likelihood that he\\n\\nwill suffer injury in the future. E.g., Strickland, 772 F.3d at 883. Gerber has not\\n\\nalleged such facts here. Quite to the contrary, a review of Gerber’s motion to\\n\\nremand indicates that it specifically tailored its complaint to avoid alleging future\\n\\ninjury (as it did with the money damages). Indeed, Gerber unequivocally stated in\\n\\nits motion that “Plaintiff does not make any claim in the complaint that there is a\\n\\nrisk of future injury.” See Remand Mot. at 9 (emphasis added). 4\\n\\n Gerber now argues—directly contrary to what it previously argued—that\\n\\nthere is a risk of future injury here. Specifically, Gerber argues that the dispute\\n\\nabout the policy language will continue or be repeated in the future, and it will\\n\\ninjure Gerber and other chiropractors insofar as they don’t know whether to tell\\n\\ntheir patients that GEICO is responsible for the full 100% of the relevant charges,\\n\\n\\nthe exhaustion of benefits issue is relevant and why we have discussed it, even though money\\ndamages are not being sought in this litigation.\\n 4\\n Ironically, it appears that Gerber didn’t allege future injury because it knew that doing\\nso would implicate federal jurisdiction, and it wanted to avoid federal court and stay in Florida\\nstate court. See Remand Mot. at 7-9 (arguing that federal courts lack Article III jurisdiction over\\ndeclaratory judgment actions if there is no claim for money damages or future injury—neither of\\nwhich, Gerber argued, was present in this case—but “the Florida Declaratory Judgment Act is\\nmuch more expansive and permits a claim similar to this action”).\\n 17\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 18 of 23\\n\\n\\nor whether the patients are responsible for 20%. See Oral Argument 19:16-20:23.\\n\\nThis is significant, Gerber’s counsel noted during oral argument, as evidenced by\\n\\nthe fact that GEICO had indirectly accused Gerber of insurance fraud in this case\\n\\nfor not attempting to collect the 20% from Carruthers, and such accusations could\\n\\nadversely impact its license in the future. See id. at 19:10-20:13.5\\n\\n Whether and to what extent Gerber might be injured is beside the point\\n\\nbecause the proper inquiry in this case must focus on the potential future injury to\\n\\nCarruthers, not to Gerber or other members of the class. Cf. Kostelac v. Allianz\\n\\nGlobal Corp. & Specialty AG, 517 F. App’x 670, 675-76 (11th Cir. 2013) (stating\\n\\nthat because an assignee must stand in the shoes of the assignor, and he has no\\n\\nrights greater than the assignor, “the relevant inquiry” must focus on the assignor,\\n\\nand it is “misguided” to “shift the . . . inquiry” to the assignee) (citing Crossman,\\n\\n273 F.2d at 725; Houk, 173 F.2d at 825).6 And we can see no potential future\\n\\nthreat to Carruthers, other than the possibility that he may someday be in another\\n\\ncar accident; sustain an injury entitling him to PIP benefits; and still be insured by\\n\\nGEICO under the same or a similar policy being interpreted the same way, thereby\\n\\n\\n 5\\n Gerber also points out in its brief that GEICO argued early on in this lawsuit (when it\\nremoved the action to federal court) that Gerber did have standing. As we have already noted,\\nhowever, standing cannot be waived or conceded, and we must independently decide whether it\\nexists.\\n 6\\n Although an unpublished opinion is not binding, it may be cited as persuasive authority.\\nSee, e.g., Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018) (citing\\nUnited States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000), in turn citing 11th Cir. R. 36-2).\\n 18\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 19 of 23\\n\\n\\nhaving this issue present itself again. But, that is too contingent to constitute a\\n\\n“substantial likelihood” of future injury. See, e.g., Emory, 756 F.2d at 1552 (to\\n\\nsatisfy Article III, the case or controversy cannot be “conjectural, hypothetical, or\\n\\ncontingent; it must be real and immediate, and create a definite, rather than\\n\\nspeculative threat of future injury”).\\n\\n In the absence of a claim for money damages or substantial likelihood that\\n\\nCarruthers will suffer a future injury—both of which Gerber was careful to avoid\\n\\nalleging here—Gerber has no standing to pursue this case.\\n\\n IV.\\n\\n We recognize that this appeal raises an important issue for GEICO’s Florida\\n\\nPIP policyholders and for medical providers treating them. And we recognize, too,\\n\\nthat the lawsuit has been pending for several years and has consumed a lot of both\\n\\njudicial and attorney resources. If we could, we would reach the merits and give\\n\\nfinality to the questions presented. But we cannot. “‘In the absence of standing, a\\n\\ncourt is not free to opine in an advisory capacity about the merits of a plaintiff’s\\n\\nclaims.’” CAMP Legal Def. Fund, 451 F.3d at 1269 (quoting Bochese v. Town of\\n\\nPonce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). Again, “standing is ‘perhaps the\\n\\nmost important’ jurisdictional doctrine, and, as with any jurisdictional requisite, we\\n\\nare powerless to hear a case when it is lacking.” Bochese, 405 F.3d at 974 (citation\\n\\nomitted). Because we have no jurisdiction to entertain this suit, and neither did the\\n\\n\\n 19\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 20 of 23\\n\\n\\nDistrict Court, the decision below must be reversed and the case remanded with\\n\\ninstructions to dismiss the complaint for lack of standing.\\n\\n REVERSED AND REMANDED, WITH INSTRUCTIONS TO\\n\\nDISMISS.\\n\\n\\n\\n\\n 20\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 21 of 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389103/\", \"author_raw\": \"VINSON, District Judge:\"}, {\"author\": \"BRANCH, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BRANCH, Circuit Judge, concurring in part and concurring in the judgment:\\n\\n I concur with the judgment in full and with the panel opinion except for the\\n\\nportion that analyzes exhaustion of benefits. I find that analysis irrelevant given\\n\\nthat Gerber seeks only declaratory relief.\\n\\n The oddness of this case calls for special emphasis. Gerber has deployed a\\n\\nvariety of tactics that make it hard to believe a case like this one will ever arise\\n\\nagain. In particular, Gerber vigorously argued in the district court that it lacked\\n\\nArticle III standing, and in doing so it expressly disclaimed any interest in future\\n\\nrelief. Nevertheless, Gerber decided to avoid the rigors of Rule 23(b)(3) of the\\n\\nFederal Rules of Civil Procedure and to move to certify a class only under Rule\\n\\n23(b)(2)—a rule intended, in part, to confer the prospective relief Gerber had\\n\\ndisclaimed. 1\\n\\n\\n\\n\\n 1\\n If a class action meets certain prerequisites laid out in Rule 23(a), a class action may be\\nmaintained under one of Rule 23(b)’s three provisions. Rule 23(b)(1) is not relevant here. Rule\\n23(b)(2) provides for a class action if “the party opposing the class has acted or refused to act on\\ngrounds that apply generally to the class, so that final injunctive relief or corresponding\\ndeclaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(3) provides for a\\nclass action if “the court finds that the questions of law or fact common to class members\\npredominate over any questions affecting only individual members, and that a class action is\\nsuperior to other available methods for fairly and efficiently adjudicating the controversy.” As\\nthe Supreme Court has explained, the “procedural protections attending the (b)(3) class—\\npredominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2)\\n. . . .” Wal-Mart Stores v. Dukes, 564 U.S. 338, 362 (2011).\\n 21\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 22 of 23\\n\\n\\n With these things in mind, I agree with the panel that Gerber—and by\\n\\nextension Carruthers 2—lacks standing. But I agree only with the panel’s analysis\\n\\nthat concludes that Gerber and Carruthers lack an interest in future relief. I believe\\n\\nthat analysis is dispositive on its own.\\n\\n Gerber and Carruthers seek only a declaration that the PIP requires GEICO\\n\\nto pay 100% of certain charges rather than 80%. The only thing that matters, then,\\n\\nis whether Gerber and Carruthers have an interest in any future relief conferred by\\n\\nthe declaration they seek. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d\\n\\n1342, 1346 (11th Cir. 1999) (“In order to demonstrate that a case or controversy\\n\\nexists to meet the Article III standing requirement when a plaintiff is seeking\\n\\ninjunctive or declaratory relief, a plaintiff must allege facts from which it appears\\n\\nthere is a substantial likelihood that he will suffer injury in the future.”); id. at 1348\\n\\n(“Injury in the past . . . does not support a finding of an Article III case or\\n\\ncontroversy when the only relief sought is a declaratory judgment.”).\\n\\n The panel correctly explains that a plaintiff need not seek monetary relief in\\n\\na declaratory judgment action. Yet the panel believes that it matters whether\\n\\n\\n 2\\n I agree with the panel that Gerber stands in Carruthers’s shoes as assignee. But that is\\nnot how the issue is framed, as Gerber purports to represent a class of healthcare providers that\\nreceived an assignment of benefits. The district court’s declaration also focuses on those\\nproviders. See A & M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 291 F. Supp. 3d 1318,\\n1344 (S.D. Fla. 2017) (“[I]f a provider submits a bill to GEICO that is less than 200 percent of\\nthe applicable fee schedule, GEICO shall pay the provider 100 percent of the amount billed.”).\\nUltimately, we need not resolve the confusion. Neither Gerber nor Carruthers has standing to\\nseek declaratory relief in this case—on behalf of themselves or anyone else.\\n 22\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 23 of 23\\n\\n\\nGerber and Carruthers were paid beyond the PIP limit. The panel reasons that if\\n\\nGerber and Carruthers have exhausted their benefits, they have not suffered an\\n\\ninjury and will not benefit from a favorable declaration.\\n\\n The problem is that, contrary to GEICO’s and the panel’s assertion, this case\\n\\nis not about exhaustion of benefits. Again, Gerber’s operative complaint seeks\\n\\nonly a declaratory judgment regarding how GEICO should pay certain charges.\\n\\nYet Gerber has disclaimed the notion that GEICO will underpay it in the future.\\n\\nSee Doc. 7 at 7–9; Doc. 40 at 4. That disclaimer, not any money GEICO has paid\\n\\nGerber in the past, is why Gerber lacks standing.\\n\\n In short, it does not matter how much money Gerber and Carruthers have\\n\\nbeen paid. For that reason, the panel’s discussion of mootness is also irrelevant.\\n\\nGEICO could not buy its way out of this declaratory judgment action—before or\\n\\nafter the action began. A declaratory judgment lawsuit requires the plaintiff to\\n\\nprove a substantial likelihood of future harm. Gerber has disclaimed any such\\n\\nharm. The panel and I agree on this point. But I believe it should be the beginning\\n\\nand end of our standing inquiry.\\n\\n\\n\\n\\n 23\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389103/\", \"author_raw\": \"BRANCH, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"WILSON"},"judge2":{"kind":"string","value":"BRANCH"},"judge3":{"kind":"string","value":"VINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILSON\": \", Circuit\", \"BRANCH\": \", Circuit\", \"VINSON\": \", District\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4611850/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: A&M GERBER CHIROPRACTIC LLC, as Assignee of Conor Carruthers, on Behalf of Itself and All Others Similarly Situated, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15606 Date Filed: 04/19/2019 Page: 1 of 23\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15606\n ________________________\n\n D.C. Docket No. 0:16-cv-62610-BB\n\n\nA&M GERBER CHIROPRACTIC LLC,\nas assignee of Conor Carruthers, on behalf\nof itself and all others similarly situated,\n\n Plaintiff - Appellee,\n\nversus\n\nGEICO GENERAL INSURANCE COMPANY,\n\n Defendant - Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 19, 2019)\n\nBefore WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.\n\n\n\n ∗Honorable C. Roger Vinson, United States District Judge for the Northern District of\nFlorida, sitting by designation.\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 2 of 23\n\n\nVINSON, District Judge:\n\n Conor Carruthers was involved in a car accident on March 18, 2015, after\n\nwhich he sought medical services from A&M Gerber Chiropractic LLC. At the\n\ntime, Carruthers was covered under an automobile insurance policy issued by\n\nGEICO General Insurance Company. Pursuant to Florida’s Motor Vehicle No-\n\nFault Law, the policy provided him with $10,000 in personal injury protection\n\n(PIP) benefits. See Fla. Stat. § 627.736(1) (mandating that automobile insurers\n\nprovide PIP benefits “to a limit of $10,000”). To be entitled to the full $10,000,\n\nhowever, the statute required that Carruthers—like all PIP beneficiaries—be\n\ndiagnosed by an authorized health care provider with an “emergency medical\n\ncondition” (EMC); without such a diagnosis, he was limited to $2,500 in benefits.\n\nSee id. at § 627.736(1)(a)(3)-(4); Robbins v. Garrison Prop. & Cas. Ins. Co., 809\n\nF.3d 583, 587-88 (11th Cir. 2015) (holding in consolidated appeal that “[b]ecause\n\nneither Robbins’ nor Enivert’s claim was supported by [an EMC determination],\n\nneither Garrison nor Progressive violated Fla. Stat. § 627.736 by limiting benefits\n\nto $2,500”); accord, e.g., Progressive Am. Ins. Co. v. Eduardo J. Garrido D.C.,\n\nP.A., 211 So.3d 1086, 1093 (Fla. 3d DCA 2017); Medical Ctr. of Palm Beaches v.\n\nUSAA Cas. Ins. Co., 202 So.3d 88, 92-93 (Fla. 4th DCA 2016); McCarty v. Myers,\n\n125 So.3d 333, 335 (Fla. 1st DCA 2013).\n\n\n\n\n 2\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 3 of 23\n\n\n It is undisputed that Carruthers was not diagnosed with an EMC at the time\n\nthis case was filed. It is also undisputed that, despite the lack of an EMC finding,\n\nGEICO paid Carruthers/Gerber $7,311 in PIP benefits pre-suit, well in excess of\n\nthe $2,500 cap. Even though Carruthers received almost triple the amount in PIP\n\nbenefits that he was entitled to, Gerber believed that GEICO had misinterpreted\n\ncertain language in its automobile policies and that this misinterpretation resulted\n\nin GEICO consistently underpaying PIP benefits as a “general business practice.”\n\n Specifically, the policy contains an endorsement identified as FLPIP (01-\n\n13), and that endorsement (under the heading “PAYMENTS WE WILL MAKE”)\n\nreferences fee schedules pursuant to which GEICO will pay 80% of benefits that\n\nare medically necessary. The endorsement goes on to state: “For all other medical\n\nservices, supplies, and care [GEICO will pay] 200 percent of the allowable amount\n\nunder [a Medicare Part B fee schedule],” subject to a limitation of 80% of the\n\n“maximum reimbursable allowance under workers’ compensation . . . .” Below\n\nthat statement, GEICO added the following: “A charge submitted by a provider,\n\nfor an amount less than the amount allowed above, shall be paid in the amount of\n\nthe charge submitted.” The underlying dispute in this case hinges on whether this\n\nsingle sentence is the operative language of the policy for health care provider bills\n\nof less than 200% of the fee schedule.\n\n\n\n\n 3\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 4 of 23\n\n\n GEICO has taken the position that the policy is an “80/20 policy” pursuant\n\nto which it was required to pay the lower of 80% of the fee schedule amount or\n\n80% of the charged amount, while insureds are required to pay the remaining 20%\n\nas co-insurance. To supports its position, GEICO relied, inter alia, on a document\n\nmailed or provided to its PIP policyholders effective on or after January 1, 2013,\n\nand identified as M608 (01-13). This document was titled\n\n IMPORTANT NOTICE\n\n FEE SCHEDULE ENDORSEMENT\n\nand it provides in relevant part that “in no event will the Company pay more than\n\n80 percent” of properly billed medical expenses. GEICO asserts that M608 (01-\n\n13) is an endorsement and, thus, part of the policy. Gerber has argued that M608\n\n(01-13) is not an endorsement/part of the policy, and it further argues that FLPIP\n\n(01-13) provides that when a health care provider bills for services at an amount\n\nless than 200% of the fee schedule, GEICO must pay the charge as billed (that is,\n\n“in the amount of the charge submitted”) without the 20% reduction.\n\n Carruthers assigned his rights to his treating chiropractic clinic, Gerber,\n\nwhich later filed a declaratory judgment class action suit in Florida state court in\n\nSeptember 2016. The complaint sought certification of a class (with Gerber as the\n\nclass representative) along with a declaration (a) that GEICO’s interpretation of its\n\npolicy language was wrong, and (b) that the misinterpretation “constitutes a breach\n\n\n 4\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 5 of 23\n\n\nof the insurance Policy.” Although the complaint sought a declaration that GEICO\n\nhad breached the policy, the complaint stated that “there is no claim for monetary\n\nrelief” in the case.\n\n GEICO removed the case to the United States District Court for the\n\nSouthern District of Florida in November 2016, pursuant to the Class Action\n\nFairness Act, and Gerber filed an unsuccessful motion to remand the case for lack\n\nof Article III standing. The District Court appointed Gerber as class\n\nrepresentative, and it certified the class to include:\n\n All health care providers that received an assignment of\n benefits from a claimant and thereafter, pursuant to that\n assignment, submitted claims for no-fault benefits under\n GEICO PIP policies to which Endorsement FLPIP (01–\n 13) applies, and any subsequent policies with\n substantially similar language that were in effect since\n January 1, 2013, where GEICO utilized the Code BA\n [billed amount] with respect to the payment of any\n claims.\n\n Shortly after the action was removed to federal court, and while its motion to\n\nremand was pending, Gerber filed an amended complaint. The amended complaint\n\nwas largely the same as the original complaint, but it added another sentence to re-\n\nemphasize that “this action does not assert a claim for any monetary relief,” and it\n\ndeleted the request for a declaration that GEICO’s misinterpretation of the disputed\n\npolicy language “constitutes a breach of the insurance Policy.” Thus, as amended,\n\nthe complaint clarified that it only sought declaratory relief and that there was no\n\n\n 5\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 6 of 23\n\n\nclaim for breach of contract or request for money damages related thereto. In July\n\n2017—more than two years after the underlying car accident, and ten months after\n\nthe litigation was filed—Carruthers obtained an EMC medical diagnosis.\n\n On cross motions for summary judgment, GEICO argued, inter alia, that\n\nGerber lacked standing at the outset of the lawsuit because it was undisputed that\n\nGEICO had paid Gerber more than $2,500 before the case was filed, even though\n\nhe had not been diagnosed with an EMC at that time. By order dated November\n\n17, 2017, the District Court disagreed with GEICO and found there was standing.\n\nIt also ruled that M608 (01-13) was not an endorsement (but rather was merely a\n\nnotice) and, thus, it was not part of the policy. Applying a textual interpretation of\n\nthe FLPIP (01-13) endorsement, the District Court granted summary judgment for\n\nGerber and held that, “under the disputed provision, when a health care provider\n\nbills for covered services in an amount less than 200% of the fee schedule, GEICO\n\nis required to pay the charge as billed without any reduction.”\n\n GEICO now appeals, arguing that Gerber lacked standing to bring this case.\n\nIt further argues that the District Court erred in certifying the class; in limiting the\n\ndocuments that comprise the policy (that is, in failing to treat M608 (01-13) as an\n\nendorsement); and in ruling for Gerber on the merits as to the policy interpretation\n\nquestion.\n\n I.\n\n\n 6\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 7 of 23\n\n\n We must begin with the question of standing. See Kondrat’yev v. City of\n\nPensacola, Fla., 903 F.3d 1169, 1172 (11th Cir. 2018). If there is no standing, we\n\nmust end there, too. University of S. Ala. v. American Tobacco Co., 168 F.3d 405,\n\n410 (11th Cir. 1999) (“Simply put, once a federal court determines that [the\n\nplaintiff has no standing], the court is powerless to continue.”).\n\n We review standing determinations de novo. See, e.g., SEC v. Quest Energy\n\nMgmt. Group, Inc., 768 F.3d 1106, 1108 (11th Cir. 2014) (citing CAMP Legal Def.\n\nFund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006)). After de novo\n\nreview—and with the benefit of oral argument—we conclude that Gerber lacks\n\nstanding.\n\n II.\n\n Article III of the Constitution limits federal courts to adjudicating actual\n\n“cases” and “controversies.” See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984),\n\nabrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components,\n\nInc., 572 U.S. 118 (2014). The case-or-controversy requirement sets fundamental\n\nlimits on federal judicial power. Id. “Perhaps the most important of the Article III\n\ndoctrines grounded in the case-or-controversy requirement is that of standing.”\n\nWooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir.\n\n2001). Standing cannot be waived or conceded by the parties, and it may be raised\n\n(even by the court sua sponte) at any stage of the case. See Bender v. Williamsport\n\n\n 7\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 8 of 23\n\n\nArea Sch. Dist., 475 U.S. 534, 541 (1986); Harris v. Evans, 20 F.3d 1118, 1121 n.4\n\n(11th Cir. 1994).\n\n “In essence the question of standing is whether the litigant is entitled to\n\nhave the court decide the merits of the dispute or of particular issues.” Warth v.\n\nSeldin, 422 U.S. 490, 498 (1975); see also Yellow Pages Photos, Inc. v. Ziplocal,\n\nLP, 795 F.3d 1255, 1264 (11th Cir. 2015) (same). “The party who invokes a\n\nfederal court’s authority must show, at an ‘irreducible minimum,’ that at the time\n\nthe complaint was filed, he has suffered some actual or threatened injury resulting\n\nfrom the defendant’s conduct, that the injury fairly can be traced to the challenged\n\naction, and that the injury is likely to be redressed by favorable court disposition.”\n\nAtlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995).\n\n Echoing the “case or controversy” requirement of Article III, the Declaratory\n\nJudgment Act “provides that a declaratory judgment may only be issued in the case\n\nof an actual controversy.” See Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.\n\n1985) (citing 28 U.S.C. § 2201); see also Atlanta Gas Light, 68 F.3d at 414 (“In all\n\ncases arising under the Declaratory Judgment Act, . . . the threshold question is\n\nwhether a justiciable controversy exists.”). “That is, under the facts alleged, there\n\nmust be a substantial continuing controversy between parties having adverse legal\n\ninterests.” Emory, 756 F.2d at 1552. The controversy between the parties cannot\n\nbe “conjectural, hypothetical, or contingent; it must be real and immediate, and\n\n\n 8\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 9 of 23\n\n\ncreate a definite, rather than speculative threat of future injury.” Id. In order to\n\ndemonstrate that there is a case or controversy that satisfies Article III’s standing\n\nrequirement when a plaintiff is seeking declaratory relief—as opposed to seeking\n\ndamages for past harm—the plaintiff must allege facts from which it appears that\n\nthere is a “substantial likelihood that he will suffer injury in the future.” Malowney\n\nv. Federal Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999); accord\n\nStrickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (“Where the plaintiff\n\nseeks declaratory or injunctive relief, as opposed to damages for injuries already\n\nsuffered, . . . the injury-in-fact requirement insists that a plaintiff ‘allege facts from\n\nwhich it appears there is a substantial likelihood that he will suffer injury in the\n\nfuture.’”) (quoting Malowney, 193 F.3d at 1346). “Thus, in order for this Court to\n\nhave jurisdiction to issue a declaratory judgment, . . . [the plaintiffs] must assert a\n\nreasonable expectation that the injury they have suffered will continue or will be\n\nrepeated in the future.” Malowney, 193 F.3d at 1347; see also id. at 1348 (“Injury\n\nin the past . . . does not support a finding of an Article III case or controversy when\n\nthe only relief sought is a declaratory judgment.”). Accordingly, if a plaintiff does\n\nnot assert a reasonable expectation of future injury, he “lack[s] standing to bring an\n\naction for declaratory relief[.]” See id. at 1348.\n\n In this case, Gerber, as assignee, stands in Carruthers’ shoes. Houk v. C.I.R.,\n\n173 F.2d 821, 825 (5th Cir. 1949) (“[A]n assignee . . . stands in the same position\n\n\n 9\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 10 of 23\n\n\nas its assignor had stood.”). 1 It necessarily follows, then, that if Carruthers had no\n\nstanding to file this case against GEICO, Gerber has no standing either. Crossman\n\nv. Fontainebleau Hotel Corp., 273 F.2d 720, 725 (5th Cir. 1959) (“An assignee has\n\nno greater rights than his assignor[.]”).\n\n It is well-settled that “if none of the named plaintiffs purporting to represent\n\na class establishes the requisite of a case or controversy with the defendants, none\n\nmay seek relief on behalf of himself or any other member of the class.” O’Shea v.\n\nLittleton, 414 U.S. 488, 494 (1974); see also Prado-Steiman ex rel. Prado v. Bush,\n\n221 F.3d 1266, 1279-80 (11th Cir. 2000) (class representative must have individual\n\nstanding to raise class claims); Wooden, 247 F.3d at 1288 (claim cannot be asserted\n\nfor a class “‘unless at least one named plaintiff has suffered the injury that gives\n\nrise to that claim’”) (quoting Prado-Steiman, 221 F.3d at 1280). As we have said:\n\n Under elementary principles of standing, a plaintiff must\n allege and show that he personally suffered injury. If he\n cannot show personal injury, then no article III case or\n controversy exists, and a federal court is powerless to\n hear his grievance. This individual injury requirement is\n not met by alleging that injury has been suffered by\n other, unidentified members of the class to which the\n plaintiff belongs and which he purports to represent.\n Thus, a plaintiff cannot include class action allegations in\n a complaint and expect to be relieved of personally\n meeting the requirements of constitutional standing, even\n if the persons described in the class definition would\n\n 1\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted\nas binding precedent all Fifth Circuit decisions rendered prior to the close of business on September\n30, 1981.\n 10\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 11 of 23\n\n\n have standing themselves to sue. A named plaintiff in a\n class action who cannot establish the requisite case or\n controversy between himself and the defendants simply\n cannot seek relief for anyone—not for himself, and not\n for any other member of the class.\n\nGriffin v. Dugger, 823 F.2d 1476, 1482-83 (11th Cir. 1987) (multiple citations,\n\nquotation marks, and brackets omitted).\n\n Importantly, Article III standing must be determined as of the time that the\n\nplaintiff’s complaint is filed. See, e.g., Arcia v. Florida Sec’y of State, 772 F.3d\n\n1335, 1340 (11th Cir. 2014); Focus on the Family v. Pinellas Suncoast Transit\n\nAuth., 344 F.3d 1263, 1275 (11th Cir. 2003) (collecting multiple cases); Atlanta\n\nGas Light, 68 F.3d at 414 (in determining whether there is an Article III case or\n\ncontroversy, “we ‘look to the state of affairs as of the filing of the complaint; a\n\njusticiable controversy must have existed at that time’”) (citation omitted); accord\n\nMorrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 616 (6th Cir. 2008) (stating\n\nthat standing must be evaluated “at the time the plaintiff filed his or her complaint\n\nand not at anytime thereafter”) (citation omitted). Florida’s standing requirement\n\nis the same in this respect. See Progressive Exp. Ins. Co. v. McGrath Community\n\nChiropractic, 913 So.2d 1281, 1284-85 (Fla. 2d DCA 2005) (citing and discussing\n\ncases and noting that “[a]s these cases demonstrate, the plaintiff’s lack of standing\n\nat the inception of the case is not a defect that may be cured by the acquisition of\n\nstanding after the case is filed”).\n\n\n 11\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 12 of 23\n\n\n III.\n\n GEICO argues on appeal, as it did below, that Carruthers was only entitled\n\nto $2,500 in PIP benefits under the policy because there was no EMC diagnosis at\n\nthe time the complaint was filed. Consequently, Gerber (as Carruthers’ assignee)\n\nwas not entitled to benefits beyond $2,500. Because GEICO paid much more than\n\nthat amount, Carruthers/Gerber didn’t suffer harm as a result of GEICO’s alleged\n\nmisapplication of its policy. According to GEICO, no matter how we interpret the\n\ndisputed policy language, Gerber will not be able to recover anything from GEICO\n\n(i.e., there was no injury to Carruthers resulting from GEICO’s conduct that can be\n\nfairly traced to the challenged action and redressed by a favorable court ruling),\n\nthereby eliminating the existence of a case or controversy. GEICO is correct.\n\n When an insurance company has “paid all benefits in full . . . [t]here is no\n\ncase or controversy[.]” Harrison v. United Mine Workers of Am. 1974 Ben. Plan\n\n& Trust, 941 F.2d 1190, 1193 (11th Cir. 1991); 2 accord Progressive Am. Ins. Co.\n\n\n\n 2\n We recognize that there was “no case or controversy” in Harrison because the case was\nrendered moot after the insurer paid benefits in full while the case was pending, unlike this case\nwhere the benefits were paid in full pre-suit. But that is a distinction without a difference. As\nProfessor Monaghan has observed, the justiciability doctrines of standing and mootness “share\nthe same root.” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale\nL.J. 1363, 1384 (1973). The Supreme Court has described mootness as merely “‘the doctrine of\nstanding set in a time frame: The requisite personal interest that must exist at the commencement\nof the litigation (standing) must continue throughout its existence (mootness).’” United States\nParole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, supra). If a case\nbecomes non-justiciable because an insurer has paid full benefits while the case is pending (as in\nHarrison), the case should be non-justiciable if it is undisputed that the benefits were paid before\nthe case was even filed (as here). To hold otherwise would mean that if GEICO had denied PIP\n 12\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 13 of 23\n\n\nv. Stand-Up MRI of Orlando, 990 So.2d 3, 4 (Fla. 5th DCA 2008) (“a PIP insurer is\n\nnot liable for benefits once benefits have been exhausted”); Neighborhood Health\n\nP’ship Inc. v. Fischer, 913 So.2d 703, 705 (Fla. 3d DCA 2005) (trial court abused\n\nits discretion in certifying a class action “where the uncontroverted evidence is\n\nclear that Dr. Fischer lacks standing to serve as a class representative because he\n\nhas no claim for damages against NHP, and, indeed, may in fact owe a refund to\n\nNHP for claims overpaid to him”); Graham v. State Farm Fire & Cas. Co., 813\n\nSo.2d 273, 274 (Fla. 5th DCA 2002) (“The conceded facts show that the Grahams\n\nwere paid in full two years prior to the filing of the class claims. . . . Based on the\n\nconceded facts, there is no existing dispute between the Grahams and State Farm\n\nthat would give the Grahams standing to proceed on behalf of other potential\n\nplaintiffs with similar disputes.”); Ramon v. Aries Ins. Co., 769 So.2d 1053 (Fla.\n\n3d DCA 2000) (policyholder who received full payment of PIP benefits lacked\n\nstanding to pursue class action claim).\n\n In finding that Gerber had standing in the order under review, the District\n\nCourt relied on a single case: Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir.\n\n2008). Based on that case, the District Court held that GEICO’s pre-suit (and pre-\n\nEMC) payment in excess of the statutory cap didn’t implicate standing, but, rather,\n\n\n\nbenefits pre-suit but then paid Gerber $7,311 shortly after the case was filed, the case would have\nbecome moot and thus non-justiciable, but undisputed evidence showing that those same benefits\nwere paid before the case was filed wouldn’t raise any justiciability concerns.\n 13\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 14 of 23\n\n\nit was an exhaustion of benefits affirmative defense. The District Court’s reliance\n\non Mills was misplaced.\n\n The plaintiffs in that case, Dale and Diane Mills, owned a mobile home that\n\nwas insured under a policy issued by the defendant, Foremost Insurance Company.\n\nThey filed a class action alleging that Foremost had failed to pay them (and other\n\ninsureds) for overhead, profit, and taxes after they sustained hurricane-damaged\n\nlosses, and they sought compensation for those “Withheld Payments.” Notably—\n\nand in contrast to this action—the plaintiffs in Mills were seeking both declaratory\n\nrelief and damages for breach of contract. The defendant argued that the plaintiffs\n\nhad failed to satisfy certain preconditions in the policy that allegedly required them\n\nto complete repair or replacement of their damaged property first and then submit a\n\nrepair or replacement cost claim to the insurance company before entitling them to\n\nthe Withheld Payments. Foremost argued that the Millses’ failure to do so\n\ndeprived them of standing, and the District Court agreed.\n\n In reversing, we began by holding the District Court erred in interpreting the\n\npolicy to require that the Millses jump through the aforementioned hoops. See 511\n\nF.3d at 1304-06 (rejecting the district court’s conclusion that preconditions in the\n\npolicy required the Millses to complete repair or replacement of their damaged\n\nproperty and to submit such a replacement cost claim to be entitled to the Withheld\n\nPayments). We then continued:\n\n\n 14\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 15 of 23\n\n\n The district court also erred in treating these particular\n insurance coverage issues under the Policy as standing\n issues. The complaint alleges that the Millses had a\n mobile home, that Foremost issued an insurance policy\n covering hurricane damage to the mobile home, that a\n hurricane damaged the Millses’ mobile home, that the\n Millses made a claim under the Policy for those damages,\n and that Foremost paid less on the claim than the Millses\n contend they are owed. Thus, the Millses clearly had\n standing to sue for damages under the Policy. See\n Wooden v. Bd. of Regents, 247 F.3d 1262, 1273-74 (11th\n Cir. 2001) (stating that standing is essentially a\n determination of “whether the litigant is entitled to have\n the court decide the merits of the dispute or of particular\n issues,” and requires that a plaintiff have suffered a\n concrete, particularized injury that is caused by the\n challenged action of the defendant and can be redressed\n by a favorable court decision).\n\n Whether the Withheld Payments were covered by the\n Policy is an issue of whether the Millses’ complaint fails\n to state a claim for relief under the Policy—not a\n standing issue. Whether the Millses’ complaint pled\n sufficient facts is likewise a failure-to-state-a-claim issue.\n We thus reject Foremost’s standing arguments as to the\n Millses’ individual claims against Foremost on this basis\n as well.\n\n\nId. at 1306-07 (emphasis added).\n\n Therefore, Mills was not (as here) an exhaustion of benefits case. Rather, it\n\nwas a coverage dispute that included a breach of contract claim seeking damages\n\narising out of that dispute. This distinction is critical because if the plaintiffs had\n\nprevailed in Mills, they would have been entitled to the Withheld Payments. Thus,\n\nwe found there that “the Millses clearly had standing to sue for damages under the\n 15\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 16 of 23\n\n\nPolicy” because the plaintiffs alleged that the insurer “paid [them] less on the claim\n\nthan [they] contend they are owed,” and a ruling in their favor on that point would\n\nentitle them to the money owed. 511 F.3d at 1307 (emphasis added). By contrast,\n\nwhen insurance benefits are fully exhausted (as here, and as in certain of the cases\n\ncited supra), there is no case or controversy because no money is owed regardless\n\nof how the case is ultimately decided. See, e.g., Harrison, 941 F.2d at 1193. Mills\n\nwould apply if Gerber alleged breach of contract and sought damages. But, it\n\nspecifically tailored its complaint to avoid such allegations. 3\n\n\n\n 3\n In her concurring opinion, Judge Branch believes it is irrelevant that GEICO paid in\nexcess of the PIP limit because Gerber is not seeking money damages. While it is true—as we\nhave noted several times—that Gerber is not seeking money damages for unpaid benefits in this\ncase, Gerber has made clear in its brief, in its notice of supplemental authority, and during oral\nargument that the declaratory relief it seeks is merely a precursor to a claim for money damages\nin subsequent cases. See Appellee Brief at 45 (“declaratory relief may serve ‘as a predicate for\nlater monetary relief’”) (quoting Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th\nCir. 2012)); Notice of Supplemental Authority, dated December 5, 2018 (noting “‘a declaratory\njudgment is normally a prelude to a request for other relief’”) (quoting Berger v. Xerox Corp.\nRetirement Income Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003)); Oral Argument\n18:40-18:56 (“The declaratory relief, as we say in the cases cited in the supplemental authority\n[Berger] and in the Gooch case from the Sixth Circuit that I want to focus on, all make it clear\nthat there’s nothing unusual about having declaratory relief as a precursor to monetary relief”).\nConsistent with the foregoing, counsel for Gerber expressly said at oral argument that if their\ninterpretation of GEICO’s policy is correct and Gerber prevails in this lawsuit, the “monetary\nclaims . . . will come” later. Oral Argument 20:30-20:35. We understand this argument (that\nthere are viable claims for damages that will be raised in the future) to potentially implicate the\nstanding issue. If Gerber were to win on the merits, monetary claims may indeed come later\n(and there may be standing) for class members who were underpaid as the result of GEICO’s\nmisinterpretation of its policy language. However, it is undisputed that when the complaint was\nfiled (the only time that matters) Carruthers (the only person who matters) was paid more in PIP\nbenefits than he was entitled to. See, e.g., Appellee Brief at 29 (acknowledging that GEICO\n“voluntarily pa[id] Gerber $7,311 with no EMC determination when Gerber made its insurance\nclaims”). Thus, there is no monetary claim for Gerber as Carruthers’ assignee, and there will be\nno such claim in the future for Carruthers—even though he was diagnosed with an EMC after\nthis case was filed—because standing must be determined as of the time of filing. That is why\n 16\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 17 of 23\n\n\n This is not to say, of course, that to have standing to pursue a declaratory\n\njudgment action the complaint must seek monetary relief. It doesn’t have to seek\n\nsuch relief. As earlier noted, however, when a plaintiff is seeking declaratory\n\nrelief without a claim for money damages for injuries already suffered, the plaintiff\n\nmust allege facts from which it appears that there is a substantial likelihood that he\n\nwill suffer injury in the future. E.g., Strickland, 772 F.3d at 883. Gerber has not\n\nalleged such facts here. Quite to the contrary, a review of Gerber’s motion to\n\nremand indicates that it specifically tailored its complaint to avoid alleging future\n\ninjury (as it did with the money damages). Indeed, Gerber unequivocally stated in\n\nits motion that “Plaintiff does not make any claim in the complaint that there is a\n\nrisk of future injury.” See Remand Mot. at 9 (emphasis added). 4\n\n Gerber now argues—directly contrary to what it previously argued—that\n\nthere is a risk of future injury here. Specifically, Gerber argues that the dispute\n\nabout the policy language will continue or be repeated in the future, and it will\n\ninjure Gerber and other chiropractors insofar as they don’t know whether to tell\n\ntheir patients that GEICO is responsible for the full 100% of the relevant charges,\n\n\nthe exhaustion of benefits issue is relevant and why we have discussed it, even though money\ndamages are not being sought in this litigation.\n 4\n Ironically, it appears that Gerber didn’t allege future injury because it knew that doing\nso would implicate federal jurisdiction, and it wanted to avoid federal court and stay in Florida\nstate court. See Remand Mot. at 7-9 (arguing that federal courts lack Article III jurisdiction over\ndeclaratory judgment actions if there is no claim for money damages or future injury—neither of\nwhich, Gerber argued, was present in this case—but “the Florida Declaratory Judgment Act is\nmuch more expansive and permits a claim similar to this action”).\n 17\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 18 of 23\n\n\nor whether the patients are responsible for 20%. See Oral Argument 19:16-20:23.\n\nThis is significant, Gerber’s counsel noted during oral argument, as evidenced by\n\nthe fact that GEICO had indirectly accused Gerber of insurance fraud in this case\n\nfor not attempting to collect the 20% from Carruthers, and such accusations could\n\nadversely impact its license in the future. See id. at 19:10-20:13.5\n\n Whether and to what extent Gerber might be injured is beside the point\n\nbecause the proper inquiry in this case must focus on the potential future injury to\n\nCarruthers, not to Gerber or other members of the class. Cf. Kostelac v. Allianz\n\nGlobal Corp. & Specialty AG, 517 F. App’x 670, 675-76 (11th Cir. 2013) (stating\n\nthat because an assignee must stand in the shoes of the assignor, and he has no\n\nrights greater than the assignor, “the relevant inquiry” must focus on the assignor,\n\nand it is “misguided” to “shift the . . . inquiry” to the assignee) (citing Crossman,\n\n273 F.2d at 725; Houk, 173 F.2d at 825).6 And we can see no potential future\n\nthreat to Carruthers, other than the possibility that he may someday be in another\n\ncar accident; sustain an injury entitling him to PIP benefits; and still be insured by\n\nGEICO under the same or a similar policy being interpreted the same way, thereby\n\n\n 5\n Gerber also points out in its brief that GEICO argued early on in this lawsuit (when it\nremoved the action to federal court) that Gerber did have standing. As we have already noted,\nhowever, standing cannot be waived or conceded, and we must independently decide whether it\nexists.\n 6\n Although an unpublished opinion is not binding, it may be cited as persuasive authority.\nSee, e.g., Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018) (citing\nUnited States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000), in turn citing 11th Cir. R. 36-2).\n 18\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 19 of 23\n\n\nhaving this issue present itself again. But, that is too contingent to constitute a\n\n“substantial likelihood” of future injury. See, e.g., Emory, 756 F.2d at 1552 (to\n\nsatisfy Article III, the case or controversy cannot be “conjectural, hypothetical, or\n\ncontingent; it must be real and immediate, and create a definite, rather than\n\nspeculative threat of future injury”).\n\n In the absence of a claim for money damages or substantial likelihood that\n\nCarruthers will suffer a future injury—both of which Gerber was careful to avoid\n\nalleging here—Gerber has no standing to pursue this case.\n\n IV.\n\n We recognize that this appeal raises an important issue for GEICO’s Florida\n\nPIP policyholders and for medical providers treating them. And we recognize, too,\n\nthat the lawsuit has been pending for several years and has consumed a lot of both\n\njudicial and attorney resources. If we could, we would reach the merits and give\n\nfinality to the questions presented. But we cannot. “‘In the absence of standing, a\n\ncourt is not free to opine in an advisory capacity about the merits of a plaintiff’s\n\nclaims.’” CAMP Legal Def. Fund, 451 F.3d at 1269 (quoting Bochese v. Town of\n\nPonce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). Again, “standing is ‘perhaps the\n\nmost important’ jurisdictional doctrine, and, as with any jurisdictional requisite, we\n\nare powerless to hear a case when it is lacking.” Bochese, 405 F.3d at 974 (citation\n\nomitted). Because we have no jurisdiction to entertain this suit, and neither did the\n\n\n 19\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 20 of 23\n\n\nDistrict Court, the decision below must be reversed and the case remanded with\n\ninstructions to dismiss the complaint for lack of standing.\n\n REVERSED AND REMANDED, WITH INSTRUCTIONS TO\n\nDISMISS.\n\n\n\n\n 20\n\n Case: 17-15606 Date Filed: 04/19/2019 Page: 21 of 23\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: A&M GERBER CHIROPRACTIC LLC, as Assignee of Conor Carruthers, on Behalf of Itself and All Others Similarly Situated, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-15606 Date Filed: 04/19/2019 Page: 1 of 23\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15606\\n ________________________\\n\\n D.C. Docket No. 0:16-cv-62610-BB\\n\\n\\nA&M GERBER CHIROPRACTIC LLC,\\nas assignee of Conor Carruthers, on behalf\\nof itself and all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\nversus\\n\\nGEICO GENERAL INSURANCE COMPANY,\\n\\n Defendant - Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 19, 2019)\\n\\nBefore WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.\\n\\n\\n\\n ∗Honorable C. Roger Vinson, United States District Judge for the Northern District of\\nFlorida, sitting by designation.\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 2 of 23\\n\\n\\nVINSON, District Judge:\\n\\n Conor Carruthers was involved in a car accident on March 18, 2015, after\\n\\nwhich he sought medical services from A&M Gerber Chiropractic LLC. At the\\n\\ntime, Carruthers was covered under an automobile insurance policy issued by\\n\\nGEICO General Insurance Company. Pursuant to Florida’s Motor Vehicle No-\\n\\nFault Law, the policy provided him with $10,000 in personal injury protection\\n\\n(PIP) benefits. See Fla. Stat. § 627.736(1) (mandating that automobile insurers\\n\\nprovide PIP benefits “to a limit of $10,000”). To be entitled to the full $10,000,\\n\\nhowever, the statute required that Carruthers—like all PIP beneficiaries—be\\n\\ndiagnosed by an authorized health care provider with an “emergency medical\\n\\ncondition” (EMC); without such a diagnosis, he was limited to $2,500 in benefits.\\n\\nSee id. at § 627.736(1)(a)(3)-(4); Robbins v. Garrison Prop. & Cas. Ins. Co., 809\\n\\nF.3d 583, 587-88 (11th Cir. 2015) (holding in consolidated appeal that “[b]ecause\\n\\nneither Robbins’ nor Enivert’s claim was supported by [an EMC determination],\\n\\nneither Garrison nor Progressive violated Fla. Stat. § 627.736 by limiting benefits\\n\\nto $2,500”); accord, e.g., Progressive Am. Ins. Co. v. Eduardo J. Garrido D.C.,\\n\\nP.A., 211 So.3d 1086, 1093 (Fla. 3d DCA 2017); Medical Ctr. of Palm Beaches v.\\n\\nUSAA Cas. Ins. Co., 202 So.3d 88, 92-93 (Fla. 4th DCA 2016); McCarty v. Myers,\\n\\n125 So.3d 333, 335 (Fla. 1st DCA 2013).\\n\\n\\n\\n\\n 2\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 3 of 23\\n\\n\\n It is undisputed that Carruthers was not diagnosed with an EMC at the time\\n\\nthis case was filed. It is also undisputed that, despite the lack of an EMC finding,\\n\\nGEICO paid Carruthers/Gerber $7,311 in PIP benefits pre-suit, well in excess of\\n\\nthe $2,500 cap. Even though Carruthers received almost triple the amount in PIP\\n\\nbenefits that he was entitled to, Gerber believed that GEICO had misinterpreted\\n\\ncertain language in its automobile policies and that this misinterpretation resulted\\n\\nin GEICO consistently underpaying PIP benefits as a “general business practice.”\\n\\n Specifically, the policy contains an endorsement identified as FLPIP (01-\\n\\n13), and that endorsement (under the heading “PAYMENTS WE WILL MAKE”)\\n\\nreferences fee schedules pursuant to which GEICO will pay 80% of benefits that\\n\\nare medically necessary. The endorsement goes on to state: “For all other medical\\n\\nservices, supplies, and care [GEICO will pay] 200 percent of the allowable amount\\n\\nunder [a Medicare Part B fee schedule],” subject to a limitation of 80% of the\\n\\n“maximum reimbursable allowance under workers’ compensation . . . .” Below\\n\\nthat statement, GEICO added the following: “A charge submitted by a provider,\\n\\nfor an amount less than the amount allowed above, shall be paid in the amount of\\n\\nthe charge submitted.” The underlying dispute in this case hinges on whether this\\n\\nsingle sentence is the operative language of the policy for health care provider bills\\n\\nof less than 200% of the fee schedule.\\n\\n\\n\\n\\n 3\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 4 of 23\\n\\n\\n GEICO has taken the position that the policy is an “80/20 policy” pursuant\\n\\nto which it was required to pay the lower of 80% of the fee schedule amount or\\n\\n80% of the charged amount, while insureds are required to pay the remaining 20%\\n\\nas co-insurance. To supports its position, GEICO relied, inter alia, on a document\\n\\nmailed or provided to its PIP policyholders effective on or after January 1, 2013,\\n\\nand identified as M608 (01-13). This document was titled\\n\\n IMPORTANT NOTICE\\n\\n FEE SCHEDULE ENDORSEMENT\\n\\nand it provides in relevant part that “in no event will the Company pay more than\\n\\n80 percent” of properly billed medical expenses. GEICO asserts that M608 (01-\\n\\n13) is an endorsement and, thus, part of the policy. Gerber has argued that M608\\n\\n(01-13) is not an endorsement/part of the policy, and it further argues that FLPIP\\n\\n(01-13) provides that when a health care provider bills for services at an amount\\n\\nless than 200% of the fee schedule, GEICO must pay the charge as billed (that is,\\n\\n“in the amount of the charge submitted”) without the 20% reduction.\\n\\n Carruthers assigned his rights to his treating chiropractic clinic, Gerber,\\n\\nwhich later filed a declaratory judgment class action suit in Florida state court in\\n\\nSeptember 2016. The complaint sought certification of a class (with Gerber as the\\n\\nclass representative) along with a declaration (a) that GEICO’s interpretation of its\\n\\npolicy language was wrong, and (b) that the misinterpretation “constitutes a breach\\n\\n\\n 4\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 5 of 23\\n\\n\\nof the insurance Policy.” Although the complaint sought a declaration that GEICO\\n\\nhad breached the policy, the complaint stated that “there is no claim for monetary\\n\\nrelief” in the case.\\n\\n GEICO removed the case to the United States District Court for the\\n\\nSouthern District of Florida in November 2016, pursuant to the Class Action\\n\\nFairness Act, and Gerber filed an unsuccessful motion to remand the case for lack\\n\\nof Article III standing. The District Court appointed Gerber as class\\n\\nrepresentative, and it certified the class to include:\\n\\n All health care providers that received an assignment of\\n benefits from a claimant and thereafter, pursuant to that\\n assignment, submitted claims for no-fault benefits under\\n GEICO PIP policies to which Endorsement FLPIP (01–\\n 13) applies, and any subsequent policies with\\n substantially similar language that were in effect since\\n January 1, 2013, where GEICO utilized the Code BA\\n [billed amount] with respect to the payment of any\\n claims.\\n\\n Shortly after the action was removed to federal court, and while its motion to\\n\\nremand was pending, Gerber filed an amended complaint. The amended complaint\\n\\nwas largely the same as the original complaint, but it added another sentence to re-\\n\\nemphasize that “this action does not assert a claim for any monetary relief,” and it\\n\\ndeleted the request for a declaration that GEICO’s misinterpretation of the disputed\\n\\npolicy language “constitutes a breach of the insurance Policy.” Thus, as amended,\\n\\nthe complaint clarified that it only sought declaratory relief and that there was no\\n\\n\\n 5\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 6 of 23\\n\\n\\nclaim for breach of contract or request for money damages related thereto. In July\\n\\n2017—more than two years after the underlying car accident, and ten months after\\n\\nthe litigation was filed—Carruthers obtained an EMC medical diagnosis.\\n\\n On cross motions for summary judgment, GEICO argued, inter alia, that\\n\\nGerber lacked standing at the outset of the lawsuit because it was undisputed that\\n\\nGEICO had paid Gerber more than $2,500 before the case was filed, even though\\n\\nhe had not been diagnosed with an EMC at that time. By order dated November\\n\\n17, 2017, the District Court disagreed with GEICO and found there was standing.\\n\\nIt also ruled that M608 (01-13) was not an endorsement (but rather was merely a\\n\\nnotice) and, thus, it was not part of the policy. Applying a textual interpretation of\\n\\nthe FLPIP (01-13) endorsement, the District Court granted summary judgment for\\n\\nGerber and held that, “under the disputed provision, when a health care provider\\n\\nbills for covered services in an amount less than 200% of the fee schedule, GEICO\\n\\nis required to pay the charge as billed without any reduction.”\\n\\n GEICO now appeals, arguing that Gerber lacked standing to bring this case.\\n\\nIt further argues that the District Court erred in certifying the class; in limiting the\\n\\ndocuments that comprise the policy (that is, in failing to treat M608 (01-13) as an\\n\\nendorsement); and in ruling for Gerber on the merits as to the policy interpretation\\n\\nquestion.\\n\\n I.\\n\\n\\n 6\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 7 of 23\\n\\n\\n We must begin with the question of standing. See Kondrat’yev v. City of\\n\\nPensacola, Fla., 903 F.3d 1169, 1172 (11th Cir. 2018). If there is no standing, we\\n\\nmust end there, too. University of S. Ala. v. American Tobacco Co., 168 F.3d 405,\\n\\n410 (11th Cir. 1999) (“Simply put, once a federal court determines that [the\\n\\nplaintiff has no standing], the court is powerless to continue.”).\\n\\n We review standing determinations de novo. See, e.g., SEC v. Quest Energy\\n\\nMgmt. Group, Inc., 768 F.3d 1106, 1108 (11th Cir. 2014) (citing CAMP Legal Def.\\n\\nFund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006)). After de novo\\n\\nreview—and with the benefit of oral argument—we conclude that Gerber lacks\\n\\nstanding.\\n\\n II.\\n\\n Article III of the Constitution limits federal courts to adjudicating actual\\n\\n“cases” and “controversies.” See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984),\\n\\nabrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components,\\n\\nInc., 572 U.S. 118 (2014). The case-or-controversy requirement sets fundamental\\n\\nlimits on federal judicial power. Id. “Perhaps the most important of the Article III\\n\\ndoctrines grounded in the case-or-controversy requirement is that of standing.”\\n\\nWooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir.\\n\\n2001). Standing cannot be waived or conceded by the parties, and it may be raised\\n\\n(even by the court sua sponte) at any stage of the case. See Bender v. Williamsport\\n\\n\\n 7\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 8 of 23\\n\\n\\nArea Sch. Dist., 475 U.S. 534, 541 (1986); Harris v. Evans, 20 F.3d 1118, 1121 n.4\\n\\n(11th Cir. 1994).\\n\\n “In essence the question of standing is whether the litigant is entitled to\\n\\nhave the court decide the merits of the dispute or of particular issues.” Warth v.\\n\\nSeldin, 422 U.S. 490, 498 (1975); see also Yellow Pages Photos, Inc. v. Ziplocal,\\n\\nLP, 795 F.3d 1255, 1264 (11th Cir. 2015) (same). “The party who invokes a\\n\\nfederal court’s authority must show, at an ‘irreducible minimum,’ that at the time\\n\\nthe complaint was filed, he has suffered some actual or threatened injury resulting\\n\\nfrom the defendant’s conduct, that the injury fairly can be traced to the challenged\\n\\naction, and that the injury is likely to be redressed by favorable court disposition.”\\n\\nAtlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995).\\n\\n Echoing the “case or controversy” requirement of Article III, the Declaratory\\n\\nJudgment Act “provides that a declaratory judgment may only be issued in the case\\n\\nof an actual controversy.” See Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.\\n\\n1985) (citing 28 U.S.C. § 2201); see also Atlanta Gas Light, 68 F.3d at 414 (“In all\\n\\ncases arising under the Declaratory Judgment Act, . . . the threshold question is\\n\\nwhether a justiciable controversy exists.”). “That is, under the facts alleged, there\\n\\nmust be a substantial continuing controversy between parties having adverse legal\\n\\ninterests.” Emory, 756 F.2d at 1552. The controversy between the parties cannot\\n\\nbe “conjectural, hypothetical, or contingent; it must be real and immediate, and\\n\\n\\n 8\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 9 of 23\\n\\n\\ncreate a definite, rather than speculative threat of future injury.” Id. In order to\\n\\ndemonstrate that there is a case or controversy that satisfies Article III’s standing\\n\\nrequirement when a plaintiff is seeking declaratory relief—as opposed to seeking\\n\\ndamages for past harm—the plaintiff must allege facts from which it appears that\\n\\nthere is a “substantial likelihood that he will suffer injury in the future.” Malowney\\n\\nv. Federal Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999); accord\\n\\nStrickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (“Where the plaintiff\\n\\nseeks declaratory or injunctive relief, as opposed to damages for injuries already\\n\\nsuffered, . . . the injury-in-fact requirement insists that a plaintiff ‘allege facts from\\n\\nwhich it appears there is a substantial likelihood that he will suffer injury in the\\n\\nfuture.’”) (quoting Malowney, 193 F.3d at 1346). “Thus, in order for this Court to\\n\\nhave jurisdiction to issue a declaratory judgment, . . . [the plaintiffs] must assert a\\n\\nreasonable expectation that the injury they have suffered will continue or will be\\n\\nrepeated in the future.” Malowney, 193 F.3d at 1347; see also id. at 1348 (“Injury\\n\\nin the past . . . does not support a finding of an Article III case or controversy when\\n\\nthe only relief sought is a declaratory judgment.”). Accordingly, if a plaintiff does\\n\\nnot assert a reasonable expectation of future injury, he “lack[s] standing to bring an\\n\\naction for declaratory relief[.]” See id. at 1348.\\n\\n In this case, Gerber, as assignee, stands in Carruthers’ shoes. Houk v. C.I.R.,\\n\\n173 F.2d 821, 825 (5th Cir. 1949) (“[A]n assignee . . . stands in the same position\\n\\n\\n 9\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 10 of 23\\n\\n\\nas its assignor had stood.”). 1 It necessarily follows, then, that if Carruthers had no\\n\\nstanding to file this case against GEICO, Gerber has no standing either. Crossman\\n\\nv. Fontainebleau Hotel Corp., 273 F.2d 720, 725 (5th Cir. 1959) (“An assignee has\\n\\nno greater rights than his assignor[.]”).\\n\\n It is well-settled that “if none of the named plaintiffs purporting to represent\\n\\na class establishes the requisite of a case or controversy with the defendants, none\\n\\nmay seek relief on behalf of himself or any other member of the class.” O’Shea v.\\n\\nLittleton, 414 U.S. 488, 494 (1974); see also Prado-Steiman ex rel. Prado v. Bush,\\n\\n221 F.3d 1266, 1279-80 (11th Cir. 2000) (class representative must have individual\\n\\nstanding to raise class claims); Wooden, 247 F.3d at 1288 (claim cannot be asserted\\n\\nfor a class “‘unless at least one named plaintiff has suffered the injury that gives\\n\\nrise to that claim’”) (quoting Prado-Steiman, 221 F.3d at 1280). As we have said:\\n\\n Under elementary principles of standing, a plaintiff must\\n allege and show that he personally suffered injury. If he\\n cannot show personal injury, then no article III case or\\n controversy exists, and a federal court is powerless to\\n hear his grievance. This individual injury requirement is\\n not met by alleging that injury has been suffered by\\n other, unidentified members of the class to which the\\n plaintiff belongs and which he purports to represent.\\n Thus, a plaintiff cannot include class action allegations in\\n a complaint and expect to be relieved of personally\\n meeting the requirements of constitutional standing, even\\n if the persons described in the class definition would\\n\\n 1\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted\\nas binding precedent all Fifth Circuit decisions rendered prior to the close of business on September\\n30, 1981.\\n 10\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 11 of 23\\n\\n\\n have standing themselves to sue. A named plaintiff in a\\n class action who cannot establish the requisite case or\\n controversy between himself and the defendants simply\\n cannot seek relief for anyone—not for himself, and not\\n for any other member of the class.\\n\\nGriffin v. Dugger, 823 F.2d 1476, 1482-83 (11th Cir. 1987) (multiple citations,\\n\\nquotation marks, and brackets omitted).\\n\\n Importantly, Article III standing must be determined as of the time that the\\n\\nplaintiff’s complaint is filed. See, e.g., Arcia v. Florida Sec’y of State, 772 F.3d\\n\\n1335, 1340 (11th Cir. 2014); Focus on the Family v. Pinellas Suncoast Transit\\n\\nAuth., 344 F.3d 1263, 1275 (11th Cir. 2003) (collecting multiple cases); Atlanta\\n\\nGas Light, 68 F.3d at 414 (in determining whether there is an Article III case or\\n\\ncontroversy, “we ‘look to the state of affairs as of the filing of the complaint; a\\n\\njusticiable controversy must have existed at that time’”) (citation omitted); accord\\n\\nMorrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 616 (6th Cir. 2008) (stating\\n\\nthat standing must be evaluated “at the time the plaintiff filed his or her complaint\\n\\nand not at anytime thereafter”) (citation omitted). Florida’s standing requirement\\n\\nis the same in this respect. See Progressive Exp. Ins. Co. v. McGrath Community\\n\\nChiropractic, 913 So.2d 1281, 1284-85 (Fla. 2d DCA 2005) (citing and discussing\\n\\ncases and noting that “[a]s these cases demonstrate, the plaintiff’s lack of standing\\n\\nat the inception of the case is not a defect that may be cured by the acquisition of\\n\\nstanding after the case is filed”).\\n\\n\\n 11\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 12 of 23\\n\\n\\n III.\\n\\n GEICO argues on appeal, as it did below, that Carruthers was only entitled\\n\\nto $2,500 in PIP benefits under the policy because there was no EMC diagnosis at\\n\\nthe time the complaint was filed. Consequently, Gerber (as Carruthers’ assignee)\\n\\nwas not entitled to benefits beyond $2,500. Because GEICO paid much more than\\n\\nthat amount, Carruthers/Gerber didn’t suffer harm as a result of GEICO’s alleged\\n\\nmisapplication of its policy. According to GEICO, no matter how we interpret the\\n\\ndisputed policy language, Gerber will not be able to recover anything from GEICO\\n\\n(i.e., there was no injury to Carruthers resulting from GEICO’s conduct that can be\\n\\nfairly traced to the challenged action and redressed by a favorable court ruling),\\n\\nthereby eliminating the existence of a case or controversy. GEICO is correct.\\n\\n When an insurance company has “paid all benefits in full . . . [t]here is no\\n\\ncase or controversy[.]” Harrison v. United Mine Workers of Am. 1974 Ben. Plan\\n\\n& Trust, 941 F.2d 1190, 1193 (11th Cir. 1991); 2 accord Progressive Am. Ins. Co.\\n\\n\\n\\n 2\\n We recognize that there was “no case or controversy” in Harrison because the case was\\nrendered moot after the insurer paid benefits in full while the case was pending, unlike this case\\nwhere the benefits were paid in full pre-suit. But that is a distinction without a difference. As\\nProfessor Monaghan has observed, the justiciability doctrines of standing and mootness “share\\nthe same root.” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale\\nL.J. 1363, 1384 (1973). The Supreme Court has described mootness as merely “‘the doctrine of\\nstanding set in a time frame: The requisite personal interest that must exist at the commencement\\nof the litigation (standing) must continue throughout its existence (mootness).’” United States\\nParole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, supra). If a case\\nbecomes non-justiciable because an insurer has paid full benefits while the case is pending (as in\\nHarrison), the case should be non-justiciable if it is undisputed that the benefits were paid before\\nthe case was even filed (as here). To hold otherwise would mean that if GEICO had denied PIP\\n 12\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 13 of 23\\n\\n\\nv. Stand-Up MRI of Orlando, 990 So.2d 3, 4 (Fla. 5th DCA 2008) (“a PIP insurer is\\n\\nnot liable for benefits once benefits have been exhausted”); Neighborhood Health\\n\\nP’ship Inc. v. Fischer, 913 So.2d 703, 705 (Fla. 3d DCA 2005) (trial court abused\\n\\nits discretion in certifying a class action “where the uncontroverted evidence is\\n\\nclear that Dr. Fischer lacks standing to serve as a class representative because he\\n\\nhas no claim for damages against NHP, and, indeed, may in fact owe a refund to\\n\\nNHP for claims overpaid to him”); Graham v. State Farm Fire & Cas. Co., 813\\n\\nSo.2d 273, 274 (Fla. 5th DCA 2002) (“The conceded facts show that the Grahams\\n\\nwere paid in full two years prior to the filing of the class claims. . . . Based on the\\n\\nconceded facts, there is no existing dispute between the Grahams and State Farm\\n\\nthat would give the Grahams standing to proceed on behalf of other potential\\n\\nplaintiffs with similar disputes.”); Ramon v. Aries Ins. Co., 769 So.2d 1053 (Fla.\\n\\n3d DCA 2000) (policyholder who received full payment of PIP benefits lacked\\n\\nstanding to pursue class action claim).\\n\\n In finding that Gerber had standing in the order under review, the District\\n\\nCourt relied on a single case: Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir.\\n\\n2008). Based on that case, the District Court held that GEICO’s pre-suit (and pre-\\n\\nEMC) payment in excess of the statutory cap didn’t implicate standing, but, rather,\\n\\n\\n\\nbenefits pre-suit but then paid Gerber $7,311 shortly after the case was filed, the case would have\\nbecome moot and thus non-justiciable, but undisputed evidence showing that those same benefits\\nwere paid before the case was filed wouldn’t raise any justiciability concerns.\\n 13\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 14 of 23\\n\\n\\nit was an exhaustion of benefits affirmative defense. The District Court’s reliance\\n\\non Mills was misplaced.\\n\\n The plaintiffs in that case, Dale and Diane Mills, owned a mobile home that\\n\\nwas insured under a policy issued by the defendant, Foremost Insurance Company.\\n\\nThey filed a class action alleging that Foremost had failed to pay them (and other\\n\\ninsureds) for overhead, profit, and taxes after they sustained hurricane-damaged\\n\\nlosses, and they sought compensation for those “Withheld Payments.” Notably—\\n\\nand in contrast to this action—the plaintiffs in Mills were seeking both declaratory\\n\\nrelief and damages for breach of contract. The defendant argued that the plaintiffs\\n\\nhad failed to satisfy certain preconditions in the policy that allegedly required them\\n\\nto complete repair or replacement of their damaged property first and then submit a\\n\\nrepair or replacement cost claim to the insurance company before entitling them to\\n\\nthe Withheld Payments. Foremost argued that the Millses’ failure to do so\\n\\ndeprived them of standing, and the District Court agreed.\\n\\n In reversing, we began by holding the District Court erred in interpreting the\\n\\npolicy to require that the Millses jump through the aforementioned hoops. See 511\\n\\nF.3d at 1304-06 (rejecting the district court’s conclusion that preconditions in the\\n\\npolicy required the Millses to complete repair or replacement of their damaged\\n\\nproperty and to submit such a replacement cost claim to be entitled to the Withheld\\n\\nPayments). We then continued:\\n\\n\\n 14\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 15 of 23\\n\\n\\n The district court also erred in treating these particular\\n insurance coverage issues under the Policy as standing\\n issues. The complaint alleges that the Millses had a\\n mobile home, that Foremost issued an insurance policy\\n covering hurricane damage to the mobile home, that a\\n hurricane damaged the Millses’ mobile home, that the\\n Millses made a claim under the Policy for those damages,\\n and that Foremost paid less on the claim than the Millses\\n contend they are owed. Thus, the Millses clearly had\\n standing to sue for damages under the Policy. See\\n Wooden v. Bd. of Regents, 247 F.3d 1262, 1273-74 (11th\\n Cir. 2001) (stating that standing is essentially a\\n determination of “whether the litigant is entitled to have\\n the court decide the merits of the dispute or of particular\\n issues,” and requires that a plaintiff have suffered a\\n concrete, particularized injury that is caused by the\\n challenged action of the defendant and can be redressed\\n by a favorable court decision).\\n\\n Whether the Withheld Payments were covered by the\\n Policy is an issue of whether the Millses’ complaint fails\\n to state a claim for relief under the Policy—not a\\n standing issue. Whether the Millses’ complaint pled\\n sufficient facts is likewise a failure-to-state-a-claim issue.\\n We thus reject Foremost’s standing arguments as to the\\n Millses’ individual claims against Foremost on this basis\\n as well.\\n\\n\\nId. at 1306-07 (emphasis added).\\n\\n Therefore, Mills was not (as here) an exhaustion of benefits case. Rather, it\\n\\nwas a coverage dispute that included a breach of contract claim seeking damages\\n\\narising out of that dispute. This distinction is critical because if the plaintiffs had\\n\\nprevailed in Mills, they would have been entitled to the Withheld Payments. Thus,\\n\\nwe found there that “the Millses clearly had standing to sue for damages under the\\n 15\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 16 of 23\\n\\n\\nPolicy” because the plaintiffs alleged that the insurer “paid [them] less on the claim\\n\\nthan [they] contend they are owed,” and a ruling in their favor on that point would\\n\\nentitle them to the money owed. 511 F.3d at 1307 (emphasis added). By contrast,\\n\\nwhen insurance benefits are fully exhausted (as here, and as in certain of the cases\\n\\ncited supra), there is no case or controversy because no money is owed regardless\\n\\nof how the case is ultimately decided. See, e.g., Harrison, 941 F.2d at 1193. Mills\\n\\nwould apply if Gerber alleged breach of contract and sought damages. But, it\\n\\nspecifically tailored its complaint to avoid such allegations. 3\\n\\n\\n\\n 3\\n In her concurring opinion, Judge Branch believes it is irrelevant that GEICO paid in\\nexcess of the PIP limit because Gerber is not seeking money damages. While it is true—as we\\nhave noted several times—that Gerber is not seeking money damages for unpaid benefits in this\\ncase, Gerber has made clear in its brief, in its notice of supplemental authority, and during oral\\nargument that the declaratory relief it seeks is merely a precursor to a claim for money damages\\nin subsequent cases. See Appellee Brief at 45 (“declaratory relief may serve ‘as a predicate for\\nlater monetary relief’”) (quoting Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th\\nCir. 2012)); Notice of Supplemental Authority, dated December 5, 2018 (noting “‘a declaratory\\njudgment is normally a prelude to a request for other relief’”) (quoting Berger v. Xerox Corp.\\nRetirement Income Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003)); Oral Argument\\n18:40-18:56 (“The declaratory relief, as we say in the cases cited in the supplemental authority\\n[Berger] and in the Gooch case from the Sixth Circuit that I want to focus on, all make it clear\\nthat there’s nothing unusual about having declaratory relief as a precursor to monetary relief”).\\nConsistent with the foregoing, counsel for Gerber expressly said at oral argument that if their\\ninterpretation of GEICO’s policy is correct and Gerber prevails in this lawsuit, the “monetary\\nclaims . . . will come” later. Oral Argument 20:30-20:35. We understand this argument (that\\nthere are viable claims for damages that will be raised in the future) to potentially implicate the\\nstanding issue. If Gerber were to win on the merits, monetary claims may indeed come later\\n(and there may be standing) for class members who were underpaid as the result of GEICO’s\\nmisinterpretation of its policy language. However, it is undisputed that when the complaint was\\nfiled (the only time that matters) Carruthers (the only person who matters) was paid more in PIP\\nbenefits than he was entitled to. See, e.g., Appellee Brief at 29 (acknowledging that GEICO\\n“voluntarily pa[id] Gerber $7,311 with no EMC determination when Gerber made its insurance\\nclaims”). Thus, there is no monetary claim for Gerber as Carruthers’ assignee, and there will be\\nno such claim in the future for Carruthers—even though he was diagnosed with an EMC after\\nthis case was filed—because standing must be determined as of the time of filing. That is why\\n 16\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 17 of 23\\n\\n\\n This is not to say, of course, that to have standing to pursue a declaratory\\n\\njudgment action the complaint must seek monetary relief. It doesn’t have to seek\\n\\nsuch relief. As earlier noted, however, when a plaintiff is seeking declaratory\\n\\nrelief without a claim for money damages for injuries already suffered, the plaintiff\\n\\nmust allege facts from which it appears that there is a substantial likelihood that he\\n\\nwill suffer injury in the future. E.g., Strickland, 772 F.3d at 883. Gerber has not\\n\\nalleged such facts here. Quite to the contrary, a review of Gerber’s motion to\\n\\nremand indicates that it specifically tailored its complaint to avoid alleging future\\n\\ninjury (as it did with the money damages). Indeed, Gerber unequivocally stated in\\n\\nits motion that “Plaintiff does not make any claim in the complaint that there is a\\n\\nrisk of future injury.” See Remand Mot. at 9 (emphasis added). 4\\n\\n Gerber now argues—directly contrary to what it previously argued—that\\n\\nthere is a risk of future injury here. Specifically, Gerber argues that the dispute\\n\\nabout the policy language will continue or be repeated in the future, and it will\\n\\ninjure Gerber and other chiropractors insofar as they don’t know whether to tell\\n\\ntheir patients that GEICO is responsible for the full 100% of the relevant charges,\\n\\n\\nthe exhaustion of benefits issue is relevant and why we have discussed it, even though money\\ndamages are not being sought in this litigation.\\n 4\\n Ironically, it appears that Gerber didn’t allege future injury because it knew that doing\\nso would implicate federal jurisdiction, and it wanted to avoid federal court and stay in Florida\\nstate court. See Remand Mot. at 7-9 (arguing that federal courts lack Article III jurisdiction over\\ndeclaratory judgment actions if there is no claim for money damages or future injury—neither of\\nwhich, Gerber argued, was present in this case—but “the Florida Declaratory Judgment Act is\\nmuch more expansive and permits a claim similar to this action”).\\n 17\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 18 of 23\\n\\n\\nor whether the patients are responsible for 20%. See Oral Argument 19:16-20:23.\\n\\nThis is significant, Gerber’s counsel noted during oral argument, as evidenced by\\n\\nthe fact that GEICO had indirectly accused Gerber of insurance fraud in this case\\n\\nfor not attempting to collect the 20% from Carruthers, and such accusations could\\n\\nadversely impact its license in the future. See id. at 19:10-20:13.5\\n\\n Whether and to what extent Gerber might be injured is beside the point\\n\\nbecause the proper inquiry in this case must focus on the potential future injury to\\n\\nCarruthers, not to Gerber or other members of the class. Cf. Kostelac v. Allianz\\n\\nGlobal Corp. & Specialty AG, 517 F. App’x 670, 675-76 (11th Cir. 2013) (stating\\n\\nthat because an assignee must stand in the shoes of the assignor, and he has no\\n\\nrights greater than the assignor, “the relevant inquiry” must focus on the assignor,\\n\\nand it is “misguided” to “shift the . . . inquiry” to the assignee) (citing Crossman,\\n\\n273 F.2d at 725; Houk, 173 F.2d at 825).6 And we can see no potential future\\n\\nthreat to Carruthers, other than the possibility that he may someday be in another\\n\\ncar accident; sustain an injury entitling him to PIP benefits; and still be insured by\\n\\nGEICO under the same or a similar policy being interpreted the same way, thereby\\n\\n\\n 5\\n Gerber also points out in its brief that GEICO argued early on in this lawsuit (when it\\nremoved the action to federal court) that Gerber did have standing. As we have already noted,\\nhowever, standing cannot be waived or conceded, and we must independently decide whether it\\nexists.\\n 6\\n Although an unpublished opinion is not binding, it may be cited as persuasive authority.\\nSee, e.g., Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018) (citing\\nUnited States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000), in turn citing 11th Cir. R. 36-2).\\n 18\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 19 of 23\\n\\n\\nhaving this issue present itself again. But, that is too contingent to constitute a\\n\\n“substantial likelihood” of future injury. See, e.g., Emory, 756 F.2d at 1552 (to\\n\\nsatisfy Article III, the case or controversy cannot be “conjectural, hypothetical, or\\n\\ncontingent; it must be real and immediate, and create a definite, rather than\\n\\nspeculative threat of future injury”).\\n\\n In the absence of a claim for money damages or substantial likelihood that\\n\\nCarruthers will suffer a future injury—both of which Gerber was careful to avoid\\n\\nalleging here—Gerber has no standing to pursue this case.\\n\\n IV.\\n\\n We recognize that this appeal raises an important issue for GEICO’s Florida\\n\\nPIP policyholders and for medical providers treating them. And we recognize, too,\\n\\nthat the lawsuit has been pending for several years and has consumed a lot of both\\n\\njudicial and attorney resources. If we could, we would reach the merits and give\\n\\nfinality to the questions presented. But we cannot. “‘In the absence of standing, a\\n\\ncourt is not free to opine in an advisory capacity about the merits of a plaintiff’s\\n\\nclaims.’” CAMP Legal Def. Fund, 451 F.3d at 1269 (quoting Bochese v. Town of\\n\\nPonce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). Again, “standing is ‘perhaps the\\n\\nmost important’ jurisdictional doctrine, and, as with any jurisdictional requisite, we\\n\\nare powerless to hear a case when it is lacking.” Bochese, 405 F.3d at 974 (citation\\n\\nomitted). Because we have no jurisdiction to entertain this suit, and neither did the\\n\\n\\n 19\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 20 of 23\\n\\n\\nDistrict Court, the decision below must be reversed and the case remanded with\\n\\ninstructions to dismiss the complaint for lack of standing.\\n\\n REVERSED AND REMANDED, WITH INSTRUCTIONS TO\\n\\nDISMISS.\\n\\n\\n\\n\\n 20\\n\\n Case: 17-15606 Date Filed: 04/19/2019 Page: 21 of 23\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1888,"cells":{"id":{"kind":"number","value":4612139,"string":"4,612,139"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Stanislav PAVLENKO, Defendant-Appellant."},"name_abbreviation":{"kind":"string","value":"United States v. Stanislav Pavlenko"},"decision_date":{"kind":"string","value":"2019-04-22"},"docket_number":{"kind":"string","value":"17-15047"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Newsom, Rosenthal\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-15047 Date Filed: 04/22/2019 Page: 1 of 10\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15047\\n ________________________\\n\\n D.C. Docket No. 1:11-cr-20279-RNS-17\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nSTANISLAV PAVLENKO,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (April 22, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n*\\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\\nTexas, sitting by designation.\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 2 of 10\\n\\n\\n This appeal requires us to decide whether a criminal defendant has standing\\n\\nto appeal the dismissal of his indictment without prejudice. Stanislav Pavlenko\\n\\nstood charged of 23 counts arising from a fraudulent scheme when he negotiated a\\n\\nsettlement agreement with the government. Pavlenko, a Russian citizen, agreed to\\n\\nreturn to Russia and abandon his lawful permanent resident status in the United\\n\\nStates. And he waived “any right to return to the United States” for ten years. In\\n\\nexchange, the government agreed to dismiss all charges against him. The day after\\n\\nPavlenko boarded a flight to Russia, the government moved to dismiss the\\n\\nindictment. The district court granted the motion in the light of the settlement\\n\\nagreement in which Pavlenko had agreed, among other things, “not to return to the\\n\\nUnited States” for ten years. Pavlenko contends that the dismissal imposed\\n\\nconditions to which he never agreed. But because the order did nothing more than\\n\\ndismiss the indictment against him, Pavlenko lacks standing to complain about it.\\n\\nWe dismiss his appeal for lack of jurisdiction.\\n\\n I. BACKGROUND\\n A grand jury returned a 57-count indictment charging Stanislav Pavlenko, a\\n\\nRussian citizen, and seven others with offenses arising from their operation of a\\n\\nfraudulent scheme in their nightclubs in South Beach. The indictment alleged that\\n\\nthe conspirators illegally imported women, called “bar girls,” primarily from\\n\\nLatvia and Estonia, to lure intoxicated victims to their clubs where the conspirators\\n\\n\\n\\n 2\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 3 of 10\\n\\n\\nwould fraudulently charge the victims’ credit cards. Pavlenko’s 23 charges\\n\\nincluded numerous counts of wire fraud, conspiracy to commit wire fraud,\\n\\nconspiracy to commit money laundering, and conspiracy to defraud the United\\n\\nStates.\\n\\n A jury found Pavlenko guilty of ten counts but acquitted him of the\\n\\nremaining 13 counts. The district court sentenced Pavlenko to serve 78 months of\\n\\nimprisonment. Pavlenko appealed, and we vacated his convictions on the ground\\n\\nthat the district court abused its discretion when it refused to give a jury instruction\\n\\nthe defendants requested. See United States v. Takhalov, 838 F.3d 1168 (11th Cir.\\n\\n2016).\\n\\n After we remanded the case, Pavlenko and the government reached a\\n\\nsettlement agreement. Pavlenko agreed to “abandon his lawful permanent resident\\n\\nstatus and voluntarily return to Russia”; “waive[] any right to return to the United\\n\\nStates, as well as any right to re-apply for lawful permanent resident status or any\\n\\nother immigration status . . . for a period of no less than ten (10) years”; and\\n\\n“surrender his Lawful Permanent Resident card.” In exchange, the government\\n\\nagreed to “dismiss the remaining charges against [Pavlenko] in this case” when he\\n\\nleft for Russia.\\n\\n Before dismissing the indictment based on the settlement agreement, the\\n\\ndistrict court conducted a hearing. Pavlenko testified that he had read, understood,\\n\\n\\n\\n 3\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 4 of 10\\n\\n\\nand agreed with all the terms in the agreement and that he had consulted with his\\n\\nattorney about it. Pavlenko confirmed that he was agreeing to give up his resident\\n\\nstatus and his right to reapply for any immigration status for ten years. The court\\n\\nconcluded that Pavlenko had knowingly and voluntarily entered into the settlement\\n\\nagreement. The parties then filed the settlement agreement with the district court.\\n\\n The day after Pavlenko boarded a plane for Russia, the government filed a\\n\\nmotion to dismiss the charges against him without prejudice “in fulfillment of the\\n\\nSettlement Agreement.” The government explained that Pavlenko “ha[d] agreed,\\n\\nper the terms of the Settlement Agreement, not to return or seek to obtain any\\n\\nimmigration status in the United States, for a period of at least 10 years.” And the\\n\\ngovernment explained that, “[s]hould Pavlenko violate the terms of the Settlement\\n\\nAgreement, the United States retains the right to re-instate the charges against\\n\\nhim.”\\n\\n The district court granted the motion and “dismisse[d] the Indictment\\n\\nwithout prejudice as to Stanislav Pavlenko.” The dismissal order explained that,\\n\\nafter Pavlenko had surrendered his permanent resident card and returned to Russia,\\n\\nthe government had moved for dismissal to fulfill the settlement agreement. The\\n\\ndismissal order also stated that “Pavlenko ha[d] further agreed, per the terms of the\\n\\nSettlement Agreement, not to return to the United States or seek to obtain any\\n\\nimmigration status in the United States for ten years.” And the order explained that\\n\\n\\n\\n 4\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 5 of 10\\n\\n\\nthe dismissal “[wa]s subject to Pavlenko’s continued compliance with the\\n\\nSettlement Agreement for the next 10 years.” The next day, the court closed\\n\\nPavlenko’s case. See United States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D.\\n\\nFla. Oct. 25, 2017), ECF No. 1498. Pavlenko appealed the dismissal of his\\n\\nindictment on the ground that the district court exceeded its authority by creating a\\n\\nde facto ten-year probation and imposing a condition to which he never agreed.\\n\\n II. STANDARD OF REVIEW\\n\\n We review de novo questions of our jurisdiction. United States v. Lopez,\\n\\n562 F.3d 1309, 1311 (11th Cir. 2009).\\n\\n III. DISCUSSION\\n\\n The government argues that we lack jurisdiction to consider the dismissal of\\n\\nPavlenko’s indictment for two reasons. First, it argues that the dismissal of the\\n\\nindictment fails to satisfy statutory jurisdictional requirements, 28 U.S.C. § 1291,\\n\\nbecause the dismissal is not a final judgment and does not fall within the collateral-\\n\\norder doctrine. Second, the government argues that Pavlenko lacks standing to\\n\\nappeal the dismissal of his indictment because he agreed to it.\\n\\n We agree that Pavlenko lacks standing. Pavlenko misunderstands the legal\\n\\neffect of the dismissal order, which did nothing more than grant the government’s\\n\\nmotion to dismiss the indictment. By paraphrasing the terms of the settlement\\n\\nagreement, the district court did not vary those terms or otherwise subject Pavlenko\\n\\n\\n\\n 5\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 6 of 10\\n\\n\\nto the continuing supervision of the district court. So Pavlenko has nothing about\\n\\nwhich to complain. Because we conclude that Pavlenko lacks standing, we need\\n\\nnot address whether the dismissal order satisfies section 1291.\\n\\n Article III of the Constitution confines our jurisdiction to “Cases” and\\n\\n“Controversies.” U.S. Const. art. III, § 2. The “core of Article III’s case-or-\\n\\ncontroversy requirement” is standing. Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353\\n\\n(11th Cir. 2003) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,\\n\\n102–04 (1998)). And a litigant “must establish [his] standing not only to bring\\n\\nclaims, but also to appeal judgments.” Id. To have appellate standing, a litigant\\n\\nmust establish that he has suffered “a concrete and particularized injury that is\\n\\nfairly traceable to the challenged conduct, and is likely to be redressed by a\\n\\nfavorable judicial decision.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013).\\n\\n The government contends that Pavlenko lacks standing because he agreed to\\n\\nthe dismissal, but this contention misses the heart of Pavlenko’s argument. True, a\\n\\nparty ordinarily “has no standing to appeal a judgment to which he or she\\n\\nconsented,” but that rule does not apply when the judgment “allegedly deviates\\n\\nfrom the terms of the parties’ agreement.” Reynolds v. Roberts, 202 F.3d 1303,\\n\\n1312 (11th Cir. 2000) (citation and internal quotation marks omitted). Because\\n\\nPavlenko alleges that the dismissal order deviated from the terms of the settlement\\n\\n\\n\\n\\n 6\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 7 of 10\\n\\n\\nagreement, his consent to the settlement agreement does not, by itself, defeat his\\n\\nstanding to appeal the dismissal order.\\n\\n Pavlenko lacks standing for a simpler reason: the order entered by the\\n\\ndistrict court did nothing more than dismiss the indictment against Pavlenko, so it\\n\\ncaused him no injury in fact. “Only one injured by the judgment sought to be\\n\\nreviewed can appeal . . . .” Parr v. United States, 351 U.S. 513, 516 (1956). “In the\\n\\ncontext of appellate standing, the primary meaning of the injury requirement is\\n\\nadverseness,” which necessitates that the challenged order aggrieve the litigant.\\n\\nUnited States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). In other words, the\\n\\nappealed order must affect the litigant’s interests in an adverse way. See Wolff, 351\\n\\nF.3d at 1354; see also Knight v. Alabama, 14 F.3d 1534, 1555–56 (11th Cir. 1994).\\n\\nIt is well established that a criminal defendant ordinarily “has no standing to appeal\\n\\nthe dismissal of an indictment” because he “is not injured by the dismissal.” United\\n\\nStates v. Moller-Butcher, 723 F.2d 189, 190–91 (1st Cir. 1983) (discussing Parr,\\n\\n351 U.S. at 517); accord United States v. Lanham, 631 F.2d 356, 358 (4th Cir.\\n\\n1980).\\n\\n Pavlenko’s argument that the dismissal did not fully close his case as\\n\\nrequired by the settlement agreement and instead created a de facto probation of\\n\\nten years reflects a misunderstanding of a single statement in the dismissal order.\\n\\nAccording to Pavlenko, by stating that the dismissal was “subject to [his]\\n\\n\\n\\n 7\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 8 of 10\\n\\n\\ncontinued compliance with the Settlement Agreement for the next 10 years,” the\\n\\ndistrict court effectively created a ten-year probation term. But as we read the\\n\\norder, the district court only echoed that the settlement agreement required\\n\\nPavlenko to comply with its terms “for a period of no less than ten (10) years.” The\\n\\ndistrict court did not create a “probation” or retain a supervisory role over the\\n\\nsettlement agreement. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.\\n\\n375, 380 (1994) (explaining in the civil context that a district court has no inherent\\n\\nauthority to enforce a settlement agreement reached by the parties in exchange for\\n\\ndismissing a lawsuit). Indeed, the district court’s docket establishes that there are\\n\\nno pending charges against Pavlenko and that his case was closed on October 25,\\n\\n2017—the day after the court granted the motion to dismiss his indictment. See\\n\\nUnited States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D. Fla. Oct. 25, 2017),\\n\\nECF No. 1498.\\n\\n Pavlenko also argues that the dismissal imposed a condition to which he\\n\\nnever agreed when it stated that he agreed “not to return to the United States,” but\\n\\nagain, the order imposed no such condition. The settlement agreement stated that\\n\\nPavlenko “waive[d] any right to return to the United States” for ten years. The\\n\\ndismissal order then paraphrased the settlement agreement by stating that Pavlenko\\n\\nhad agreed “not to return to the United States” for ten years. This paraphrase\\n\\nimposed no condition on Pavlenko. In the dismissal order, the district court\\n\\n\\n\\n 8\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 9 of 10\\n\\n\\nexplained why the government had moved to dismiss Pavlenko’s indictment—i.e.,\\n\\nthe settlement agreement—and included a summary of that agreement. But the\\n\\ndistrict court never purported to impose new conditions on Pavlenko in its order;\\n\\nthe only conditions imposed on Pavlenko are contained in the settlement agreement\\n\\nto which he agreed. The government even represented in its motion to dismiss the\\n\\nindictment that it retained the right to reinstate the charges “[s]hould Pavlenko\\n\\nviolate the terms of the Settlement Agreement”—not should he violate the terms of\\n\\nthe dismissal order. In short, the dismissal was just a dismissal.\\n\\n Because the order did nothing more than dismiss Pavlenko’s indictment, it is\\n\\nclear that the order did not aggrieve him. As the Supreme Court has explained, a\\n\\ncriminal defendant cannot appeal the dismissal of his indictment because he “has\\n\\nnot been injured by its termination in his favor.” Parr, 351 U.S. at 517. That is, the\\n\\ndismissal benefited Pavlenko by dismissing the 23 charges against him. So it\\n\\ncaused him no injury. See Amodeo, 916 F.3d at 973; Wolff, 351 F.3d at 1353–54.\\n\\nAnd without an injury, Pavlenko lacks standing to appeal the dismissal of his\\n\\nindictment.\\n\\n To be sure, Pavlenko and the government have divergent interpretations of\\n\\nthe settlement agreement’s waiver of “any right to return to the United States” for\\n\\nthe ten-year period. Pavlenko interprets this term as waiving only the “right to\\n\\nreturn” afforded to him as a permanent resident, who generally have a right, though\\n\\n\\n\\n 9\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 10 of 10\\n\\n\\nnot absolute, to return to the United States from abroad. Pavlenko contends that he\\n\\nretained “the opportunity to request permission to enter or pass through the United\\n\\nStates,” which the government may grant if it wishes, but that he never agreed not\\n\\nto return to the United States. The government responds that in Paragraph 1 of the\\n\\nsettlement agreement, Pavlenko relinquished all the rights that accompanied his\\n\\nresident status when he agreed to “abandon his lawful permanent resident status,”\\n\\nso that the waiver of his “right to return” in Paragraph 2 cannot be tied to his\\n\\nresident status. The government interprets the waiver of his “right to return” as\\n\\nPavlenko agreeing not to return to the United States in any fashion for the ten-year\\n\\nperiod.\\n\\n Because Pavlenko’s appeal presents no case or controversy, we cannot\\n\\nresolve these divergent interpretations of the settlement agreement. Perhaps these\\n\\ninterpretations might present a case or controversy if Pavlenko were to return to the\\n\\nUnited States or if the government were to obtain a new indictment against him.\\n\\nSee Parr, 351 U.S. at 517 (explaining that a criminal defendant who had his\\n\\nindictment dismissed would have standing to appeal if he was later reindicted and\\n\\nconvicted). But Pavlenko appealed the dismissal of his indictment, and the\\n\\ndismissal caused him no injury. There is no case or controversy for us to consider.\\n\\n IV. CONCLUSION\\n\\n We DISMISS Pavlenko’s appeal for lack of jurisdiction.\\n\\n\\n\\n 10\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389392/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ROSENTHAL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612139/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Stanislav PAVLENKO, Defendant-Appellant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15047 Date Filed: 04/22/2019 Page: 1 of 10\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15047\n ________________________\n\n D.C. Docket No. 1:11-cr-20279-RNS-17\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nSTANISLAV PAVLENKO,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n _______________________\n\n (April 22, 2019)\n\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n*\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\nTexas, sitting by designation.\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 2 of 10\n\n\n This appeal requires us to decide whether a criminal defendant has standing\n\nto appeal the dismissal of his indictment without prejudice. Stanislav Pavlenko\n\nstood charged of 23 counts arising from a fraudulent scheme when he negotiated a\n\nsettlement agreement with the government. Pavlenko, a Russian citizen, agreed to\n\nreturn to Russia and abandon his lawful permanent resident status in the United\n\nStates. And he waived “any right to return to the United States” for ten years. In\n\nexchange, the government agreed to dismiss all charges against him. The day after\n\nPavlenko boarded a flight to Russia, the government moved to dismiss the\n\nindictment. The district court granted the motion in the light of the settlement\n\nagreement in which Pavlenko had agreed, among other things, “not to return to the\n\nUnited States” for ten years. Pavlenko contends that the dismissal imposed\n\nconditions to which he never agreed. But because the order did nothing more than\n\ndismiss the indictment against him, Pavlenko lacks standing to complain about it.\n\nWe dismiss his appeal for lack of jurisdiction.\n\n I. BACKGROUND\n A grand jury returned a 57-count indictment charging Stanislav Pavlenko, a\n\nRussian citizen, and seven others with offenses arising from their operation of a\n\nfraudulent scheme in their nightclubs in South Beach. The indictment alleged that\n\nthe conspirators illegally imported women, called “bar girls,” primarily from\n\nLatvia and Estonia, to lure intoxicated victims to their clubs where the conspirators\n\n\n\n 2\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 3 of 10\n\n\nwould fraudulently charge the victims’ credit cards. Pavlenko’s 23 charges\n\nincluded numerous counts of wire fraud, conspiracy to commit wire fraud,\n\nconspiracy to commit money laundering, and conspiracy to defraud the United\n\nStates.\n\n A jury found Pavlenko guilty of ten counts but acquitted him of the\n\nremaining 13 counts. The district court sentenced Pavlenko to serve 78 months of\n\nimprisonment. Pavlenko appealed, and we vacated his convictions on the ground\n\nthat the district court abused its discretion when it refused to give a jury instruction\n\nthe defendants requested. See United States v. Takhalov, 838 F.3d 1168 (11th Cir.\n\n2016).\n\n After we remanded the case, Pavlenko and the government reached a\n\nsettlement agreement. Pavlenko agreed to “abandon his lawful permanent resident\n\nstatus and voluntarily return to Russia”; “waive[] any right to return to the United\n\nStates, as well as any right to re-apply for lawful permanent resident status or any\n\nother immigration status . . . for a period of no less than ten (10) years”; and\n\n“surrender his Lawful Permanent Resident card.” In exchange, the government\n\nagreed to “dismiss the remaining charges against [Pavlenko] in this case” when he\n\nleft for Russia.\n\n Before dismissing the indictment based on the settlement agreement, the\n\ndistrict court conducted a hearing. Pavlenko testified that he had read, understood,\n\n\n\n 3\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 4 of 10\n\n\nand agreed with all the terms in the agreement and that he had consulted with his\n\nattorney about it. Pavlenko confirmed that he was agreeing to give up his resident\n\nstatus and his right to reapply for any immigration status for ten years. The court\n\nconcluded that Pavlenko had knowingly and voluntarily entered into the settlement\n\nagreement. The parties then filed the settlement agreement with the district court.\n\n The day after Pavlenko boarded a plane for Russia, the government filed a\n\nmotion to dismiss the charges against him without prejudice “in fulfillment of the\n\nSettlement Agreement.” The government explained that Pavlenko “ha[d] agreed,\n\nper the terms of the Settlement Agreement, not to return or seek to obtain any\n\nimmigration status in the United States, for a period of at least 10 years.” And the\n\ngovernment explained that, “[s]hould Pavlenko violate the terms of the Settlement\n\nAgreement, the United States retains the right to re-instate the charges against\n\nhim.”\n\n The district court granted the motion and “dismisse[d] the Indictment\n\nwithout prejudice as to Stanislav Pavlenko.” The dismissal order explained that,\n\nafter Pavlenko had surrendered his permanent resident card and returned to Russia,\n\nthe government had moved for dismissal to fulfill the settlement agreement. The\n\ndismissal order also stated that “Pavlenko ha[d] further agreed, per the terms of the\n\nSettlement Agreement, not to return to the United States or seek to obtain any\n\nimmigration status in the United States for ten years.” And the order explained that\n\n\n\n 4\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 5 of 10\n\n\nthe dismissal “[wa]s subject to Pavlenko’s continued compliance with the\n\nSettlement Agreement for the next 10 years.” The next day, the court closed\n\nPavlenko’s case. See United States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D.\n\nFla. Oct. 25, 2017), ECF No. 1498. Pavlenko appealed the dismissal of his\n\nindictment on the ground that the district court exceeded its authority by creating a\n\nde facto ten-year probation and imposing a condition to which he never agreed.\n\n II. STANDARD OF REVIEW\n\n We review de novo questions of our jurisdiction. United States v. Lopez,\n\n562 F.3d 1309, 1311 (11th Cir. 2009).\n\n III. DISCUSSION\n\n The government argues that we lack jurisdiction to consider the dismissal of\n\nPavlenko’s indictment for two reasons. First, it argues that the dismissal of the\n\nindictment fails to satisfy statutory jurisdictional requirements, 28 U.S.C. § 1291,\n\nbecause the dismissal is not a final judgment and does not fall within the collateral-\n\norder doctrine. Second, the government argues that Pavlenko lacks standing to\n\nappeal the dismissal of his indictment because he agreed to it.\n\n We agree that Pavlenko lacks standing. Pavlenko misunderstands the legal\n\neffect of the dismissal order, which did nothing more than grant the government’s\n\nmotion to dismiss the indictment. By paraphrasing the terms of the settlement\n\nagreement, the district court did not vary those terms or otherwise subject Pavlenko\n\n\n\n 5\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 6 of 10\n\n\nto the continuing supervision of the district court. So Pavlenko has nothing about\n\nwhich to complain. Because we conclude that Pavlenko lacks standing, we need\n\nnot address whether the dismissal order satisfies section 1291.\n\n Article III of the Constitution confines our jurisdiction to “Cases” and\n\n“Controversies.” U.S. Const. art. III, § 2. The “core of Article III’s case-or-\n\ncontroversy requirement” is standing. Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353\n\n(11th Cir. 2003) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,\n\n102–04 (1998)). And a litigant “must establish [his] standing not only to bring\n\nclaims, but also to appeal judgments.” Id. To have appellate standing, a litigant\n\nmust establish that he has suffered “a concrete and particularized injury that is\n\nfairly traceable to the challenged conduct, and is likely to be redressed by a\n\nfavorable judicial decision.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013).\n\n The government contends that Pavlenko lacks standing because he agreed to\n\nthe dismissal, but this contention misses the heart of Pavlenko’s argument. True, a\n\nparty ordinarily “has no standing to appeal a judgment to which he or she\n\nconsented,” but that rule does not apply when the judgment “allegedly deviates\n\nfrom the terms of the parties’ agreement.” Reynolds v. Roberts, 202 F.3d 1303,\n\n1312 (11th Cir. 2000) (citation and internal quotation marks omitted). Because\n\nPavlenko alleges that the dismissal order deviated from the terms of the settlement\n\n\n\n\n 6\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 7 of 10\n\n\nagreement, his consent to the settlement agreement does not, by itself, defeat his\n\nstanding to appeal the dismissal order.\n\n Pavlenko lacks standing for a simpler reason: the order entered by the\n\ndistrict court did nothing more than dismiss the indictment against Pavlenko, so it\n\ncaused him no injury in fact. “Only one injured by the judgment sought to be\n\nreviewed can appeal . . . .” Parr v. United States, 351 U.S. 513, 516 (1956). “In the\n\ncontext of appellate standing, the primary meaning of the injury requirement is\n\nadverseness,” which necessitates that the challenged order aggrieve the litigant.\n\nUnited States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). In other words, the\n\nappealed order must affect the litigant’s interests in an adverse way. See Wolff, 351\n\nF.3d at 1354; see also Knight v. Alabama, 14 F.3d 1534, 1555–56 (11th Cir. 1994).\n\nIt is well established that a criminal defendant ordinarily “has no standing to appeal\n\nthe dismissal of an indictment” because he “is not injured by the dismissal.” United\n\nStates v. Moller-Butcher, 723 F.2d 189, 190–91 (1st Cir. 1983) (discussing Parr,\n\n351 U.S. at 517); accord United States v. Lanham, 631 F.2d 356, 358 (4th Cir.\n\n1980).\n\n Pavlenko’s argument that the dismissal did not fully close his case as\n\nrequired by the settlement agreement and instead created a de facto probation of\n\nten years reflects a misunderstanding of a single statement in the dismissal order.\n\nAccording to Pavlenko, by stating that the dismissal was “subject to [his]\n\n\n\n 7\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 8 of 10\n\n\ncontinued compliance with the Settlement Agreement for the next 10 years,” the\n\ndistrict court effectively created a ten-year probation term. But as we read the\n\norder, the district court only echoed that the settlement agreement required\n\nPavlenko to comply with its terms “for a period of no less than ten (10) years.” The\n\ndistrict court did not create a “probation” or retain a supervisory role over the\n\nsettlement agreement. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.\n\n375, 380 (1994) (explaining in the civil context that a district court has no inherent\n\nauthority to enforce a settlement agreement reached by the parties in exchange for\n\ndismissing a lawsuit). Indeed, the district court’s docket establishes that there are\n\nno pending charges against Pavlenko and that his case was closed on October 25,\n\n2017—the day after the court granted the motion to dismiss his indictment. See\n\nUnited States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D. Fla. Oct. 25, 2017),\n\nECF No. 1498.\n\n Pavlenko also argues that the dismissal imposed a condition to which he\n\nnever agreed when it stated that he agreed “not to return to the United States,” but\n\nagain, the order imposed no such condition. The settlement agreement stated that\n\nPavlenko “waive[d] any right to return to the United States” for ten years. The\n\ndismissal order then paraphrased the settlement agreement by stating that Pavlenko\n\nhad agreed “not to return to the United States” for ten years. This paraphrase\n\nimposed no condition on Pavlenko. In the dismissal order, the district court\n\n\n\n 8\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 9 of 10\n\n\nexplained why the government had moved to dismiss Pavlenko’s indictment—i.e.,\n\nthe settlement agreement—and included a summary of that agreement. But the\n\ndistrict court never purported to impose new conditions on Pavlenko in its order;\n\nthe only conditions imposed on Pavlenko are contained in the settlement agreement\n\nto which he agreed. The government even represented in its motion to dismiss the\n\nindictment that it retained the right to reinstate the charges “[s]hould Pavlenko\n\nviolate the terms of the Settlement Agreement”—not should he violate the terms of\n\nthe dismissal order. In short, the dismissal was just a dismissal.\n\n Because the order did nothing more than dismiss Pavlenko’s indictment, it is\n\nclear that the order did not aggrieve him. As the Supreme Court has explained, a\n\ncriminal defendant cannot appeal the dismissal of his indictment because he “has\n\nnot been injured by its termination in his favor.” Parr, 351 U.S. at 517. That is, the\n\ndismissal benefited Pavlenko by dismissing the 23 charges against him. So it\n\ncaused him no injury. See Amodeo, 916 F.3d at 973; Wolff, 351 F.3d at 1353–54.\n\nAnd without an injury, Pavlenko lacks standing to appeal the dismissal of his\n\nindictment.\n\n To be sure, Pavlenko and the government have divergent interpretations of\n\nthe settlement agreement’s waiver of “any right to return to the United States” for\n\nthe ten-year period. Pavlenko interprets this term as waiving only the “right to\n\nreturn” afforded to him as a permanent resident, who generally have a right, though\n\n\n\n 9\n\f Case: 17-15047 Date Filed: 04/22/2019 Page: 10 of 10\n\n\nnot absolute, to return to the United States from abroad. Pavlenko contends that he\n\nretained “the opportunity to request permission to enter or pass through the United\n\nStates,” which the government may grant if it wishes, but that he never agreed not\n\nto return to the United States. The government responds that in Paragraph 1 of the\n\nsettlement agreement, Pavlenko relinquished all the rights that accompanied his\n\nresident status when he agreed to “abandon his lawful permanent resident status,”\n\nso that the waiver of his “right to return” in Paragraph 2 cannot be tied to his\n\nresident status. The government interprets the waiver of his “right to return” as\n\nPavlenko agreeing not to return to the United States in any fashion for the ten-year\n\nperiod.\n\n Because Pavlenko’s appeal presents no case or controversy, we cannot\n\nresolve these divergent interpretations of the settlement agreement. Perhaps these\n\ninterpretations might present a case or controversy if Pavlenko were to return to the\n\nUnited States or if the government were to obtain a new indictment against him.\n\nSee Parr, 351 U.S. at 517 (explaining that a criminal defendant who had his\n\nindictment dismissed would have standing to appeal if he was later reindicted and\n\nconvicted). But Pavlenko appealed the dismissal of his indictment, and the\n\ndismissal caused him no injury. There is no case or controversy for us to consider.\n\n IV. CONCLUSION\n\n We DISMISS Pavlenko’s appeal for lack of jurisdiction.\n\n\n\n 10\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Stanislav PAVLENKO, Defendant-Appellant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-15047 Date Filed: 04/22/2019 Page: 1 of 10\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15047\\n ________________________\\n\\n D.C. Docket No. 1:11-cr-20279-RNS-17\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nSTANISLAV PAVLENKO,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n _______________________\\n\\n (April 22, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n*\\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\\nTexas, sitting by designation.\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 2 of 10\\n\\n\\n This appeal requires us to decide whether a criminal defendant has standing\\n\\nto appeal the dismissal of his indictment without prejudice. Stanislav Pavlenko\\n\\nstood charged of 23 counts arising from a fraudulent scheme when he negotiated a\\n\\nsettlement agreement with the government. Pavlenko, a Russian citizen, agreed to\\n\\nreturn to Russia and abandon his lawful permanent resident status in the United\\n\\nStates. And he waived “any right to return to the United States” for ten years. In\\n\\nexchange, the government agreed to dismiss all charges against him. The day after\\n\\nPavlenko boarded a flight to Russia, the government moved to dismiss the\\n\\nindictment. The district court granted the motion in the light of the settlement\\n\\nagreement in which Pavlenko had agreed, among other things, “not to return to the\\n\\nUnited States” for ten years. Pavlenko contends that the dismissal imposed\\n\\nconditions to which he never agreed. But because the order did nothing more than\\n\\ndismiss the indictment against him, Pavlenko lacks standing to complain about it.\\n\\nWe dismiss his appeal for lack of jurisdiction.\\n\\n I. BACKGROUND\\n A grand jury returned a 57-count indictment charging Stanislav Pavlenko, a\\n\\nRussian citizen, and seven others with offenses arising from their operation of a\\n\\nfraudulent scheme in their nightclubs in South Beach. The indictment alleged that\\n\\nthe conspirators illegally imported women, called “bar girls,” primarily from\\n\\nLatvia and Estonia, to lure intoxicated victims to their clubs where the conspirators\\n\\n\\n\\n 2\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 3 of 10\\n\\n\\nwould fraudulently charge the victims’ credit cards. Pavlenko’s 23 charges\\n\\nincluded numerous counts of wire fraud, conspiracy to commit wire fraud,\\n\\nconspiracy to commit money laundering, and conspiracy to defraud the United\\n\\nStates.\\n\\n A jury found Pavlenko guilty of ten counts but acquitted him of the\\n\\nremaining 13 counts. The district court sentenced Pavlenko to serve 78 months of\\n\\nimprisonment. Pavlenko appealed, and we vacated his convictions on the ground\\n\\nthat the district court abused its discretion when it refused to give a jury instruction\\n\\nthe defendants requested. See United States v. Takhalov, 838 F.3d 1168 (11th Cir.\\n\\n2016).\\n\\n After we remanded the case, Pavlenko and the government reached a\\n\\nsettlement agreement. Pavlenko agreed to “abandon his lawful permanent resident\\n\\nstatus and voluntarily return to Russia”; “waive[] any right to return to the United\\n\\nStates, as well as any right to re-apply for lawful permanent resident status or any\\n\\nother immigration status . . . for a period of no less than ten (10) years”; and\\n\\n“surrender his Lawful Permanent Resident card.” In exchange, the government\\n\\nagreed to “dismiss the remaining charges against [Pavlenko] in this case” when he\\n\\nleft for Russia.\\n\\n Before dismissing the indictment based on the settlement agreement, the\\n\\ndistrict court conducted a hearing. Pavlenko testified that he had read, understood,\\n\\n\\n\\n 3\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 4 of 10\\n\\n\\nand agreed with all the terms in the agreement and that he had consulted with his\\n\\nattorney about it. Pavlenko confirmed that he was agreeing to give up his resident\\n\\nstatus and his right to reapply for any immigration status for ten years. The court\\n\\nconcluded that Pavlenko had knowingly and voluntarily entered into the settlement\\n\\nagreement. The parties then filed the settlement agreement with the district court.\\n\\n The day after Pavlenko boarded a plane for Russia, the government filed a\\n\\nmotion to dismiss the charges against him without prejudice “in fulfillment of the\\n\\nSettlement Agreement.” The government explained that Pavlenko “ha[d] agreed,\\n\\nper the terms of the Settlement Agreement, not to return or seek to obtain any\\n\\nimmigration status in the United States, for a period of at least 10 years.” And the\\n\\ngovernment explained that, “[s]hould Pavlenko violate the terms of the Settlement\\n\\nAgreement, the United States retains the right to re-instate the charges against\\n\\nhim.”\\n\\n The district court granted the motion and “dismisse[d] the Indictment\\n\\nwithout prejudice as to Stanislav Pavlenko.” The dismissal order explained that,\\n\\nafter Pavlenko had surrendered his permanent resident card and returned to Russia,\\n\\nthe government had moved for dismissal to fulfill the settlement agreement. The\\n\\ndismissal order also stated that “Pavlenko ha[d] further agreed, per the terms of the\\n\\nSettlement Agreement, not to return to the United States or seek to obtain any\\n\\nimmigration status in the United States for ten years.” And the order explained that\\n\\n\\n\\n 4\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 5 of 10\\n\\n\\nthe dismissal “[wa]s subject to Pavlenko’s continued compliance with the\\n\\nSettlement Agreement for the next 10 years.” The next day, the court closed\\n\\nPavlenko’s case. See United States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D.\\n\\nFla. Oct. 25, 2017), ECF No. 1498. Pavlenko appealed the dismissal of his\\n\\nindictment on the ground that the district court exceeded its authority by creating a\\n\\nde facto ten-year probation and imposing a condition to which he never agreed.\\n\\n II. STANDARD OF REVIEW\\n\\n We review de novo questions of our jurisdiction. United States v. Lopez,\\n\\n562 F.3d 1309, 1311 (11th Cir. 2009).\\n\\n III. DISCUSSION\\n\\n The government argues that we lack jurisdiction to consider the dismissal of\\n\\nPavlenko’s indictment for two reasons. First, it argues that the dismissal of the\\n\\nindictment fails to satisfy statutory jurisdictional requirements, 28 U.S.C. § 1291,\\n\\nbecause the dismissal is not a final judgment and does not fall within the collateral-\\n\\norder doctrine. Second, the government argues that Pavlenko lacks standing to\\n\\nappeal the dismissal of his indictment because he agreed to it.\\n\\n We agree that Pavlenko lacks standing. Pavlenko misunderstands the legal\\n\\neffect of the dismissal order, which did nothing more than grant the government’s\\n\\nmotion to dismiss the indictment. By paraphrasing the terms of the settlement\\n\\nagreement, the district court did not vary those terms or otherwise subject Pavlenko\\n\\n\\n\\n 5\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 6 of 10\\n\\n\\nto the continuing supervision of the district court. So Pavlenko has nothing about\\n\\nwhich to complain. Because we conclude that Pavlenko lacks standing, we need\\n\\nnot address whether the dismissal order satisfies section 1291.\\n\\n Article III of the Constitution confines our jurisdiction to “Cases” and\\n\\n“Controversies.” U.S. Const. art. III, § 2. The “core of Article III’s case-or-\\n\\ncontroversy requirement” is standing. Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353\\n\\n(11th Cir. 2003) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,\\n\\n102–04 (1998)). And a litigant “must establish [his] standing not only to bring\\n\\nclaims, but also to appeal judgments.” Id. To have appellate standing, a litigant\\n\\nmust establish that he has suffered “a concrete and particularized injury that is\\n\\nfairly traceable to the challenged conduct, and is likely to be redressed by a\\n\\nfavorable judicial decision.” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013).\\n\\n The government contends that Pavlenko lacks standing because he agreed to\\n\\nthe dismissal, but this contention misses the heart of Pavlenko’s argument. True, a\\n\\nparty ordinarily “has no standing to appeal a judgment to which he or she\\n\\nconsented,” but that rule does not apply when the judgment “allegedly deviates\\n\\nfrom the terms of the parties’ agreement.” Reynolds v. Roberts, 202 F.3d 1303,\\n\\n1312 (11th Cir. 2000) (citation and internal quotation marks omitted). Because\\n\\nPavlenko alleges that the dismissal order deviated from the terms of the settlement\\n\\n\\n\\n\\n 6\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 7 of 10\\n\\n\\nagreement, his consent to the settlement agreement does not, by itself, defeat his\\n\\nstanding to appeal the dismissal order.\\n\\n Pavlenko lacks standing for a simpler reason: the order entered by the\\n\\ndistrict court did nothing more than dismiss the indictment against Pavlenko, so it\\n\\ncaused him no injury in fact. “Only one injured by the judgment sought to be\\n\\nreviewed can appeal . . . .” Parr v. United States, 351 U.S. 513, 516 (1956). “In the\\n\\ncontext of appellate standing, the primary meaning of the injury requirement is\\n\\nadverseness,” which necessitates that the challenged order aggrieve the litigant.\\n\\nUnited States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). In other words, the\\n\\nappealed order must affect the litigant’s interests in an adverse way. See Wolff, 351\\n\\nF.3d at 1354; see also Knight v. Alabama, 14 F.3d 1534, 1555–56 (11th Cir. 1994).\\n\\nIt is well established that a criminal defendant ordinarily “has no standing to appeal\\n\\nthe dismissal of an indictment” because he “is not injured by the dismissal.” United\\n\\nStates v. Moller-Butcher, 723 F.2d 189, 190–91 (1st Cir. 1983) (discussing Parr,\\n\\n351 U.S. at 517); accord United States v. Lanham, 631 F.2d 356, 358 (4th Cir.\\n\\n1980).\\n\\n Pavlenko’s argument that the dismissal did not fully close his case as\\n\\nrequired by the settlement agreement and instead created a de facto probation of\\n\\nten years reflects a misunderstanding of a single statement in the dismissal order.\\n\\nAccording to Pavlenko, by stating that the dismissal was “subject to [his]\\n\\n\\n\\n 7\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 8 of 10\\n\\n\\ncontinued compliance with the Settlement Agreement for the next 10 years,” the\\n\\ndistrict court effectively created a ten-year probation term. But as we read the\\n\\norder, the district court only echoed that the settlement agreement required\\n\\nPavlenko to comply with its terms “for a period of no less than ten (10) years.” The\\n\\ndistrict court did not create a “probation” or retain a supervisory role over the\\n\\nsettlement agreement. Cf. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.\\n\\n375, 380 (1994) (explaining in the civil context that a district court has no inherent\\n\\nauthority to enforce a settlement agreement reached by the parties in exchange for\\n\\ndismissing a lawsuit). Indeed, the district court’s docket establishes that there are\\n\\nno pending charges against Pavlenko and that his case was closed on October 25,\\n\\n2017—the day after the court granted the motion to dismiss his indictment. See\\n\\nUnited States v. Pavlenko, No. 1:11-cr-20279-RNS-17 (S.D. Fla. Oct. 25, 2017),\\n\\nECF No. 1498.\\n\\n Pavlenko also argues that the dismissal imposed a condition to which he\\n\\nnever agreed when it stated that he agreed “not to return to the United States,” but\\n\\nagain, the order imposed no such condition. The settlement agreement stated that\\n\\nPavlenko “waive[d] any right to return to the United States” for ten years. The\\n\\ndismissal order then paraphrased the settlement agreement by stating that Pavlenko\\n\\nhad agreed “not to return to the United States” for ten years. This paraphrase\\n\\nimposed no condition on Pavlenko. In the dismissal order, the district court\\n\\n\\n\\n 8\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 9 of 10\\n\\n\\nexplained why the government had moved to dismiss Pavlenko’s indictment—i.e.,\\n\\nthe settlement agreement—and included a summary of that agreement. But the\\n\\ndistrict court never purported to impose new conditions on Pavlenko in its order;\\n\\nthe only conditions imposed on Pavlenko are contained in the settlement agreement\\n\\nto which he agreed. The government even represented in its motion to dismiss the\\n\\nindictment that it retained the right to reinstate the charges “[s]hould Pavlenko\\n\\nviolate the terms of the Settlement Agreement”—not should he violate the terms of\\n\\nthe dismissal order. In short, the dismissal was just a dismissal.\\n\\n Because the order did nothing more than dismiss Pavlenko’s indictment, it is\\n\\nclear that the order did not aggrieve him. As the Supreme Court has explained, a\\n\\ncriminal defendant cannot appeal the dismissal of his indictment because he “has\\n\\nnot been injured by its termination in his favor.” Parr, 351 U.S. at 517. That is, the\\n\\ndismissal benefited Pavlenko by dismissing the 23 charges against him. So it\\n\\ncaused him no injury. See Amodeo, 916 F.3d at 973; Wolff, 351 F.3d at 1353–54.\\n\\nAnd without an injury, Pavlenko lacks standing to appeal the dismissal of his\\n\\nindictment.\\n\\n To be sure, Pavlenko and the government have divergent interpretations of\\n\\nthe settlement agreement’s waiver of “any right to return to the United States” for\\n\\nthe ten-year period. Pavlenko interprets this term as waiving only the “right to\\n\\nreturn” afforded to him as a permanent resident, who generally have a right, though\\n\\n\\n\\n 9\\n\\f Case: 17-15047 Date Filed: 04/22/2019 Page: 10 of 10\\n\\n\\nnot absolute, to return to the United States from abroad. Pavlenko contends that he\\n\\nretained “the opportunity to request permission to enter or pass through the United\\n\\nStates,” which the government may grant if it wishes, but that he never agreed not\\n\\nto return to the United States. The government responds that in Paragraph 1 of the\\n\\nsettlement agreement, Pavlenko relinquished all the rights that accompanied his\\n\\nresident status when he agreed to “abandon his lawful permanent resident status,”\\n\\nso that the waiver of his “right to return” in Paragraph 2 cannot be tied to his\\n\\nresident status. The government interprets the waiver of his “right to return” as\\n\\nPavlenko agreeing not to return to the United States in any fashion for the ten-year\\n\\nperiod.\\n\\n Because Pavlenko’s appeal presents no case or controversy, we cannot\\n\\nresolve these divergent interpretations of the settlement agreement. Perhaps these\\n\\ninterpretations might present a case or controversy if Pavlenko were to return to the\\n\\nUnited States or if the government were to obtain a new indictment against him.\\n\\nSee Parr, 351 U.S. at 517 (explaining that a criminal defendant who had his\\n\\nindictment dismissed would have standing to appeal if he was later reindicted and\\n\\nconvicted). But Pavlenko appealed the dismissal of his indictment, and the\\n\\ndismissal caused him no injury. There is no case or controversy for us to consider.\\n\\n IV. CONCLUSION\\n\\n We DISMISS Pavlenko’s appeal for lack of jurisdiction.\\n\\n\\n\\n 10\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1889,"cells":{"id":{"kind":"number","value":4612157,"string":"4,612,157"},"name":{"kind":"string","value":"FRESH RESULTS, LLC, a Delaware Limited Liability Company, Plaintiff-Appellant, v. ASF HOLLAND, B v. a Dutch Corporation, Defendant-Appellee, Total Produce, PLC, an Irish Public Limited Company, Defendant."},"name_abbreviation":{"kind":"string","value":"Fresh Results, LLC v. ASF Holland, B.V."},"decision_date":{"kind":"string","value":"2019-04-22"},"docket_number":{"kind":"string","value":"18-11595"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Newsom, Rosenthal\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11595 Date Filed: 04/22/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11595\\n ________________________\\n\\n D.C. Docket No. 0:17-cv-60949-BB\\n\\n\\n\\nFRESH RESULTS, LLC,\\na Delaware limited liability company,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\nASF HOLLAND, B.V.,\\na Dutch corporation,\\n\\n Defendant-Appellee,\\n\\nTOTAL PRODUCE, PLC,\\nan Irish public limited company,\\n\\n Defendant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 22, 2019)\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 2 of 17\\n\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n The main issue presented by this appeal is whether the district court abused\\n\\nits discretion when it dismissed a complaint for forum non conveniens because it\\n\\nfailed to consider all relevant public factors for each forum after determining that\\n\\nthe private factors for the litigants were not in equipoise. Fresh Results, an\\n\\nAmerican company, arranged bulk shipments of blueberries for ASF Holland, a\\n\\nDutch company that repacks wholesale produce to sell to European customers.\\n\\nASF Holland created reports about the results of its inspection of the shipments,\\n\\nand those reports determined the final price it paid for the blueberries. Fresh\\n\\nResults filed a complaint against ASF Holland in the Southern District of Florida,\\n\\nalleging that it had falsified the reports and fraudulently deflated the price. ASF\\n\\nHolland moved to dismiss the complaint on the ground that the Netherlands was a\\n\\nmore convenient forum for the suit, and the district court agreed. After concluding\\n\\nthat the interests of the litigants—the so-called “private factors”—were not in\\n\\nequipoise, the district court ruled that it need not consider all relevant “public\\n\\nfactors” for each forum and dismissed the complaint so that the litigation could\\n\\nproceed in the Netherlands. The district court derived the equipoise standard from\\n\\n\\n*\\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\\nTexas, sitting by designation.\\n\\n\\n 2\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 3 of 17\\n\\n\\ndicta in our precedent, La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th\\n\\nCir. 1983), that we have since recited in dicta in other cases. Fresh Results\\n\\ncontends that the district court abused its discretion when it weighed the private\\n\\nfactors in favor of dismissal and when it failed to consider the relevant public\\n\\nfactors. Because we agree that the district court abused its discretion when it failed\\n\\nto consider the relevant public factors and committed two errors in its analysis of\\n\\nthe private factors, we vacate and remand.\\n\\n I. BACKGROUND\\n\\n This appeal concerns a blueberry deal that soured. Fresh Results, an\\n\\nAmerican company, acts as a sales agent for growers of produce in South America.\\n\\nIn 2015, Fresh Results arranged bulk shipments of blueberries for two seasons for\\n\\nASF Holland, a Dutch company that buys wholesale produce to repack and sell to\\n\\ncustomers in Europe.\\n\\n To initiate a shipment, ASF Holland would request blueberries from Fresh\\n\\nResults at a reference price that purportedly reflected its anticipated net returns.\\n\\nWhen Fresh Results received the request, it would coordinate with the growers to\\n\\nfulfill the order. The growers would send the blueberries from South America\\n\\ndirectly to the Netherlands by air freight. When the shipment arrived, ASF Holland\\n\\nwas responsible for inspecting, sorting, and repacking the blueberries in a timely\\n\\nmanner. It would then send Fresh Results several reports on the shipment, with\\n\\n\\n\\n 3\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 4 of 17\\n\\n\\ndetails of its inspection, sorting, sales prices, and expenses. Fresh Results used the\\n\\nreports to adjust the reference price and create an invoice for ASF Holland with the\\n\\nfinal price. ASF Holland would remit the invoice amount to Fresh Results in\\n\\nFlorida.\\n\\n During the second season, one of the growers hired an auditor to make an\\n\\nunannounced inspection of a blueberry shipment at ASF Holland’s facility in the\\n\\nNetherlands. The auditor allegedly discovered that the blueberries were still in\\n\\ntheir original freight package, even though ASF Holland had reported to Fresh\\n\\nResults that the shipment had been inspected, sorted, and repacked. After learning\\n\\nof the auditor’s inspection, Fresh Results demanded that ASF Holland pay the\\n\\nmarket price for each shipment of blueberries it had received, but ASF Holland\\n\\nrefused.\\n\\n Fresh Results filed a complaint, which it later amended, against ASF\\n\\nHolland in the Southern District of Florida. Fresh Results asserted claims of breach\\n\\nof contract, negligent misrepresentation, fraud, conversion, and tortious\\n\\ninterference with its business relationship with the growers. It alleged that ASF\\n\\nHolland fraudulently promised a high reference price but then deflated the actual\\n\\nprice it paid by sending false reports. According to Fresh Results, ASF Holland\\n\\nmanipulated the price by understating the amount paid by its European customers\\n\\nand by falsely inflating its expenses in the reports. ASF Holland informed the\\n\\n\\n\\n 4\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 5 of 17\\n\\n\\ndistrict court that it would pursue counterclaims against Fresh Results for sending\\n\\nsubstandard blueberries.\\n\\n ASF Holland then moved to dismiss the complaint for failure to state a claim\\n\\nand forum non conveniens. It argued that the Netherlands was a more convenient\\n\\nforum for the dispute. ASF Holland presented an affidavit from Ronald Jongbloed,\\n\\nits managing director, in which he asserted that the important documents and\\n\\nwitnesses are in the Netherlands. And it presented an affidavit from Sebastiaan\\n\\nMoolenaar, a Dutch lawyer, in which he asserted that Fresh Results can obtain\\n\\nrelief for all its claims in the Netherlands and that the United States has no treaty\\n\\nwith the Netherlands for the reciprocal enforcement of judgments.\\n\\n The district court granted the motion on the ground that forum non\\n\\nconveniens warranted dismissal. Although it explained that a strong presumption\\n\\nfavors Fresh Results’ choice of forum, the court ruled that the private factors\\n\\nweighed in favor of dismissal. It reasoned that most sources of proof needed to\\n\\nprove Fresh Results’ claims are in the Netherlands, where the blueberries were\\n\\ndelivered, repacked, and sold and where the reports were allegedly falsified.\\n\\nAlthough Fresh Results contended that the South American growers were willing\\n\\nto participate in litigation only in the United States and not in the Netherlands, the\\n\\ndistrict court disregarded the growers’ testimony as a source of proof because they\\n\\nwere not parties. And it weighed in favor of dismissal the possibility for view of\\n\\n\\n\\n 5\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 6 of 17\\n\\n\\nASF Holland’s facility in the Netherlands. Because the United States has no treaty\\n\\nwith the Netherlands for the reciprocal enforcement of judgments, the court\\n\\nconcluded that Fresh Results would inevitably have to litigate in the Netherlands to\\n\\nenforce a judgment if it obtained one, so it weighed the enforceability of a\\n\\njudgment in favor of dismissal.\\n\\n The district court decided that it need not consider the public factors if the\\n\\nprivate factors were not “in equipoise or near equipoise,” relying on King v.\\n\\nCessna Aircraft Company, 562 F.3d 1374, 1382 (11th Cir. 2009) (quoting La\\n\\nSeguridad, 707 F.2d at 1307). It then concluded that all “the private interest factors\\n\\nalign in favor of Defendant’s position and are thus not [in] equipoise, [so] it need\\n\\nnot engage in an exhaustive analysis of all public interest[] factors.” The court also\\n\\nconcluded that “[n]onetheless, the public interest factors favor dismissal as well,”\\n\\nbut it discussed only one public factor, choice of law, and weighed that factor in\\n\\nfavor of dismissal because Dutch law would likely apply. The court dismissed the\\n\\ncomplaint for forum non conveniens and declined to decide the other grounds for\\n\\ndismissal asserted by ASF Holland.\\n\\n II. STANDARD OF REVIEW\\n\\n Because “[t]he forum non conveniens determination is committed to the\\n\\nsound discretion of the trial court,” we review for abuse of discretion. Piper\\n\\nAircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). “[W]here the court has\\n\\n\\n\\n 6\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 7 of 17\\n\\n\\nconsidered all relevant public and private interest factors, and where its balancing\\n\\nof these factors is reasonable, its decision deserves substantial deference.” Id.\\n\\n III. DISCUSSION\\n\\n Under the doctrine of forum non conveniens, a district court may decline to\\n\\nexercise its jurisdiction when a foreign forum is better suited to adjudicate the\\n\\ndispute. See Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir. 2017). The\\n\\n“central purpose” of forum non conveniens is “to ensure that the trial is\\n\\nconvenient.” Id. (citation and internal quotation marks omitted). The doctrine\\n\\nshould not be invoked “lightly . . . because it effectively deprives the plaintiff of\\n\\nhis favored forum,” id., and so a defendant bears the burden of justifying dismissal\\n\\nbased on forum non conveniens, La Seguridad, 707 F.2d at 1309. To satisfy this\\n\\nburden, the defendant must establish that “(1) an adequate alternative forum is\\n\\navailable, (2) the public and private factors weigh in favor of dismissal, and (3) the\\n\\nplaintiff can reinstate his suit in the alternative forum without undue inconvenience\\n\\nor prejudice.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011)\\n\\n(quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310–11 (11th Cir. 2001)).\\n\\n The second part of the forum non conveniens analysis—the balancing of the\\n\\nprivate and public factors—is a “comparative inquiry [that] requires the district\\n\\ncourt to weigh the ‘relative’ advantages and disadvantages of each respective\\n\\nforum.” Id. at 1331. The private factors “pertain to the interests of the participants\\n\\n\\n\\n 7\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 8 of 17\\n\\n\\nin the litigation.” Id. One of these factors is “the relative ease of access to sources\\n\\nof proof,” which includes the “availability of compulsory process for attendance of\\n\\nunwilling, and the cost of obtaining attendance of willing, witnesses.” Gulf Oil\\n\\nCorp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Piper Aircraft, 454 U.S. at\\n\\n241 n.6. Other factors are the “possibility of view of premises, if view would be\\n\\nappropriate to the action” and the enforceability of a judgment, if one is obtained,\\n\\nGulf Oil, 330 U.S. at 508. And a court may consider “all other practical problems\\n\\nthat make trial of a case easy, expeditious and inexpensive.” Id. The public factors\\n\\n“pertain to the relative interests of the two fora.” Tazoe, 631 F.3d at 1333. Among\\n\\nother things, the public factors consider “the administrative difficulties flowing\\n\\nfrom court congestion,” “the ‘local interest in having localized controversies\\n\\ndecided at home,’” and “the unfairness of burdening citizens in an unrelated forum\\n\\nwith jury duty.” Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at\\n\\n509). A court may also consider what law will govern the action, including “the\\n\\navoidance of unnecessary problems in conflicts of laws” and “the application of\\n\\nforeign law.” Id.\\n\\n Fresh Results challenges the balancing of the private and public factors by\\n\\nthe district court. Fresh Results argues that the district court abused its discretion\\n\\nboth when it weighed the private factors in favor of dismissal and when it failed to\\n\\nconsider all the relevant public factors. We agree.\\n\\n\\n\\n 8\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 9 of 17\\n\\n\\n We divide our discussion in two parts. First, we explain that the district court\\n\\nabused its discretion when it failed to consider the public factors after determining\\n\\nthat the private factors were not in equipoise. Second, we explain that the district\\n\\ncourt committed two errors in its analysis of the private factors.\\n\\n A. The District Court Abused Its Discretion when It Failed to Consider the\\n Relevant Public Factors After Determining that the Private Factors Were\\n Not in Equipoise.\\n Fresh Results argues that the district court abused its discretion when it\\n\\nfailed to consider all relevant public factors after concluding that the private factors\\n\\nwere not in equipoise. The equipoise standard employed by the district court comes\\n\\nfrom dicta in our caselaw. Although our holdings are precedential, our dicta are\\n\\nnot. See United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.\\n\\n2017). Dicta refer to “those portions of an opinion that are not necessary to\\n\\ndeciding the case then before us.” Id. (citation and quotation marks omitted). In\\n\\ncontrast, our holdings “constitute the precedent, as a point necessarily decided” in\\n\\nthat case. Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016)\\n\\n(emphasis omitted); accord Powell v. Thomas, 643 F.3d 1300, 1304–05 (11th Cir.\\n\\n2011) (explaining that “a holding is comprised both of the result of the case and\\n\\nthose portions of the opinion necessary to that result by which we are bound”\\n\\n(citation and internal quotation marks omitted)). And we have explained that,\\n\\n“regardless of what a court says in its opinion, the decision can hold nothing\\n\\n\\n\\n 9\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 10 of 17\\n\\n\\nbeyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th\\n\\nCir. 2010).\\n\\n Our first mention of the equipoise standard occurred in dicta in La\\n\\nSeguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). In that\\n\\ndecision, we quoted at length from a general description of the forum non\\n\\nconveniens analysis from a decision of the District of Columbia Circuit, Pain v.\\n\\nUnited Technologies Corporation, 637 F.2d 775, 784–85 (D.C. Cir. 1980). One\\n\\nsentence in our block quotation from Pain stated that “[i]f the trial judge finds [the]\\n\\nbalance of private interests to be in equipoise or near equipoise, he must then\\n\\ndetermine whether or not factors of public interest tip the balance in favor of a trial\\n\\nin a foreign forum.” La Seguridad, 707 F.2d at 1307 (quoting Pain, 637 F.3d at\\n\\n784–85). We never drew particular attention to that sentence, and the equipoise\\n\\nstandard was of no particular relevance in the context of our discussion. But, in the\\n\\nnext paragraph, we explained that “controlling weight cannot be given to any one\\n\\nfactor in the balancing process or the doctrine would lose much of the flexibility\\n\\nthat is its essence.” Id. And we made no further mention of the equipoise standard\\n\\nanywhere else in our decision.\\n\\n Nor was the equipoise standard a point necessarily decided. Because the\\n\\nparties in La Seguridad kept shifting their theories of liability and defenses, we\\n\\nheld that “the case [was not in] a posture in which the forum non conveniens\\n\\n\\n\\n 10\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 11 of 17\\n\\n\\nmotion could be resolved.” Id. at 1309. So “there [was] simply no basis for a forum\\n\\nnon conveniens determination other than sheer speculation.” Id. Because we\\n\\nvacated and remanded on that basis, we had no occasion to adopt Pain’s equipoise\\n\\nstandard as a holding.\\n\\n Indeed, our instructions to the district court on remand made clear that we\\n\\ncould not have adopted the equipoise standard as a holding. Despite our suggestion\\n\\nthat a court need not always consider the public factors, we instructed the district\\n\\ncourt to consider on remand “the interest, if any, of the forum in having a United\\n\\nStates court applying controlling United States statutes to shipping contracts that\\n\\ngenerate much local revenue and employment”—a public factor. Id. at 1310. And\\n\\nwe instructed the district court that it “must weigh the advantages of the United\\n\\nStates forum in the balance, such as its familiarity with the law that will govern the\\n\\nsuit”—another public factor. Id. (emphasis added); see also Gulf Oil, 330 U.S. at\\n\\n509. Because we “still [did] not know the underlying nature of” the claims and\\n\\ndefenses and were “left only to speculate as to what witnesses and documents\\n\\nmight be relevant and where they might be located,” we could not have known\\n\\nwhether the private factors were or were not in equipoise when we issued these\\n\\ninstructions about the public factors. La Seguridad, 707 F.2d at 1308. The\\n\\nequipoise standard was “not essential to the reasoning behind that decision.”\\n\\nGarner et al., supra § 4, at 44.\\n\\n\\n\\n 11\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 12 of 17\\n\\n\\n After La Seguridad, we clarified that the public factors do not “enter the\\n\\nequation only when the private interest factors are at or near equipoise.” Leon, 251\\n\\nF.3d at 1311 (internal quotation marks omitted). Although “the private factors are\\n\\ngenerally considered more important than the public factors,” we explained that the\\n\\npublic factors are not superfluous, even when the private factors are far from\\n\\nequipoise. Id. And we opined that “the better rule is to consider both factors in all\\n\\ncases,” which “has been our approach in recent cases.” Id.; see also SME Racks,\\n\\nInc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 n.5 (11th\\n\\nCir. 2004) (“We have clarified that . . . courts should consider both public and\\n\\nprivate factors in all cases.” (citation and internal quotation marks omitted)).\\n\\n The equipoise standard is hard to square with Supreme Court precedent. As\\n\\none commentator has observed, “there is no sound basis in either Gulf Oil or the\\n\\nSupreme Court’s later decision in Piper Aircraft Company v. Reyno for such an\\n\\napproach.” 14D Charles Alan Wright et al., Federal Practice and Procedure\\n\\n§ 3828.4 (4th ed. 2009). In Gulf Oil, the Supreme Court set forth the balancing test\\n\\nand provided a nonexhaustive list of both private and public factors, albeit without\\n\\nmention of how the factors fit together. 330 U.S. at 508–09. Then, in Piper\\n\\nAircraft, the Court explained that we should not disturb a district court’s forum non\\n\\nconveniens decision when it “considered all relevant public and private interest\\n\\nfactors, and where its balancing of these factors [was] reasonable.” 454 U.S. at 257\\n\\n\\n\\n 12\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 13 of 17\\n\\n\\n(emphasis added). The Court also explained that a district court may dismiss for\\n\\nforum non conveniens “when trial in the chosen forum would ‘establish\\n\\noppressiveness and vexation to a defendant out of all proportion to plaintiff’s\\n\\nconvenience’ or when the ‘chosen forum is inappropriate because of\\n\\nconsiderations affecting the court’s own administrative and legal problems.’” Id. at\\n\\n241 (alterations adopted) (emphasis added) (quoting Koster v. Lumbermens Mut.\\n\\nCas. Co., 330 U.S. 518, 524 (1947)). That is, a court may dismiss because of either\\n\\nthe private factors, which pertain to the interests of the litigants, or the public\\n\\nfactors, which pertain to the interests of the fora. See id. So the Court has at least\\n\\nsuggested that the public factors may warrant dismissal on their own accord. See\\n\\nid.\\n\\n We now expressly disavow the equipoise standard. In the light of Piper\\n\\nAircraft, the District of Columbia Circuit, which we quoted in our first mention of\\n\\nthe standard, has since abandoned it. See Nemariam v. Fed. Democratic Republic\\n\\nof Ethiopia, 315 F.3d 390, 393 (D.C. Cir. 2003) (explaining that Piper Aircraft\\n\\n“overrul[ed] the third part of the Pain test”—that is, the equipoise standard). And\\n\\nwe too recognize that our dicta about that standard are inconsistent with Piper\\n\\n\\n\\n\\n 13\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 14 of 17\\n\\n\\nAircraft and hold that a district court must consider all relevant public factors when\\n\\nconducting a forum non conveniens analysis.\\n\\n We acknowledge that after ruling that the private factors were not in\\n\\nequipoise and so no “exhaustive analysis of the public interest factors” was\\n\\nrequired, the district court stated that “[n]onetheless, the public interest factors\\n\\nfavor[ed] dismissal as well,” but we cannot conclude based on this conclusory\\n\\nstatement that the district court considered all the relevant public factors. To be\\n\\nsure, the district court discussed the public factor of choice of law, which also\\n\\ntouches on aspects of other public factors, see Piper Aircraft, 454 U.S. at 241 n.6,\\n\\nbut it did not mention any other public factor. And we cannot be sure that this\\n\\nfactor was the only one the district court would have considered relevant had it not\\n\\nbeen misled by the equipoise standard.\\n\\n ASF Holland contends that district courts should not be required to address\\n\\nall public factors in all cases because it would include “numerous and unnecessary\\n\\npublic factors that will have no bearing on the court’s ultimate determination,” but\\n\\nthis argument misses the mark. Under the correct forum non conveniens analysis, a\\n\\ndistrict court must consider all relevant public factors, not all public factors, as\\n\\nASF Holland suggests. See id. at 257; see also Van Cauwenberghe v. Biard, 486\\n\\nU.S. 517, 528–29 (1988) (explaining that “some factors may not be relevant in the\\n\\ncontext of a particular case”). Our rejection of the equipoise standard means that a\\n\\n\\n\\n 14\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 15 of 17\\n\\n\\ndistrict court may not bypass the public factors, even when the private factors are\\n\\nnot at or near equipoise. We vacate the dismissal of the complaint and remand for\\n\\nthe district court to consider all relevant private and public factors.\\n\\n B. The District Court Must Correct Two Errors when It Reweighs the\\n Private Factors on Remand.\\n Fresh Results also argues that the district court abused its discretion when it\\n\\nweighed the private factors in favor of dismissal. Because we vacate that dismissal,\\n\\nthe district court should also reweigh the private factors on remand. Although it\\n\\nmay reach the same result, the district court must correct two errors that it made in\\n\\nits analysis of the private factors.\\n\\n First, when considering the factor of relative ease of access to sources of\\n\\nproof, the district court disregarded the testimony of the South American growers\\n\\nbecause they are not parties to this suit, but the relative ease of access to sources of\\n\\nproof is not limited to evidence from the parties. See, e.g., Ford v. Brown, 319 F.3d\\n\\n1302, 1308 n.18 (11th Cir. 2003) (considering access to governmental\\n\\ninvestigations in a suit where the government was not a party). Indeed, the\\n\\ndescription of the private factors in Piper Aircraft expressly contemplated access to\\n\\nnonparty witnesses, including the “availability of compulsory process for\\n\\n\\n\\n\\n 15\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 16 of 17\\n\\n\\nattendance of unwilling . . . witnesses” and “the cost of obtaining attendance of\\n\\nwilling[] witnesses.” 454 U.S. at 251 n.6 (quoting Gulf Oil, 330 U.S. at 508).\\n\\n Although Fresh Results presented an affidavit asserting that the South\\n\\nAmerican growers were willing to testify in the United States but not in the\\n\\nNetherlands, the district court disregarded the importance of their testimony\\n\\nbecause “the Growers are not parties to this lawsuit.” That the growers are\\n\\nnonparties is an inadequate basis for ignoring them as a source of proof. To be\\n\\nsure, the district court may find on remand that the importance of the growers’\\n\\ntestimony is insubstantial compared to the location of other sources of proof\\n\\naccessible in the Netherlands. See Van Cauwenberghe, 486 U.S. at 528 (explaining\\n\\nthat a district court may consider whether pieces of evidence “are critical, or even\\n\\nrelevant,” and weigh them accordingly). But it cannot categorically disregard their\\n\\ntestimony solely because they are nonparties.\\n\\n Second, the district court was distracted by a red herring when it reasoned\\n\\nthat the enforceability of a possible judgment favored dismissal because no treaty\\n\\nexists between the United States and the Netherlands that governs the reciprocal\\n\\nenforcement of judgments. “There is no bilateral treaty or multilateral convention\\n\\nin force between the United States and any other country on reciprocal recognition\\n\\nand enforcement of judgments.” Enforcement of Judgments, U.S. Dep’t of State,\\n\\nhttps://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-\\n\\n\\n\\n 16\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 17 of 17\\n\\n\\njudicial-asst/Enforcement-of-Judges.html (last visited Apr. 22, 2019) (emphasis\\n\\nadded). Relying solely on the absence of a treaty—when no such treaty exists for\\n\\nthe United States—was an erroneous basis to weigh this factor in favor of\\n\\ndismissal. And the one-sided reasoning that Fresh Results “would be required to\\n\\ncommence new proceedings in Holland to enforce its judgment” overlooked that\\n\\nthe enforcement of a judgment may require a separate proceeding no matter in\\n\\nwhich forum the suit proceeds. For example, if the suit proceeds in the Netherlands\\n\\nand ASF Holland obtains a judgment for its counterclaims, a proceeding in the\\n\\nUnited States might still be required to enforce that judgment against Fresh\\n\\nResults.\\n\\n Although the district court must correct these two errors when it reweighs\\n\\nthe private factors on remand, it may well conclude that the balance of the\\n\\nprivate—and public—factors still weighs in favor of the Netherlands as the more\\n\\nconvenient forum for this dispute. We express no opinion on the matter. We\\n\\ncommit that determination “to the sound discretion of the trial court” in the light of\\n\\nour instructions. Piper Aircraft, 454 U.S. at 257.\\n\\n IV. CONCLUSION\\n\\n We VACATE the dismissal of Fresh Results’ complaint and REMAND for\\n\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 17\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389410/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ROSENTHAL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612157/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: FRESH RESULTS, LLC, a Delaware Limited Liability Company, Plaintiff-Appellant, v. ASF HOLLAND, B v. a Dutch Corporation, Defendant-Appellee, Total Produce, PLC, an Irish Public Limited Company, Defendant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11595 Date Filed: 04/22/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-11595\n ________________________\n\n D.C. Docket No. 0:17-cv-60949-BB\n\n\n\nFRESH RESULTS, LLC,\na Delaware limited liability company,\n\n Plaintiff-Appellant,\n\nversus\n\nASF HOLLAND, B.V.,\na Dutch corporation,\n\n Defendant-Appellee,\n\nTOTAL PRODUCE, PLC,\nan Irish public limited company,\n\n Defendant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 22, 2019)\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 2 of 17\n\n\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n The main issue presented by this appeal is whether the district court abused\n\nits discretion when it dismissed a complaint for forum non conveniens because it\n\nfailed to consider all relevant public factors for each forum after determining that\n\nthe private factors for the litigants were not in equipoise. Fresh Results, an\n\nAmerican company, arranged bulk shipments of blueberries for ASF Holland, a\n\nDutch company that repacks wholesale produce to sell to European customers.\n\nASF Holland created reports about the results of its inspection of the shipments,\n\nand those reports determined the final price it paid for the blueberries. Fresh\n\nResults filed a complaint against ASF Holland in the Southern District of Florida,\n\nalleging that it had falsified the reports and fraudulently deflated the price. ASF\n\nHolland moved to dismiss the complaint on the ground that the Netherlands was a\n\nmore convenient forum for the suit, and the district court agreed. After concluding\n\nthat the interests of the litigants—the so-called “private factors”—were not in\n\nequipoise, the district court ruled that it need not consider all relevant “public\n\nfactors” for each forum and dismissed the complaint so that the litigation could\n\nproceed in the Netherlands. The district court derived the equipoise standard from\n\n\n*\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\nTexas, sitting by designation.\n\n\n 2\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 3 of 17\n\n\ndicta in our precedent, La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th\n\nCir. 1983), that we have since recited in dicta in other cases. Fresh Results\n\ncontends that the district court abused its discretion when it weighed the private\n\nfactors in favor of dismissal and when it failed to consider the relevant public\n\nfactors. Because we agree that the district court abused its discretion when it failed\n\nto consider the relevant public factors and committed two errors in its analysis of\n\nthe private factors, we vacate and remand.\n\n I. BACKGROUND\n\n This appeal concerns a blueberry deal that soured. Fresh Results, an\n\nAmerican company, acts as a sales agent for growers of produce in South America.\n\nIn 2015, Fresh Results arranged bulk shipments of blueberries for two seasons for\n\nASF Holland, a Dutch company that buys wholesale produce to repack and sell to\n\ncustomers in Europe.\n\n To initiate a shipment, ASF Holland would request blueberries from Fresh\n\nResults at a reference price that purportedly reflected its anticipated net returns.\n\nWhen Fresh Results received the request, it would coordinate with the growers to\n\nfulfill the order. The growers would send the blueberries from South America\n\ndirectly to the Netherlands by air freight. When the shipment arrived, ASF Holland\n\nwas responsible for inspecting, sorting, and repacking the blueberries in a timely\n\nmanner. It would then send Fresh Results several reports on the shipment, with\n\n\n\n 3\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 4 of 17\n\n\ndetails of its inspection, sorting, sales prices, and expenses. Fresh Results used the\n\nreports to adjust the reference price and create an invoice for ASF Holland with the\n\nfinal price. ASF Holland would remit the invoice amount to Fresh Results in\n\nFlorida.\n\n During the second season, one of the growers hired an auditor to make an\n\nunannounced inspection of a blueberry shipment at ASF Holland’s facility in the\n\nNetherlands. The auditor allegedly discovered that the blueberries were still in\n\ntheir original freight package, even though ASF Holland had reported to Fresh\n\nResults that the shipment had been inspected, sorted, and repacked. After learning\n\nof the auditor’s inspection, Fresh Results demanded that ASF Holland pay the\n\nmarket price for each shipment of blueberries it had received, but ASF Holland\n\nrefused.\n\n Fresh Results filed a complaint, which it later amended, against ASF\n\nHolland in the Southern District of Florida. Fresh Results asserted claims of breach\n\nof contract, negligent misrepresentation, fraud, conversion, and tortious\n\ninterference with its business relationship with the growers. It alleged that ASF\n\nHolland fraudulently promised a high reference price but then deflated the actual\n\nprice it paid by sending false reports. According to Fresh Results, ASF Holland\n\nmanipulated the price by understating the amount paid by its European customers\n\nand by falsely inflating its expenses in the reports. ASF Holland informed the\n\n\n\n 4\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 5 of 17\n\n\ndistrict court that it would pursue counterclaims against Fresh Results for sending\n\nsubstandard blueberries.\n\n ASF Holland then moved to dismiss the complaint for failure to state a claim\n\nand forum non conveniens. It argued that the Netherlands was a more convenient\n\nforum for the dispute. ASF Holland presented an affidavit from Ronald Jongbloed,\n\nits managing director, in which he asserted that the important documents and\n\nwitnesses are in the Netherlands. And it presented an affidavit from Sebastiaan\n\nMoolenaar, a Dutch lawyer, in which he asserted that Fresh Results can obtain\n\nrelief for all its claims in the Netherlands and that the United States has no treaty\n\nwith the Netherlands for the reciprocal enforcement of judgments.\n\n The district court granted the motion on the ground that forum non\n\nconveniens warranted dismissal. Although it explained that a strong presumption\n\nfavors Fresh Results’ choice of forum, the court ruled that the private factors\n\nweighed in favor of dismissal. It reasoned that most sources of proof needed to\n\nprove Fresh Results’ claims are in the Netherlands, where the blueberries were\n\ndelivered, repacked, and sold and where the reports were allegedly falsified.\n\nAlthough Fresh Results contended that the South American growers were willing\n\nto participate in litigation only in the United States and not in the Netherlands, the\n\ndistrict court disregarded the growers’ testimony as a source of proof because they\n\nwere not parties. And it weighed in favor of dismissal the possibility for view of\n\n\n\n 5\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 6 of 17\n\n\nASF Holland’s facility in the Netherlands. Because the United States has no treaty\n\nwith the Netherlands for the reciprocal enforcement of judgments, the court\n\nconcluded that Fresh Results would inevitably have to litigate in the Netherlands to\n\nenforce a judgment if it obtained one, so it weighed the enforceability of a\n\njudgment in favor of dismissal.\n\n The district court decided that it need not consider the public factors if the\n\nprivate factors were not “in equipoise or near equipoise,” relying on King v.\n\nCessna Aircraft Company, 562 F.3d 1374, 1382 (11th Cir. 2009) (quoting La\n\nSeguridad, 707 F.2d at 1307). It then concluded that all “the private interest factors\n\nalign in favor of Defendant’s position and are thus not [in] equipoise, [so] it need\n\nnot engage in an exhaustive analysis of all public interest[] factors.” The court also\n\nconcluded that “[n]onetheless, the public interest factors favor dismissal as well,”\n\nbut it discussed only one public factor, choice of law, and weighed that factor in\n\nfavor of dismissal because Dutch law would likely apply. The court dismissed the\n\ncomplaint for forum non conveniens and declined to decide the other grounds for\n\ndismissal asserted by ASF Holland.\n\n II. STANDARD OF REVIEW\n\n Because “[t]he forum non conveniens determination is committed to the\n\nsound discretion of the trial court,” we review for abuse of discretion. Piper\n\nAircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). “[W]here the court has\n\n\n\n 6\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 7 of 17\n\n\nconsidered all relevant public and private interest factors, and where its balancing\n\nof these factors is reasonable, its decision deserves substantial deference.” Id.\n\n III. DISCUSSION\n\n Under the doctrine of forum non conveniens, a district court may decline to\n\nexercise its jurisdiction when a foreign forum is better suited to adjudicate the\n\ndispute. See Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir. 2017). The\n\n“central purpose” of forum non conveniens is “to ensure that the trial is\n\nconvenient.” Id. (citation and internal quotation marks omitted). The doctrine\n\nshould not be invoked “lightly . . . because it effectively deprives the plaintiff of\n\nhis favored forum,” id., and so a defendant bears the burden of justifying dismissal\n\nbased on forum non conveniens, La Seguridad, 707 F.2d at 1309. To satisfy this\n\nburden, the defendant must establish that “(1) an adequate alternative forum is\n\navailable, (2) the public and private factors weigh in favor of dismissal, and (3) the\n\nplaintiff can reinstate his suit in the alternative forum without undue inconvenience\n\nor prejudice.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011)\n\n(quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310–11 (11th Cir. 2001)).\n\n The second part of the forum non conveniens analysis—the balancing of the\n\nprivate and public factors—is a “comparative inquiry [that] requires the district\n\ncourt to weigh the ‘relative’ advantages and disadvantages of each respective\n\nforum.” Id. at 1331. The private factors “pertain to the interests of the participants\n\n\n\n 7\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 8 of 17\n\n\nin the litigation.” Id. One of these factors is “the relative ease of access to sources\n\nof proof,” which includes the “availability of compulsory process for attendance of\n\nunwilling, and the cost of obtaining attendance of willing, witnesses.” Gulf Oil\n\nCorp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Piper Aircraft, 454 U.S. at\n\n241 n.6. Other factors are the “possibility of view of premises, if view would be\n\nappropriate to the action” and the enforceability of a judgment, if one is obtained,\n\nGulf Oil, 330 U.S. at 508. And a court may consider “all other practical problems\n\nthat make trial of a case easy, expeditious and inexpensive.” Id. The public factors\n\n“pertain to the relative interests of the two fora.” Tazoe, 631 F.3d at 1333. Among\n\nother things, the public factors consider “the administrative difficulties flowing\n\nfrom court congestion,” “the ‘local interest in having localized controversies\n\ndecided at home,’” and “the unfairness of burdening citizens in an unrelated forum\n\nwith jury duty.” Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at\n\n509). A court may also consider what law will govern the action, including “the\n\navoidance of unnecessary problems in conflicts of laws” and “the application of\n\nforeign law.” Id.\n\n Fresh Results challenges the balancing of the private and public factors by\n\nthe district court. Fresh Results argues that the district court abused its discretion\n\nboth when it weighed the private factors in favor of dismissal and when it failed to\n\nconsider all the relevant public factors. We agree.\n\n\n\n 8\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 9 of 17\n\n\n We divide our discussion in two parts. First, we explain that the district court\n\nabused its discretion when it failed to consider the public factors after determining\n\nthat the private factors were not in equipoise. Second, we explain that the district\n\ncourt committed two errors in its analysis of the private factors.\n\n A. The District Court Abused Its Discretion when It Failed to Consider the\n Relevant Public Factors After Determining that the Private Factors Were\n Not in Equipoise.\n Fresh Results argues that the district court abused its discretion when it\n\nfailed to consider all relevant public factors after concluding that the private factors\n\nwere not in equipoise. The equipoise standard employed by the district court comes\n\nfrom dicta in our caselaw. Although our holdings are precedential, our dicta are\n\nnot. See United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.\n\n2017). Dicta refer to “those portions of an opinion that are not necessary to\n\ndeciding the case then before us.” Id. (citation and quotation marks omitted). In\n\ncontrast, our holdings “constitute the precedent, as a point necessarily decided” in\n\nthat case. Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016)\n\n(emphasis omitted); accord Powell v. Thomas, 643 F.3d 1300, 1304–05 (11th Cir.\n\n2011) (explaining that “a holding is comprised both of the result of the case and\n\nthose portions of the opinion necessary to that result by which we are bound”\n\n(citation and internal quotation marks omitted)). And we have explained that,\n\n“regardless of what a court says in its opinion, the decision can hold nothing\n\n\n\n 9\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 10 of 17\n\n\nbeyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th\n\nCir. 2010).\n\n Our first mention of the equipoise standard occurred in dicta in La\n\nSeguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). In that\n\ndecision, we quoted at length from a general description of the forum non\n\nconveniens analysis from a decision of the District of Columbia Circuit, Pain v.\n\nUnited Technologies Corporation, 637 F.2d 775, 784–85 (D.C. Cir. 1980). One\n\nsentence in our block quotation from Pain stated that “[i]f the trial judge finds [the]\n\nbalance of private interests to be in equipoise or near equipoise, he must then\n\ndetermine whether or not factors of public interest tip the balance in favor of a trial\n\nin a foreign forum.” La Seguridad, 707 F.2d at 1307 (quoting Pain, 637 F.3d at\n\n784–85). We never drew particular attention to that sentence, and the equipoise\n\nstandard was of no particular relevance in the context of our discussion. But, in the\n\nnext paragraph, we explained that “controlling weight cannot be given to any one\n\nfactor in the balancing process or the doctrine would lose much of the flexibility\n\nthat is its essence.” Id. And we made no further mention of the equipoise standard\n\nanywhere else in our decision.\n\n Nor was the equipoise standard a point necessarily decided. Because the\n\nparties in La Seguridad kept shifting their theories of liability and defenses, we\n\nheld that “the case [was not in] a posture in which the forum non conveniens\n\n\n\n 10\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 11 of 17\n\n\nmotion could be resolved.” Id. at 1309. So “there [was] simply no basis for a forum\n\nnon conveniens determination other than sheer speculation.” Id. Because we\n\nvacated and remanded on that basis, we had no occasion to adopt Pain’s equipoise\n\nstandard as a holding.\n\n Indeed, our instructions to the district court on remand made clear that we\n\ncould not have adopted the equipoise standard as a holding. Despite our suggestion\n\nthat a court need not always consider the public factors, we instructed the district\n\ncourt to consider on remand “the interest, if any, of the forum in having a United\n\nStates court applying controlling United States statutes to shipping contracts that\n\ngenerate much local revenue and employment”—a public factor. Id. at 1310. And\n\nwe instructed the district court that it “must weigh the advantages of the United\n\nStates forum in the balance, such as its familiarity with the law that will govern the\n\nsuit”—another public factor. Id. (emphasis added); see also Gulf Oil, 330 U.S. at\n\n509. Because we “still [did] not know the underlying nature of” the claims and\n\ndefenses and were “left only to speculate as to what witnesses and documents\n\nmight be relevant and where they might be located,” we could not have known\n\nwhether the private factors were or were not in equipoise when we issued these\n\ninstructions about the public factors. La Seguridad, 707 F.2d at 1308. The\n\nequipoise standard was “not essential to the reasoning behind that decision.”\n\nGarner et al., supra § 4, at 44.\n\n\n\n 11\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 12 of 17\n\n\n After La Seguridad, we clarified that the public factors do not “enter the\n\nequation only when the private interest factors are at or near equipoise.” Leon, 251\n\nF.3d at 1311 (internal quotation marks omitted). Although “the private factors are\n\ngenerally considered more important than the public factors,” we explained that the\n\npublic factors are not superfluous, even when the private factors are far from\n\nequipoise. Id. And we opined that “the better rule is to consider both factors in all\n\ncases,” which “has been our approach in recent cases.” Id.; see also SME Racks,\n\nInc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 n.5 (11th\n\nCir. 2004) (“We have clarified that . . . courts should consider both public and\n\nprivate factors in all cases.” (citation and internal quotation marks omitted)).\n\n The equipoise standard is hard to square with Supreme Court precedent. As\n\none commentator has observed, “there is no sound basis in either Gulf Oil or the\n\nSupreme Court’s later decision in Piper Aircraft Company v. Reyno for such an\n\napproach.” 14D Charles Alan Wright et al., Federal Practice and Procedure\n\n§ 3828.4 (4th ed. 2009). In Gulf Oil, the Supreme Court set forth the balancing test\n\nand provided a nonexhaustive list of both private and public factors, albeit without\n\nmention of how the factors fit together. 330 U.S. at 508–09. Then, in Piper\n\nAircraft, the Court explained that we should not disturb a district court’s forum non\n\nconveniens decision when it “considered all relevant public and private interest\n\nfactors, and where its balancing of these factors [was] reasonable.” 454 U.S. at 257\n\n\n\n 12\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 13 of 17\n\n\n(emphasis added). The Court also explained that a district court may dismiss for\n\nforum non conveniens “when trial in the chosen forum would ‘establish\n\noppressiveness and vexation to a defendant out of all proportion to plaintiff’s\n\nconvenience’ or when the ‘chosen forum is inappropriate because of\n\nconsiderations affecting the court’s own administrative and legal problems.’” Id. at\n\n241 (alterations adopted) (emphasis added) (quoting Koster v. Lumbermens Mut.\n\nCas. Co., 330 U.S. 518, 524 (1947)). That is, a court may dismiss because of either\n\nthe private factors, which pertain to the interests of the litigants, or the public\n\nfactors, which pertain to the interests of the fora. See id. So the Court has at least\n\nsuggested that the public factors may warrant dismissal on their own accord. See\n\nid.\n\n We now expressly disavow the equipoise standard. In the light of Piper\n\nAircraft, the District of Columbia Circuit, which we quoted in our first mention of\n\nthe standard, has since abandoned it. See Nemariam v. Fed. Democratic Republic\n\nof Ethiopia, 315 F.3d 390, 393 (D.C. Cir. 2003) (explaining that Piper Aircraft\n\n“overrul[ed] the third part of the Pain test”—that is, the equipoise standard). And\n\nwe too recognize that our dicta about that standard are inconsistent with Piper\n\n\n\n\n 13\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 14 of 17\n\n\nAircraft and hold that a district court must consider all relevant public factors when\n\nconducting a forum non conveniens analysis.\n\n We acknowledge that after ruling that the private factors were not in\n\nequipoise and so no “exhaustive analysis of the public interest factors” was\n\nrequired, the district court stated that “[n]onetheless, the public interest factors\n\nfavor[ed] dismissal as well,” but we cannot conclude based on this conclusory\n\nstatement that the district court considered all the relevant public factors. To be\n\nsure, the district court discussed the public factor of choice of law, which also\n\ntouches on aspects of other public factors, see Piper Aircraft, 454 U.S. at 241 n.6,\n\nbut it did not mention any other public factor. And we cannot be sure that this\n\nfactor was the only one the district court would have considered relevant had it not\n\nbeen misled by the equipoise standard.\n\n ASF Holland contends that district courts should not be required to address\n\nall public factors in all cases because it would include “numerous and unnecessary\n\npublic factors that will have no bearing on the court’s ultimate determination,” but\n\nthis argument misses the mark. Under the correct forum non conveniens analysis, a\n\ndistrict court must consider all relevant public factors, not all public factors, as\n\nASF Holland suggests. See id. at 257; see also Van Cauwenberghe v. Biard, 486\n\nU.S. 517, 528–29 (1988) (explaining that “some factors may not be relevant in the\n\ncontext of a particular case”). Our rejection of the equipoise standard means that a\n\n\n\n 14\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 15 of 17\n\n\ndistrict court may not bypass the public factors, even when the private factors are\n\nnot at or near equipoise. We vacate the dismissal of the complaint and remand for\n\nthe district court to consider all relevant private and public factors.\n\n B. The District Court Must Correct Two Errors when It Reweighs the\n Private Factors on Remand.\n Fresh Results also argues that the district court abused its discretion when it\n\nweighed the private factors in favor of dismissal. Because we vacate that dismissal,\n\nthe district court should also reweigh the private factors on remand. Although it\n\nmay reach the same result, the district court must correct two errors that it made in\n\nits analysis of the private factors.\n\n First, when considering the factor of relative ease of access to sources of\n\nproof, the district court disregarded the testimony of the South American growers\n\nbecause they are not parties to this suit, but the relative ease of access to sources of\n\nproof is not limited to evidence from the parties. See, e.g., Ford v. Brown, 319 F.3d\n\n1302, 1308 n.18 (11th Cir. 2003) (considering access to governmental\n\ninvestigations in a suit where the government was not a party). Indeed, the\n\ndescription of the private factors in Piper Aircraft expressly contemplated access to\n\nnonparty witnesses, including the “availability of compulsory process for\n\n\n\n\n 15\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 16 of 17\n\n\nattendance of unwilling . . . witnesses” and “the cost of obtaining attendance of\n\nwilling[] witnesses.” 454 U.S. at 251 n.6 (quoting Gulf Oil, 330 U.S. at 508).\n\n Although Fresh Results presented an affidavit asserting that the South\n\nAmerican growers were willing to testify in the United States but not in the\n\nNetherlands, the district court disregarded the importance of their testimony\n\nbecause “the Growers are not parties to this lawsuit.” That the growers are\n\nnonparties is an inadequate basis for ignoring them as a source of proof. To be\n\nsure, the district court may find on remand that the importance of the growers’\n\ntestimony is insubstantial compared to the location of other sources of proof\n\naccessible in the Netherlands. See Van Cauwenberghe, 486 U.S. at 528 (explaining\n\nthat a district court may consider whether pieces of evidence “are critical, or even\n\nrelevant,” and weigh them accordingly). But it cannot categorically disregard their\n\ntestimony solely because they are nonparties.\n\n Second, the district court was distracted by a red herring when it reasoned\n\nthat the enforceability of a possible judgment favored dismissal because no treaty\n\nexists between the United States and the Netherlands that governs the reciprocal\n\nenforcement of judgments. “There is no bilateral treaty or multilateral convention\n\nin force between the United States and any other country on reciprocal recognition\n\nand enforcement of judgments.” Enforcement of Judgments, U.S. Dep’t of State,\n\nhttps://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-\n\n\n\n 16\n\f Case: 18-11595 Date Filed: 04/22/2019 Page: 17 of 17\n\n\njudicial-asst/Enforcement-of-Judges.html (last visited Apr. 22, 2019) (emphasis\n\nadded). Relying solely on the absence of a treaty—when no such treaty exists for\n\nthe United States—was an erroneous basis to weigh this factor in favor of\n\ndismissal. And the one-sided reasoning that Fresh Results “would be required to\n\ncommence new proceedings in Holland to enforce its judgment” overlooked that\n\nthe enforcement of a judgment may require a separate proceeding no matter in\n\nwhich forum the suit proceeds. For example, if the suit proceeds in the Netherlands\n\nand ASF Holland obtains a judgment for its counterclaims, a proceeding in the\n\nUnited States might still be required to enforce that judgment against Fresh\n\nResults.\n\n Although the district court must correct these two errors when it reweighs\n\nthe private factors on remand, it may well conclude that the balance of the\n\nprivate—and public—factors still weighs in favor of the Netherlands as the more\n\nconvenient forum for this dispute. We express no opinion on the matter. We\n\ncommit that determination “to the sound discretion of the trial court” in the light of\n\nour instructions. Piper Aircraft, 454 U.S. at 257.\n\n IV. CONCLUSION\n\n We VACATE the dismissal of Fresh Results’ complaint and REMAND for\n\nproceedings consistent with this opinion.\n\n\n\n\n 17\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: FRESH RESULTS, LLC, a Delaware Limited Liability Company, Plaintiff-Appellant, v. ASF HOLLAND, B v. a Dutch Corporation, Defendant-Appellee, Total Produce, PLC, an Irish Public Limited Company, Defendant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11595 Date Filed: 04/22/2019 Page: 1 of 17\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11595\\n ________________________\\n\\n D.C. Docket No. 0:17-cv-60949-BB\\n\\n\\n\\nFRESH RESULTS, LLC,\\na Delaware limited liability company,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\nASF HOLLAND, B.V.,\\na Dutch corporation,\\n\\n Defendant-Appellee,\\n\\nTOTAL PRODUCE, PLC,\\nan Irish public limited company,\\n\\n Defendant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 22, 2019)\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 2 of 17\\n\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n The main issue presented by this appeal is whether the district court abused\\n\\nits discretion when it dismissed a complaint for forum non conveniens because it\\n\\nfailed to consider all relevant public factors for each forum after determining that\\n\\nthe private factors for the litigants were not in equipoise. Fresh Results, an\\n\\nAmerican company, arranged bulk shipments of blueberries for ASF Holland, a\\n\\nDutch company that repacks wholesale produce to sell to European customers.\\n\\nASF Holland created reports about the results of its inspection of the shipments,\\n\\nand those reports determined the final price it paid for the blueberries. Fresh\\n\\nResults filed a complaint against ASF Holland in the Southern District of Florida,\\n\\nalleging that it had falsified the reports and fraudulently deflated the price. ASF\\n\\nHolland moved to dismiss the complaint on the ground that the Netherlands was a\\n\\nmore convenient forum for the suit, and the district court agreed. After concluding\\n\\nthat the interests of the litigants—the so-called “private factors”—were not in\\n\\nequipoise, the district court ruled that it need not consider all relevant “public\\n\\nfactors” for each forum and dismissed the complaint so that the litigation could\\n\\nproceed in the Netherlands. The district court derived the equipoise standard from\\n\\n\\n*\\n Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of\\nTexas, sitting by designation.\\n\\n\\n 2\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 3 of 17\\n\\n\\ndicta in our precedent, La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th\\n\\nCir. 1983), that we have since recited in dicta in other cases. Fresh Results\\n\\ncontends that the district court abused its discretion when it weighed the private\\n\\nfactors in favor of dismissal and when it failed to consider the relevant public\\n\\nfactors. Because we agree that the district court abused its discretion when it failed\\n\\nto consider the relevant public factors and committed two errors in its analysis of\\n\\nthe private factors, we vacate and remand.\\n\\n I. BACKGROUND\\n\\n This appeal concerns a blueberry deal that soured. Fresh Results, an\\n\\nAmerican company, acts as a sales agent for growers of produce in South America.\\n\\nIn 2015, Fresh Results arranged bulk shipments of blueberries for two seasons for\\n\\nASF Holland, a Dutch company that buys wholesale produce to repack and sell to\\n\\ncustomers in Europe.\\n\\n To initiate a shipment, ASF Holland would request blueberries from Fresh\\n\\nResults at a reference price that purportedly reflected its anticipated net returns.\\n\\nWhen Fresh Results received the request, it would coordinate with the growers to\\n\\nfulfill the order. The growers would send the blueberries from South America\\n\\ndirectly to the Netherlands by air freight. When the shipment arrived, ASF Holland\\n\\nwas responsible for inspecting, sorting, and repacking the blueberries in a timely\\n\\nmanner. It would then send Fresh Results several reports on the shipment, with\\n\\n\\n\\n 3\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 4 of 17\\n\\n\\ndetails of its inspection, sorting, sales prices, and expenses. Fresh Results used the\\n\\nreports to adjust the reference price and create an invoice for ASF Holland with the\\n\\nfinal price. ASF Holland would remit the invoice amount to Fresh Results in\\n\\nFlorida.\\n\\n During the second season, one of the growers hired an auditor to make an\\n\\nunannounced inspection of a blueberry shipment at ASF Holland’s facility in the\\n\\nNetherlands. The auditor allegedly discovered that the blueberries were still in\\n\\ntheir original freight package, even though ASF Holland had reported to Fresh\\n\\nResults that the shipment had been inspected, sorted, and repacked. After learning\\n\\nof the auditor’s inspection, Fresh Results demanded that ASF Holland pay the\\n\\nmarket price for each shipment of blueberries it had received, but ASF Holland\\n\\nrefused.\\n\\n Fresh Results filed a complaint, which it later amended, against ASF\\n\\nHolland in the Southern District of Florida. Fresh Results asserted claims of breach\\n\\nof contract, negligent misrepresentation, fraud, conversion, and tortious\\n\\ninterference with its business relationship with the growers. It alleged that ASF\\n\\nHolland fraudulently promised a high reference price but then deflated the actual\\n\\nprice it paid by sending false reports. According to Fresh Results, ASF Holland\\n\\nmanipulated the price by understating the amount paid by its European customers\\n\\nand by falsely inflating its expenses in the reports. ASF Holland informed the\\n\\n\\n\\n 4\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 5 of 17\\n\\n\\ndistrict court that it would pursue counterclaims against Fresh Results for sending\\n\\nsubstandard blueberries.\\n\\n ASF Holland then moved to dismiss the complaint for failure to state a claim\\n\\nand forum non conveniens. It argued that the Netherlands was a more convenient\\n\\nforum for the dispute. ASF Holland presented an affidavit from Ronald Jongbloed,\\n\\nits managing director, in which he asserted that the important documents and\\n\\nwitnesses are in the Netherlands. And it presented an affidavit from Sebastiaan\\n\\nMoolenaar, a Dutch lawyer, in which he asserted that Fresh Results can obtain\\n\\nrelief for all its claims in the Netherlands and that the United States has no treaty\\n\\nwith the Netherlands for the reciprocal enforcement of judgments.\\n\\n The district court granted the motion on the ground that forum non\\n\\nconveniens warranted dismissal. Although it explained that a strong presumption\\n\\nfavors Fresh Results’ choice of forum, the court ruled that the private factors\\n\\nweighed in favor of dismissal. It reasoned that most sources of proof needed to\\n\\nprove Fresh Results’ claims are in the Netherlands, where the blueberries were\\n\\ndelivered, repacked, and sold and where the reports were allegedly falsified.\\n\\nAlthough Fresh Results contended that the South American growers were willing\\n\\nto participate in litigation only in the United States and not in the Netherlands, the\\n\\ndistrict court disregarded the growers’ testimony as a source of proof because they\\n\\nwere not parties. And it weighed in favor of dismissal the possibility for view of\\n\\n\\n\\n 5\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 6 of 17\\n\\n\\nASF Holland’s facility in the Netherlands. Because the United States has no treaty\\n\\nwith the Netherlands for the reciprocal enforcement of judgments, the court\\n\\nconcluded that Fresh Results would inevitably have to litigate in the Netherlands to\\n\\nenforce a judgment if it obtained one, so it weighed the enforceability of a\\n\\njudgment in favor of dismissal.\\n\\n The district court decided that it need not consider the public factors if the\\n\\nprivate factors were not “in equipoise or near equipoise,” relying on King v.\\n\\nCessna Aircraft Company, 562 F.3d 1374, 1382 (11th Cir. 2009) (quoting La\\n\\nSeguridad, 707 F.2d at 1307). It then concluded that all “the private interest factors\\n\\nalign in favor of Defendant’s position and are thus not [in] equipoise, [so] it need\\n\\nnot engage in an exhaustive analysis of all public interest[] factors.” The court also\\n\\nconcluded that “[n]onetheless, the public interest factors favor dismissal as well,”\\n\\nbut it discussed only one public factor, choice of law, and weighed that factor in\\n\\nfavor of dismissal because Dutch law would likely apply. The court dismissed the\\n\\ncomplaint for forum non conveniens and declined to decide the other grounds for\\n\\ndismissal asserted by ASF Holland.\\n\\n II. STANDARD OF REVIEW\\n\\n Because “[t]he forum non conveniens determination is committed to the\\n\\nsound discretion of the trial court,” we review for abuse of discretion. Piper\\n\\nAircraft Co. v. Reyno, 454 U.S. 235, 257 (1981). “[W]here the court has\\n\\n\\n\\n 6\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 7 of 17\\n\\n\\nconsidered all relevant public and private interest factors, and where its balancing\\n\\nof these factors is reasonable, its decision deserves substantial deference.” Id.\\n\\n III. DISCUSSION\\n\\n Under the doctrine of forum non conveniens, a district court may decline to\\n\\nexercise its jurisdiction when a foreign forum is better suited to adjudicate the\\n\\ndispute. See Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir. 2017). The\\n\\n“central purpose” of forum non conveniens is “to ensure that the trial is\\n\\nconvenient.” Id. (citation and internal quotation marks omitted). The doctrine\\n\\nshould not be invoked “lightly . . . because it effectively deprives the plaintiff of\\n\\nhis favored forum,” id., and so a defendant bears the burden of justifying dismissal\\n\\nbased on forum non conveniens, La Seguridad, 707 F.2d at 1309. To satisfy this\\n\\nburden, the defendant must establish that “(1) an adequate alternative forum is\\n\\navailable, (2) the public and private factors weigh in favor of dismissal, and (3) the\\n\\nplaintiff can reinstate his suit in the alternative forum without undue inconvenience\\n\\nor prejudice.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011)\\n\\n(quoting Leon v. Millon Air, Inc., 251 F.3d 1305, 1310–11 (11th Cir. 2001)).\\n\\n The second part of the forum non conveniens analysis—the balancing of the\\n\\nprivate and public factors—is a “comparative inquiry [that] requires the district\\n\\ncourt to weigh the ‘relative’ advantages and disadvantages of each respective\\n\\nforum.” Id. at 1331. The private factors “pertain to the interests of the participants\\n\\n\\n\\n 7\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 8 of 17\\n\\n\\nin the litigation.” Id. One of these factors is “the relative ease of access to sources\\n\\nof proof,” which includes the “availability of compulsory process for attendance of\\n\\nunwilling, and the cost of obtaining attendance of willing, witnesses.” Gulf Oil\\n\\nCorp. v. Gilbert, 330 U.S. 501, 508 (1947); see also Piper Aircraft, 454 U.S. at\\n\\n241 n.6. Other factors are the “possibility of view of premises, if view would be\\n\\nappropriate to the action” and the enforceability of a judgment, if one is obtained,\\n\\nGulf Oil, 330 U.S. at 508. And a court may consider “all other practical problems\\n\\nthat make trial of a case easy, expeditious and inexpensive.” Id. The public factors\\n\\n“pertain to the relative interests of the two fora.” Tazoe, 631 F.3d at 1333. Among\\n\\nother things, the public factors consider “the administrative difficulties flowing\\n\\nfrom court congestion,” “the ‘local interest in having localized controversies\\n\\ndecided at home,’” and “the unfairness of burdening citizens in an unrelated forum\\n\\nwith jury duty.” Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at\\n\\n509). A court may also consider what law will govern the action, including “the\\n\\navoidance of unnecessary problems in conflicts of laws” and “the application of\\n\\nforeign law.” Id.\\n\\n Fresh Results challenges the balancing of the private and public factors by\\n\\nthe district court. Fresh Results argues that the district court abused its discretion\\n\\nboth when it weighed the private factors in favor of dismissal and when it failed to\\n\\nconsider all the relevant public factors. We agree.\\n\\n\\n\\n 8\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 9 of 17\\n\\n\\n We divide our discussion in two parts. First, we explain that the district court\\n\\nabused its discretion when it failed to consider the public factors after determining\\n\\nthat the private factors were not in equipoise. Second, we explain that the district\\n\\ncourt committed two errors in its analysis of the private factors.\\n\\n A. The District Court Abused Its Discretion when It Failed to Consider the\\n Relevant Public Factors After Determining that the Private Factors Were\\n Not in Equipoise.\\n Fresh Results argues that the district court abused its discretion when it\\n\\nfailed to consider all relevant public factors after concluding that the private factors\\n\\nwere not in equipoise. The equipoise standard employed by the district court comes\\n\\nfrom dicta in our caselaw. Although our holdings are precedential, our dicta are\\n\\nnot. See United States v. Caraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.\\n\\n2017). Dicta refer to “those portions of an opinion that are not necessary to\\n\\ndeciding the case then before us.” Id. (citation and quotation marks omitted). In\\n\\ncontrast, our holdings “constitute the precedent, as a point necessarily decided” in\\n\\nthat case. Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016)\\n\\n(emphasis omitted); accord Powell v. Thomas, 643 F.3d 1300, 1304–05 (11th Cir.\\n\\n2011) (explaining that “a holding is comprised both of the result of the case and\\n\\nthose portions of the opinion necessary to that result by which we are bound”\\n\\n(citation and internal quotation marks omitted)). And we have explained that,\\n\\n“regardless of what a court says in its opinion, the decision can hold nothing\\n\\n\\n\\n 9\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 10 of 17\\n\\n\\nbeyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th\\n\\nCir. 2010).\\n\\n Our first mention of the equipoise standard occurred in dicta in La\\n\\nSeguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). In that\\n\\ndecision, we quoted at length from a general description of the forum non\\n\\nconveniens analysis from a decision of the District of Columbia Circuit, Pain v.\\n\\nUnited Technologies Corporation, 637 F.2d 775, 784–85 (D.C. Cir. 1980). One\\n\\nsentence in our block quotation from Pain stated that “[i]f the trial judge finds [the]\\n\\nbalance of private interests to be in equipoise or near equipoise, he must then\\n\\ndetermine whether or not factors of public interest tip the balance in favor of a trial\\n\\nin a foreign forum.” La Seguridad, 707 F.2d at 1307 (quoting Pain, 637 F.3d at\\n\\n784–85). We never drew particular attention to that sentence, and the equipoise\\n\\nstandard was of no particular relevance in the context of our discussion. But, in the\\n\\nnext paragraph, we explained that “controlling weight cannot be given to any one\\n\\nfactor in the balancing process or the doctrine would lose much of the flexibility\\n\\nthat is its essence.” Id. And we made no further mention of the equipoise standard\\n\\nanywhere else in our decision.\\n\\n Nor was the equipoise standard a point necessarily decided. Because the\\n\\nparties in La Seguridad kept shifting their theories of liability and defenses, we\\n\\nheld that “the case [was not in] a posture in which the forum non conveniens\\n\\n\\n\\n 10\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 11 of 17\\n\\n\\nmotion could be resolved.” Id. at 1309. So “there [was] simply no basis for a forum\\n\\nnon conveniens determination other than sheer speculation.” Id. Because we\\n\\nvacated and remanded on that basis, we had no occasion to adopt Pain’s equipoise\\n\\nstandard as a holding.\\n\\n Indeed, our instructions to the district court on remand made clear that we\\n\\ncould not have adopted the equipoise standard as a holding. Despite our suggestion\\n\\nthat a court need not always consider the public factors, we instructed the district\\n\\ncourt to consider on remand “the interest, if any, of the forum in having a United\\n\\nStates court applying controlling United States statutes to shipping contracts that\\n\\ngenerate much local revenue and employment”—a public factor. Id. at 1310. And\\n\\nwe instructed the district court that it “must weigh the advantages of the United\\n\\nStates forum in the balance, such as its familiarity with the law that will govern the\\n\\nsuit”—another public factor. Id. (emphasis added); see also Gulf Oil, 330 U.S. at\\n\\n509. Because we “still [did] not know the underlying nature of” the claims and\\n\\ndefenses and were “left only to speculate as to what witnesses and documents\\n\\nmight be relevant and where they might be located,” we could not have known\\n\\nwhether the private factors were or were not in equipoise when we issued these\\n\\ninstructions about the public factors. La Seguridad, 707 F.2d at 1308. The\\n\\nequipoise standard was “not essential to the reasoning behind that decision.”\\n\\nGarner et al., supra § 4, at 44.\\n\\n\\n\\n 11\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 12 of 17\\n\\n\\n After La Seguridad, we clarified that the public factors do not “enter the\\n\\nequation only when the private interest factors are at or near equipoise.” Leon, 251\\n\\nF.3d at 1311 (internal quotation marks omitted). Although “the private factors are\\n\\ngenerally considered more important than the public factors,” we explained that the\\n\\npublic factors are not superfluous, even when the private factors are far from\\n\\nequipoise. Id. And we opined that “the better rule is to consider both factors in all\\n\\ncases,” which “has been our approach in recent cases.” Id.; see also SME Racks,\\n\\nInc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100 n.5 (11th\\n\\nCir. 2004) (“We have clarified that . . . courts should consider both public and\\n\\nprivate factors in all cases.” (citation and internal quotation marks omitted)).\\n\\n The equipoise standard is hard to square with Supreme Court precedent. As\\n\\none commentator has observed, “there is no sound basis in either Gulf Oil or the\\n\\nSupreme Court’s later decision in Piper Aircraft Company v. Reyno for such an\\n\\napproach.” 14D Charles Alan Wright et al., Federal Practice and Procedure\\n\\n§ 3828.4 (4th ed. 2009). In Gulf Oil, the Supreme Court set forth the balancing test\\n\\nand provided a nonexhaustive list of both private and public factors, albeit without\\n\\nmention of how the factors fit together. 330 U.S. at 508–09. Then, in Piper\\n\\nAircraft, the Court explained that we should not disturb a district court’s forum non\\n\\nconveniens decision when it “considered all relevant public and private interest\\n\\nfactors, and where its balancing of these factors [was] reasonable.” 454 U.S. at 257\\n\\n\\n\\n 12\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 13 of 17\\n\\n\\n(emphasis added). The Court also explained that a district court may dismiss for\\n\\nforum non conveniens “when trial in the chosen forum would ‘establish\\n\\noppressiveness and vexation to a defendant out of all proportion to plaintiff’s\\n\\nconvenience’ or when the ‘chosen forum is inappropriate because of\\n\\nconsiderations affecting the court’s own administrative and legal problems.’” Id. at\\n\\n241 (alterations adopted) (emphasis added) (quoting Koster v. Lumbermens Mut.\\n\\nCas. Co., 330 U.S. 518, 524 (1947)). That is, a court may dismiss because of either\\n\\nthe private factors, which pertain to the interests of the litigants, or the public\\n\\nfactors, which pertain to the interests of the fora. See id. So the Court has at least\\n\\nsuggested that the public factors may warrant dismissal on their own accord. See\\n\\nid.\\n\\n We now expressly disavow the equipoise standard. In the light of Piper\\n\\nAircraft, the District of Columbia Circuit, which we quoted in our first mention of\\n\\nthe standard, has since abandoned it. See Nemariam v. Fed. Democratic Republic\\n\\nof Ethiopia, 315 F.3d 390, 393 (D.C. Cir. 2003) (explaining that Piper Aircraft\\n\\n“overrul[ed] the third part of the Pain test”—that is, the equipoise standard). And\\n\\nwe too recognize that our dicta about that standard are inconsistent with Piper\\n\\n\\n\\n\\n 13\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 14 of 17\\n\\n\\nAircraft and hold that a district court must consider all relevant public factors when\\n\\nconducting a forum non conveniens analysis.\\n\\n We acknowledge that after ruling that the private factors were not in\\n\\nequipoise and so no “exhaustive analysis of the public interest factors” was\\n\\nrequired, the district court stated that “[n]onetheless, the public interest factors\\n\\nfavor[ed] dismissal as well,” but we cannot conclude based on this conclusory\\n\\nstatement that the district court considered all the relevant public factors. To be\\n\\nsure, the district court discussed the public factor of choice of law, which also\\n\\ntouches on aspects of other public factors, see Piper Aircraft, 454 U.S. at 241 n.6,\\n\\nbut it did not mention any other public factor. And we cannot be sure that this\\n\\nfactor was the only one the district court would have considered relevant had it not\\n\\nbeen misled by the equipoise standard.\\n\\n ASF Holland contends that district courts should not be required to address\\n\\nall public factors in all cases because it would include “numerous and unnecessary\\n\\npublic factors that will have no bearing on the court’s ultimate determination,” but\\n\\nthis argument misses the mark. Under the correct forum non conveniens analysis, a\\n\\ndistrict court must consider all relevant public factors, not all public factors, as\\n\\nASF Holland suggests. See id. at 257; see also Van Cauwenberghe v. Biard, 486\\n\\nU.S. 517, 528–29 (1988) (explaining that “some factors may not be relevant in the\\n\\ncontext of a particular case”). Our rejection of the equipoise standard means that a\\n\\n\\n\\n 14\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 15 of 17\\n\\n\\ndistrict court may not bypass the public factors, even when the private factors are\\n\\nnot at or near equipoise. We vacate the dismissal of the complaint and remand for\\n\\nthe district court to consider all relevant private and public factors.\\n\\n B. The District Court Must Correct Two Errors when It Reweighs the\\n Private Factors on Remand.\\n Fresh Results also argues that the district court abused its discretion when it\\n\\nweighed the private factors in favor of dismissal. Because we vacate that dismissal,\\n\\nthe district court should also reweigh the private factors on remand. Although it\\n\\nmay reach the same result, the district court must correct two errors that it made in\\n\\nits analysis of the private factors.\\n\\n First, when considering the factor of relative ease of access to sources of\\n\\nproof, the district court disregarded the testimony of the South American growers\\n\\nbecause they are not parties to this suit, but the relative ease of access to sources of\\n\\nproof is not limited to evidence from the parties. See, e.g., Ford v. Brown, 319 F.3d\\n\\n1302, 1308 n.18 (11th Cir. 2003) (considering access to governmental\\n\\ninvestigations in a suit where the government was not a party). Indeed, the\\n\\ndescription of the private factors in Piper Aircraft expressly contemplated access to\\n\\nnonparty witnesses, including the “availability of compulsory process for\\n\\n\\n\\n\\n 15\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 16 of 17\\n\\n\\nattendance of unwilling . . . witnesses” and “the cost of obtaining attendance of\\n\\nwilling[] witnesses.” 454 U.S. at 251 n.6 (quoting Gulf Oil, 330 U.S. at 508).\\n\\n Although Fresh Results presented an affidavit asserting that the South\\n\\nAmerican growers were willing to testify in the United States but not in the\\n\\nNetherlands, the district court disregarded the importance of their testimony\\n\\nbecause “the Growers are not parties to this lawsuit.” That the growers are\\n\\nnonparties is an inadequate basis for ignoring them as a source of proof. To be\\n\\nsure, the district court may find on remand that the importance of the growers’\\n\\ntestimony is insubstantial compared to the location of other sources of proof\\n\\naccessible in the Netherlands. See Van Cauwenberghe, 486 U.S. at 528 (explaining\\n\\nthat a district court may consider whether pieces of evidence “are critical, or even\\n\\nrelevant,” and weigh them accordingly). But it cannot categorically disregard their\\n\\ntestimony solely because they are nonparties.\\n\\n Second, the district court was distracted by a red herring when it reasoned\\n\\nthat the enforceability of a possible judgment favored dismissal because no treaty\\n\\nexists between the United States and the Netherlands that governs the reciprocal\\n\\nenforcement of judgments. “There is no bilateral treaty or multilateral convention\\n\\nin force between the United States and any other country on reciprocal recognition\\n\\nand enforcement of judgments.” Enforcement of Judgments, U.S. Dep’t of State,\\n\\nhttps://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-\\n\\n\\n\\n 16\\n\\f Case: 18-11595 Date Filed: 04/22/2019 Page: 17 of 17\\n\\n\\njudicial-asst/Enforcement-of-Judges.html (last visited Apr. 22, 2019) (emphasis\\n\\nadded). Relying solely on the absence of a treaty—when no such treaty exists for\\n\\nthe United States—was an erroneous basis to weigh this factor in favor of\\n\\ndismissal. And the one-sided reasoning that Fresh Results “would be required to\\n\\ncommence new proceedings in Holland to enforce its judgment” overlooked that\\n\\nthe enforcement of a judgment may require a separate proceeding no matter in\\n\\nwhich forum the suit proceeds. For example, if the suit proceeds in the Netherlands\\n\\nand ASF Holland obtains a judgment for its counterclaims, a proceeding in the\\n\\nUnited States might still be required to enforce that judgment against Fresh\\n\\nResults.\\n\\n Although the district court must correct these two errors when it reweighs\\n\\nthe private factors on remand, it may well conclude that the balance of the\\n\\nprivate—and public—factors still weighs in favor of the Netherlands as the more\\n\\nconvenient forum for this dispute. We express no opinion on the matter. We\\n\\ncommit that determination “to the sound discretion of the trial court” in the light of\\n\\nour instructions. Piper Aircraft, 454 U.S. at 257.\\n\\n IV. CONCLUSION\\n\\n We VACATE the dismissal of Fresh Results’ complaint and REMAND for\\n\\nproceedings consistent with this opinion.\\n\\n\\n\\n\\n 17\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1890,"cells":{"id":{"kind":"number","value":4612232,"string":"4,612,232"},"name":{"kind":"string","value":"Dr. David S. MURANSKY, Individually and on Behalf of All Others Similarly Situated, Plaintiff - Appellee, James H. Price, Eric Alan Isaacson, Interested Parties - Appellants, v. GODIVA CHOCOLATIER, INC., a New Jersey Corporation, Defendant - Appellee."},"name_abbreviation":{"kind":"string","value":"Dr. David S. Muransky v. Godiva Chocolatier, Inc."},"decision_date":{"kind":"string","value":"2019-04-22"},"docket_number":{"kind":"string","value":"16-16486; 16-16783"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Martin, Jordan, Ginsburg\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888385/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888386/\", \"author_raw\": \"\"}, {\"author\": \"MARTIN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-16486 Date Filed: 04/22/2019 Page: 1 of 47\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16486; 16-16783\\n ________________________\\n\\n D.C. Docket No. 0:15-cv-60716-WPD\\n\\n\\n\\nDR. DAVID S. MURANSKY,\\nindividually and on behalf of all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\nJAMES H. PRICE,\\nERIC ALAN ISAACSON,\\n\\n Interested Parties - Appellants,\\n\\n versus\\n\\nGODIVA CHOCOLATIER, INC.,\\na New Jersey corporation,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 22, 2019)\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 2 of 47\\n\\n\\nBefore MARTIN, JORDAN, and GINSBURG, * Circuit Judges.\\n\\nMARTIN, Circuit Judge:\\n\\n We sua sponte vacate our previous opinion and publish this one in its place.\\n\\nFor ease of reading, the major change is to Part II.B, our discussion of Dr.\\n\\nMuransky’s standing to bring this action.\\n\\n This appeal was brought to contest the approval of a class-action settlement.\\n\\nDr. David Muransky filed a class action against Godiva Chocolatier, Inc. for\\n\\nviolating the Fair and Accurate Credit Transactions Act (“FACTA”). Appellants\\n\\nJames Price and Eric Isaacson (“the objectors”) objected to a class settlement\\n\\nreached by Dr. Muransky and Godiva. Over their objections, the District Court\\n\\napproved the settlement, class counsel’s request for attorney’s fees, and an\\n\\nincentive award for Dr. Muransky. After careful review and with the benefit of\\n\\noral argument, we affirm.\\n\\n I. Background\\n\\n In April 2015, Dr. Muransky filed a class action against Godiva for allegedly\\n\\nviolating FACTA. FACTA prohibits merchants from printing “more than the last\\n\\n5 digits of the card number or the expiration date upon any receipt provided to the\\n\\ncardholder at the point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1). We\\n\\n\\n\\n *\\n Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of\\nColumbia Circuit, sitting by designation.\\n 2\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 3 of 47\\n\\n\\nwill refer to this as the “truncation requirement.”\\n\\n FACTA authorizes customers to sue merchants that willfully or negligently\\n\\nviolate the truncation requirement. 15 U.S.C. §§ 1681n(a); 1681o(a). A merchant\\n\\nwillfully violates FACTA by acting in knowing violation of its statutory duties or\\n\\nby acting in reckless disregard of those duties. See Safeco Ins. Co. of Am. v. Burr,\\n\\n551 U.S. 47, 57–58, 127 S. Ct. 2201, 2208–09 (2007). For willful violations,\\n\\ncustomers may recover actual damages or statutory damages from $100 to $1000,\\n\\nand punitive damages. 15 U.S.C. § 1681n(a)(1), (a)(2); Safeco, 551 U.S. at 53,\\n\\n127 S. Ct. at 2206. Customers can recover statutory damages for willful violations\\n\\neven if they cannot show their identity was stolen or credit impacted, 15 U.S.C.\\n\\n§ 1681n(a), and even if they received and kept the defective receipt. Engel v.\\n\\nScully & Scully, Inc., 279 F.R.D. 117, 125–26 (S.D.N.Y. 2011). By contrast,\\n\\nwhen the violation is a result of negligence, customers can only recover their actual\\n\\ndamages as well as attorney’s fees. 15 U.S.C. § 1681o(a); Engel, 279 F.R.D. at\\n\\n125–26.\\n\\n The operative complaint alleges that after Dr. Muransky made a purchase at\\n\\na Godiva store, Godiva gave him a receipt that showed his credit card number’s\\n\\nfirst six and last four digits. Dr. Muransky sought to represent a class of customers\\n\\nwhose credit card numbers Godiva printed on receipts in violation of FACTA.\\n\\nThese violations, the complaint says, exposed Dr. Muransky and the class “to an\\n\\n\\n 3\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 4 of 47\\n\\n\\nelevated risk of identity theft.” According to the complaint, Godiva’s violation of\\n\\nFACTA was willful, so the class was entitled to statutory and punitive damages, as\\n\\nwell as attorney’s fees and costs. See id. § 1681n(a).\\n\\n Godiva moved to dismiss the complaint on the ground that it did not\\n\\nplausibly allege a willful violation of FACTA. The District Court denied Godiva’s\\n\\nmotion. After that, the parties engaged in discovery then mediated the case. In\\n\\nlate November 2015, the parties notified the court of an agreement in principle to\\n\\nsettle the case on a class-wide basis. They requested a stay, which the court\\n\\ngranted.\\n\\n Two months after that request, Dr. Muransky moved for preliminary\\n\\napproval of the class-action settlement. He explained that the parties agreed to a\\n\\nsettlement fund of $6.3 million from which all fees, costs, and class members\\n\\nwould be paid. He estimated that class members who submitted a timely claim\\n\\nform would receive around $235 as their pro-rata share of the settlement fund.\\n\\nNone of the money would revert to Godiva. Dr. Muransky indicated he intended\\n\\nto apply for an incentive award of up to $10,000 and that class counsel would\\n\\nmove for an award of attorney’s fees of up to one-third of the settlement fund,\\n\\nwhich would be $2.1 million.\\n\\n In this motion, Dr. Muransky also argued that the amount class members\\n\\nwould recover by submitting a claim compared favorably to their possible recovery\\n\\n\\n 4\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 5 of 47\\n\\n\\nhad the case proceeded to trial. FACTA provides for a combination of actual and\\n\\nstatutory damages. 15 U.S.C. § 1681n(a). For statutory damages, FACTA\\n\\nprovides for an award of $100 to $1,000 for each violation. Id. § 1681n(a)(1)(A).\\n\\nGiven the nature of the violation, Dr. Muransky acknowledged there was “a good\\n\\nchance” each class member would recover the $100 minimum statutory damage\\n\\naward if the case went to trial. At the fairness hearing, the District Court agreed\\n\\nwith Dr. Muransky’s assessment, saying it was reasonable for class counsel to have\\n\\nestimated that class members “could [receive] more than double what the class\\n\\nmembers could get if they went to trial and won the case.”\\n\\n Dr. Muransky’s motion also addressed some of the risks that favored pre-\\n\\ntrial settlement. Most notably, Dr. Muransky pointed to two cases then pending\\n\\nbefore the Supreme Court: Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540\\n\\n(2016), on Article III standing, and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.\\n\\n___, 136 S. Ct. 1036 (2016), on class certification under Federal Rule of Civil\\n\\nProcedure 23(b)(3). The outcomes of those two cases, which at the time were\\n\\nuncertain, posed serious risks to the class members’ ability to pursue FACTA\\n\\nclaims against Godiva. Dr. Muransky also acknowledged the difficulty of proving\\n\\nthe “willfulness” of Godiva’s FACTA violation, which the District Court also\\n\\ndiscussed at the fairness hearing. Without proving “willfulness,” the class would\\n\\nnot be entitled to statutory damages. See 15 U.S.C. § 1681n(a).\\n\\n\\n 5\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 6 of 47\\n\\n\\n The motion for preliminary approval also contained a proposed class notice\\n\\nand a proposed schedule of notice, opt-out, and motion deadlines. The proposed\\n\\nnotice said Dr. Muransky would seek an incentive award of up to $10,000 “for his\\n\\nwork in representing the class” and that class counsel would seek up to $2.1\\n\\nmillion in attorney’s fees. The District Court granted the motion for preliminary\\n\\napproval, certified the class under Rule 23(b)(3), and approved the form of notice.\\n\\nUnder the preliminary approval order, class members who wanted to be excluded\\n\\nfrom the settlement were required to give written notice of exclusion to the claims\\n\\nadministrator. Those who failed to submit an opt-out certification would be\\n\\nincluded in the settlement class and bound by its terms. Then to get money from\\n\\nthe settlement fund, class members had to file a claim form with the claims\\n\\nadministrator. Class members could also file objections, which the court would\\n\\nconsider as part of its determination of whether the settlement was fair. After\\n\\nextensions by the District Court, the final deadline for class members to submit\\n\\nclaims, object, or opt-out was August 23, and the deadline for Dr. Muransky to\\n\\nmove for final settlement approval was September 9.\\n\\n Notice of the settlement was sent to 318,000 class members and over 47,000\\n\\nsubmitted claim forms. Only fifteen class members opted out. Five class\\n\\nmembers, including Mr. Price and Mr. Isaacson, objected to the settlement. In\\n\\ntheir objections, Mr. Price and Mr. Isaacson said they are members of the\\n\\n\\n 6\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 7 of 47\\n\\n\\nsettlement class and that they timely submitted claim forms. Among other\\n\\narguments, they said notice of Dr. Muransky’s attorney’s fee motion was\\n\\ninadequate under Rule 23(h); the court should subject any attorney’s fee award to a\\n\\nlodestar analysis; and a $10,000 incentive award was not warranted.\\n\\n On September 7, Dr. Muransky moved for final approval of the class\\n\\nsettlement and requested an award of $2.1 million in attorney’s fees as well as\\n\\n$10,000 as an incentive award. At the court’s direction, Dr. Muransky filed a\\n\\nseparate motion for attorney’s fees and expenses. The Magistrate Judge issued a\\n\\nreport and recommendation (“R&R”) on the attorney’s fee motion just four days\\n\\nlater, before the objectors filed opposition briefs. The R&R recommended that the\\n\\nDistrict Court grant the motion and award the full amount of $2.1 million.\\n\\nAlthough the R&R was issued before the objectors filed opposition briefs, the\\n\\nMagistrate Judge considered Mr. Price’s and Mr. Isaacson’s previously filed\\n\\nobjections to the settlement. In addition, soon after the R&R was issued, the\\n\\nobjectors filed briefs in opposition to the motion for attorney’s fees. They later\\n\\nfiled objections to the R&R as well.\\n\\n On September 21, the District Court held a fairness hearing, during which\\n\\nobjectors’ counsel made their case. During the hearing, Mr. Isaacson’s counsel\\n\\nraised standing as a new objection, saying that the court needed to decide whether\\n\\nDr. Muransky had Article III standing. Soon after the hearing, the District Court\\n\\n\\n 7\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 8 of 47\\n\\n\\napproved the settlement and gave the incentive award and attorney’s fees to Dr.\\n\\nMuransky and class counsel respectively. In response to the objectors’ argument\\n\\nthat notice was not adequate, the District Court noted it had “permitted objections\\n\\nto be filed both before and after” the motion for attorney’s fees was filed and that\\n\\n“meaningful objections were in fact filed both before and after the filing” of that\\n\\nmotion. The court said it had reviewed the class members’ objections to the R&R\\n\\nde novo, “taken them into full consideration,” and “carefully analyzed” them. The\\n\\ncourt then found that the requested attorney’s fees were reasonable and awarded\\n\\n$2.1 million, one-third of the settlement fund, in fees. The Court also granted the\\n\\n$10,000 incentive award for Dr. Muransky’s “efforts in this case.”\\n\\n The objectors appealed. They say the District Court abused its discretion by\\n\\nfinding that the notice satisfied Rule 23(h), by awarding $2.1 million in attorney’s\\n\\nfees, and by awarding $10,000 as an incentive to Dr. Muransky. Mr. Isaacson\\n\\nraises a fourth issue: he challenges Dr. Muransky’s Article III standing to pursue a\\n\\nFACTA claim against Godiva. Before addressing those arguments, we consider\\n\\nthe objectors’ ability to make them on appeal. We then consider the merits of the\\n\\narguments properly before us.\\n\\n\\n\\n\\n 8\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 9 of 47\\n\\n\\n II. Jurisdiction\\n\\nA. The objector’s right to appeal\\n\\n The Supreme Court has held “only parties to a lawsuit, or those that properly\\n\\nbecome parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301,\\n\\n304, 108 S. Ct. 586, 587 (1988) (per curiam). We start by deciding whether\\n\\nobjectors like Mr. Price and Mr. Isaacson are “parties” with the ability to appeal\\n\\nfrom a district court’s judgment. We hold that they are.\\n\\n In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002), the Supreme\\n\\nCourt addressed whether a nonnamed class member who timely objects to a\\n\\nsettlement agreement but does not opt out is a “party for the purposes of appealing\\n\\nthe approval of the settlement.” Id. at 7, 122 S. Ct. at 2009 (quotation marks\\n\\nomitted). The Court held that nonnamed class members who are bound by a\\n\\njudgment must “be allowed to appeal the approval of a settlement when they have\\n\\nobjected at the fairness hearing.” Id. at 10, 122 S. Ct. at 2011. “To hold\\n\\notherwise,” the Court explained, “would deprive nonnamed class members of the\\n\\npower to preserve their own interests in a settlement that will ultimately bind them,\\n\\ndespite their expressed objections before the trial court.” Id.\\n\\n Devlin addressed a mandatory settlement class, but not whether objectors to\\n\\na Rule 23(b)(3) settlement who can opt out of a settlement also are “parties” that\\n\\ncan appeal. See id. at 10–11, 122 S. Ct. at 2011 (noting that appeal was the\\n\\n\\n 9\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 10 of 47\\n\\n\\nobjectors’ only option because they could not opt out of the settlement). Since\\n\\nDevlin, the only circuit courts of appeal to have decided this issue have held that\\n\\nclass members who object to a Rule 23(b)(3) settlement but do not opt out are\\n\\n“parties” for purposes of appeal. 1 Generally, these courts reason that Devlin “is\\n\\nabout party status and one who could cease to be a party is still a party until opting\\n\\nout.” Nat’l Ass’n of Chain Drug Stores, 582 F.3d at 40. In AAL High Yield Bond\\n\\nFund v. Deloitte & Touche LLP, 361 F.3d 1305 (11th Cir. 2004), this Court ruled\\n\\nthat objectors who were not class members could not appeal because they were not\\n\\n“parties who are actually bound by a judgment.” Id. at 1310. Yet at the same time,\\n\\nwe know that actual class members who object but do not opt out of a Rule\\n\\n23(b)(3) class settlement are still bound by the judgment approving the class\\n\\nsettlement. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614–15, 117 S.\\n\\nCt. 2231, 2245 (1997). With all of this in mind, we conclude that class members\\n\\nwho object to Rule 23(b)(3) class settlements but do not opt out are “parties” for\\n\\npurposes of appeal. Mr. Price and Mr. Isaacson are therefore proper parties.\\n\\nB. Article III standing\\n\\n We next consider whether Dr. Muransky has standing to bring this class\\n\\n\\n\\n\\n 1\\n Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund,\\n582 F.3d 30, 39–40 (1st Cir. 2009); Fidel v. Farley, 534 F.3d 508, 512–13 (6th Cir. 2008);\\nChurchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 572–73 (9th Cir. 2004); In re Integra Realty\\nRes., Inc., 354 F.3d 1246, 1257–58 (10th Cir. 2004).\\n 10\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 11 of 47\\n\\n\\naction. Standing is a limitation on federal subject matter jurisdiction derived from\\n\\nArticle III. Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1546–47. It\\n\\nrequires plaintiffs to show they suffered an injury in fact traceable to the\\n\\ndefendant’s conduct and redressable by a favorable judicial decision. Id. at 1547.\\n\\n As the party invoking jurisdiction, of course it is the plaintiff who bears the\\n\\nburden of establishing standing. Id. However, a plaintiff is not required to\\n\\ndemonstrate the merits of his case in order to establish his standing to sue. Pedro v\\n\\nEquifax, Inc., 868 F.3d 1275, 1279 (11th Cir. 2017). Beyond that, we are here\\n\\nevaluating standing at the motion to dismiss stage, so we are also mindful that the\\n\\nplaintiff’s burden for establishing standing corresponds to “the manner and degree\\n\\nof evidence required at the successive stages of litigation.” Bischoff v. Osceola\\n\\nCty., 222 F.3d 874, 878 (11th Cir. 2000) (quoting Lujan v. Defs. of Wildlife, 405\\n\\nU.S. 555, 561, 112 S. Ct. 2130, 2136 (1992)). Thus, “when standing becomes an\\n\\nissue on a motion to dismiss, general factual allegations of injury resulting from\\n\\nthe defendant’s conduct may be sufficient to show standing.” Moody v. Holman,\\n\\n887 F.3d 1281, 1286 (11th Cir. 2018) (quotation marks omitted). So in order to\\n\\nsurvive a facial challenge on a motion to dismiss, a plaintiff is required to allege\\n\\nenough facts to show he plausibly has standing. Bell Atl. Corp. v. Twombly, 550\\n\\nU.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). After de novo review, London v.\\n\\nWal-Mart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003), we conclude Dr.\\n\\n\\n 11\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 12 of 47\\n\\n\\nMuransky alleged enough to carry his burden of showing standing at this stage.\\n\\n Dr. Muransky alleges he suffered a heightened risk of identity theft when\\n\\nGodiva printed more digits of his credit card number than the law allows. Because\\n\\nthe objectors raise a facial challenge to standing, we must accept the truth of this\\n\\nallegation. See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc.,\\n\\n524 F.3d 1229, 1232–33 (11th Cir. 2008) (per curiam). Dr. Muransky has plainly\\n\\nshown Godiva’s conduct caused the alleged injury, and the statutory damages Dr.\\n\\nMuransky seeks will redress it. He has thus shown two of the three elements of\\n\\nstanding: causation and redressability.\\n\\n We turn, then, to our reasons for concluding the heightened risk of identity\\n\\ntheft Dr. Muransky experienced as a result of the FACTA violation constitutes an\\n\\ninjury in fact. “To establish injury in fact, a plaintiff must show that he or she\\n\\nsuffered ‘an invasion of a legally protected interest’ that is ‘concrete and\\n\\nparticularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,\\n\\n136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.\\n\\nCt. 2130, 2136 (1992)). Dr. Muransky’s alleged injury is “particularized” because\\n\\nthe heightened risk of identity theft affected him “in a personal and individual\\n\\nway”—it was his credit card number that appeared on the receipt. Spokeo, 136 S.\\n\\nCt. at 1548 (quoting Lujan, 504 U.S. at 560 n.1, 112 S. Ct. at 2136 n.1). The injury\\n\\nis “actual” rather than “conjectural” because it has already occurred. See Robins v.\\n\\n\\n 12\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 13 of 47\\n\\n\\nSpokeo, Inc. (Spokeo II), 867 F.3d 1108, 1117–18 (9th Cir. 2017); cf. Clapper v.\\n\\nAmnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013) (explaining\\n\\nthat possible future injury does not constitute an injury in fact). Dr. Muransky\\n\\nsuffered the heightened risk of identity theft the moment Godiva printed too many\\n\\ndigits of his credit card number.\\n\\n That brings us to whether the heightened risk of identity theft is sufficiently\\n\\n“concrete” to confer standing. Our starting point in this analysis is the Supreme\\n\\nCourt’s decision in Spokeo. We first review Spokeo and then turn to our analysis\\n\\nof Dr. Muransky’s standing.\\n\\n i. Interpreting Spokeo\\n\\n Spokeo clarified that concreteness and particularity are distinct, and both are\\n\\nessential to establish injury in fact. 136 S. Ct. at 1548. But Spokeo did not, as the\\n\\nobjector suggests, alter either the concreteness or particularity analysis. That is,\\n\\nSpokeo did not change the legal principles that have long governed both. See In re\\n\\nHorizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 638 (3d Cir.\\n\\n2017) (“[W]e understand that the Spokeo Court meant to reiterate traditional\\n\\nnotions of standing.”); Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 529 (5th Cir.\\n\\n2016) (“The Supreme Court reaffirmed in Spokeo that violation of a procedural\\n\\nright granted by statute may in some circumstance be a sufficiently concrete, albeit\\n\\nintangible, harm to constitute injury-in-fact without an allegation of ‘any additional\\n\\n\\n 13\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 14 of 47\\n\\n\\nharm beyond the one Congress has identified.’” (quoting Spokeo, 136 S. Ct. at\\n\\n1549) (first emphasis added)).\\n\\n Spokeo reaffirmed a “‘concrete’ injury must be ‘de facto’; that is, it must\\n\\nactually exist.” 136 S. Ct. at 1548; see also id. at 1555–56 (Ginsburg, J.,\\n\\ndissenting) (“Concreteness as a discrete requirement for standing, the Court’s\\n\\ndecisions indicate, refers to the reality of an injury, harm that is real, not abstract,\\n\\nbut not necessarily tangible.”). But “concrete” is not “necessarily synonymous\\n\\nwith ‘tangible.’” Id. at 1549 (majority opinion). After Spokeo as before,\\n\\n“intangible” injuries, including injury in the form of a “risk of real harm,” may\\n\\nsatisfy Article III’s concreteness requirement. Id. Nor must the injury (tangible or\\n\\nnot) be substantial. Spokeo made no change to the rule that “a small injury, ‘an\\n\\nidentifiable trifle,’ is sufficient to confer standing.” Common Cause/Georgia v.\\n\\nBillups, 554 F.3d 1340, 1351 (11th Cir. 2009) (quoting United States v. Students\\n\\nChallenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93\\n\\nS. Ct. 2405, 2417 n.14 (1973)).\\n\\n The objector argues that Spokeo compels the conclusion that Dr.\\n\\nMuransky’s injury was not concrete. However, he neglects to mention that the\\n\\nSpokeo Court did not decide whether the plaintiff in that case suffered a concrete\\n\\ninjury. Spokeo, 136 S. Ct. at 1545, 1550. Instead, the Court pointed out that the\\n\\nNinth Circuit erred in conflating concreteness and particularity, and then vacated\\n\\n\\n 14\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 15 of 47\\n\\n\\nand remanded the case for the Ninth Circuit to rule on concreteness in the first\\n\\ninstance. Id. at 1550 (“We take no position as to whether the Ninth Circuit’s\\n\\nultimate conclusion—that Robins adequately alleged an injury in fact—was\\n\\ncorrect.”).\\n\\n In remanding Spokeo, the Supreme Court noted that, as has long been the\\n\\ncase, “both history and the judgment of Congress play important roles” in\\n\\nanalyzing concreteness.2 Id. at 1549. History plays a role because the Article III\\n\\ncase-or-controversy requirement, from which standing is derived, “is grounded in\\n\\nhistorical practice.” Id. For that reason, “it is instructive to consider whether an\\n\\nalleged intangible harm has a close relationship to a harm that has traditionally\\n\\nbeen regarded as providing a basis for a lawsuit in English or American courts.”\\n\\nId. Congress’ judgment plays a role because it “is well positioned to identify\\n\\nintangible harms that meet minimum Article III requirements.” Id. And while\\n\\nSpokeo reiterated that “bare procedural violation[s], divorced from any concrete\\n\\nharm” do not give rise to standing, it made clear that “the violation of a procedural\\n\\nright granted by statute can be sufficient in some circumstances to constitute injury\\n\\n\\n\\n 2\\n Neither point was an innovation. The Supreme Court looked to “the long tradition of\\nqui tam actions in England and the American Colonies” in concluding a plaintiff had standing to\\nsue under the False Claims Act. Vermont Agency of Nat. Res. v. United States ex rel. Stevens,\\n529 U.S. 765, 774–78, 120 S. Ct. 1858, 1863–65 (2000). And the Court has many times held\\nthat Congress “may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries\\nthat were previously inadequate in law.’” Spokeo, 136 S. Ct. at 1549 (alteration adopted)\\n(quoting Lujan, 504 U.S. at 578, 112 S. Ct. at 2145).\\n 15\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 16 of 47\\n\\n\\nin fact.” Id.; see also Frank v. Gaos, 586 U.S. __, 139 S. Ct. 1041, 1046 (2019)\\n\\n(per curiam) (remanding for reconsideration in light of Spokeo). On remand, the\\n\\nNinth Circuit concluded the plaintiff had shown a concrete injury. Spokeo II, 867\\n\\nF.3d at 1118.\\n\\n As we see it, Spokeo’s upshot in cases like this one is that a plaintiff may\\n\\nshow injury in fact by alleging “the violation of a procedural right granted by\\n\\nstatute” poses a “risk of real harm” to a concrete interest. Spokeo 136 S. Ct. at\\n\\n1549; see Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (“[W]e\\n\\nunderstand Spokeo, and the cases cited therein, to instruct that an alleged\\n\\nprocedural violation can by itself manifest concrete injury where Congress\\n\\nconferred the procedural right to protect a plaintiff’s concrete interests and where\\n\\nthe procedural violation presents a risk of real harm to that concrete interest.”\\n\\n(quotation marks omitted)); see also Spokeo II, 867 F.3d at 1113 (“[W]e now agree\\n\\nthat the Second Circuit’s formation in Strubel best elucidates the concreteness\\n\\nstandards articulated by the Supreme Court in Spokeo.”). The common law and\\n\\ncongressional judgment inform the necessary quantum of risk. Spokeo, 136 S. Ct.\\n\\nat 1549–50. And where Congress elevates the risk of harm to a concrete interest to\\n\\nthe status of a concrete injury, the risk need be no more than an “identifiable trifle”\\n\\nto be concrete. See Billups, 554 F.3d at 1351.\\n\\n Borrowing a hypothetical the Supreme Court offered in Spokeo may\\n\\n\\n 16\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 17 of 47\\n\\n\\nilluminate our reading of that case. There, the Court acknowledged that Congress\\n\\nenacted the Fair Credit Reporting Act (FCRA) to “curb the dissemination of false\\n\\ninformation” but noted that “not all inaccuracies cause harm or present a material\\n\\nrisk of harm.” Spokeo, 136 S. Ct. at 1550. For example, the Court said it would\\n\\nbe “difficult to imagine how the dissemination of an incorrect zip code, without\\n\\nmore, could work any concrete harm.” Id. At the same time, the Supreme Court\\n\\ndid not foreclose the possibility that an incorrect zip code could in some instances\\n\\npose a risk of harm to a concrete interest. An employer might, for example, be\\n\\nlooking for a worker with connections to and knowledge of a particular city. But if\\n\\na third party posted an incorrect zip code for the person online, that might put the\\n\\nperson’s employment prospects at risk or even kill a job opportunity. A plaintiff\\n\\nwho alleged a risk that this might come to pass would show a connection between\\n\\nthe violation of a statutory right and a concrete interest in employment. See\\n\\nSpokeo II, 867 F.3d at 1115–17. This, we think, is the “more” the Supreme Court\\n\\nsaid Article III demands when a plaintiff alleges a statutory violation that would\\n\\notherwise be unmoored from any concrete harm.\\n\\n ii. Applying Spokeo\\n\\n Application of these principles here demonstrates that Dr. Muransky’s injury\\n\\nis concrete for two independent reasons. First, Congress judged the risk of identity\\n\\ntheft Dr. Muransky suffered to be sufficiently concrete to confer standing. Second,\\n\\n\\n 17\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 18 of 47\\n\\n\\nthe risk of identity theft bears a close enough relationship to the common law tort\\n\\nof breach of confidence to make Dr. Muransky’s injury concrete. Either is enough\\n\\non its own to establish standing. We address each in turn.\\n\\n With FACTA, Congress sought to “protect[] consumers from identity theft.”\\n\\nHarris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009); see\\n\\nalso Credit and Debit Card Receipt Clarification Act of 2007 (“Clarification Act”),\\n\\nPub. L. No. 110-241, § 2(a)(1), 122 Stat. 1565, 1565 (finding that “the purpose[]”\\n\\nof FACTA is to “reduce identity theft and credit card fraud”).3 The truncation\\n\\nrequirement reflects Congress’s view that printing more than the last five digits of\\n\\na credit card number contributes to the problem of identity theft. See Harris, 564\\n\\nF.3d at 1306.\\n\\n The legislative history confirms as much. After FACTA passed, businesses\\n\\nfaced crippling litigation because they continued printing expiration dates on\\n\\nreceipts, which FACTA prohibits. Clarification Act § 2(a)(4). With the\\n\\nClarification Act, Congress gave amnesty to merchants that printed an expiration\\n\\ndate on a receipt between FACTA’s passage and the passage of the Clarification\\n\\nAct. Id. § 3(a). But Congress granted no amnesty to merchants who printed more\\n\\n\\n\\n\\n 3\\n Conference and committee reports on FACTA likewise indicate that its purpose was to\\ncombat identity theft. H.R. Rep. No. 108-396, at 1753–54 (2003) (Conf. Rep.); H.R. Rep. No.\\n108-263, at 22 (2003) (noting that FACTA’s truncation requirement was enacted in part to\\ncombat identity theft).\\n 18\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 19 of 47\\n\\n\\nthan the permitted number of digits. Id. Quite to the contrary, it found that\\n\\n“[e]xperts in the field agree that proper truncation of the card number, by itself as\\n\\nrequired by [FACTA] . . . , prevents a potential fraudster from perpetrating identity\\n\\ntheft or credit card fraud.” Id. § 2(a)(6).4\\n\\n Dr. Muransky alleged that Godiva’s FACTA violation subjected him to a\\n\\nrisk of real harm to the concrete interest in avoiding identity theft, the very interest\\n\\nthat Congress sought to protect with FACTA. We think it beyond debate that a\\n\\nconsumer has a concrete interest in preventing his identity from actually being\\n\\nstolen. See Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (“Nobody\\n\\ndoubts that identity theft, should it befall one of these plaintiffs, would constitute a\\n\\nconcrete and particularized injury.”). Victims of identity theft face a host of\\n\\nfinancial woes. To name just one, identity thieves can run up fraudulent credit\\n\\ncard charges and leave the victim with the bill, and all the problems associated\\n\\nwith getting the fraudulent charges cleaned up. Dr. Muransky’s allegation, which\\n\\nwe accept as true, thus establishes a risk of real harm to a concrete interest.\\n\\n With FACTA’s truncation requirement, Congress “adopt[ed a] procedure[]\\n\\ndesigned to decrease that risk” that a consumer would have his identity stolen.\\n\\n\\n\\n 4\\n Legislative materials show that members who supported the bill favored amnesty for\\nbusinesses that printed expiration dates but not those that violated the truncation requirement, on\\nthe view that “truncation of the credit card numbers accomplishes the intent of the statute.” 154\\nCong. Rec. E925-02, 2008 WL 2051340 (2008) (statement of Rep. Maloney); see generally 154\\nCong. Rec. H00000-29, 2008 WL 2038627 (2008).\\n 19\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 20 of 47\\n\\n\\nSpokeo, 136 S. Ct. at 1550. Congress’s elevation of the risk to the status of a\\n\\nconcrete harm is a judgment we accept under the principles laid down in Spokeo.\\n\\nThe risk may not be great, but a great risk is not necessary to satisfy Article III’s\\n\\nminimal demand for an “identifiable trifle.” Billups, 554 F.3d at 1351 (quotation\\n\\nmarks omitted). In our view, if Congress adopts procedures designed to minimize\\n\\nthe risk of harm to a concrete interest, then a violation of that procedure that causes\\n\\neven a marginal increase in the risk of harm to the interest is sufficient to constitute\\n\\na concrete injury. And that is what Congress did here.\\n\\n Indeed, this is a case in point for Congress’s relatively greater institutional\\n\\ncompetence to draw the line between a concrete injury and non-actionable risk.\\n\\nSpokeo, 136 S. Ct. at 1549 (“Congress is well positioned to identify intangible\\n\\nharms that meet minimum Article III requirements, [making] its judgment . . .\\n\\ninstructive and important.”); see also Daniel Townsend, Who Should Define\\n\\nInjuries for Article III Standing?, 68 Stan. L. Rev. Online 76, 81–83 (2015)\\n\\n(discussing Congress’s superior ability to gather facts and make empirical\\n\\njudgments about the risk underlying injuries). After hearing from experts on the\\n\\nmatter, Congress decided to set the tolerable level of risk at printing the last five\\n\\ndigits of a card number. We decline to substitute our judgment for Congress’s by\\n\\nsaying that, as a matter of law, the risk of identity theft is not concrete until a\\n\\nmerchant prints the first eight or ten digits instead of the first six.\\n\\n\\n 20\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 21 of 47\\n\\n\\n In sum, Congress conferred the procedural right in FACTA to reduce the\\n\\nrisk of identity theft. Dr. Muransky alleged he suffered a heightened risk of\\n\\nidentity theft as a result of a FACTA violation. That allegation suffices for\\n\\nstanding under Spokeo.\\n\\n We are aware the Third Circuit recently drew the opposite inference from\\n\\nthe Clarification Act. That court ruled that, in passing the Clarification Act,\\n\\nCongress intended to limit FACTA actions to “those claims implicating actual\\n\\nharm.” By this, the court seemed to say that the statute aided only those plaintiffs\\n\\nwho claimed their identities were in fact stolen. Kamal v. J. Crew Grp., Inc., 918\\n\\nF.3d 102, 113 (3d Cir. 2019). Our understanding of the Clarification Act does not\\n\\ncomport with this ruling in Kamal. In our view, when it left the truncation\\n\\nrequirement in place at the same time it limited liability for printing expiration\\n\\ndates, Congress judged the truncation requirement necessary to prevent the risk of\\n\\nidentity theft. In fact, Congress made a specific finding that FACTA’s truncation\\n\\nrequirement by itself would “prevent[] a potential fraudster from perpetrating\\n\\nidentity theft or credit card fraud.” Clarification Act § 2(a)(6). We are also\\n\\nmindful that Spokeo expressly recognized that the risk of harm may satisfy the\\n\\nconcreteness requirement, even absent a tangible injury. As we have explained,\\n\\nFACTA creates a procedure to minimize the risk of identity theft. For these\\n\\nreasons we decline to follow the Third Circuit’s rule that actual identity theft is\\n\\n\\n 21\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 22 of 47\\n\\n\\nrequired for standing to bring a FACTA claim.\\n\\n Our holding here is not inconsistent with other decisions from our sister\\n\\ncircuits that found no standing in FACTA cases. The Second, Seventh, and Ninth\\n\\nCircuits have all found no standing in cases where consumers alleged a merchant\\n\\nprinted receipts that included a credit card expiration date in violation of FACTA.\\n\\nBassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018); Crupar-\\n\\nWeinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v.\\n\\nNicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016). We think those cases\\n\\nare distinguishable from this one. They all rely on Congress’s finding in the\\n\\nClarification Act that “a receipt with a credit card expiration date does not raise a\\n\\nmaterial risk of identity theft.” Crupar-Weinmann, 861 F.3d at 78; see also\\n\\nBassett, 883 F.3d at 781–82; Meyers, 843 F.3d at 727–28. As we explained, the\\n\\nClarification Act points to the opposite conclusion in this case.5\\n\\n The Second Circuit also found no standing in a FACTA case that is\\n\\ndistinguishable in its posture. In Katz v. Donna Karan Co., L.L.C., 872 F.3d 114\\n\\n(2d Cir. 2017), the Second Circuit dismissed a FACTA case where the district\\n\\ncourt found on a factual challenge to standing that printing the first six digits of a\\n\\ncredit card number poses no risk of identity theft. Id. at 116. Specifically, the\\n\\n\\n\\n 5\\n To be clear, we express no view whether a plaintiff suffers a concrete injury when a\\nmerchant prints an expiration date on a receipt in violation of FACTA.\\n 22\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 23 of 47\\n\\n\\ndistrict court found that the first six digits of a credit card number identify only the\\n\\ncard issuer, which, in turn, poses no risk of identity theft. Id. at 118–19. The\\n\\ndistrict court also found that the receipts at issue in Katz did not “disclose[] Katz’s\\n\\nname, a fact that also reduces the possibility that disclosure of the [first six digits]\\n\\nwould result in harm.” Id. at 120. Reviewing these findings for clear error, the\\n\\nSecond Circuit affirmed. However it did express trepidation about the\\n\\n“abbreviated” fact-finding procedure the district court appeared to have used. Id.\\n\\n We are wary of Katz’s premise that a federal district court may make factual\\n\\nfindings that override Congress’s standard for what harm constitutes a concrete\\n\\ninjury. Congress engaged in its own factfinding and set a uniform standard for the\\n\\nnumber of digits appropriate to print in its effort to curb the risk of identity theft.\\n\\nClarification Act § 2(a)(6). We do not read Spokeo as giving courts a license to\\n\\nreject the standard set by Congress in favor of judge-found facts at odds with that\\n\\nstandard. Spokeo certainly makes clear that not all statutory violations constitute\\n\\nan injury in fact. Spokeo, 136 S. Ct. at 1549; see also Frank, 139 S. Ct. at 1046.\\n\\nHowever, we have explained that a plaintiff can establish Article III standing at the\\n\\npleading stage by alleging a risk of harm of the type Congress elevated to the status\\n\\nof a concrete injury when it created procedures designed to minimize that risk. See\\n\\nSpokeo, 136 S. Ct. at 1549. Once a plaintiff does that, Article III’s concreteness\\n\\nrequirement is satisfied. See id. Here, Congress established the acceptable level of\\n\\n\\n 23\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 24 of 47\\n\\n\\nrisk at printing five digits of a credit card number. Dr. Muransky alleged a\\n\\nheightened risk of identity theft as a result of Godiva’s FACTA violation, and that\\n\\nsatisfies Article III under the principles Spokeo laid down.\\n\\n In any event, Katz is distinguishable from this case. There is nothing in the\\n\\nrecord before us to support a finding that the first six digits identify a card issuer or\\n\\nthat printing the first six digits poses no risk of identity theft. We will not impose a\\n\\nfactual finding made in the Southern District of New York upon Mr. Muransky,\\n\\nparticularly given the Second Circuit’s concern about the fact-finding procedures\\n\\nin that case. See McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 914 (8th Cir.\\n\\n2014) (“Judicial notice of another court’s opinion takes notice of the existence of\\n\\nthe opinion, which is not subject to reasonable dispute over its authenticity, but not\\n\\nof the facts summarized in the opinion.” (quotation marks omitted). Here, we\\n\\ndon’t even have “abbreviated” factfinding. We have no factfinding at all. Dr.\\n\\nMuransky has had no chance to rebut the objectors’ claims about the risk the first\\n\\nsix digits pose. At minimum, then, we decline to follow Katz based on its\\n\\nprocedural posture. Rather, as we must on this facial challenge to a motion to\\n\\ndismiss, we accept as true that Dr. Muransky suffered a heightened risk of identity\\n\\ntheft.\\n\\n Finally, we examine the Ninth Circuit ruling that a plaintiff had no standing\\n\\nto bring a FACTA action where a merchant printed the first digit of his credit card\\n\\n\\n 24\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 25 of 47\\n\\n\\nnumber along with the last four. Noble v. Nev. Checker Cab Corp., 726 F. App’x\\n\\n582, 583–84 (9th Cir. 2018) (per curiam) (unpublished). This unpublished opinion\\n\\ndoes not say whether the court was considering a facial or factual challenge. We\\n\\ntherefore cannot know how the court came to hold that this posed no risk of harm.\\n\\n Also, we know that the Ninth Circuit had binding precedent holding that a\\n\\nFACTA plaintiff lacked standing where the plaintiff “did not allege that anyone\\n\\nelse had received or would receive a copy of” the noncompliant receipt. Id. at 584\\n\\n(citing Bassett, 883 F.3d at 776). This Circuit has no such precedent, and we\\n\\ndecline to adopt the Ninth Circuit’s reasoning. FACTA is designed to minimize\\n\\nthe risk that disclosure will occur, not to remedy only actual disclosures. We\\n\\naccept that a risk of disclosure is greater if someone else sees the receipt. But\\n\\nCongress made it unlawful to print more than the last five digits of a credit card\\n\\nnumber, not to print more than the last five digits and show the receipt to someone.\\n\\nFrom this, we deduce that Congress intended to draw the line at the risk that comes\\n\\nof printing the untruncated card number, irrespective of whether anyone saw the\\n\\nreceipt. And we decline to follow opinions from our sister circuits’ opinions that\\n\\nrely on a contrary interpretation of the law.\\n\\n Dr. Muransky can thus show standing based on Congress’s judgment that\\n\\nthe heightened risk of identity theft he experienced constitutes a concrete injury.\\n\\nAnd there is another way, as well. His standing also independently rests on the\\n\\n\\n 25\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 26 of 47\\n\\n\\nsimilarity between the harm he alleges and the common law tort of breach of\\n\\nconfidence. See Spokeo, 136 S. Ct. at 1549 (describing it as “instructive to\\n\\nconsider whether an alleged intangible harm has a close relationship to a harm that\\n\\nhas traditionally been regarded as providing a basis for a lawsuit in English or\\n\\nAmerican courts” (emphasis added)).\\n\\n A common law breach of confidence lies where a person offers private\\n\\ninformation to a third party in confidence and the third party reveals that\\n\\ninformation. See Alan B. Vickery, Breach of Confidence: An Emerging Tort, 82\\n\\nColum. L. Rev. 1426, 1427–28 (1982). We note that the harm from a breach of\\n\\nconfidence occurs when the plaintiff’s trust in the breaching party is violated,\\n\\nwhether or not the breach has other consequences. See generally Alicia Solow-\\n\\nNiederman, Beyond the Privacy Torts: Reinvigorating A Common Law Approach\\n\\nfor Data Breaches, 127 Yale L.J. Forum 614, 619–24 (2018) (arguing that the harm\\n\\nin breach of confidence results from the failure to securely maintain confidential\\n\\ninformation separate and apart from any harm resulting from publication or\\n\\nmisuse). With FACTA, Congress created a statutory right to protect consumers’\\n\\nexpectation that their credit card information will remain private. By printing more\\n\\nthan the statute allows, Godiva created a heightened risk that information Dr.\\n\\nMuransky entrusted to it will become public. We think this risk has a sufficiently\\n\\nclose relationship to breach of confidence to satisfy Spokeo.\\n\\n\\n 26\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 27 of 47\\n\\n\\n We recognize the match is not exact. However, it need not be exact in order\\n\\nto satisfy Spokeo. A “close relationship does not require that the newly proscribed\\n\\nconduct would give rise to a cause of action under common law.” See Susinno v.\\n\\nWork Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (quotation marks omitted).\\n\\nA FACTA violation does not involve the kind of traditional confidential\\n\\nrelationship that is at issue in a breach of confidence—say, a doctor-patient\\n\\nrelationship. And unlike a common law breach of confidence, a merchant need not\\n\\ndisclose a credit card number to anyone in order to violate FACTA. Even so, the\\n\\nharm in a breach of confidence tort—disclosing information provided in\\n\\nconfidence—bears sufficient similarity to the harm Congress intended to prevent\\n\\nwith FACTA—the risk of identity theft. A consumer provides a merchant with his\\n\\ncredit card number with the expectation that it will remain secret, not least because\\n\\nof the risk of credit card fraud if the merchant reveals it. FACTA gives legal\\n\\nprotection to that confidentiality interest by permitting merchants to print only the\\n\\nlast five digits of a credit card number. A merchant who prints more than the\\n\\npermitted five digits creates a risk that information FACTA makes confidential\\n\\nwill fall into a third party’s hands. In fact, the risk here comes from the receipt\\n\\nGodiva gave Dr. Muransky and the copy Godiva seems to have kept. Here we are\\n\\nobligated to accept the allegation of the complaint that Godiva has experienced\\n\\ndata breaches. Under these circumstances, we think the risk of disclosure bears a\\n\\n\\n 27\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 28 of 47\\n\\n\\nclose enough relationship to the disclosure of confidential information actionable\\n\\nat common law to satisfy Article III.\\n\\n The Third Circuit rejected our holding in the original opinion issued in this\\n\\ncase that breach of confidence is sufficiently analogous to give rise to standing.\\n\\nKamal, 918 F.3d at 114. In the view of the Third Circuit, the relationship between\\n\\nFACTA and the common law cause of action is not sufficiently analogous because\\n\\nthe statute does not require actual disclosure while the common law tort does. Id.\\n\\nWe do not think Spokeo’s “close relationship” standard demands such complete\\n\\ncorrelation. Spokeo merely recognized that federal courts may have jurisdiction\\n\\nwhen Congress takes steps to prevent “the risk of real harm” that was actionable at\\n\\ncommon law. Spokeo, 136 S. Ct. at 1549. We read Spokeo to mean that, where\\n\\nthe common law allowed a cause of action to remedy an injury, Congress can\\n\\ncreate a statutory cause of action to remedy the risk of such an injury. If, for\\n\\nexample, Congress passed a statute to minimize the risk of trespass, we see nothing\\n\\nin Spokeo that would mean federal courts lack jurisdiction to hear cases brought\\n\\nunder the statute. Here, in enacting FACTA, Congress sought to mitigate the risk\\n\\nof disclosure of credit card information, which we think sufficiently analogous to\\n\\nthe disclosure of confidential information that the common law remedied by the\\n\\nbreach of confidence tort.\\n\\n The relationship we find here is consistent with the way this Circuit’s post-\\n\\n\\n 28\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 29 of 47\\n\\n\\nSpokeo precedent compares alleged harms to common law harms. In Nicklaw v.\\n\\nCitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), a plaintiff sued for “failure to\\n\\nrecord a satisfaction of mortgage within a statutory period” but did not “bring suit\\n\\nuntil after that statutory violation ha[d] been remedied;” that is, the mortgage had\\n\\nbeen recorded by the time the plaintiff sued. Id. at 1000. The panel concluded the\\n\\nstatute in question “provided a remedy to prevent the risk of harm that occurred\\n\\nwhile title to property was wrongfully clouded, not a remedy after the cloud was\\n\\nlifted.” Id. at 1003 (first emphasis added). It ruled the plaintiff lacked standing on\\n\\nthat basis. This case is distinguishable from Nicklaw. In Nicklaw, the risk had\\n\\nabated by the time the plaintiff brought suit. The plaintiff’s title was no longer\\n\\nclouded. If a Godiva cashier immediately shredded a FACTA-noncompliant\\n\\nreceipt, we might agree Nicklaw controls. But nothing in this record establishes\\n\\nthat the receipt no longer exists. This means the risk of disclosure still exists. As\\n\\nnoted, the complaint indicates that Godiva might keep a version of the untruncated\\n\\nreceipt. And even if Dr. Muransky destroyed the receipt himself, in Nicklaw the\\n\\ndefendant, not the plaintiff, remedied the risk of harm. The effort Dr. Muransky\\n\\nput into doing away with the risky receipt would suffice for standing. Cf. Pedro v.\\n\\nEquifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (holding that lost time spent\\n\\nattempting to resolve credit inaccuracies suffices for standing).\\n\\n To be sure, the harms alleged in Pedro and Perry v. Cable News Network,\\n\\n\\n 29\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 30 of 47\\n\\n\\nInc., 854 F.3d 1336 (11th Cir. 2017), have a closer relationship to more familiar\\n\\ntorts than the harm alleged in this case does to breach of confidence. In Pedro, the\\n\\npanel ruled that the alleged FCRA violation—“the reporting of inaccurate\\n\\ninformation about Pedro’s credit to a credit monitoring service—has a close\\n\\nrelationship to the harm caused by the publication of defamatory information.”\\n\\n868 F.3d at 1279–80. In Perry, the panel ruled that an alleged violation of the\\n\\nVideo Privacy Protection Act, which prohibits “video tape service provider[s]”\\n\\nfrom disclosing personal information about consumers, has a close relationship to\\n\\n“the right of privacy” and “intrusion upon seclusion.” 854 F.3d at 1340–41\\n\\n(quotation marks omitted). But these cases do not foreclose our analysis. Neither\\n\\nPedro nor Perry commented on whether a plaintiff has standing where a\\n\\ndefendant’s behavior creates a heightened risk of a harm recognized at common\\n\\nlaw.\\n\\n For these reasons, we conclude Dr. Muransky suffered a concrete injury, and\\n\\nthus that he has standing to bring this action.\\n\\n III. The Merits\\n\\nA. Notice of class counsel’s attorney’s fee motion\\n\\n We now consider the objectors’ challenge to the sufficiency of notice of the\\n\\nattorney’s fee motion. As required by Rule 23(c)(2)(B), these class members got\\n\\n\\n\\n\\n 30\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 31 of 47\\n\\n\\nnotice of the preliminary approval of the class settlement. That notice gave\\n\\ninformation about the attorney’s fees and expenses Dr. Muransky would seek:\\n\\n Plaintiff will petition for a service award not to exceed $10,000 for his\\n work in representing the Class, and for Class Counsel’s fees not to\\n exceed one-third of the fund, which is $2,100,000, plus reasonable\\n expenses.\\n\\nClass members got this notice in advance of counsel’s motion for attorney’s fees.\\n\\nYet the attorney’s fees motion was not filed until two weeks after the deadline for\\n\\nclass members to object had already passed. 6 The class did not receive additional\\n\\nnotice after the motion was filed. The objectors say this process deprived class\\n\\nmembers of the notice they needed to assess the fee request and violated Rule\\n\\n23(h).\\n\\n Rule 23(h) sets up the procedures required for an award of attorney’s fees in\\n\\nclass actions. As for notice, Rule 23(h)(1) says that “[n]otice of the motion [for\\n\\nattorney’s fees] must be served on all parties and, for motions by class counsel,\\n\\ndirected to class members in a reasonable manner.” Fed. R. Civ. P. 23(h)(1).\\n\\nAlthough “reasonable manner” is not specific about when notice must be given,\\n\\ncourts interpreting Rule 23(h) have observed that the right to object to the fee\\n\\nmotion under Rule 23(h)(2) necessarily means that courts must give notice of the\\n\\nattorney’s fee motion itself. The leading case is In re Mercury Interactive Corp.\\n\\n 6\\n Dr. Muransky originally made the attorney’s fee request on September 7 as part of the\\nmotion for final approval. The District Court instructed him to file a separate attorney’s fee\\nmotion, which he did on September 12.\\n 31\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 32 of 47\\n\\n\\nSecurities Litig., 618 F.3d 988, 989 (9th Cir. 2010). The Ninth Circuit interpreted\\n\\n“[t]he plain text of” Rule 23(h) to “require[] that any class member be allowed an\\n\\nopportunity to object to the fee ‘motion’ itself, not merely to the preliminary notice\\n\\nthat such a motion will be filed.” Id. at 993–94 (quoting Fed. R. Civ. P. 23(h)(2)).\\n\\nThe Advisory Committee’s notes support the Ninth Circuit’s interpretation of Rule\\n\\n23(h). They say that “[i]n setting the date objections are due, the court should\\n\\nprovide sufficient time after the full fee motion is on file to enable potential\\n\\nobjectors to examine the motion.” Fed. R. Civ. P. 23 advisory committee’s note to\\n\\n2003 amendment. The Seventh Circuit follows the Ninth Circuit’s Mercury\\n\\ndecision. Redman v. RadioShack Corp., 768 F.3d 622, 637–38 (7th Cir. 2014); see\\n\\nalso 3 Newberg on Class Actions § 8:24 (5th ed.) (endorsing the approach of the\\n\\nNinth and Seventh Circuits on doctrinal and policy grounds).\\n\\n The Ninth Circuit’s holding in Mercury was that “class members were\\n\\ndeprived of an adequate opportunity to object to the motion itself because, by the\\n\\ntime they were served with the motion, the time within which they were required to\\n\\nfile their objections had already expired.” 618 F.3d at 994. That same sequence—\\n\\nobjection deadline before a filed motion for attorney’s fees—was what happened\\n\\nhere. As in Mercury, this schedule deprived class members of “an opportunity to\\n\\nobject to the fee motion itself” because they had to file objections before the\\n\\n\\n\\n\\n 32\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 33 of 47\\n\\n\\nmotion was even filed. See id. at 993–94. As a result, this process violated Rule\\n\\n23(h).7\\n\\n Although we conclude the District Court erred by requiring class members\\n\\nto object before they could assess the attorney’s fee motion, we hold that error does\\n\\nnot warrant reversal under the particular facts of this case. After receiving the\\n\\nnotice, four class members objected. Two of those, Mr. Price and Mr. Isaacson,\\n\\nmade detailed arguments in opposition to the requested attorney’s fee and incentive\\n\\nawards, including by filing opposition briefs after Dr. Muransky filed the\\n\\nattorney’s fee motion. Cf. Coleman v. Smith, 828 F.2d 714, 716–17 (11th Cir.\\n\\n1987) (per curiam) (holding that notice of consequences of summary judgment was\\n\\nadequate in part because party’s actions showed he understood how to respond to\\n\\nsummary judgment motion). The arguments made against the attorney’s fee\\n\\nmotion were considered by the Magistrate Judge and by the District Court. And on\\n\\nthis record, we have no reason to think other unnamed class members would have\\n\\nmade arguments besides those made by Mr. Price and Mr. Isaacson. Class\\n\\n 7\\n The objectors also argue that the class notice did not provide class members with\\nsufficient information to file meaningful objections to class counsel’s attorney’s fee request. Mr.\\nPrice, for example, says the notice should have advised class members of the “Eleventh Circuit’s\\n25% benchmark for attorneys’ fees [or] of Class Counsel’s justification for seeking a $525,000\\nbonus” above the 25% benchmark. Rule 23(h) requires only that notice of an attorney’s fee\\nmotion be “served on all parties and . . . directed to class members in a reasonable manner.” Fed.\\nR. Civ. P. 23(h). The objectors cite no authority that requires the detail they request. Decisions\\nabout the detail in descriptions about the attorney’s fees required to be included in class notice\\nare necessarily case specific and are best left to the discretion of district courts.\\n\\n\\n\\n 33\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 34 of 47\\n\\n\\nmembers were not therefore prejudiced by the objection schedule established by\\n\\nthe District Court. See Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61\\n\\nS. Ct. 376, 379 (1941) (observing that “the rights of parties are habitually protected\\n\\nin court by those who act in a representative capacity”); see also O’Bannon v.\\n\\nTown Court Nursing Ctr., 447 U.S. 773, 797, 100 S. Ct. 2467, 2482 (1980)\\n\\n(Blackmun, J., concurring) (because nursing home had an interest in making the\\n\\nsame arguments as absent patients, those patients’ due process interests were\\n\\nsatisfied). The District Court did not abuse its discretion by awarding attorney’s\\n\\nfee, despite the Rule 23(h) violation.\\n\\nB. The attorney’s fee award\\n The objectors also argue that the District Court made a mistake by awarding\\n\\n33% of the class settlement fund as attorney’s fees to Dr. Muransky’s counsel.\\n\\nThe District Court’s approval of the attorney’s fee award is reviewed for abuse of\\n\\ndiscretion. Camden I Condo. Assoc. v. Dunkle, 946 F.2d 768, 770 (11th Cir.\\n\\n1991). “A district court abuses its discretion if it applies an incorrect legal\\n\\nstandard, applies the law in an unreasonable or incorrect manner, follows improper\\n\\nprocedures in making a determination, or makes findings of fact that are clearly\\n\\nerroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir.\\n\\n2014) (quotation marks omitted). Under this standard, district courts have “great\\n\\nlatitude” in setting fee awards in class action cases. See Faught v. American Home\\n\\n\\n 34\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 35 of 47\\n\\n\\nShield Corp., 668 F.3d 1233, 1242 (11th Cir. 2011) (citation and internal quotation\\n\\nmarks omitted). We conclude the District Court did not abuse its discretion.\\n\\n To begin, the objectors say the District Court applied the wrong legal test to\\n\\nevaluate Dr. Muransky’s attorney’s fee request. In their view, the District Court\\n\\nshould have applied a lodestar analysis that multiplied the number of hours counsel\\n\\nworked by the prevailing hourly rate. They claim that analysis is required by\\n\\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669 (2010).\\n\\nIn Perdue, the Supreme Court decided “whether the calculation of an attorney’s\\n\\nfee, under federal fee-shifting statutes, based on the ‘lodestar,’ i.e., the number of\\n\\nhours worked multiplied by the prevailing hourly rates, may be increased due to\\n\\nsuperior performance and results.” Id. The Court allowed the award of attorney’s\\n\\nfees under a fee-shifting statute to be enhanced above the lodestar amount, but only\\n\\nin “rare” and “exceptional” cases. Id. at 554, 130 S. Ct. at 1674. Here, the\\n\\nobjectors say the District Court should have followed Perdue because class\\n\\ncounsel’s fees would have been decided under a fee-shifting statute if the class\\n\\nprevailed against Godiva. See 15 U.S.C. § 1681n(a)(3) (providing for attorney’s\\n\\nfees “in the case of any successful action to enforce any liability” for a willful\\n\\nviolation of FACTA).\\n\\n The problem for the objectors is that class counsel sought attorney’s fees\\n\\nfrom a common fund rather than under a fee-shifting statute. See Fed. R. Civ. P.\\n\\n\\n 35\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 36 of 47\\n\\n\\n23(h) (authorizing courts to award attorney’s fees that are “authorized by law or\\n\\nby the parties’ agreement”). Camden I holds that “attorneys’ fees awarded from a\\n\\ncommon fund shall be based upon a reasonable percentage of the fund established\\n\\nfor the benefit of the class.” 946 F.2d at 774. The common-fund doctrine applies\\n\\nto class settlements that result in a common fund even when class counsel could\\n\\nhave pursued attorney’s fees under a fee-shifting statute. See Staton v. Boeing Co.,\\n\\n327 F.3d 938, 968–69 (9th Cir. 2003); Florin v. Nationsbank of Ga., 34 F.3d 560,\\n\\n563 (7th Cir. 1994). Perdue addresses fee-shifting statutes and says nothing about\\n\\nthe award of attorney’s fees from a common fund. 559 U.S. at 554, 130 S. Ct. at\\n\\n1674. Perdue is therefore not contrary to our precedent in Camden I.\\n\\n In the alternative, the objectors say that the District Court misapplied\\n\\nCamden I by awarding 33% of the fund to class counsel. In Camden I, this Circuit\\n\\ncalled 25% of a common fund a benchmark attorney’s fee award that “may be\\n\\nadjusted in accordance with the individual circumstances of each case.” 946 F.2d\\n\\nat 775. To evaluate whether the benchmark should be enhanced, district courts can\\n\\napply the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d\\n\\n714, 717–19 (5th Cir. 1974), 8 in addition to other class-settlement specific factors.\\n\\n\\n\\n 8\\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as\\nbinding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.\\nId. at 1209. We recognize that the Supreme Court criticized the Johnson factors in Perdue, 559\\nU.S. at 550–51, 130 S. Ct. at 1671–72. But as we’ve explained, Perdue arose in a different\\n\\n\\n 36\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 37 of 47\\n\\n\\nCamden I, 946 F.2d at 775. We have also said that the “majority of common fund\\n\\nfee awards fall between 20% and 30% of the fund.” Waters v. Int’l Precious\\n\\nMetals Corp., 190 F.3d 1291, 1294 (11th Cir. 1999). In this case, the objectors\\n\\nargue the District Court misapplied the Johnson factors in awarding 33% of the\\n\\nsettlement fund as attorney’s fees.\\n\\n We see no abuse of discretion in the District Court’s decision. Although the\\n\\nobjectors “are correct that the fee award is bigger than some awards in other\\n\\nsuits[,] . . . that does not mean the award is too big.” Birchmeier v. Caribbean\\n\\nCruise Line, Inc., 896 F.3d 792, 796 (7th Cir. 2018). The Magistrate Judge’s R&R\\n\\nconcluded that the Johnson factors supported the request for a fee above the 25%\\n\\nbenchmark. That conclusion was based on weighing nine Johnson factors in favor\\n\\nof the enhanced award, including, by way of example, “the novelty and difficulty\\n\\nof the issues” and “the results obtained.” After considering the objections to the\\n\\nR&R de novo, the District Court reached the same conclusion that “the requested\\n\\nattorneys’ fees are reasonable under the Johnson/Camden I analysis.” 9 The District\\n\\nCourt found that the settlement “confers substantial benefits” on class members.\\n\\nThe District Court’s order also emphasized “the results obtained,” saying the class\\n\\n\\n\\ncontext (fee-shifting statutes), and we are bound to apply our precedent in Camden I and Johnson\\nto this common fund.\\n 9\\n The District Court gave no weight to the Magistrate Judge’s characterization of Mr.\\nPrice and Mr. Isaacson as “professional objectors.” We don’t either.\\n 37\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 38 of 47\\n\\n\\nmembers who submitted claims “will receive cash payments that represent a\\n\\nsignificant portion of the damages that would be available to them were they to\\n\\nprevail in an individual action.” The District Court elaborated on these points at\\n\\nthe fairness hearing. There, the court discussed the significant legal hurdles class\\n\\ncounsel faced, including the possibility that the Supreme Court would hold in\\n\\nSpokeo that risk of identity theft could not support standing. The court explained\\n\\nthe difficulty of proving willfulness, and its own skepticism that the evidence\\n\\nwould support a willfulness finding in this case.\\n\\n The District Court properly assessed the risks faced by the class and the\\n\\ncompensation secured by class counsel. Under the circumstances, the District\\n\\nCourt did not abuse its discretion by awarding an above-benchmark percentage of\\n\\nthe common fund. The attorney’s fee award is therefore affirmed.\\n\\nC. The incentive award\\n Finally, the objectors challenge the $10,000 incentive award the District\\n\\nCourt approved for Dr. Muransky as class representative. A district court’s\\n\\ndecision to grant an incentive award to a named class representative is reviewed for\\n\\nabuse of discretion. Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003).\\n\\n The objectors make two arguments on appeal. First, Mr. Isaacson argues\\n\\nincentive awards are prohibited in common-fund settlements. Second, the\\n\\nobjectors jointly challenge the $10,000 award as too large because they say Dr.\\n\\n\\n 38\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 39 of 47\\n\\n\\nMuransky put little personal time and effort into the litigation. We reject both\\n\\narguments.\\n\\n Relying on two common fund cases, Mr. Isaacson says litigants who secure\\n\\na common fund can recover reasonable attorney’s fees and litigation expenses but\\n\\ncannot recover incentive awards for their own services. See Central R.R. &\\n\\nBanking Co. v. Pettus, 113 U.S. 116, 122, 5 S. Ct. 389, 390 (1885); Trustees v.\\n\\nGreenough, 105 U.S. 527, 538 (1882).\\n\\n We are not persuaded by this argument. Many circuits have endorsed\\n\\nincentive awards and recognize them as serving the purposes of Rule 23. See, e.g.,\\n\\nStaton, 327 F.3d at 975–77; Hadix, 322 F.3d at 897–98. No circuit has applied\\n\\nGreenough or Central Bank, which were decided well before the adoption of Rule\\n\\n23, to prohibit incentive awards in the class-action context. We do not view\\n\\ngranting a monetary award as an incentive to a named class representatives as\\n\\ncategorically improper.\\n\\n At the same time, there are limits to an appropriate incentive award. In\\n\\nHolmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), the class\\n\\nsettlement awarded the class representatives different amounts than the unnamed\\n\\nclass members because class counsel estimated that the named representatives had\\n\\nmeritorious claims. Id. at 1148–49. This Court held that “[w]hen a settlement\\n\\nexplicitly provides for preferential treatment for the named plaintiffs in a class\\n\\n\\n 39\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 40 of 47\\n\\n\\naction, a substantial burden falls upon the proponents of the settlement to\\n\\ndemonstrate and document its fairness.” Id. at 1147. We said that “a disparate\\n\\ndistribution favoring the named plaintiffs requires careful judicial scrutiny into\\n\\nwhether the settlement allocation is fair to the absent members of the class.” Id.\\n\\nAt the same time, we recognized that “the inference of unfairness” associated with\\n\\nunequal distributions “may be rebutted by a factual showing that the higher\\n\\nallocations to certain parties are rationally based on legitimate considerations.” Id.\\n\\n Like the settlement distribution in Holmes, incentive awards “provide[] for\\n\\npreferential treatment for the named plaintiffs,” see id. at 1147, and create a similar\\n\\npossibility of collusion between class representatives, their counsel, and\\n\\ndefendants. See id. at 1148; Hadix, 322 F.3d at 897 (“[I]ncentive awards are\\n\\nscrutinized carefully by courts who sensibly fear that [they] may lead named\\n\\nplaintiffs to expect a bounty for bringing suit or to compromise the interest of the\\n\\nclass for personal gain.”). As a result, we hold that incentive awards must be\\n\\nsupported by “legitimate considerations” sufficient to “dispel the cloud of\\n\\ncollusion which such a settlement suggests.” See Holmes, 706 F.2d at 1147\\n\\n(quotation marks omitted).\\n\\n The parties dispute what those considerations should be. The objectors\\n\\nfocus on the time and money actually spent on the case by the named\\n\\nrepresentative while Dr. Muransky argues that the value of the settlement to the\\n\\n\\n 40\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 41 of 47\\n\\n\\nclass members is most important. We see no reason to limit the discretion of\\n\\ndistrict courts to consider the justifications proposed by either party. Indeed, we\\n\\nare aware of a number of justifications regularly cited in support of incentive\\n\\nawards. For example, incentive awards may be given “to compensate class\\n\\nrepresentatives for work done on behalf of the class, to make up for financial or\\n\\nreputational risk undertaken in bringing the action, . . . to recognize their\\n\\nwillingness to act as a private attorney general,” Rodriguez v. W. Publ’g Corp.,\\n\\n563 F.3d 948, 958–59 (9th Cir. 2009), and to “induce an individual to become a\\n\\nnamed plaintiff,” Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 410 (7th Cir.\\n\\n2000). Although these considerations will certainly weigh differently in different\\n\\ncases, together they “help illuminate the fact that class representatives . . . have\\n\\ntypically done something the absent class members have not—stepped forward and\\n\\nworked on behalf of the class.” 5 Newberg on Class Actions § 17.3. All of these\\n\\njustifications are legitimate, and district courts may exercise their discretion to\\n\\ndetermine whether they favor an incentive award in any given case.\\n\\n Here, the District Court awarded Dr. Muransky $10,000 “for his efforts in\\n\\nthis case.” It is not clear what the District Court meant by that. Even so, we find\\n\\nthat the record supports the incentive award. See Friends of the Everglades v. S.\\n\\nFla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012) (explaining that a\\n\\ndistrict court abuses its discretion when “neither the . . . decision nor the record\\n\\n\\n 41\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 42 of 47\\n\\n\\nprovide sufficient explanation to enable meaningful appellate review” (emphasis\\n\\nadded)); Cox Enters. v. News-Journal Corp., 510 F.3d 1350, 1361 (11th Cir. 2007)\\n\\n(finding no abuse of discretion in district court’s decision not to award\\n\\nprejudgment interest based on the record). At the District Court, Dr. Muransky\\n\\nargued that an incentive award was justified by the size of the settlement. As\\n\\npreviously discussed, the District Court found that the class settlement “confers\\n\\nsubstantial benefits” on the class members. And at the fairness hearing, the\\n\\nDistrict Court observed that Dr. Muransky “was subjecting himself to\\n\\ninconvenience and time delays that didn’t materialize as much as they might have,\\n\\nbut they still were a possibility when he signed on as the class representative.”\\n\\nThese statements give meaning to the court’s $10,000 incentive award to Dr.\\n\\nMuransky “for his efforts in this case.” 10 We therefore hold that the District Court\\n\\ndid not abuse its discretion by granting this incentive award.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 10\\n By our calculation, Dr. Muransky’s incentive award had little impact on the class\\nmembers’ recovery. Assuming 48,000 class members submitted valid claims (a high-end\\napproximation) for the $4.2 million in the fund for distribution, Dr. Muransky’s incentive award\\nof $10,000 resulted in a reduction of about 21 cents in the recovery of the class members who\\nfiled claims ($87.50 vs. $87.29).\\n 42\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 43 of 47\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389485/\", \"author_raw\": \"MARTIN, Circuit Judge:\"}, {\"author\": \"JORDAN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JORDAN, Circuit Judge, concurring:\\n\\n I join Judge Martin’s thorough opinion for the court. I write separately to\\n\\nnote that Mr. Isaacson, a class member and one of the appellants, may lack Article\\n\\nIII standing to challenge the Article III standing of Dr. Muransky, the named\\n\\nplaintiff and class representative.\\n\\n As a member of the class, Mr. Isaacson did not just file objections to the\\n\\nproposed settlement; he chose not to opt out and submitted a claim for\\n\\ncompensation pursuant to the settlement agreement. Given that the proposed\\n\\nsettlement fund totaled $4.1 million after attorney’s fees, and that approximately\\n\\n47,000 class members filed claims, Mr. Isaacson stands to receive about $85 even\\n\\nif his arguments about the attorney’s fees and the incentive award fail. Although\\n\\nthat sum is not a king’s ransom, there is no doubt that Mr. Isaacson is going to\\n\\nrealize some financial benefit from the settlement.\\n\\n Article III’s standing requirements—injury-in-fact, causation, and\\n\\nredressability—persist “throughout the life of [a] lawsuit.” Wittman v.\\n\\nPersonhuballah, 136 S. Ct. 1732, 1736 (2016). As a result, standing “must be met\\n\\nby persons seeking appellate review, just as it must be met by persons appearing in\\n\\ncourts of first instance.” Hollingworth v. Perry, 570 U.S. 693, 705 (2013) (citation\\n\\nand quotation marks omitted). Because “standing is not dispensed in gross,” it\\n\\nseems to me that Mr. Isaacson “must demonstrate standing for each claim he seeks\\n\\n\\n 43\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 44 of 47\\n\\n\\nto press and for each form of relief that is sought.” Town of Chester v. Laroe\\n\\nEstates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation and internal quotation marks\\n\\nomitted). If Mr. Isaacson “lacks standing to bring [a certain claim on] appeal, we\\n\\nlack jurisdiction over [that claim] and must dismiss it.” Tenille v. Western Union\\n\\nCo., 809 F.3d 555, 559 (10th Cir. 2015).\\n\\n Mr. Isaacson certainly has standing on appeal to pursue his challenges to the\\n\\ndeadline set by the district court for objections to the proposed settlement, to the\\n\\nattorney’s fees awarded to counsel for the plaintiffs, and to the incentive award\\n\\ngiven to Dr. Muransky. An incorrect deadline could have certainly affected Mr.\\n\\nIsaacson’s ability to assert objections to the motion for attorney’s fees, and any\\n\\ndecrease in the attorney’s fees or the incentive award would be redistributed\\n\\namong the class members, potentially increasing Mr. Isaacson’s own monetary\\n\\nrecovery. But Mr. Isaacson has also challenged Dr. Muransky’s standing to bring\\n\\na FACTA claim in the first place, and it is with respect to that challenge that his\\n\\nstanding is at best doubtful.\\n\\n According to Mr. Isaacson—who happens to be a plaintiffs’ class-action\\n\\nattorney—Dr. Muransky did not suffer an injury that allows him to bring a claim\\n\\nunder FACTA because he “fail[ed] to allege that his credit suffered when he was\\n\\nhanded a receipt with a few extra digits, or that anyone else knew of the violation\\n\\nor was in a position to take advantage of it to his injury.” Br. for Mr. Isaacson at\\n\\n\\n 44\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 45 of 47\\n\\n\\n34. In a recent law review article that he authored, Mr. Isaacson explained his\\n\\nmotivation for challenging Dr. Muransky’s standing in the following way: “I was\\n\\ntroubled by the notion that a class representative who suffered no injury should be\\n\\nable to evade the burden of demonstrating his own Article III standing . . . when\\n\\nentering [into] a class-action settlement that purports to release other class\\n\\nmembers’ claims for actual damages.” Eric Alan Isaacson, A Real-World\\n\\nPerspective on Withdrawal of Objections to Class Action-Settlements and\\n\\nAttorneys’ Fees Awards: Reflections on the Proposed Revisions to Federal Rule of\\n\\nCivil Procedure 23(E)(5), 10 Elon L. Rev. 35, 51 (2018) (footnotes omitted).\\n\\n I do not doubt the sincerity of Mr. Isaacson’s convictions, but it might fairly\\n\\nbe said that one could be just as troubled by the notion that an appellant who\\n\\nsuffered no injury from a judgment should be able to seek reversal without\\n\\ndemonstrating that he has been injured by that judgment and has Article III\\n\\nstanding. After all, the desire to ensure compliance with the law affects only the\\n\\n“generalized interest of all citizens in constitutional governance.” Schlesinger v.\\n\\nReservists Committee to Stop the War, 418 U.S. 208, 217 (1974). See also\\n\\nHollingsworth, 570 U.S. at 704 (“The presence of a disagreement, however sharp\\n\\nand acrimonious it may be, is insufficient by itself to meet Art[icle] III’s\\n\\nrequirements.”).\\n\\n\\n\\n\\n 45\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 46 of 47\\n\\n\\n Mr. Isaacson, as noted, stands to gain financially from the settlement. How,\\n\\nthen, can it be said that Mr. Isaacson suffered any cognizable harm (aside from his\\n\\narguments as to the deadline for objections, the attorney’s fees, and the incentive\\n\\naward) from the institution of the lawsuit by Dr. Muransky and/or the\\n\\nconsummation and approval of the settlement which provided him with a tangible\\n\\nbenefit? If Mr. Isaacson thought that the action brought by Dr. Muransky on\\n\\nbehalf of a class did not constitute a justiciable case or controversy under Article\\n\\nIII, why did he not simply opt out and let the statute of limitations expire on any\\n\\nFACTA claim he might have had individually? Conversely, if Mr. Isaacson\\n\\nthought that he (unlike Dr. Muransky) had Article III standing to assert a FACTA\\n\\nclaim and believed that he could do better as an individual litigant, why did Mr.\\n\\nIsaacson not simply file suit on his own against Godiva?\\n\\n Stated differently, if Mr. Isaacson prevailed on his standing argument, I do\\n\\nnot see how we could redress any injury he has suffered. See Wittman, 136 S. Ct.\\n\\nat 1732 (dismissing appeal by intervenors who could not explain how their alleged\\n\\ninjury would be redressed by a favorable judicial decision). Indeed, Mr. Isaacson\\n\\nwill cause himself injury if he succeeds because his monetary recovery—along\\n\\nwith that of every class member—will be wiped out. For if Dr. Muransky has not\\n\\nsuffered an Article III injury, he does not have standing to sue Godiva under\\n\\nFACTA, and that means that the entire case must be dismissed for want of a\\n\\n\\n 46\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 47 of 47\\n\\n\\njusticiable case or controversy. See generally William B. Rubenstein, 1 Newberg\\n\\non Class Actions § 2:8 (5th ed. June 2018) (“[I]f a case has only one class\\n\\nrepresentative and that party does not have standing, then the court lacks\\n\\njurisdiction over the case and it must be dismissed.”).\\n\\n The rule against permitting appeals by prevailing litigants is a prudential\\n\\none, but a litigant who obtains a favorable judgment must nevertheless have a\\n\\npersonal stake to appeal. See generally Camreta v. Greene, 563 U.S. 692, 701-02\\n\\n(2011). In an appropriate case, we may need to address whether a class member\\n\\nlike Mr. Isaacson has standing on appeal to challenge the standing of a class\\n\\nrepresentative who obtained a settlement providing economic benefits to the entire\\n\\nclass. Cf. King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir. 2007) (“if\\n\\nthe requirements for appellate jurisdiction are not met ‘we cannot review whether a\\n\\njudgment is defective, not even when the asserted defect is that the district court\\n\\nlacked jurisdiction’”) (citation omitted).\\n\\n\\n\\n\\n 47\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389485/\", \"author_raw\": \"JORDAN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"MARTIN"},"judge2":{"kind":"string","value":"JORDAN"},"judge3":{"kind":"string","value":"GINSBURG"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612232/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Dr. David S. MURANSKY, Individually and on Behalf of All Others Similarly Situated, Plaintiff - Appellee, James H. Price, Eric Alan Isaacson, Interested Parties - Appellants, v. GODIVA CHOCOLATIER, INC., a New Jersey Corporation, Defendant - Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-22\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-16486 Date Filed: 04/22/2019 Page: 1 of 47\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16486; 16-16783\n ________________________\n\n D.C. Docket No. 0:15-cv-60716-WPD\n\n\n\nDR. DAVID S. MURANSKY,\nindividually and on behalf of all others similarly situated,\n\n Plaintiff - Appellee,\n\nJAMES H. PRICE,\nERIC ALAN ISAACSON,\n\n Interested Parties - Appellants,\n\n versus\n\nGODIVA CHOCOLATIER, INC.,\na New Jersey corporation,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 22, 2019)\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 2 of 47\n\n\nBefore MARTIN, JORDAN, and GINSBURG, * Circuit Judges.\n\nMARTIN, Circuit Judge:\n\n We sua sponte vacate our previous opinion and publish this one in its place.\n\nFor ease of reading, the major change is to Part II.B, our discussion of Dr.\n\nMuransky’s standing to bring this action.\n\n This appeal was brought to contest the approval of a class-action settlement.\n\nDr. David Muransky filed a class action against Godiva Chocolatier, Inc. for\n\nviolating the Fair and Accurate Credit Transactions Act (“FACTA”). Appellants\n\nJames Price and Eric Isaacson (“the objectors”) objected to a class settlement\n\nreached by Dr. Muransky and Godiva. Over their objections, the District Court\n\napproved the settlement, class counsel’s request for attorney’s fees, and an\n\nincentive award for Dr. Muransky. After careful review and with the benefit of\n\noral argument, we affirm.\n\n I. Background\n\n In April 2015, Dr. Muransky filed a class action against Godiva for allegedly\n\nviolating FACTA. FACTA prohibits merchants from printing “more than the last\n\n5 digits of the card number or the expiration date upon any receipt provided to the\n\ncardholder at the point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1). We\n\n\n\n *\n Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of\nColumbia Circuit, sitting by designation.\n 2\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 3 of 47\n\n\nwill refer to this as the “truncation requirement.”\n\n FACTA authorizes customers to sue merchants that willfully or negligently\n\nviolate the truncation requirement. 15 U.S.C. §§ 1681n(a); 1681o(a). A merchant\n\nwillfully violates FACTA by acting in knowing violation of its statutory duties or\n\nby acting in reckless disregard of those duties. See Safeco Ins. Co. of Am. v. Burr,\n\n551 U.S. 47, 57–58, 127 S. Ct. 2201, 2208–09 (2007). For willful violations,\n\ncustomers may recover actual damages or statutory damages from $100 to $1000,\n\nand punitive damages. 15 U.S.C. § 1681n(a)(1), (a)(2); Safeco, 551 U.S. at 53,\n\n127 S. Ct. at 2206. Customers can recover statutory damages for willful violations\n\neven if they cannot show their identity was stolen or credit impacted, 15 U.S.C.\n\n§ 1681n(a), and even if they received and kept the defective receipt. Engel v.\n\nScully & Scully, Inc., 279 F.R.D. 117, 125–26 (S.D.N.Y. 2011). By contrast,\n\nwhen the violation is a result of negligence, customers can only recover their actual\n\ndamages as well as attorney’s fees. 15 U.S.C. § 1681o(a); Engel, 279 F.R.D. at\n\n125–26.\n\n The operative complaint alleges that after Dr. Muransky made a purchase at\n\na Godiva store, Godiva gave him a receipt that showed his credit card number’s\n\nfirst six and last four digits. Dr. Muransky sought to represent a class of customers\n\nwhose credit card numbers Godiva printed on receipts in violation of FACTA.\n\nThese violations, the complaint says, exposed Dr. Muransky and the class “to an\n\n\n 3\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 4 of 47\n\n\nelevated risk of identity theft.” According to the complaint, Godiva’s violation of\n\nFACTA was willful, so the class was entitled to statutory and punitive damages, as\n\nwell as attorney’s fees and costs. See id. § 1681n(a).\n\n Godiva moved to dismiss the complaint on the ground that it did not\n\nplausibly allege a willful violation of FACTA. The District Court denied Godiva’s\n\nmotion. After that, the parties engaged in discovery then mediated the case. In\n\nlate November 2015, the parties notified the court of an agreement in principle to\n\nsettle the case on a class-wide basis. They requested a stay, which the court\n\ngranted.\n\n Two months after that request, Dr. Muransky moved for preliminary\n\napproval of the class-action settlement. He explained that the parties agreed to a\n\nsettlement fund of $6.3 million from which all fees, costs, and class members\n\nwould be paid. He estimated that class members who submitted a timely claim\n\nform would receive around $235 as their pro-rata share of the settlement fund.\n\nNone of the money would revert to Godiva. Dr. Muransky indicated he intended\n\nto apply for an incentive award of up to $10,000 and that class counsel would\n\nmove for an award of attorney’s fees of up to one-third of the settlement fund,\n\nwhich would be $2.1 million.\n\n In this motion, Dr. Muransky also argued that the amount class members\n\nwould recover by submitting a claim compared favorably to their possible recovery\n\n\n 4\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 5 of 47\n\n\nhad the case proceeded to trial. FACTA provides for a combination of actual and\n\nstatutory damages. 15 U.S.C. § 1681n(a). For statutory damages, FACTA\n\nprovides for an award of $100 to $1,000 for each violation. Id. § 1681n(a)(1)(A).\n\nGiven the nature of the violation, Dr. Muransky acknowledged there was “a good\n\nchance” each class member would recover the $100 minimum statutory damage\n\naward if the case went to trial. At the fairness hearing, the District Court agreed\n\nwith Dr. Muransky’s assessment, saying it was reasonable for class counsel to have\n\nestimated that class members “could [receive] more than double what the class\n\nmembers could get if they went to trial and won the case.”\n\n Dr. Muransky’s motion also addressed some of the risks that favored pre-\n\ntrial settlement. Most notably, Dr. Muransky pointed to two cases then pending\n\nbefore the Supreme Court: Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540\n\n(2016), on Article III standing, and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.\n\n___, 136 S. Ct. 1036 (2016), on class certification under Federal Rule of Civil\n\nProcedure 23(b)(3). The outcomes of those two cases, which at the time were\n\nuncertain, posed serious risks to the class members’ ability to pursue FACTA\n\nclaims against Godiva. Dr. Muransky also acknowledged the difficulty of proving\n\nthe “willfulness” of Godiva’s FACTA violation, which the District Court also\n\ndiscussed at the fairness hearing. Without proving “willfulness,” the class would\n\nnot be entitled to statutory damages. See 15 U.S.C. § 1681n(a).\n\n\n 5\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 6 of 47\n\n\n The motion for preliminary approval also contained a proposed class notice\n\nand a proposed schedule of notice, opt-out, and motion deadlines. The proposed\n\nnotice said Dr. Muransky would seek an incentive award of up to $10,000 “for his\n\nwork in representing the class” and that class counsel would seek up to $2.1\n\nmillion in attorney’s fees. The District Court granted the motion for preliminary\n\napproval, certified the class under Rule 23(b)(3), and approved the form of notice.\n\nUnder the preliminary approval order, class members who wanted to be excluded\n\nfrom the settlement were required to give written notice of exclusion to the claims\n\nadministrator. Those who failed to submit an opt-out certification would be\n\nincluded in the settlement class and bound by its terms. Then to get money from\n\nthe settlement fund, class members had to file a claim form with the claims\n\nadministrator. Class members could also file objections, which the court would\n\nconsider as part of its determination of whether the settlement was fair. After\n\nextensions by the District Court, the final deadline for class members to submit\n\nclaims, object, or opt-out was August 23, and the deadline for Dr. Muransky to\n\nmove for final settlement approval was September 9.\n\n Notice of the settlement was sent to 318,000 class members and over 47,000\n\nsubmitted claim forms. Only fifteen class members opted out. Five class\n\nmembers, including Mr. Price and Mr. Isaacson, objected to the settlement. In\n\ntheir objections, Mr. Price and Mr. Isaacson said they are members of the\n\n\n 6\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 7 of 47\n\n\nsettlement class and that they timely submitted claim forms. Among other\n\narguments, they said notice of Dr. Muransky’s attorney’s fee motion was\n\ninadequate under Rule 23(h); the court should subject any attorney’s fee award to a\n\nlodestar analysis; and a $10,000 incentive award was not warranted.\n\n On September 7, Dr. Muransky moved for final approval of the class\n\nsettlement and requested an award of $2.1 million in attorney’s fees as well as\n\n$10,000 as an incentive award. At the court’s direction, Dr. Muransky filed a\n\nseparate motion for attorney’s fees and expenses. The Magistrate Judge issued a\n\nreport and recommendation (“R&R”) on the attorney’s fee motion just four days\n\nlater, before the objectors filed opposition briefs. The R&R recommended that the\n\nDistrict Court grant the motion and award the full amount of $2.1 million.\n\nAlthough the R&R was issued before the objectors filed opposition briefs, the\n\nMagistrate Judge considered Mr. Price’s and Mr. Isaacson’s previously filed\n\nobjections to the settlement. In addition, soon after the R&R was issued, the\n\nobjectors filed briefs in opposition to the motion for attorney’s fees. They later\n\nfiled objections to the R&R as well.\n\n On September 21, the District Court held a fairness hearing, during which\n\nobjectors’ counsel made their case. During the hearing, Mr. Isaacson’s counsel\n\nraised standing as a new objection, saying that the court needed to decide whether\n\nDr. Muransky had Article III standing. Soon after the hearing, the District Court\n\n\n 7\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 8 of 47\n\n\napproved the settlement and gave the incentive award and attorney’s fees to Dr.\n\nMuransky and class counsel respectively. In response to the objectors’ argument\n\nthat notice was not adequate, the District Court noted it had “permitted objections\n\nto be filed both before and after” the motion for attorney’s fees was filed and that\n\n“meaningful objections were in fact filed both before and after the filing” of that\n\nmotion. The court said it had reviewed the class members’ objections to the R&R\n\nde novo, “taken them into full consideration,” and “carefully analyzed” them. The\n\ncourt then found that the requested attorney’s fees were reasonable and awarded\n\n$2.1 million, one-third of the settlement fund, in fees. The Court also granted the\n\n$10,000 incentive award for Dr. Muransky’s “efforts in this case.”\n\n The objectors appealed. They say the District Court abused its discretion by\n\nfinding that the notice satisfied Rule 23(h), by awarding $2.1 million in attorney’s\n\nfees, and by awarding $10,000 as an incentive to Dr. Muransky. Mr. Isaacson\n\nraises a fourth issue: he challenges Dr. Muransky’s Article III standing to pursue a\n\nFACTA claim against Godiva. Before addressing those arguments, we consider\n\nthe objectors’ ability to make them on appeal. We then consider the merits of the\n\narguments properly before us.\n\n\n\n\n 8\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 9 of 47\n\n\n II. Jurisdiction\n\nA. The objector’s right to appeal\n\n The Supreme Court has held “only parties to a lawsuit, or those that properly\n\nbecome parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301,\n\n304, 108 S. Ct. 586, 587 (1988) (per curiam). We start by deciding whether\n\nobjectors like Mr. Price and Mr. Isaacson are “parties” with the ability to appeal\n\nfrom a district court’s judgment. We hold that they are.\n\n In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002), the Supreme\n\nCourt addressed whether a nonnamed class member who timely objects to a\n\nsettlement agreement but does not opt out is a “party for the purposes of appealing\n\nthe approval of the settlement.” Id. at 7, 122 S. Ct. at 2009 (quotation marks\n\nomitted). The Court held that nonnamed class members who are bound by a\n\njudgment must “be allowed to appeal the approval of a settlement when they have\n\nobjected at the fairness hearing.” Id. at 10, 122 S. Ct. at 2011. “To hold\n\notherwise,” the Court explained, “would deprive nonnamed class members of the\n\npower to preserve their own interests in a settlement that will ultimately bind them,\n\ndespite their expressed objections before the trial court.” Id.\n\n Devlin addressed a mandatory settlement class, but not whether objectors to\n\na Rule 23(b)(3) settlement who can opt out of a settlement also are “parties” that\n\ncan appeal. See id. at 10–11, 122 S. Ct. at 2011 (noting that appeal was the\n\n\n 9\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 10 of 47\n\n\nobjectors’ only option because they could not opt out of the settlement). Since\n\nDevlin, the only circuit courts of appeal to have decided this issue have held that\n\nclass members who object to a Rule 23(b)(3) settlement but do not opt out are\n\n“parties” for purposes of appeal. 1 Generally, these courts reason that Devlin “is\n\nabout party status and one who could cease to be a party is still a party until opting\n\nout.” Nat’l Ass’n of Chain Drug Stores, 582 F.3d at 40. In AAL High Yield Bond\n\nFund v. Deloitte & Touche LLP, 361 F.3d 1305 (11th Cir. 2004), this Court ruled\n\nthat objectors who were not class members could not appeal because they were not\n\n“parties who are actually bound by a judgment.” Id. at 1310. Yet at the same time,\n\nwe know that actual class members who object but do not opt out of a Rule\n\n23(b)(3) class settlement are still bound by the judgment approving the class\n\nsettlement. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614–15, 117 S.\n\nCt. 2231, 2245 (1997). With all of this in mind, we conclude that class members\n\nwho object to Rule 23(b)(3) class settlements but do not opt out are “parties” for\n\npurposes of appeal. Mr. Price and Mr. Isaacson are therefore proper parties.\n\nB. Article III standing\n\n We next consider whether Dr. Muransky has standing to bring this class\n\n\n\n\n 1\n Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund,\n582 F.3d 30, 39–40 (1st Cir. 2009); Fidel v. Farley, 534 F.3d 508, 512–13 (6th Cir. 2008);\nChurchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 572–73 (9th Cir. 2004); In re Integra Realty\nRes., Inc., 354 F.3d 1246, 1257–58 (10th Cir. 2004).\n 10\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 11 of 47\n\n\naction. Standing is a limitation on federal subject matter jurisdiction derived from\n\nArticle III. Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1546–47. It\n\nrequires plaintiffs to show they suffered an injury in fact traceable to the\n\ndefendant’s conduct and redressable by a favorable judicial decision. Id. at 1547.\n\n As the party invoking jurisdiction, of course it is the plaintiff who bears the\n\nburden of establishing standing. Id. However, a plaintiff is not required to\n\ndemonstrate the merits of his case in order to establish his standing to sue. Pedro v\n\nEquifax, Inc., 868 F.3d 1275, 1279 (11th Cir. 2017). Beyond that, we are here\n\nevaluating standing at the motion to dismiss stage, so we are also mindful that the\n\nplaintiff’s burden for establishing standing corresponds to “the manner and degree\n\nof evidence required at the successive stages of litigation.” Bischoff v. Osceola\n\nCty., 222 F.3d 874, 878 (11th Cir. 2000) (quoting Lujan v. Defs. of Wildlife, 405\n\nU.S. 555, 561, 112 S. Ct. 2130, 2136 (1992)). Thus, “when standing becomes an\n\nissue on a motion to dismiss, general factual allegations of injury resulting from\n\nthe defendant’s conduct may be sufficient to show standing.” Moody v. Holman,\n\n887 F.3d 1281, 1286 (11th Cir. 2018) (quotation marks omitted). So in order to\n\nsurvive a facial challenge on a motion to dismiss, a plaintiff is required to allege\n\nenough facts to show he plausibly has standing. Bell Atl. Corp. v. Twombly, 550\n\nU.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). After de novo review, London v.\n\nWal-Mart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003), we conclude Dr.\n\n\n 11\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 12 of 47\n\n\nMuransky alleged enough to carry his burden of showing standing at this stage.\n\n Dr. Muransky alleges he suffered a heightened risk of identity theft when\n\nGodiva printed more digits of his credit card number than the law allows. Because\n\nthe objectors raise a facial challenge to standing, we must accept the truth of this\n\nallegation. See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc.,\n\n524 F.3d 1229, 1232–33 (11th Cir. 2008) (per curiam). Dr. Muransky has plainly\n\nshown Godiva’s conduct caused the alleged injury, and the statutory damages Dr.\n\nMuransky seeks will redress it. He has thus shown two of the three elements of\n\nstanding: causation and redressability.\n\n We turn, then, to our reasons for concluding the heightened risk of identity\n\ntheft Dr. Muransky experienced as a result of the FACTA violation constitutes an\n\ninjury in fact. “To establish injury in fact, a plaintiff must show that he or she\n\nsuffered ‘an invasion of a legally protected interest’ that is ‘concrete and\n\nparticularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,\n\n136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.\n\nCt. 2130, 2136 (1992)). Dr. Muransky’s alleged injury is “particularized” because\n\nthe heightened risk of identity theft affected him “in a personal and individual\n\nway”—it was his credit card number that appeared on the receipt. Spokeo, 136 S.\n\nCt. at 1548 (quoting Lujan, 504 U.S. at 560 n.1, 112 S. Ct. at 2136 n.1). The injury\n\nis “actual” rather than “conjectural” because it has already occurred. See Robins v.\n\n\n 12\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 13 of 47\n\n\nSpokeo, Inc. (Spokeo II), 867 F.3d 1108, 1117–18 (9th Cir. 2017); cf. Clapper v.\n\nAmnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013) (explaining\n\nthat possible future injury does not constitute an injury in fact). Dr. Muransky\n\nsuffered the heightened risk of identity theft the moment Godiva printed too many\n\ndigits of his credit card number.\n\n That brings us to whether the heightened risk of identity theft is sufficiently\n\n“concrete” to confer standing. Our starting point in this analysis is the Supreme\n\nCourt’s decision in Spokeo. We first review Spokeo and then turn to our analysis\n\nof Dr. Muransky’s standing.\n\n i. Interpreting Spokeo\n\n Spokeo clarified that concreteness and particularity are distinct, and both are\n\nessential to establish injury in fact. 136 S. Ct. at 1548. But Spokeo did not, as the\n\nobjector suggests, alter either the concreteness or particularity analysis. That is,\n\nSpokeo did not change the legal principles that have long governed both. See In re\n\nHorizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 638 (3d Cir.\n\n2017) (“[W]e understand that the Spokeo Court meant to reiterate traditional\n\nnotions of standing.”); Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 529 (5th Cir.\n\n2016) (“The Supreme Court reaffirmed in Spokeo that violation of a procedural\n\nright granted by statute may in some circumstance be a sufficiently concrete, albeit\n\nintangible, harm to constitute injury-in-fact without an allegation of ‘any additional\n\n\n 13\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 14 of 47\n\n\nharm beyond the one Congress has identified.’” (quoting Spokeo, 136 S. Ct. at\n\n1549) (first emphasis added)).\n\n Spokeo reaffirmed a “‘concrete’ injury must be ‘de facto’; that is, it must\n\nactually exist.” 136 S. Ct. at 1548; see also id. at 1555–56 (Ginsburg, J.,\n\ndissenting) (“Concreteness as a discrete requirement for standing, the Court’s\n\ndecisions indicate, refers to the reality of an injury, harm that is real, not abstract,\n\nbut not necessarily tangible.”). But “concrete” is not “necessarily synonymous\n\nwith ‘tangible.’” Id. at 1549 (majority opinion). After Spokeo as before,\n\n“intangible” injuries, including injury in the form of a “risk of real harm,” may\n\nsatisfy Article III’s concreteness requirement. Id. Nor must the injury (tangible or\n\nnot) be substantial. Spokeo made no change to the rule that “a small injury, ‘an\n\nidentifiable trifle,’ is sufficient to confer standing.” Common Cause/Georgia v.\n\nBillups, 554 F.3d 1340, 1351 (11th Cir. 2009) (quoting United States v. Students\n\nChallenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93\n\nS. Ct. 2405, 2417 n.14 (1973)).\n\n The objector argues that Spokeo compels the conclusion that Dr.\n\nMuransky’s injury was not concrete. However, he neglects to mention that the\n\nSpokeo Court did not decide whether the plaintiff in that case suffered a concrete\n\ninjury. Spokeo, 136 S. Ct. at 1545, 1550. Instead, the Court pointed out that the\n\nNinth Circuit erred in conflating concreteness and particularity, and then vacated\n\n\n 14\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 15 of 47\n\n\nand remanded the case for the Ninth Circuit to rule on concreteness in the first\n\ninstance. Id. at 1550 (“We take no position as to whether the Ninth Circuit’s\n\nultimate conclusion—that Robins adequately alleged an injury in fact—was\n\ncorrect.”).\n\n In remanding Spokeo, the Supreme Court noted that, as has long been the\n\ncase, “both history and the judgment of Congress play important roles” in\n\nanalyzing concreteness.2 Id. at 1549. History plays a role because the Article III\n\ncase-or-controversy requirement, from which standing is derived, “is grounded in\n\nhistorical practice.” Id. For that reason, “it is instructive to consider whether an\n\nalleged intangible harm has a close relationship to a harm that has traditionally\n\nbeen regarded as providing a basis for a lawsuit in English or American courts.”\n\nId. Congress’ judgment plays a role because it “is well positioned to identify\n\nintangible harms that meet minimum Article III requirements.” Id. And while\n\nSpokeo reiterated that “bare procedural violation[s], divorced from any concrete\n\nharm” do not give rise to standing, it made clear that “the violation of a procedural\n\nright granted by statute can be sufficient in some circumstances to constitute injury\n\n\n\n 2\n Neither point was an innovation. The Supreme Court looked to “the long tradition of\nqui tam actions in England and the American Colonies” in concluding a plaintiff had standing to\nsue under the False Claims Act. Vermont Agency of Nat. Res. v. United States ex rel. Stevens,\n529 U.S. 765, 774–78, 120 S. Ct. 1858, 1863–65 (2000). And the Court has many times held\nthat Congress “may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries\nthat were previously inadequate in law.’” Spokeo, 136 S. Ct. at 1549 (alteration adopted)\n(quoting Lujan, 504 U.S. at 578, 112 S. Ct. at 2145).\n 15\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 16 of 47\n\n\nin fact.” Id.; see also Frank v. Gaos, 586 U.S. __, 139 S. Ct. 1041, 1046 (2019)\n\n(per curiam) (remanding for reconsideration in light of Spokeo). On remand, the\n\nNinth Circuit concluded the plaintiff had shown a concrete injury. Spokeo II, 867\n\nF.3d at 1118.\n\n As we see it, Spokeo’s upshot in cases like this one is that a plaintiff may\n\nshow injury in fact by alleging “the violation of a procedural right granted by\n\nstatute” poses a “risk of real harm” to a concrete interest. Spokeo 136 S. Ct. at\n\n1549; see Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (“[W]e\n\nunderstand Spokeo, and the cases cited therein, to instruct that an alleged\n\nprocedural violation can by itself manifest concrete injury where Congress\n\nconferred the procedural right to protect a plaintiff’s concrete interests and where\n\nthe procedural violation presents a risk of real harm to that concrete interest.”\n\n(quotation marks omitted)); see also Spokeo II, 867 F.3d at 1113 (“[W]e now agree\n\nthat the Second Circuit’s formation in Strubel best elucidates the concreteness\n\nstandards articulated by the Supreme Court in Spokeo.”). The common law and\n\ncongressional judgment inform the necessary quantum of risk. Spokeo, 136 S. Ct.\n\nat 1549–50. And where Congress elevates the risk of harm to a concrete interest to\n\nthe status of a concrete injury, the risk need be no more than an “identifiable trifle”\n\nto be concrete. See Billups, 554 F.3d at 1351.\n\n Borrowing a hypothetical the Supreme Court offered in Spokeo may\n\n\n 16\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 17 of 47\n\n\nilluminate our reading of that case. There, the Court acknowledged that Congress\n\nenacted the Fair Credit Reporting Act (FCRA) to “curb the dissemination of false\n\ninformation” but noted that “not all inaccuracies cause harm or present a material\n\nrisk of harm.” Spokeo, 136 S. Ct. at 1550. For example, the Court said it would\n\nbe “difficult to imagine how the dissemination of an incorrect zip code, without\n\nmore, could work any concrete harm.” Id. At the same time, the Supreme Court\n\ndid not foreclose the possibility that an incorrect zip code could in some instances\n\npose a risk of harm to a concrete interest. An employer might, for example, be\n\nlooking for a worker with connections to and knowledge of a particular city. But if\n\na third party posted an incorrect zip code for the person online, that might put the\n\nperson’s employment prospects at risk or even kill a job opportunity. A plaintiff\n\nwho alleged a risk that this might come to pass would show a connection between\n\nthe violation of a statutory right and a concrete interest in employment. See\n\nSpokeo II, 867 F.3d at 1115–17. This, we think, is the “more” the Supreme Court\n\nsaid Article III demands when a plaintiff alleges a statutory violation that would\n\notherwise be unmoored from any concrete harm.\n\n ii. Applying Spokeo\n\n Application of these principles here demonstrates that Dr. Muransky’s injury\n\nis concrete for two independent reasons. First, Congress judged the risk of identity\n\ntheft Dr. Muransky suffered to be sufficiently concrete to confer standing. Second,\n\n\n 17\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 18 of 47\n\n\nthe risk of identity theft bears a close enough relationship to the common law tort\n\nof breach of confidence to make Dr. Muransky’s injury concrete. Either is enough\n\non its own to establish standing. We address each in turn.\n\n With FACTA, Congress sought to “protect[] consumers from identity theft.”\n\nHarris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009); see\n\nalso Credit and Debit Card Receipt Clarification Act of 2007 (“Clarification Act”),\n\nPub. L. No. 110-241, § 2(a)(1), 122 Stat. 1565, 1565 (finding that “the purpose[]”\n\nof FACTA is to “reduce identity theft and credit card fraud”).3 The truncation\n\nrequirement reflects Congress’s view that printing more than the last five digits of\n\na credit card number contributes to the problem of identity theft. See Harris, 564\n\nF.3d at 1306.\n\n The legislative history confirms as much. After FACTA passed, businesses\n\nfaced crippling litigation because they continued printing expiration dates on\n\nreceipts, which FACTA prohibits. Clarification Act § 2(a)(4). With the\n\nClarification Act, Congress gave amnesty to merchants that printed an expiration\n\ndate on a receipt between FACTA’s passage and the passage of the Clarification\n\nAct. Id. § 3(a). But Congress granted no amnesty to merchants who printed more\n\n\n\n\n 3\n Conference and committee reports on FACTA likewise indicate that its purpose was to\ncombat identity theft. H.R. Rep. No. 108-396, at 1753–54 (2003) (Conf. Rep.); H.R. Rep. No.\n108-263, at 22 (2003) (noting that FACTA’s truncation requirement was enacted in part to\ncombat identity theft).\n 18\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 19 of 47\n\n\nthan the permitted number of digits. Id. Quite to the contrary, it found that\n\n“[e]xperts in the field agree that proper truncation of the card number, by itself as\n\nrequired by [FACTA] . . . , prevents a potential fraudster from perpetrating identity\n\ntheft or credit card fraud.” Id. § 2(a)(6).4\n\n Dr. Muransky alleged that Godiva’s FACTA violation subjected him to a\n\nrisk of real harm to the concrete interest in avoiding identity theft, the very interest\n\nthat Congress sought to protect with FACTA. We think it beyond debate that a\n\nconsumer has a concrete interest in preventing his identity from actually being\n\nstolen. See Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (“Nobody\n\ndoubts that identity theft, should it befall one of these plaintiffs, would constitute a\n\nconcrete and particularized injury.”). Victims of identity theft face a host of\n\nfinancial woes. To name just one, identity thieves can run up fraudulent credit\n\ncard charges and leave the victim with the bill, and all the problems associated\n\nwith getting the fraudulent charges cleaned up. Dr. Muransky’s allegation, which\n\nwe accept as true, thus establishes a risk of real harm to a concrete interest.\n\n With FACTA’s truncation requirement, Congress “adopt[ed a] procedure[]\n\ndesigned to decrease that risk” that a consumer would have his identity stolen.\n\n\n\n 4\n Legislative materials show that members who supported the bill favored amnesty for\nbusinesses that printed expiration dates but not those that violated the truncation requirement, on\nthe view that “truncation of the credit card numbers accomplishes the intent of the statute.” 154\nCong. Rec. E925-02, 2008 WL 2051340 (2008) (statement of Rep. Maloney); see generally 154\nCong. Rec. H00000-29, 2008 WL 2038627 (2008).\n 19\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 20 of 47\n\n\nSpokeo, 136 S. Ct. at 1550. Congress’s elevation of the risk to the status of a\n\nconcrete harm is a judgment we accept under the principles laid down in Spokeo.\n\nThe risk may not be great, but a great risk is not necessary to satisfy Article III’s\n\nminimal demand for an “identifiable trifle.” Billups, 554 F.3d at 1351 (quotation\n\nmarks omitted). In our view, if Congress adopts procedures designed to minimize\n\nthe risk of harm to a concrete interest, then a violation of that procedure that causes\n\neven a marginal increase in the risk of harm to the interest is sufficient to constitute\n\na concrete injury. And that is what Congress did here.\n\n Indeed, this is a case in point for Congress’s relatively greater institutional\n\ncompetence to draw the line between a concrete injury and non-actionable risk.\n\nSpokeo, 136 S. Ct. at 1549 (“Congress is well positioned to identify intangible\n\nharms that meet minimum Article III requirements, [making] its judgment . . .\n\ninstructive and important.”); see also Daniel Townsend, Who Should Define\n\nInjuries for Article III Standing?, 68 Stan. L. Rev. Online 76, 81–83 (2015)\n\n(discussing Congress’s superior ability to gather facts and make empirical\n\njudgments about the risk underlying injuries). After hearing from experts on the\n\nmatter, Congress decided to set the tolerable level of risk at printing the last five\n\ndigits of a card number. We decline to substitute our judgment for Congress’s by\n\nsaying that, as a matter of law, the risk of identity theft is not concrete until a\n\nmerchant prints the first eight or ten digits instead of the first six.\n\n\n 20\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 21 of 47\n\n\n In sum, Congress conferred the procedural right in FACTA to reduce the\n\nrisk of identity theft. Dr. Muransky alleged he suffered a heightened risk of\n\nidentity theft as a result of a FACTA violation. That allegation suffices for\n\nstanding under Spokeo.\n\n We are aware the Third Circuit recently drew the opposite inference from\n\nthe Clarification Act. That court ruled that, in passing the Clarification Act,\n\nCongress intended to limit FACTA actions to “those claims implicating actual\n\nharm.” By this, the court seemed to say that the statute aided only those plaintiffs\n\nwho claimed their identities were in fact stolen. Kamal v. J. Crew Grp., Inc., 918\n\nF.3d 102, 113 (3d Cir. 2019). Our understanding of the Clarification Act does not\n\ncomport with this ruling in Kamal. In our view, when it left the truncation\n\nrequirement in place at the same time it limited liability for printing expiration\n\ndates, Congress judged the truncation requirement necessary to prevent the risk of\n\nidentity theft. In fact, Congress made a specific finding that FACTA’s truncation\n\nrequirement by itself would “prevent[] a potential fraudster from perpetrating\n\nidentity theft or credit card fraud.” Clarification Act § 2(a)(6). We are also\n\nmindful that Spokeo expressly recognized that the risk of harm may satisfy the\n\nconcreteness requirement, even absent a tangible injury. As we have explained,\n\nFACTA creates a procedure to minimize the risk of identity theft. For these\n\nreasons we decline to follow the Third Circuit’s rule that actual identity theft is\n\n\n 21\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 22 of 47\n\n\nrequired for standing to bring a FACTA claim.\n\n Our holding here is not inconsistent with other decisions from our sister\n\ncircuits that found no standing in FACTA cases. The Second, Seventh, and Ninth\n\nCircuits have all found no standing in cases where consumers alleged a merchant\n\nprinted receipts that included a credit card expiration date in violation of FACTA.\n\nBassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018); Crupar-\n\nWeinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v.\n\nNicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016). We think those cases\n\nare distinguishable from this one. They all rely on Congress’s finding in the\n\nClarification Act that “a receipt with a credit card expiration date does not raise a\n\nmaterial risk of identity theft.” Crupar-Weinmann, 861 F.3d at 78; see also\n\nBassett, 883 F.3d at 781–82; Meyers, 843 F.3d at 727–28. As we explained, the\n\nClarification Act points to the opposite conclusion in this case.5\n\n The Second Circuit also found no standing in a FACTA case that is\n\ndistinguishable in its posture. In Katz v. Donna Karan Co., L.L.C., 872 F.3d 114\n\n(2d Cir. 2017), the Second Circuit dismissed a FACTA case where the district\n\ncourt found on a factual challenge to standing that printing the first six digits of a\n\ncredit card number poses no risk of identity theft. Id. at 116. Specifically, the\n\n\n\n 5\n To be clear, we express no view whether a plaintiff suffers a concrete injury when a\nmerchant prints an expiration date on a receipt in violation of FACTA.\n 22\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 23 of 47\n\n\ndistrict court found that the first six digits of a credit card number identify only the\n\ncard issuer, which, in turn, poses no risk of identity theft. Id. at 118–19. The\n\ndistrict court also found that the receipts at issue in Katz did not “disclose[] Katz’s\n\nname, a fact that also reduces the possibility that disclosure of the [first six digits]\n\nwould result in harm.” Id. at 120. Reviewing these findings for clear error, the\n\nSecond Circuit affirmed. However it did express trepidation about the\n\n“abbreviated” fact-finding procedure the district court appeared to have used. Id.\n\n We are wary of Katz’s premise that a federal district court may make factual\n\nfindings that override Congress’s standard for what harm constitutes a concrete\n\ninjury. Congress engaged in its own factfinding and set a uniform standard for the\n\nnumber of digits appropriate to print in its effort to curb the risk of identity theft.\n\nClarification Act § 2(a)(6). We do not read Spokeo as giving courts a license to\n\nreject the standard set by Congress in favor of judge-found facts at odds with that\n\nstandard. Spokeo certainly makes clear that not all statutory violations constitute\n\nan injury in fact. Spokeo, 136 S. Ct. at 1549; see also Frank, 139 S. Ct. at 1046.\n\nHowever, we have explained that a plaintiff can establish Article III standing at the\n\npleading stage by alleging a risk of harm of the type Congress elevated to the status\n\nof a concrete injury when it created procedures designed to minimize that risk. See\n\nSpokeo, 136 S. Ct. at 1549. Once a plaintiff does that, Article III’s concreteness\n\nrequirement is satisfied. See id. Here, Congress established the acceptable level of\n\n\n 23\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 24 of 47\n\n\nrisk at printing five digits of a credit card number. Dr. Muransky alleged a\n\nheightened risk of identity theft as a result of Godiva’s FACTA violation, and that\n\nsatisfies Article III under the principles Spokeo laid down.\n\n In any event, Katz is distinguishable from this case. There is nothing in the\n\nrecord before us to support a finding that the first six digits identify a card issuer or\n\nthat printing the first six digits poses no risk of identity theft. We will not impose a\n\nfactual finding made in the Southern District of New York upon Mr. Muransky,\n\nparticularly given the Second Circuit’s concern about the fact-finding procedures\n\nin that case. See McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 914 (8th Cir.\n\n2014) (“Judicial notice of another court’s opinion takes notice of the existence of\n\nthe opinion, which is not subject to reasonable dispute over its authenticity, but not\n\nof the facts summarized in the opinion.” (quotation marks omitted). Here, we\n\ndon’t even have “abbreviated” factfinding. We have no factfinding at all. Dr.\n\nMuransky has had no chance to rebut the objectors’ claims about the risk the first\n\nsix digits pose. At minimum, then, we decline to follow Katz based on its\n\nprocedural posture. Rather, as we must on this facial challenge to a motion to\n\ndismiss, we accept as true that Dr. Muransky suffered a heightened risk of identity\n\ntheft.\n\n Finally, we examine the Ninth Circuit ruling that a plaintiff had no standing\n\nto bring a FACTA action where a merchant printed the first digit of his credit card\n\n\n 24\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 25 of 47\n\n\nnumber along with the last four. Noble v. Nev. Checker Cab Corp., 726 F. App’x\n\n582, 583–84 (9th Cir. 2018) (per curiam) (unpublished). This unpublished opinion\n\ndoes not say whether the court was considering a facial or factual challenge. We\n\ntherefore cannot know how the court came to hold that this posed no risk of harm.\n\n Also, we know that the Ninth Circuit had binding precedent holding that a\n\nFACTA plaintiff lacked standing where the plaintiff “did not allege that anyone\n\nelse had received or would receive a copy of” the noncompliant receipt. Id. at 584\n\n(citing Bassett, 883 F.3d at 776). This Circuit has no such precedent, and we\n\ndecline to adopt the Ninth Circuit’s reasoning. FACTA is designed to minimize\n\nthe risk that disclosure will occur, not to remedy only actual disclosures. We\n\naccept that a risk of disclosure is greater if someone else sees the receipt. But\n\nCongress made it unlawful to print more than the last five digits of a credit card\n\nnumber, not to print more than the last five digits and show the receipt to someone.\n\nFrom this, we deduce that Congress intended to draw the line at the risk that comes\n\nof printing the untruncated card number, irrespective of whether anyone saw the\n\nreceipt. And we decline to follow opinions from our sister circuits’ opinions that\n\nrely on a contrary interpretation of the law.\n\n Dr. Muransky can thus show standing based on Congress’s judgment that\n\nthe heightened risk of identity theft he experienced constitutes a concrete injury.\n\nAnd there is another way, as well. His standing also independently rests on the\n\n\n 25\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 26 of 47\n\n\nsimilarity between the harm he alleges and the common law tort of breach of\n\nconfidence. See Spokeo, 136 S. Ct. at 1549 (describing it as “instructive to\n\nconsider whether an alleged intangible harm has a close relationship to a harm that\n\nhas traditionally been regarded as providing a basis for a lawsuit in English or\n\nAmerican courts” (emphasis added)).\n\n A common law breach of confidence lies where a person offers private\n\ninformation to a third party in confidence and the third party reveals that\n\ninformation. See Alan B. Vickery, Breach of Confidence: An Emerging Tort, 82\n\nColum. L. Rev. 1426, 1427–28 (1982). We note that the harm from a breach of\n\nconfidence occurs when the plaintiff’s trust in the breaching party is violated,\n\nwhether or not the breach has other consequences. See generally Alicia Solow-\n\nNiederman, Beyond the Privacy Torts: Reinvigorating A Common Law Approach\n\nfor Data Breaches, 127 Yale L.J. Forum 614, 619–24 (2018) (arguing that the harm\n\nin breach of confidence results from the failure to securely maintain confidential\n\ninformation separate and apart from any harm resulting from publication or\n\nmisuse). With FACTA, Congress created a statutory right to protect consumers’\n\nexpectation that their credit card information will remain private. By printing more\n\nthan the statute allows, Godiva created a heightened risk that information Dr.\n\nMuransky entrusted to it will become public. We think this risk has a sufficiently\n\nclose relationship to breach of confidence to satisfy Spokeo.\n\n\n 26\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 27 of 47\n\n\n We recognize the match is not exact. However, it need not be exact in order\n\nto satisfy Spokeo. A “close relationship does not require that the newly proscribed\n\nconduct would give rise to a cause of action under common law.” See Susinno v.\n\nWork Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (quotation marks omitted).\n\nA FACTA violation does not involve the kind of traditional confidential\n\nrelationship that is at issue in a breach of confidence—say, a doctor-patient\n\nrelationship. And unlike a common law breach of confidence, a merchant need not\n\ndisclose a credit card number to anyone in order to violate FACTA. Even so, the\n\nharm in a breach of confidence tort—disclosing information provided in\n\nconfidence—bears sufficient similarity to the harm Congress intended to prevent\n\nwith FACTA—the risk of identity theft. A consumer provides a merchant with his\n\ncredit card number with the expectation that it will remain secret, not least because\n\nof the risk of credit card fraud if the merchant reveals it. FACTA gives legal\n\nprotection to that confidentiality interest by permitting merchants to print only the\n\nlast five digits of a credit card number. A merchant who prints more than the\n\npermitted five digits creates a risk that information FACTA makes confidential\n\nwill fall into a third party’s hands. In fact, the risk here comes from the receipt\n\nGodiva gave Dr. Muransky and the copy Godiva seems to have kept. Here we are\n\nobligated to accept the allegation of the complaint that Godiva has experienced\n\ndata breaches. Under these circumstances, we think the risk of disclosure bears a\n\n\n 27\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 28 of 47\n\n\nclose enough relationship to the disclosure of confidential information actionable\n\nat common law to satisfy Article III.\n\n The Third Circuit rejected our holding in the original opinion issued in this\n\ncase that breach of confidence is sufficiently analogous to give rise to standing.\n\nKamal, 918 F.3d at 114. In the view of the Third Circuit, the relationship between\n\nFACTA and the common law cause of action is not sufficiently analogous because\n\nthe statute does not require actual disclosure while the common law tort does. Id.\n\nWe do not think Spokeo’s “close relationship” standard demands such complete\n\ncorrelation. Spokeo merely recognized that federal courts may have jurisdiction\n\nwhen Congress takes steps to prevent “the risk of real harm” that was actionable at\n\ncommon law. Spokeo, 136 S. Ct. at 1549. We read Spokeo to mean that, where\n\nthe common law allowed a cause of action to remedy an injury, Congress can\n\ncreate a statutory cause of action to remedy the risk of such an injury. If, for\n\nexample, Congress passed a statute to minimize the risk of trespass, we see nothing\n\nin Spokeo that would mean federal courts lack jurisdiction to hear cases brought\n\nunder the statute. Here, in enacting FACTA, Congress sought to mitigate the risk\n\nof disclosure of credit card information, which we think sufficiently analogous to\n\nthe disclosure of confidential information that the common law remedied by the\n\nbreach of confidence tort.\n\n The relationship we find here is consistent with the way this Circuit’s post-\n\n\n 28\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 29 of 47\n\n\nSpokeo precedent compares alleged harms to common law harms. In Nicklaw v.\n\nCitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), a plaintiff sued for “failure to\n\nrecord a satisfaction of mortgage within a statutory period” but did not “bring suit\n\nuntil after that statutory violation ha[d] been remedied;” that is, the mortgage had\n\nbeen recorded by the time the plaintiff sued. Id. at 1000. The panel concluded the\n\nstatute in question “provided a remedy to prevent the risk of harm that occurred\n\nwhile title to property was wrongfully clouded, not a remedy after the cloud was\n\nlifted.” Id. at 1003 (first emphasis added). It ruled the plaintiff lacked standing on\n\nthat basis. This case is distinguishable from Nicklaw. In Nicklaw, the risk had\n\nabated by the time the plaintiff brought suit. The plaintiff’s title was no longer\n\nclouded. If a Godiva cashier immediately shredded a FACTA-noncompliant\n\nreceipt, we might agree Nicklaw controls. But nothing in this record establishes\n\nthat the receipt no longer exists. This means the risk of disclosure still exists. As\n\nnoted, the complaint indicates that Godiva might keep a version of the untruncated\n\nreceipt. And even if Dr. Muransky destroyed the receipt himself, in Nicklaw the\n\ndefendant, not the plaintiff, remedied the risk of harm. The effort Dr. Muransky\n\nput into doing away with the risky receipt would suffice for standing. Cf. Pedro v.\n\nEquifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (holding that lost time spent\n\nattempting to resolve credit inaccuracies suffices for standing).\n\n To be sure, the harms alleged in Pedro and Perry v. Cable News Network,\n\n\n 29\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 30 of 47\n\n\nInc., 854 F.3d 1336 (11th Cir. 2017), have a closer relationship to more familiar\n\ntorts than the harm alleged in this case does to breach of confidence. In Pedro, the\n\npanel ruled that the alleged FCRA violation—“the reporting of inaccurate\n\ninformation about Pedro’s credit to a credit monitoring service—has a close\n\nrelationship to the harm caused by the publication of defamatory information.”\n\n868 F.3d at 1279–80. In Perry, the panel ruled that an alleged violation of the\n\nVideo Privacy Protection Act, which prohibits “video tape service provider[s]”\n\nfrom disclosing personal information about consumers, has a close relationship to\n\n“the right of privacy” and “intrusion upon seclusion.” 854 F.3d at 1340–41\n\n(quotation marks omitted). But these cases do not foreclose our analysis. Neither\n\nPedro nor Perry commented on whether a plaintiff has standing where a\n\ndefendant’s behavior creates a heightened risk of a harm recognized at common\n\nlaw.\n\n For these reasons, we conclude Dr. Muransky suffered a concrete injury, and\n\nthus that he has standing to bring this action.\n\n III. The Merits\n\nA. Notice of class counsel’s attorney’s fee motion\n\n We now consider the objectors’ challenge to the sufficiency of notice of the\n\nattorney’s fee motion. As required by Rule 23(c)(2)(B), these class members got\n\n\n\n\n 30\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 31 of 47\n\n\nnotice of the preliminary approval of the class settlement. That notice gave\n\ninformation about the attorney’s fees and expenses Dr. Muransky would seek:\n\n Plaintiff will petition for a service award not to exceed $10,000 for his\n work in representing the Class, and for Class Counsel’s fees not to\n exceed one-third of the fund, which is $2,100,000, plus reasonable\n expenses.\n\nClass members got this notice in advance of counsel’s motion for attorney’s fees.\n\nYet the attorney’s fees motion was not filed until two weeks after the deadline for\n\nclass members to object had already passed. 6 The class did not receive additional\n\nnotice after the motion was filed. The objectors say this process deprived class\n\nmembers of the notice they needed to assess the fee request and violated Rule\n\n23(h).\n\n Rule 23(h) sets up the procedures required for an award of attorney’s fees in\n\nclass actions. As for notice, Rule 23(h)(1) says that “[n]otice of the motion [for\n\nattorney’s fees] must be served on all parties and, for motions by class counsel,\n\ndirected to class members in a reasonable manner.” Fed. R. Civ. P. 23(h)(1).\n\nAlthough “reasonable manner” is not specific about when notice must be given,\n\ncourts interpreting Rule 23(h) have observed that the right to object to the fee\n\nmotion under Rule 23(h)(2) necessarily means that courts must give notice of the\n\nattorney’s fee motion itself. The leading case is In re Mercury Interactive Corp.\n\n 6\n Dr. Muransky originally made the attorney’s fee request on September 7 as part of the\nmotion for final approval. The District Court instructed him to file a separate attorney’s fee\nmotion, which he did on September 12.\n 31\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 32 of 47\n\n\nSecurities Litig., 618 F.3d 988, 989 (9th Cir. 2010). The Ninth Circuit interpreted\n\n“[t]he plain text of” Rule 23(h) to “require[] that any class member be allowed an\n\nopportunity to object to the fee ‘motion’ itself, not merely to the preliminary notice\n\nthat such a motion will be filed.” Id. at 993–94 (quoting Fed. R. Civ. P. 23(h)(2)).\n\nThe Advisory Committee’s notes support the Ninth Circuit’s interpretation of Rule\n\n23(h). They say that “[i]n setting the date objections are due, the court should\n\nprovide sufficient time after the full fee motion is on file to enable potential\n\nobjectors to examine the motion.” Fed. R. Civ. P. 23 advisory committee’s note to\n\n2003 amendment. The Seventh Circuit follows the Ninth Circuit’s Mercury\n\ndecision. Redman v. RadioShack Corp., 768 F.3d 622, 637–38 (7th Cir. 2014); see\n\nalso 3 Newberg on Class Actions § 8:24 (5th ed.) (endorsing the approach of the\n\nNinth and Seventh Circuits on doctrinal and policy grounds).\n\n The Ninth Circuit’s holding in Mercury was that “class members were\n\ndeprived of an adequate opportunity to object to the motion itself because, by the\n\ntime they were served with the motion, the time within which they were required to\n\nfile their objections had already expired.” 618 F.3d at 994. That same sequence—\n\nobjection deadline before a filed motion for attorney’s fees—was what happened\n\nhere. As in Mercury, this schedule deprived class members of “an opportunity to\n\nobject to the fee motion itself” because they had to file objections before the\n\n\n\n\n 32\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 33 of 47\n\n\nmotion was even filed. See id. at 993–94. As a result, this process violated Rule\n\n23(h).7\n\n Although we conclude the District Court erred by requiring class members\n\nto object before they could assess the attorney’s fee motion, we hold that error does\n\nnot warrant reversal under the particular facts of this case. After receiving the\n\nnotice, four class members objected. Two of those, Mr. Price and Mr. Isaacson,\n\nmade detailed arguments in opposition to the requested attorney’s fee and incentive\n\nawards, including by filing opposition briefs after Dr. Muransky filed the\n\nattorney’s fee motion. Cf. Coleman v. Smith, 828 F.2d 714, 716–17 (11th Cir.\n\n1987) (per curiam) (holding that notice of consequences of summary judgment was\n\nadequate in part because party’s actions showed he understood how to respond to\n\nsummary judgment motion). The arguments made against the attorney’s fee\n\nmotion were considered by the Magistrate Judge and by the District Court. And on\n\nthis record, we have no reason to think other unnamed class members would have\n\nmade arguments besides those made by Mr. Price and Mr. Isaacson. Class\n\n 7\n The objectors also argue that the class notice did not provide class members with\nsufficient information to file meaningful objections to class counsel’s attorney’s fee request. Mr.\nPrice, for example, says the notice should have advised class members of the “Eleventh Circuit’s\n25% benchmark for attorneys’ fees [or] of Class Counsel’s justification for seeking a $525,000\nbonus” above the 25% benchmark. Rule 23(h) requires only that notice of an attorney’s fee\nmotion be “served on all parties and . . . directed to class members in a reasonable manner.” Fed.\nR. Civ. P. 23(h). The objectors cite no authority that requires the detail they request. Decisions\nabout the detail in descriptions about the attorney’s fees required to be included in class notice\nare necessarily case specific and are best left to the discretion of district courts.\n\n\n\n 33\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 34 of 47\n\n\nmembers were not therefore prejudiced by the objection schedule established by\n\nthe District Court. See Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61\n\nS. Ct. 376, 379 (1941) (observing that “the rights of parties are habitually protected\n\nin court by those who act in a representative capacity”); see also O’Bannon v.\n\nTown Court Nursing Ctr., 447 U.S. 773, 797, 100 S. Ct. 2467, 2482 (1980)\n\n(Blackmun, J., concurring) (because nursing home had an interest in making the\n\nsame arguments as absent patients, those patients’ due process interests were\n\nsatisfied). The District Court did not abuse its discretion by awarding attorney’s\n\nfee, despite the Rule 23(h) violation.\n\nB. The attorney’s fee award\n The objectors also argue that the District Court made a mistake by awarding\n\n33% of the class settlement fund as attorney’s fees to Dr. Muransky’s counsel.\n\nThe District Court’s approval of the attorney’s fee award is reviewed for abuse of\n\ndiscretion. Camden I Condo. Assoc. v. Dunkle, 946 F.2d 768, 770 (11th Cir.\n\n1991). “A district court abuses its discretion if it applies an incorrect legal\n\nstandard, applies the law in an unreasonable or incorrect manner, follows improper\n\nprocedures in making a determination, or makes findings of fact that are clearly\n\nerroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir.\n\n2014) (quotation marks omitted). Under this standard, district courts have “great\n\nlatitude” in setting fee awards in class action cases. See Faught v. American Home\n\n\n 34\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 35 of 47\n\n\nShield Corp., 668 F.3d 1233, 1242 (11th Cir. 2011) (citation and internal quotation\n\nmarks omitted). We conclude the District Court did not abuse its discretion.\n\n To begin, the objectors say the District Court applied the wrong legal test to\n\nevaluate Dr. Muransky’s attorney’s fee request. In their view, the District Court\n\nshould have applied a lodestar analysis that multiplied the number of hours counsel\n\nworked by the prevailing hourly rate. They claim that analysis is required by\n\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669 (2010).\n\nIn Perdue, the Supreme Court decided “whether the calculation of an attorney’s\n\nfee, under federal fee-shifting statutes, based on the ‘lodestar,’ i.e., the number of\n\nhours worked multiplied by the prevailing hourly rates, may be increased due to\n\nsuperior performance and results.” Id. The Court allowed the award of attorney’s\n\nfees under a fee-shifting statute to be enhanced above the lodestar amount, but only\n\nin “rare” and “exceptional” cases. Id. at 554, 130 S. Ct. at 1674. Here, the\n\nobjectors say the District Court should have followed Perdue because class\n\ncounsel’s fees would have been decided under a fee-shifting statute if the class\n\nprevailed against Godiva. See 15 U.S.C. § 1681n(a)(3) (providing for attorney’s\n\nfees “in the case of any successful action to enforce any liability” for a willful\n\nviolation of FACTA).\n\n The problem for the objectors is that class counsel sought attorney’s fees\n\nfrom a common fund rather than under a fee-shifting statute. See Fed. R. Civ. P.\n\n\n 35\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 36 of 47\n\n\n23(h) (authorizing courts to award attorney’s fees that are “authorized by law or\n\nby the parties’ agreement”). Camden I holds that “attorneys’ fees awarded from a\n\ncommon fund shall be based upon a reasonable percentage of the fund established\n\nfor the benefit of the class.” 946 F.2d at 774. The common-fund doctrine applies\n\nto class settlements that result in a common fund even when class counsel could\n\nhave pursued attorney’s fees under a fee-shifting statute. See Staton v. Boeing Co.,\n\n327 F.3d 938, 968–69 (9th Cir. 2003); Florin v. Nationsbank of Ga., 34 F.3d 560,\n\n563 (7th Cir. 1994). Perdue addresses fee-shifting statutes and says nothing about\n\nthe award of attorney’s fees from a common fund. 559 U.S. at 554, 130 S. Ct. at\n\n1674. Perdue is therefore not contrary to our precedent in Camden I.\n\n In the alternative, the objectors say that the District Court misapplied\n\nCamden I by awarding 33% of the fund to class counsel. In Camden I, this Circuit\n\ncalled 25% of a common fund a benchmark attorney’s fee award that “may be\n\nadjusted in accordance with the individual circumstances of each case.” 946 F.2d\n\nat 775. To evaluate whether the benchmark should be enhanced, district courts can\n\napply the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d\n\n714, 717–19 (5th Cir. 1974), 8 in addition to other class-settlement specific factors.\n\n\n\n 8\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as\nbinding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.\nId. at 1209. We recognize that the Supreme Court criticized the Johnson factors in Perdue, 559\nU.S. at 550–51, 130 S. Ct. at 1671–72. But as we’ve explained, Perdue arose in a different\n\n\n 36\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 37 of 47\n\n\nCamden I, 946 F.2d at 775. We have also said that the “majority of common fund\n\nfee awards fall between 20% and 30% of the fund.” Waters v. Int’l Precious\n\nMetals Corp., 190 F.3d 1291, 1294 (11th Cir. 1999). In this case, the objectors\n\nargue the District Court misapplied the Johnson factors in awarding 33% of the\n\nsettlement fund as attorney’s fees.\n\n We see no abuse of discretion in the District Court’s decision. Although the\n\nobjectors “are correct that the fee award is bigger than some awards in other\n\nsuits[,] . . . that does not mean the award is too big.” Birchmeier v. Caribbean\n\nCruise Line, Inc., 896 F.3d 792, 796 (7th Cir. 2018). The Magistrate Judge’s R&R\n\nconcluded that the Johnson factors supported the request for a fee above the 25%\n\nbenchmark. That conclusion was based on weighing nine Johnson factors in favor\n\nof the enhanced award, including, by way of example, “the novelty and difficulty\n\nof the issues” and “the results obtained.” After considering the objections to the\n\nR&R de novo, the District Court reached the same conclusion that “the requested\n\nattorneys’ fees are reasonable under the Johnson/Camden I analysis.” 9 The District\n\nCourt found that the settlement “confers substantial benefits” on class members.\n\nThe District Court’s order also emphasized “the results obtained,” saying the class\n\n\n\ncontext (fee-shifting statutes), and we are bound to apply our precedent in Camden I and Johnson\nto this common fund.\n 9\n The District Court gave no weight to the Magistrate Judge’s characterization of Mr.\nPrice and Mr. Isaacson as “professional objectors.” We don’t either.\n 37\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 38 of 47\n\n\nmembers who submitted claims “will receive cash payments that represent a\n\nsignificant portion of the damages that would be available to them were they to\n\nprevail in an individual action.” The District Court elaborated on these points at\n\nthe fairness hearing. There, the court discussed the significant legal hurdles class\n\ncounsel faced, including the possibility that the Supreme Court would hold in\n\nSpokeo that risk of identity theft could not support standing. The court explained\n\nthe difficulty of proving willfulness, and its own skepticism that the evidence\n\nwould support a willfulness finding in this case.\n\n The District Court properly assessed the risks faced by the class and the\n\ncompensation secured by class counsel. Under the circumstances, the District\n\nCourt did not abuse its discretion by awarding an above-benchmark percentage of\n\nthe common fund. The attorney’s fee award is therefore affirmed.\n\nC. The incentive award\n Finally, the objectors challenge the $10,000 incentive award the District\n\nCourt approved for Dr. Muransky as class representative. A district court’s\n\ndecision to grant an incentive award to a named class representative is reviewed for\n\nabuse of discretion. Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003).\n\n The objectors make two arguments on appeal. First, Mr. Isaacson argues\n\nincentive awards are prohibited in common-fund settlements. Second, the\n\nobjectors jointly challenge the $10,000 award as too large because they say Dr.\n\n\n 38\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 39 of 47\n\n\nMuransky put little personal time and effort into the litigation. We reject both\n\narguments.\n\n Relying on two common fund cases, Mr. Isaacson says litigants who secure\n\na common fund can recover reasonable attorney’s fees and litigation expenses but\n\ncannot recover incentive awards for their own services. See Central R.R. &\n\nBanking Co. v. Pettus, 113 U.S. 116, 122, 5 S. Ct. 389, 390 (1885); Trustees v.\n\nGreenough, 105 U.S. 527, 538 (1882).\n\n We are not persuaded by this argument. Many circuits have endorsed\n\nincentive awards and recognize them as serving the purposes of Rule 23. See, e.g.,\n\nStaton, 327 F.3d at 975–77; Hadix, 322 F.3d at 897–98. No circuit has applied\n\nGreenough or Central Bank, which were decided well before the adoption of Rule\n\n23, to prohibit incentive awards in the class-action context. We do not view\n\ngranting a monetary award as an incentive to a named class representatives as\n\ncategorically improper.\n\n At the same time, there are limits to an appropriate incentive award. In\n\nHolmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), the class\n\nsettlement awarded the class representatives different amounts than the unnamed\n\nclass members because class counsel estimated that the named representatives had\n\nmeritorious claims. Id. at 1148–49. This Court held that “[w]hen a settlement\n\nexplicitly provides for preferential treatment for the named plaintiffs in a class\n\n\n 39\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 40 of 47\n\n\naction, a substantial burden falls upon the proponents of the settlement to\n\ndemonstrate and document its fairness.” Id. at 1147. We said that “a disparate\n\ndistribution favoring the named plaintiffs requires careful judicial scrutiny into\n\nwhether the settlement allocation is fair to the absent members of the class.” Id.\n\nAt the same time, we recognized that “the inference of unfairness” associated with\n\nunequal distributions “may be rebutted by a factual showing that the higher\n\nallocations to certain parties are rationally based on legitimate considerations.” Id.\n\n Like the settlement distribution in Holmes, incentive awards “provide[] for\n\npreferential treatment for the named plaintiffs,” see id. at 1147, and create a similar\n\npossibility of collusion between class representatives, their counsel, and\n\ndefendants. See id. at 1148; Hadix, 322 F.3d at 897 (“[I]ncentive awards are\n\nscrutinized carefully by courts who sensibly fear that [they] may lead named\n\nplaintiffs to expect a bounty for bringing suit or to compromise the interest of the\n\nclass for personal gain.”). As a result, we hold that incentive awards must be\n\nsupported by “legitimate considerations” sufficient to “dispel the cloud of\n\ncollusion which such a settlement suggests.” See Holmes, 706 F.2d at 1147\n\n(quotation marks omitted).\n\n The parties dispute what those considerations should be. The objectors\n\nfocus on the time and money actually spent on the case by the named\n\nrepresentative while Dr. Muransky argues that the value of the settlement to the\n\n\n 40\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 41 of 47\n\n\nclass members is most important. We see no reason to limit the discretion of\n\ndistrict courts to consider the justifications proposed by either party. Indeed, we\n\nare aware of a number of justifications regularly cited in support of incentive\n\nawards. For example, incentive awards may be given “to compensate class\n\nrepresentatives for work done on behalf of the class, to make up for financial or\n\nreputational risk undertaken in bringing the action, . . . to recognize their\n\nwillingness to act as a private attorney general,” Rodriguez v. W. Publ’g Corp.,\n\n563 F.3d 948, 958–59 (9th Cir. 2009), and to “induce an individual to become a\n\nnamed plaintiff,” Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 410 (7th Cir.\n\n2000). Although these considerations will certainly weigh differently in different\n\ncases, together they “help illuminate the fact that class representatives . . . have\n\ntypically done something the absent class members have not—stepped forward and\n\nworked on behalf of the class.” 5 Newberg on Class Actions § 17.3. All of these\n\njustifications are legitimate, and district courts may exercise their discretion to\n\ndetermine whether they favor an incentive award in any given case.\n\n Here, the District Court awarded Dr. Muransky $10,000 “for his efforts in\n\nthis case.” It is not clear what the District Court meant by that. Even so, we find\n\nthat the record supports the incentive award. See Friends of the Everglades v. S.\n\nFla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012) (explaining that a\n\ndistrict court abuses its discretion when “neither the . . . decision nor the record\n\n\n 41\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 42 of 47\n\n\nprovide sufficient explanation to enable meaningful appellate review” (emphasis\n\nadded)); Cox Enters. v. News-Journal Corp., 510 F.3d 1350, 1361 (11th Cir. 2007)\n\n(finding no abuse of discretion in district court’s decision not to award\n\nprejudgment interest based on the record). At the District Court, Dr. Muransky\n\nargued that an incentive award was justified by the size of the settlement. As\n\npreviously discussed, the District Court found that the class settlement “confers\n\nsubstantial benefits” on the class members. And at the fairness hearing, the\n\nDistrict Court observed that Dr. Muransky “was subjecting himself to\n\ninconvenience and time delays that didn’t materialize as much as they might have,\n\nbut they still were a possibility when he signed on as the class representative.”\n\nThese statements give meaning to the court’s $10,000 incentive award to Dr.\n\nMuransky “for his efforts in this case.” 10 We therefore hold that the District Court\n\ndid not abuse its discretion by granting this incentive award.\n\n AFFIRMED.\n\n\n\n\n 10\n By our calculation, Dr. Muransky’s incentive award had little impact on the class\nmembers’ recovery. Assuming 48,000 class members submitted valid claims (a high-end\napproximation) for the $4.2 million in the fund for distribution, Dr. Muransky’s incentive award\nof $10,000 resulted in a reduction of about 21 cents in the recovery of the class members who\nfiled claims ($87.50 vs. $87.29).\n 42\n\n Case: 16-16486 Date Filed: 04/22/2019 Page: 43 of 47\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Dr. David S. MURANSKY, Individually and on Behalf of All Others Similarly Situated, Plaintiff - Appellee, James H. Price, Eric Alan Isaacson, Interested Parties - Appellants, v. GODIVA CHOCOLATIER, INC., a New Jersey Corporation, Defendant - Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-22\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-16486 Date Filed: 04/22/2019 Page: 1 of 47\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16486; 16-16783\\n ________________________\\n\\n D.C. Docket No. 0:15-cv-60716-WPD\\n\\n\\n\\nDR. DAVID S. MURANSKY,\\nindividually and on behalf of all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\nJAMES H. PRICE,\\nERIC ALAN ISAACSON,\\n\\n Interested Parties - Appellants,\\n\\n versus\\n\\nGODIVA CHOCOLATIER, INC.,\\na New Jersey corporation,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 22, 2019)\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 2 of 47\\n\\n\\nBefore MARTIN, JORDAN, and GINSBURG, * Circuit Judges.\\n\\nMARTIN, Circuit Judge:\\n\\n We sua sponte vacate our previous opinion and publish this one in its place.\\n\\nFor ease of reading, the major change is to Part II.B, our discussion of Dr.\\n\\nMuransky’s standing to bring this action.\\n\\n This appeal was brought to contest the approval of a class-action settlement.\\n\\nDr. David Muransky filed a class action against Godiva Chocolatier, Inc. for\\n\\nviolating the Fair and Accurate Credit Transactions Act (“FACTA”). Appellants\\n\\nJames Price and Eric Isaacson (“the objectors”) objected to a class settlement\\n\\nreached by Dr. Muransky and Godiva. Over their objections, the District Court\\n\\napproved the settlement, class counsel’s request for attorney’s fees, and an\\n\\nincentive award for Dr. Muransky. After careful review and with the benefit of\\n\\noral argument, we affirm.\\n\\n I. Background\\n\\n In April 2015, Dr. Muransky filed a class action against Godiva for allegedly\\n\\nviolating FACTA. FACTA prohibits merchants from printing “more than the last\\n\\n5 digits of the card number or the expiration date upon any receipt provided to the\\n\\ncardholder at the point of the sale or transaction.” 15 U.S.C. § 1681c(g)(1). We\\n\\n\\n\\n *\\n Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of\\nColumbia Circuit, sitting by designation.\\n 2\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 3 of 47\\n\\n\\nwill refer to this as the “truncation requirement.”\\n\\n FACTA authorizes customers to sue merchants that willfully or negligently\\n\\nviolate the truncation requirement. 15 U.S.C. §§ 1681n(a); 1681o(a). A merchant\\n\\nwillfully violates FACTA by acting in knowing violation of its statutory duties or\\n\\nby acting in reckless disregard of those duties. See Safeco Ins. Co. of Am. v. Burr,\\n\\n551 U.S. 47, 57–58, 127 S. Ct. 2201, 2208–09 (2007). For willful violations,\\n\\ncustomers may recover actual damages or statutory damages from $100 to $1000,\\n\\nand punitive damages. 15 U.S.C. § 1681n(a)(1), (a)(2); Safeco, 551 U.S. at 53,\\n\\n127 S. Ct. at 2206. Customers can recover statutory damages for willful violations\\n\\neven if they cannot show their identity was stolen or credit impacted, 15 U.S.C.\\n\\n§ 1681n(a), and even if they received and kept the defective receipt. Engel v.\\n\\nScully & Scully, Inc., 279 F.R.D. 117, 125–26 (S.D.N.Y. 2011). By contrast,\\n\\nwhen the violation is a result of negligence, customers can only recover their actual\\n\\ndamages as well as attorney’s fees. 15 U.S.C. § 1681o(a); Engel, 279 F.R.D. at\\n\\n125–26.\\n\\n The operative complaint alleges that after Dr. Muransky made a purchase at\\n\\na Godiva store, Godiva gave him a receipt that showed his credit card number’s\\n\\nfirst six and last four digits. Dr. Muransky sought to represent a class of customers\\n\\nwhose credit card numbers Godiva printed on receipts in violation of FACTA.\\n\\nThese violations, the complaint says, exposed Dr. Muransky and the class “to an\\n\\n\\n 3\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 4 of 47\\n\\n\\nelevated risk of identity theft.” According to the complaint, Godiva’s violation of\\n\\nFACTA was willful, so the class was entitled to statutory and punitive damages, as\\n\\nwell as attorney’s fees and costs. See id. § 1681n(a).\\n\\n Godiva moved to dismiss the complaint on the ground that it did not\\n\\nplausibly allege a willful violation of FACTA. The District Court denied Godiva’s\\n\\nmotion. After that, the parties engaged in discovery then mediated the case. In\\n\\nlate November 2015, the parties notified the court of an agreement in principle to\\n\\nsettle the case on a class-wide basis. They requested a stay, which the court\\n\\ngranted.\\n\\n Two months after that request, Dr. Muransky moved for preliminary\\n\\napproval of the class-action settlement. He explained that the parties agreed to a\\n\\nsettlement fund of $6.3 million from which all fees, costs, and class members\\n\\nwould be paid. He estimated that class members who submitted a timely claim\\n\\nform would receive around $235 as their pro-rata share of the settlement fund.\\n\\nNone of the money would revert to Godiva. Dr. Muransky indicated he intended\\n\\nto apply for an incentive award of up to $10,000 and that class counsel would\\n\\nmove for an award of attorney’s fees of up to one-third of the settlement fund,\\n\\nwhich would be $2.1 million.\\n\\n In this motion, Dr. Muransky also argued that the amount class members\\n\\nwould recover by submitting a claim compared favorably to their possible recovery\\n\\n\\n 4\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 5 of 47\\n\\n\\nhad the case proceeded to trial. FACTA provides for a combination of actual and\\n\\nstatutory damages. 15 U.S.C. § 1681n(a). For statutory damages, FACTA\\n\\nprovides for an award of $100 to $1,000 for each violation. Id. § 1681n(a)(1)(A).\\n\\nGiven the nature of the violation, Dr. Muransky acknowledged there was “a good\\n\\nchance” each class member would recover the $100 minimum statutory damage\\n\\naward if the case went to trial. At the fairness hearing, the District Court agreed\\n\\nwith Dr. Muransky’s assessment, saying it was reasonable for class counsel to have\\n\\nestimated that class members “could [receive] more than double what the class\\n\\nmembers could get if they went to trial and won the case.”\\n\\n Dr. Muransky’s motion also addressed some of the risks that favored pre-\\n\\ntrial settlement. Most notably, Dr. Muransky pointed to two cases then pending\\n\\nbefore the Supreme Court: Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540\\n\\n(2016), on Article III standing, and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S.\\n\\n___, 136 S. Ct. 1036 (2016), on class certification under Federal Rule of Civil\\n\\nProcedure 23(b)(3). The outcomes of those two cases, which at the time were\\n\\nuncertain, posed serious risks to the class members’ ability to pursue FACTA\\n\\nclaims against Godiva. Dr. Muransky also acknowledged the difficulty of proving\\n\\nthe “willfulness” of Godiva’s FACTA violation, which the District Court also\\n\\ndiscussed at the fairness hearing. Without proving “willfulness,” the class would\\n\\nnot be entitled to statutory damages. See 15 U.S.C. § 1681n(a).\\n\\n\\n 5\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 6 of 47\\n\\n\\n The motion for preliminary approval also contained a proposed class notice\\n\\nand a proposed schedule of notice, opt-out, and motion deadlines. The proposed\\n\\nnotice said Dr. Muransky would seek an incentive award of up to $10,000 “for his\\n\\nwork in representing the class” and that class counsel would seek up to $2.1\\n\\nmillion in attorney’s fees. The District Court granted the motion for preliminary\\n\\napproval, certified the class under Rule 23(b)(3), and approved the form of notice.\\n\\nUnder the preliminary approval order, class members who wanted to be excluded\\n\\nfrom the settlement were required to give written notice of exclusion to the claims\\n\\nadministrator. Those who failed to submit an opt-out certification would be\\n\\nincluded in the settlement class and bound by its terms. Then to get money from\\n\\nthe settlement fund, class members had to file a claim form with the claims\\n\\nadministrator. Class members could also file objections, which the court would\\n\\nconsider as part of its determination of whether the settlement was fair. After\\n\\nextensions by the District Court, the final deadline for class members to submit\\n\\nclaims, object, or opt-out was August 23, and the deadline for Dr. Muransky to\\n\\nmove for final settlement approval was September 9.\\n\\n Notice of the settlement was sent to 318,000 class members and over 47,000\\n\\nsubmitted claim forms. Only fifteen class members opted out. Five class\\n\\nmembers, including Mr. Price and Mr. Isaacson, objected to the settlement. In\\n\\ntheir objections, Mr. Price and Mr. Isaacson said they are members of the\\n\\n\\n 6\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 7 of 47\\n\\n\\nsettlement class and that they timely submitted claim forms. Among other\\n\\narguments, they said notice of Dr. Muransky’s attorney’s fee motion was\\n\\ninadequate under Rule 23(h); the court should subject any attorney’s fee award to a\\n\\nlodestar analysis; and a $10,000 incentive award was not warranted.\\n\\n On September 7, Dr. Muransky moved for final approval of the class\\n\\nsettlement and requested an award of $2.1 million in attorney’s fees as well as\\n\\n$10,000 as an incentive award. At the court’s direction, Dr. Muransky filed a\\n\\nseparate motion for attorney’s fees and expenses. The Magistrate Judge issued a\\n\\nreport and recommendation (“R&R”) on the attorney’s fee motion just four days\\n\\nlater, before the objectors filed opposition briefs. The R&R recommended that the\\n\\nDistrict Court grant the motion and award the full amount of $2.1 million.\\n\\nAlthough the R&R was issued before the objectors filed opposition briefs, the\\n\\nMagistrate Judge considered Mr. Price’s and Mr. Isaacson’s previously filed\\n\\nobjections to the settlement. In addition, soon after the R&R was issued, the\\n\\nobjectors filed briefs in opposition to the motion for attorney’s fees. They later\\n\\nfiled objections to the R&R as well.\\n\\n On September 21, the District Court held a fairness hearing, during which\\n\\nobjectors’ counsel made their case. During the hearing, Mr. Isaacson’s counsel\\n\\nraised standing as a new objection, saying that the court needed to decide whether\\n\\nDr. Muransky had Article III standing. Soon after the hearing, the District Court\\n\\n\\n 7\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 8 of 47\\n\\n\\napproved the settlement and gave the incentive award and attorney’s fees to Dr.\\n\\nMuransky and class counsel respectively. In response to the objectors’ argument\\n\\nthat notice was not adequate, the District Court noted it had “permitted objections\\n\\nto be filed both before and after” the motion for attorney’s fees was filed and that\\n\\n“meaningful objections were in fact filed both before and after the filing” of that\\n\\nmotion. The court said it had reviewed the class members’ objections to the R&R\\n\\nde novo, “taken them into full consideration,” and “carefully analyzed” them. The\\n\\ncourt then found that the requested attorney’s fees were reasonable and awarded\\n\\n$2.1 million, one-third of the settlement fund, in fees. The Court also granted the\\n\\n$10,000 incentive award for Dr. Muransky’s “efforts in this case.”\\n\\n The objectors appealed. They say the District Court abused its discretion by\\n\\nfinding that the notice satisfied Rule 23(h), by awarding $2.1 million in attorney’s\\n\\nfees, and by awarding $10,000 as an incentive to Dr. Muransky. Mr. Isaacson\\n\\nraises a fourth issue: he challenges Dr. Muransky’s Article III standing to pursue a\\n\\nFACTA claim against Godiva. Before addressing those arguments, we consider\\n\\nthe objectors’ ability to make them on appeal. We then consider the merits of the\\n\\narguments properly before us.\\n\\n\\n\\n\\n 8\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 9 of 47\\n\\n\\n II. Jurisdiction\\n\\nA. The objector’s right to appeal\\n\\n The Supreme Court has held “only parties to a lawsuit, or those that properly\\n\\nbecome parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301,\\n\\n304, 108 S. Ct. 586, 587 (1988) (per curiam). We start by deciding whether\\n\\nobjectors like Mr. Price and Mr. Isaacson are “parties” with the ability to appeal\\n\\nfrom a district court’s judgment. We hold that they are.\\n\\n In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002), the Supreme\\n\\nCourt addressed whether a nonnamed class member who timely objects to a\\n\\nsettlement agreement but does not opt out is a “party for the purposes of appealing\\n\\nthe approval of the settlement.” Id. at 7, 122 S. Ct. at 2009 (quotation marks\\n\\nomitted). The Court held that nonnamed class members who are bound by a\\n\\njudgment must “be allowed to appeal the approval of a settlement when they have\\n\\nobjected at the fairness hearing.” Id. at 10, 122 S. Ct. at 2011. “To hold\\n\\notherwise,” the Court explained, “would deprive nonnamed class members of the\\n\\npower to preserve their own interests in a settlement that will ultimately bind them,\\n\\ndespite their expressed objections before the trial court.” Id.\\n\\n Devlin addressed a mandatory settlement class, but not whether objectors to\\n\\na Rule 23(b)(3) settlement who can opt out of a settlement also are “parties” that\\n\\ncan appeal. See id. at 10–11, 122 S. Ct. at 2011 (noting that appeal was the\\n\\n\\n 9\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 10 of 47\\n\\n\\nobjectors’ only option because they could not opt out of the settlement). Since\\n\\nDevlin, the only circuit courts of appeal to have decided this issue have held that\\n\\nclass members who object to a Rule 23(b)(3) settlement but do not opt out are\\n\\n“parties” for purposes of appeal. 1 Generally, these courts reason that Devlin “is\\n\\nabout party status and one who could cease to be a party is still a party until opting\\n\\nout.” Nat’l Ass’n of Chain Drug Stores, 582 F.3d at 40. In AAL High Yield Bond\\n\\nFund v. Deloitte & Touche LLP, 361 F.3d 1305 (11th Cir. 2004), this Court ruled\\n\\nthat objectors who were not class members could not appeal because they were not\\n\\n“parties who are actually bound by a judgment.” Id. at 1310. Yet at the same time,\\n\\nwe know that actual class members who object but do not opt out of a Rule\\n\\n23(b)(3) class settlement are still bound by the judgment approving the class\\n\\nsettlement. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614–15, 117 S.\\n\\nCt. 2231, 2245 (1997). With all of this in mind, we conclude that class members\\n\\nwho object to Rule 23(b)(3) class settlements but do not opt out are “parties” for\\n\\npurposes of appeal. Mr. Price and Mr. Isaacson are therefore proper parties.\\n\\nB. Article III standing\\n\\n We next consider whether Dr. Muransky has standing to bring this class\\n\\n\\n\\n\\n 1\\n Nat’l Ass’n of Chain Drug Stores v. New England Carpenters Health Benefits Fund,\\n582 F.3d 30, 39–40 (1st Cir. 2009); Fidel v. Farley, 534 F.3d 508, 512–13 (6th Cir. 2008);\\nChurchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 572–73 (9th Cir. 2004); In re Integra Realty\\nRes., Inc., 354 F.3d 1246, 1257–58 (10th Cir. 2004).\\n 10\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 11 of 47\\n\\n\\naction. Standing is a limitation on federal subject matter jurisdiction derived from\\n\\nArticle III. Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1546–47. It\\n\\nrequires plaintiffs to show they suffered an injury in fact traceable to the\\n\\ndefendant’s conduct and redressable by a favorable judicial decision. Id. at 1547.\\n\\n As the party invoking jurisdiction, of course it is the plaintiff who bears the\\n\\nburden of establishing standing. Id. However, a plaintiff is not required to\\n\\ndemonstrate the merits of his case in order to establish his standing to sue. Pedro v\\n\\nEquifax, Inc., 868 F.3d 1275, 1279 (11th Cir. 2017). Beyond that, we are here\\n\\nevaluating standing at the motion to dismiss stage, so we are also mindful that the\\n\\nplaintiff’s burden for establishing standing corresponds to “the manner and degree\\n\\nof evidence required at the successive stages of litigation.” Bischoff v. Osceola\\n\\nCty., 222 F.3d 874, 878 (11th Cir. 2000) (quoting Lujan v. Defs. of Wildlife, 405\\n\\nU.S. 555, 561, 112 S. Ct. 2130, 2136 (1992)). Thus, “when standing becomes an\\n\\nissue on a motion to dismiss, general factual allegations of injury resulting from\\n\\nthe defendant’s conduct may be sufficient to show standing.” Moody v. Holman,\\n\\n887 F.3d 1281, 1286 (11th Cir. 2018) (quotation marks omitted). So in order to\\n\\nsurvive a facial challenge on a motion to dismiss, a plaintiff is required to allege\\n\\nenough facts to show he plausibly has standing. Bell Atl. Corp. v. Twombly, 550\\n\\nU.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). After de novo review, London v.\\n\\nWal-Mart Stores, Inc., 340 F.3d 1246, 1251 (11th Cir. 2003), we conclude Dr.\\n\\n\\n 11\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 12 of 47\\n\\n\\nMuransky alleged enough to carry his burden of showing standing at this stage.\\n\\n Dr. Muransky alleges he suffered a heightened risk of identity theft when\\n\\nGodiva printed more digits of his credit card number than the law allows. Because\\n\\nthe objectors raise a facial challenge to standing, we must accept the truth of this\\n\\nallegation. See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc.,\\n\\n524 F.3d 1229, 1232–33 (11th Cir. 2008) (per curiam). Dr. Muransky has plainly\\n\\nshown Godiva’s conduct caused the alleged injury, and the statutory damages Dr.\\n\\nMuransky seeks will redress it. He has thus shown two of the three elements of\\n\\nstanding: causation and redressability.\\n\\n We turn, then, to our reasons for concluding the heightened risk of identity\\n\\ntheft Dr. Muransky experienced as a result of the FACTA violation constitutes an\\n\\ninjury in fact. “To establish injury in fact, a plaintiff must show that he or she\\n\\nsuffered ‘an invasion of a legally protected interest’ that is ‘concrete and\\n\\nparticularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,\\n\\n136 S. Ct. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.\\n\\nCt. 2130, 2136 (1992)). Dr. Muransky’s alleged injury is “particularized” because\\n\\nthe heightened risk of identity theft affected him “in a personal and individual\\n\\nway”—it was his credit card number that appeared on the receipt. Spokeo, 136 S.\\n\\nCt. at 1548 (quoting Lujan, 504 U.S. at 560 n.1, 112 S. Ct. at 2136 n.1). The injury\\n\\nis “actual” rather than “conjectural” because it has already occurred. See Robins v.\\n\\n\\n 12\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 13 of 47\\n\\n\\nSpokeo, Inc. (Spokeo II), 867 F.3d 1108, 1117–18 (9th Cir. 2017); cf. Clapper v.\\n\\nAmnesty Int’l USA, 568 U.S. 398, 409, 133 S. Ct. 1138, 1147 (2013) (explaining\\n\\nthat possible future injury does not constitute an injury in fact). Dr. Muransky\\n\\nsuffered the heightened risk of identity theft the moment Godiva printed too many\\n\\ndigits of his credit card number.\\n\\n That brings us to whether the heightened risk of identity theft is sufficiently\\n\\n“concrete” to confer standing. Our starting point in this analysis is the Supreme\\n\\nCourt’s decision in Spokeo. We first review Spokeo and then turn to our analysis\\n\\nof Dr. Muransky’s standing.\\n\\n i. Interpreting Spokeo\\n\\n Spokeo clarified that concreteness and particularity are distinct, and both are\\n\\nessential to establish injury in fact. 136 S. Ct. at 1548. But Spokeo did not, as the\\n\\nobjector suggests, alter either the concreteness or particularity analysis. That is,\\n\\nSpokeo did not change the legal principles that have long governed both. See In re\\n\\nHorizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 638 (3d Cir.\\n\\n2017) (“[W]e understand that the Spokeo Court meant to reiterate traditional\\n\\nnotions of standing.”); Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 529 (5th Cir.\\n\\n2016) (“The Supreme Court reaffirmed in Spokeo that violation of a procedural\\n\\nright granted by statute may in some circumstance be a sufficiently concrete, albeit\\n\\nintangible, harm to constitute injury-in-fact without an allegation of ‘any additional\\n\\n\\n 13\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 14 of 47\\n\\n\\nharm beyond the one Congress has identified.’” (quoting Spokeo, 136 S. Ct. at\\n\\n1549) (first emphasis added)).\\n\\n Spokeo reaffirmed a “‘concrete’ injury must be ‘de facto’; that is, it must\\n\\nactually exist.” 136 S. Ct. at 1548; see also id. at 1555–56 (Ginsburg, J.,\\n\\ndissenting) (“Concreteness as a discrete requirement for standing, the Court’s\\n\\ndecisions indicate, refers to the reality of an injury, harm that is real, not abstract,\\n\\nbut not necessarily tangible.”). But “concrete” is not “necessarily synonymous\\n\\nwith ‘tangible.’” Id. at 1549 (majority opinion). After Spokeo as before,\\n\\n“intangible” injuries, including injury in the form of a “risk of real harm,” may\\n\\nsatisfy Article III’s concreteness requirement. Id. Nor must the injury (tangible or\\n\\nnot) be substantial. Spokeo made no change to the rule that “a small injury, ‘an\\n\\nidentifiable trifle,’ is sufficient to confer standing.” Common Cause/Georgia v.\\n\\nBillups, 554 F.3d 1340, 1351 (11th Cir. 2009) (quoting United States v. Students\\n\\nChallenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14, 93\\n\\nS. Ct. 2405, 2417 n.14 (1973)).\\n\\n The objector argues that Spokeo compels the conclusion that Dr.\\n\\nMuransky’s injury was not concrete. However, he neglects to mention that the\\n\\nSpokeo Court did not decide whether the plaintiff in that case suffered a concrete\\n\\ninjury. Spokeo, 136 S. Ct. at 1545, 1550. Instead, the Court pointed out that the\\n\\nNinth Circuit erred in conflating concreteness and particularity, and then vacated\\n\\n\\n 14\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 15 of 47\\n\\n\\nand remanded the case for the Ninth Circuit to rule on concreteness in the first\\n\\ninstance. Id. at 1550 (“We take no position as to whether the Ninth Circuit’s\\n\\nultimate conclusion—that Robins adequately alleged an injury in fact—was\\n\\ncorrect.”).\\n\\n In remanding Spokeo, the Supreme Court noted that, as has long been the\\n\\ncase, “both history and the judgment of Congress play important roles” in\\n\\nanalyzing concreteness.2 Id. at 1549. History plays a role because the Article III\\n\\ncase-or-controversy requirement, from which standing is derived, “is grounded in\\n\\nhistorical practice.” Id. For that reason, “it is instructive to consider whether an\\n\\nalleged intangible harm has a close relationship to a harm that has traditionally\\n\\nbeen regarded as providing a basis for a lawsuit in English or American courts.”\\n\\nId. Congress’ judgment plays a role because it “is well positioned to identify\\n\\nintangible harms that meet minimum Article III requirements.” Id. And while\\n\\nSpokeo reiterated that “bare procedural violation[s], divorced from any concrete\\n\\nharm” do not give rise to standing, it made clear that “the violation of a procedural\\n\\nright granted by statute can be sufficient in some circumstances to constitute injury\\n\\n\\n\\n 2\\n Neither point was an innovation. The Supreme Court looked to “the long tradition of\\nqui tam actions in England and the American Colonies” in concluding a plaintiff had standing to\\nsue under the False Claims Act. Vermont Agency of Nat. Res. v. United States ex rel. Stevens,\\n529 U.S. 765, 774–78, 120 S. Ct. 1858, 1863–65 (2000). And the Court has many times held\\nthat Congress “may ‘elevate to the status of legally cognizable injuries concrete, de facto injuries\\nthat were previously inadequate in law.’” Spokeo, 136 S. Ct. at 1549 (alteration adopted)\\n(quoting Lujan, 504 U.S. at 578, 112 S. Ct. at 2145).\\n 15\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 16 of 47\\n\\n\\nin fact.” Id.; see also Frank v. Gaos, 586 U.S. __, 139 S. Ct. 1041, 1046 (2019)\\n\\n(per curiam) (remanding for reconsideration in light of Spokeo). On remand, the\\n\\nNinth Circuit concluded the plaintiff had shown a concrete injury. Spokeo II, 867\\n\\nF.3d at 1118.\\n\\n As we see it, Spokeo’s upshot in cases like this one is that a plaintiff may\\n\\nshow injury in fact by alleging “the violation of a procedural right granted by\\n\\nstatute” poses a “risk of real harm” to a concrete interest. Spokeo 136 S. Ct. at\\n\\n1549; see Strubel v. Comenity Bank, 842 F.3d 181, 190 (2d Cir. 2016) (“[W]e\\n\\nunderstand Spokeo, and the cases cited therein, to instruct that an alleged\\n\\nprocedural violation can by itself manifest concrete injury where Congress\\n\\nconferred the procedural right to protect a plaintiff’s concrete interests and where\\n\\nthe procedural violation presents a risk of real harm to that concrete interest.”\\n\\n(quotation marks omitted)); see also Spokeo II, 867 F.3d at 1113 (“[W]e now agree\\n\\nthat the Second Circuit’s formation in Strubel best elucidates the concreteness\\n\\nstandards articulated by the Supreme Court in Spokeo.”). The common law and\\n\\ncongressional judgment inform the necessary quantum of risk. Spokeo, 136 S. Ct.\\n\\nat 1549–50. And where Congress elevates the risk of harm to a concrete interest to\\n\\nthe status of a concrete injury, the risk need be no more than an “identifiable trifle”\\n\\nto be concrete. See Billups, 554 F.3d at 1351.\\n\\n Borrowing a hypothetical the Supreme Court offered in Spokeo may\\n\\n\\n 16\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 17 of 47\\n\\n\\nilluminate our reading of that case. There, the Court acknowledged that Congress\\n\\nenacted the Fair Credit Reporting Act (FCRA) to “curb the dissemination of false\\n\\ninformation” but noted that “not all inaccuracies cause harm or present a material\\n\\nrisk of harm.” Spokeo, 136 S. Ct. at 1550. For example, the Court said it would\\n\\nbe “difficult to imagine how the dissemination of an incorrect zip code, without\\n\\nmore, could work any concrete harm.” Id. At the same time, the Supreme Court\\n\\ndid not foreclose the possibility that an incorrect zip code could in some instances\\n\\npose a risk of harm to a concrete interest. An employer might, for example, be\\n\\nlooking for a worker with connections to and knowledge of a particular city. But if\\n\\na third party posted an incorrect zip code for the person online, that might put the\\n\\nperson’s employment prospects at risk or even kill a job opportunity. A plaintiff\\n\\nwho alleged a risk that this might come to pass would show a connection between\\n\\nthe violation of a statutory right and a concrete interest in employment. See\\n\\nSpokeo II, 867 F.3d at 1115–17. This, we think, is the “more” the Supreme Court\\n\\nsaid Article III demands when a plaintiff alleges a statutory violation that would\\n\\notherwise be unmoored from any concrete harm.\\n\\n ii. Applying Spokeo\\n\\n Application of these principles here demonstrates that Dr. Muransky’s injury\\n\\nis concrete for two independent reasons. First, Congress judged the risk of identity\\n\\ntheft Dr. Muransky suffered to be sufficiently concrete to confer standing. Second,\\n\\n\\n 17\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 18 of 47\\n\\n\\nthe risk of identity theft bears a close enough relationship to the common law tort\\n\\nof breach of confidence to make Dr. Muransky’s injury concrete. Either is enough\\n\\non its own to establish standing. We address each in turn.\\n\\n With FACTA, Congress sought to “protect[] consumers from identity theft.”\\n\\nHarris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009); see\\n\\nalso Credit and Debit Card Receipt Clarification Act of 2007 (“Clarification Act”),\\n\\nPub. L. No. 110-241, § 2(a)(1), 122 Stat. 1565, 1565 (finding that “the purpose[]”\\n\\nof FACTA is to “reduce identity theft and credit card fraud”).3 The truncation\\n\\nrequirement reflects Congress’s view that printing more than the last five digits of\\n\\na credit card number contributes to the problem of identity theft. See Harris, 564\\n\\nF.3d at 1306.\\n\\n The legislative history confirms as much. After FACTA passed, businesses\\n\\nfaced crippling litigation because they continued printing expiration dates on\\n\\nreceipts, which FACTA prohibits. Clarification Act § 2(a)(4). With the\\n\\nClarification Act, Congress gave amnesty to merchants that printed an expiration\\n\\ndate on a receipt between FACTA’s passage and the passage of the Clarification\\n\\nAct. Id. § 3(a). But Congress granted no amnesty to merchants who printed more\\n\\n\\n\\n\\n 3\\n Conference and committee reports on FACTA likewise indicate that its purpose was to\\ncombat identity theft. H.R. Rep. No. 108-396, at 1753–54 (2003) (Conf. Rep.); H.R. Rep. No.\\n108-263, at 22 (2003) (noting that FACTA’s truncation requirement was enacted in part to\\ncombat identity theft).\\n 18\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 19 of 47\\n\\n\\nthan the permitted number of digits. Id. Quite to the contrary, it found that\\n\\n“[e]xperts in the field agree that proper truncation of the card number, by itself as\\n\\nrequired by [FACTA] . . . , prevents a potential fraudster from perpetrating identity\\n\\ntheft or credit card fraud.” Id. § 2(a)(6).4\\n\\n Dr. Muransky alleged that Godiva’s FACTA violation subjected him to a\\n\\nrisk of real harm to the concrete interest in avoiding identity theft, the very interest\\n\\nthat Congress sought to protect with FACTA. We think it beyond debate that a\\n\\nconsumer has a concrete interest in preventing his identity from actually being\\n\\nstolen. See Attias v. Carefirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017) (“Nobody\\n\\ndoubts that identity theft, should it befall one of these plaintiffs, would constitute a\\n\\nconcrete and particularized injury.”). Victims of identity theft face a host of\\n\\nfinancial woes. To name just one, identity thieves can run up fraudulent credit\\n\\ncard charges and leave the victim with the bill, and all the problems associated\\n\\nwith getting the fraudulent charges cleaned up. Dr. Muransky’s allegation, which\\n\\nwe accept as true, thus establishes a risk of real harm to a concrete interest.\\n\\n With FACTA’s truncation requirement, Congress “adopt[ed a] procedure[]\\n\\ndesigned to decrease that risk” that a consumer would have his identity stolen.\\n\\n\\n\\n 4\\n Legislative materials show that members who supported the bill favored amnesty for\\nbusinesses that printed expiration dates but not those that violated the truncation requirement, on\\nthe view that “truncation of the credit card numbers accomplishes the intent of the statute.” 154\\nCong. Rec. E925-02, 2008 WL 2051340 (2008) (statement of Rep. Maloney); see generally 154\\nCong. Rec. H00000-29, 2008 WL 2038627 (2008).\\n 19\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 20 of 47\\n\\n\\nSpokeo, 136 S. Ct. at 1550. Congress’s elevation of the risk to the status of a\\n\\nconcrete harm is a judgment we accept under the principles laid down in Spokeo.\\n\\nThe risk may not be great, but a great risk is not necessary to satisfy Article III’s\\n\\nminimal demand for an “identifiable trifle.” Billups, 554 F.3d at 1351 (quotation\\n\\nmarks omitted). In our view, if Congress adopts procedures designed to minimize\\n\\nthe risk of harm to a concrete interest, then a violation of that procedure that causes\\n\\neven a marginal increase in the risk of harm to the interest is sufficient to constitute\\n\\na concrete injury. And that is what Congress did here.\\n\\n Indeed, this is a case in point for Congress’s relatively greater institutional\\n\\ncompetence to draw the line between a concrete injury and non-actionable risk.\\n\\nSpokeo, 136 S. Ct. at 1549 (“Congress is well positioned to identify intangible\\n\\nharms that meet minimum Article III requirements, [making] its judgment . . .\\n\\ninstructive and important.”); see also Daniel Townsend, Who Should Define\\n\\nInjuries for Article III Standing?, 68 Stan. L. Rev. Online 76, 81–83 (2015)\\n\\n(discussing Congress’s superior ability to gather facts and make empirical\\n\\njudgments about the risk underlying injuries). After hearing from experts on the\\n\\nmatter, Congress decided to set the tolerable level of risk at printing the last five\\n\\ndigits of a card number. We decline to substitute our judgment for Congress’s by\\n\\nsaying that, as a matter of law, the risk of identity theft is not concrete until a\\n\\nmerchant prints the first eight or ten digits instead of the first six.\\n\\n\\n 20\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 21 of 47\\n\\n\\n In sum, Congress conferred the procedural right in FACTA to reduce the\\n\\nrisk of identity theft. Dr. Muransky alleged he suffered a heightened risk of\\n\\nidentity theft as a result of a FACTA violation. That allegation suffices for\\n\\nstanding under Spokeo.\\n\\n We are aware the Third Circuit recently drew the opposite inference from\\n\\nthe Clarification Act. That court ruled that, in passing the Clarification Act,\\n\\nCongress intended to limit FACTA actions to “those claims implicating actual\\n\\nharm.” By this, the court seemed to say that the statute aided only those plaintiffs\\n\\nwho claimed their identities were in fact stolen. Kamal v. J. Crew Grp., Inc., 918\\n\\nF.3d 102, 113 (3d Cir. 2019). Our understanding of the Clarification Act does not\\n\\ncomport with this ruling in Kamal. In our view, when it left the truncation\\n\\nrequirement in place at the same time it limited liability for printing expiration\\n\\ndates, Congress judged the truncation requirement necessary to prevent the risk of\\n\\nidentity theft. In fact, Congress made a specific finding that FACTA’s truncation\\n\\nrequirement by itself would “prevent[] a potential fraudster from perpetrating\\n\\nidentity theft or credit card fraud.” Clarification Act § 2(a)(6). We are also\\n\\nmindful that Spokeo expressly recognized that the risk of harm may satisfy the\\n\\nconcreteness requirement, even absent a tangible injury. As we have explained,\\n\\nFACTA creates a procedure to minimize the risk of identity theft. For these\\n\\nreasons we decline to follow the Third Circuit’s rule that actual identity theft is\\n\\n\\n 21\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 22 of 47\\n\\n\\nrequired for standing to bring a FACTA claim.\\n\\n Our holding here is not inconsistent with other decisions from our sister\\n\\ncircuits that found no standing in FACTA cases. The Second, Seventh, and Ninth\\n\\nCircuits have all found no standing in cases where consumers alleged a merchant\\n\\nprinted receipts that included a credit card expiration date in violation of FACTA.\\n\\nBassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018); Crupar-\\n\\nWeinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v.\\n\\nNicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016). We think those cases\\n\\nare distinguishable from this one. They all rely on Congress’s finding in the\\n\\nClarification Act that “a receipt with a credit card expiration date does not raise a\\n\\nmaterial risk of identity theft.” Crupar-Weinmann, 861 F.3d at 78; see also\\n\\nBassett, 883 F.3d at 781–82; Meyers, 843 F.3d at 727–28. As we explained, the\\n\\nClarification Act points to the opposite conclusion in this case.5\\n\\n The Second Circuit also found no standing in a FACTA case that is\\n\\ndistinguishable in its posture. In Katz v. Donna Karan Co., L.L.C., 872 F.3d 114\\n\\n(2d Cir. 2017), the Second Circuit dismissed a FACTA case where the district\\n\\ncourt found on a factual challenge to standing that printing the first six digits of a\\n\\ncredit card number poses no risk of identity theft. Id. at 116. Specifically, the\\n\\n\\n\\n 5\\n To be clear, we express no view whether a plaintiff suffers a concrete injury when a\\nmerchant prints an expiration date on a receipt in violation of FACTA.\\n 22\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 23 of 47\\n\\n\\ndistrict court found that the first six digits of a credit card number identify only the\\n\\ncard issuer, which, in turn, poses no risk of identity theft. Id. at 118–19. The\\n\\ndistrict court also found that the receipts at issue in Katz did not “disclose[] Katz’s\\n\\nname, a fact that also reduces the possibility that disclosure of the [first six digits]\\n\\nwould result in harm.” Id. at 120. Reviewing these findings for clear error, the\\n\\nSecond Circuit affirmed. However it did express trepidation about the\\n\\n“abbreviated” fact-finding procedure the district court appeared to have used. Id.\\n\\n We are wary of Katz’s premise that a federal district court may make factual\\n\\nfindings that override Congress’s standard for what harm constitutes a concrete\\n\\ninjury. Congress engaged in its own factfinding and set a uniform standard for the\\n\\nnumber of digits appropriate to print in its effort to curb the risk of identity theft.\\n\\nClarification Act § 2(a)(6). We do not read Spokeo as giving courts a license to\\n\\nreject the standard set by Congress in favor of judge-found facts at odds with that\\n\\nstandard. Spokeo certainly makes clear that not all statutory violations constitute\\n\\nan injury in fact. Spokeo, 136 S. Ct. at 1549; see also Frank, 139 S. Ct. at 1046.\\n\\nHowever, we have explained that a plaintiff can establish Article III standing at the\\n\\npleading stage by alleging a risk of harm of the type Congress elevated to the status\\n\\nof a concrete injury when it created procedures designed to minimize that risk. See\\n\\nSpokeo, 136 S. Ct. at 1549. Once a plaintiff does that, Article III’s concreteness\\n\\nrequirement is satisfied. See id. Here, Congress established the acceptable level of\\n\\n\\n 23\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 24 of 47\\n\\n\\nrisk at printing five digits of a credit card number. Dr. Muransky alleged a\\n\\nheightened risk of identity theft as a result of Godiva’s FACTA violation, and that\\n\\nsatisfies Article III under the principles Spokeo laid down.\\n\\n In any event, Katz is distinguishable from this case. There is nothing in the\\n\\nrecord before us to support a finding that the first six digits identify a card issuer or\\n\\nthat printing the first six digits poses no risk of identity theft. We will not impose a\\n\\nfactual finding made in the Southern District of New York upon Mr. Muransky,\\n\\nparticularly given the Second Circuit’s concern about the fact-finding procedures\\n\\nin that case. See McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 914 (8th Cir.\\n\\n2014) (“Judicial notice of another court’s opinion takes notice of the existence of\\n\\nthe opinion, which is not subject to reasonable dispute over its authenticity, but not\\n\\nof the facts summarized in the opinion.” (quotation marks omitted). Here, we\\n\\ndon’t even have “abbreviated” factfinding. We have no factfinding at all. Dr.\\n\\nMuransky has had no chance to rebut the objectors’ claims about the risk the first\\n\\nsix digits pose. At minimum, then, we decline to follow Katz based on its\\n\\nprocedural posture. Rather, as we must on this facial challenge to a motion to\\n\\ndismiss, we accept as true that Dr. Muransky suffered a heightened risk of identity\\n\\ntheft.\\n\\n Finally, we examine the Ninth Circuit ruling that a plaintiff had no standing\\n\\nto bring a FACTA action where a merchant printed the first digit of his credit card\\n\\n\\n 24\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 25 of 47\\n\\n\\nnumber along with the last four. Noble v. Nev. Checker Cab Corp., 726 F. App’x\\n\\n582, 583–84 (9th Cir. 2018) (per curiam) (unpublished). This unpublished opinion\\n\\ndoes not say whether the court was considering a facial or factual challenge. We\\n\\ntherefore cannot know how the court came to hold that this posed no risk of harm.\\n\\n Also, we know that the Ninth Circuit had binding precedent holding that a\\n\\nFACTA plaintiff lacked standing where the plaintiff “did not allege that anyone\\n\\nelse had received or would receive a copy of” the noncompliant receipt. Id. at 584\\n\\n(citing Bassett, 883 F.3d at 776). This Circuit has no such precedent, and we\\n\\ndecline to adopt the Ninth Circuit’s reasoning. FACTA is designed to minimize\\n\\nthe risk that disclosure will occur, not to remedy only actual disclosures. We\\n\\naccept that a risk of disclosure is greater if someone else sees the receipt. But\\n\\nCongress made it unlawful to print more than the last five digits of a credit card\\n\\nnumber, not to print more than the last five digits and show the receipt to someone.\\n\\nFrom this, we deduce that Congress intended to draw the line at the risk that comes\\n\\nof printing the untruncated card number, irrespective of whether anyone saw the\\n\\nreceipt. And we decline to follow opinions from our sister circuits’ opinions that\\n\\nrely on a contrary interpretation of the law.\\n\\n Dr. Muransky can thus show standing based on Congress’s judgment that\\n\\nthe heightened risk of identity theft he experienced constitutes a concrete injury.\\n\\nAnd there is another way, as well. His standing also independently rests on the\\n\\n\\n 25\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 26 of 47\\n\\n\\nsimilarity between the harm he alleges and the common law tort of breach of\\n\\nconfidence. See Spokeo, 136 S. Ct. at 1549 (describing it as “instructive to\\n\\nconsider whether an alleged intangible harm has a close relationship to a harm that\\n\\nhas traditionally been regarded as providing a basis for a lawsuit in English or\\n\\nAmerican courts” (emphasis added)).\\n\\n A common law breach of confidence lies where a person offers private\\n\\ninformation to a third party in confidence and the third party reveals that\\n\\ninformation. See Alan B. Vickery, Breach of Confidence: An Emerging Tort, 82\\n\\nColum. L. Rev. 1426, 1427–28 (1982). We note that the harm from a breach of\\n\\nconfidence occurs when the plaintiff’s trust in the breaching party is violated,\\n\\nwhether or not the breach has other consequences. See generally Alicia Solow-\\n\\nNiederman, Beyond the Privacy Torts: Reinvigorating A Common Law Approach\\n\\nfor Data Breaches, 127 Yale L.J. Forum 614, 619–24 (2018) (arguing that the harm\\n\\nin breach of confidence results from the failure to securely maintain confidential\\n\\ninformation separate and apart from any harm resulting from publication or\\n\\nmisuse). With FACTA, Congress created a statutory right to protect consumers’\\n\\nexpectation that their credit card information will remain private. By printing more\\n\\nthan the statute allows, Godiva created a heightened risk that information Dr.\\n\\nMuransky entrusted to it will become public. We think this risk has a sufficiently\\n\\nclose relationship to breach of confidence to satisfy Spokeo.\\n\\n\\n 26\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 27 of 47\\n\\n\\n We recognize the match is not exact. However, it need not be exact in order\\n\\nto satisfy Spokeo. A “close relationship does not require that the newly proscribed\\n\\nconduct would give rise to a cause of action under common law.” See Susinno v.\\n\\nWork Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (quotation marks omitted).\\n\\nA FACTA violation does not involve the kind of traditional confidential\\n\\nrelationship that is at issue in a breach of confidence—say, a doctor-patient\\n\\nrelationship. And unlike a common law breach of confidence, a merchant need not\\n\\ndisclose a credit card number to anyone in order to violate FACTA. Even so, the\\n\\nharm in a breach of confidence tort—disclosing information provided in\\n\\nconfidence—bears sufficient similarity to the harm Congress intended to prevent\\n\\nwith FACTA—the risk of identity theft. A consumer provides a merchant with his\\n\\ncredit card number with the expectation that it will remain secret, not least because\\n\\nof the risk of credit card fraud if the merchant reveals it. FACTA gives legal\\n\\nprotection to that confidentiality interest by permitting merchants to print only the\\n\\nlast five digits of a credit card number. A merchant who prints more than the\\n\\npermitted five digits creates a risk that information FACTA makes confidential\\n\\nwill fall into a third party’s hands. In fact, the risk here comes from the receipt\\n\\nGodiva gave Dr. Muransky and the copy Godiva seems to have kept. Here we are\\n\\nobligated to accept the allegation of the complaint that Godiva has experienced\\n\\ndata breaches. Under these circumstances, we think the risk of disclosure bears a\\n\\n\\n 27\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 28 of 47\\n\\n\\nclose enough relationship to the disclosure of confidential information actionable\\n\\nat common law to satisfy Article III.\\n\\n The Third Circuit rejected our holding in the original opinion issued in this\\n\\ncase that breach of confidence is sufficiently analogous to give rise to standing.\\n\\nKamal, 918 F.3d at 114. In the view of the Third Circuit, the relationship between\\n\\nFACTA and the common law cause of action is not sufficiently analogous because\\n\\nthe statute does not require actual disclosure while the common law tort does. Id.\\n\\nWe do not think Spokeo’s “close relationship” standard demands such complete\\n\\ncorrelation. Spokeo merely recognized that federal courts may have jurisdiction\\n\\nwhen Congress takes steps to prevent “the risk of real harm” that was actionable at\\n\\ncommon law. Spokeo, 136 S. Ct. at 1549. We read Spokeo to mean that, where\\n\\nthe common law allowed a cause of action to remedy an injury, Congress can\\n\\ncreate a statutory cause of action to remedy the risk of such an injury. If, for\\n\\nexample, Congress passed a statute to minimize the risk of trespass, we see nothing\\n\\nin Spokeo that would mean federal courts lack jurisdiction to hear cases brought\\n\\nunder the statute. Here, in enacting FACTA, Congress sought to mitigate the risk\\n\\nof disclosure of credit card information, which we think sufficiently analogous to\\n\\nthe disclosure of confidential information that the common law remedied by the\\n\\nbreach of confidence tort.\\n\\n The relationship we find here is consistent with the way this Circuit’s post-\\n\\n\\n 28\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 29 of 47\\n\\n\\nSpokeo precedent compares alleged harms to common law harms. In Nicklaw v.\\n\\nCitiMortgage, Inc., 839 F.3d 998 (11th Cir. 2016), a plaintiff sued for “failure to\\n\\nrecord a satisfaction of mortgage within a statutory period” but did not “bring suit\\n\\nuntil after that statutory violation ha[d] been remedied;” that is, the mortgage had\\n\\nbeen recorded by the time the plaintiff sued. Id. at 1000. The panel concluded the\\n\\nstatute in question “provided a remedy to prevent the risk of harm that occurred\\n\\nwhile title to property was wrongfully clouded, not a remedy after the cloud was\\n\\nlifted.” Id. at 1003 (first emphasis added). It ruled the plaintiff lacked standing on\\n\\nthat basis. This case is distinguishable from Nicklaw. In Nicklaw, the risk had\\n\\nabated by the time the plaintiff brought suit. The plaintiff’s title was no longer\\n\\nclouded. If a Godiva cashier immediately shredded a FACTA-noncompliant\\n\\nreceipt, we might agree Nicklaw controls. But nothing in this record establishes\\n\\nthat the receipt no longer exists. This means the risk of disclosure still exists. As\\n\\nnoted, the complaint indicates that Godiva might keep a version of the untruncated\\n\\nreceipt. And even if Dr. Muransky destroyed the receipt himself, in Nicklaw the\\n\\ndefendant, not the plaintiff, remedied the risk of harm. The effort Dr. Muransky\\n\\nput into doing away with the risky receipt would suffice for standing. Cf. Pedro v.\\n\\nEquifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017) (holding that lost time spent\\n\\nattempting to resolve credit inaccuracies suffices for standing).\\n\\n To be sure, the harms alleged in Pedro and Perry v. Cable News Network,\\n\\n\\n 29\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 30 of 47\\n\\n\\nInc., 854 F.3d 1336 (11th Cir. 2017), have a closer relationship to more familiar\\n\\ntorts than the harm alleged in this case does to breach of confidence. In Pedro, the\\n\\npanel ruled that the alleged FCRA violation—“the reporting of inaccurate\\n\\ninformation about Pedro’s credit to a credit monitoring service—has a close\\n\\nrelationship to the harm caused by the publication of defamatory information.”\\n\\n868 F.3d at 1279–80. In Perry, the panel ruled that an alleged violation of the\\n\\nVideo Privacy Protection Act, which prohibits “video tape service provider[s]”\\n\\nfrom disclosing personal information about consumers, has a close relationship to\\n\\n“the right of privacy” and “intrusion upon seclusion.” 854 F.3d at 1340–41\\n\\n(quotation marks omitted). But these cases do not foreclose our analysis. Neither\\n\\nPedro nor Perry commented on whether a plaintiff has standing where a\\n\\ndefendant’s behavior creates a heightened risk of a harm recognized at common\\n\\nlaw.\\n\\n For these reasons, we conclude Dr. Muransky suffered a concrete injury, and\\n\\nthus that he has standing to bring this action.\\n\\n III. The Merits\\n\\nA. Notice of class counsel’s attorney’s fee motion\\n\\n We now consider the objectors’ challenge to the sufficiency of notice of the\\n\\nattorney’s fee motion. As required by Rule 23(c)(2)(B), these class members got\\n\\n\\n\\n\\n 30\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 31 of 47\\n\\n\\nnotice of the preliminary approval of the class settlement. That notice gave\\n\\ninformation about the attorney’s fees and expenses Dr. Muransky would seek:\\n\\n Plaintiff will petition for a service award not to exceed $10,000 for his\\n work in representing the Class, and for Class Counsel’s fees not to\\n exceed one-third of the fund, which is $2,100,000, plus reasonable\\n expenses.\\n\\nClass members got this notice in advance of counsel’s motion for attorney’s fees.\\n\\nYet the attorney’s fees motion was not filed until two weeks after the deadline for\\n\\nclass members to object had already passed. 6 The class did not receive additional\\n\\nnotice after the motion was filed. The objectors say this process deprived class\\n\\nmembers of the notice they needed to assess the fee request and violated Rule\\n\\n23(h).\\n\\n Rule 23(h) sets up the procedures required for an award of attorney’s fees in\\n\\nclass actions. As for notice, Rule 23(h)(1) says that “[n]otice of the motion [for\\n\\nattorney’s fees] must be served on all parties and, for motions by class counsel,\\n\\ndirected to class members in a reasonable manner.” Fed. R. Civ. P. 23(h)(1).\\n\\nAlthough “reasonable manner” is not specific about when notice must be given,\\n\\ncourts interpreting Rule 23(h) have observed that the right to object to the fee\\n\\nmotion under Rule 23(h)(2) necessarily means that courts must give notice of the\\n\\nattorney’s fee motion itself. The leading case is In re Mercury Interactive Corp.\\n\\n 6\\n Dr. Muransky originally made the attorney’s fee request on September 7 as part of the\\nmotion for final approval. The District Court instructed him to file a separate attorney’s fee\\nmotion, which he did on September 12.\\n 31\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 32 of 47\\n\\n\\nSecurities Litig., 618 F.3d 988, 989 (9th Cir. 2010). The Ninth Circuit interpreted\\n\\n“[t]he plain text of” Rule 23(h) to “require[] that any class member be allowed an\\n\\nopportunity to object to the fee ‘motion’ itself, not merely to the preliminary notice\\n\\nthat such a motion will be filed.” Id. at 993–94 (quoting Fed. R. Civ. P. 23(h)(2)).\\n\\nThe Advisory Committee’s notes support the Ninth Circuit’s interpretation of Rule\\n\\n23(h). They say that “[i]n setting the date objections are due, the court should\\n\\nprovide sufficient time after the full fee motion is on file to enable potential\\n\\nobjectors to examine the motion.” Fed. R. Civ. P. 23 advisory committee’s note to\\n\\n2003 amendment. The Seventh Circuit follows the Ninth Circuit’s Mercury\\n\\ndecision. Redman v. RadioShack Corp., 768 F.3d 622, 637–38 (7th Cir. 2014); see\\n\\nalso 3 Newberg on Class Actions § 8:24 (5th ed.) (endorsing the approach of the\\n\\nNinth and Seventh Circuits on doctrinal and policy grounds).\\n\\n The Ninth Circuit’s holding in Mercury was that “class members were\\n\\ndeprived of an adequate opportunity to object to the motion itself because, by the\\n\\ntime they were served with the motion, the time within which they were required to\\n\\nfile their objections had already expired.” 618 F.3d at 994. That same sequence—\\n\\nobjection deadline before a filed motion for attorney’s fees—was what happened\\n\\nhere. As in Mercury, this schedule deprived class members of “an opportunity to\\n\\nobject to the fee motion itself” because they had to file objections before the\\n\\n\\n\\n\\n 32\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 33 of 47\\n\\n\\nmotion was even filed. See id. at 993–94. As a result, this process violated Rule\\n\\n23(h).7\\n\\n Although we conclude the District Court erred by requiring class members\\n\\nto object before they could assess the attorney’s fee motion, we hold that error does\\n\\nnot warrant reversal under the particular facts of this case. After receiving the\\n\\nnotice, four class members objected. Two of those, Mr. Price and Mr. Isaacson,\\n\\nmade detailed arguments in opposition to the requested attorney’s fee and incentive\\n\\nawards, including by filing opposition briefs after Dr. Muransky filed the\\n\\nattorney’s fee motion. Cf. Coleman v. Smith, 828 F.2d 714, 716–17 (11th Cir.\\n\\n1987) (per curiam) (holding that notice of consequences of summary judgment was\\n\\nadequate in part because party’s actions showed he understood how to respond to\\n\\nsummary judgment motion). The arguments made against the attorney’s fee\\n\\nmotion were considered by the Magistrate Judge and by the District Court. And on\\n\\nthis record, we have no reason to think other unnamed class members would have\\n\\nmade arguments besides those made by Mr. Price and Mr. Isaacson. Class\\n\\n 7\\n The objectors also argue that the class notice did not provide class members with\\nsufficient information to file meaningful objections to class counsel’s attorney’s fee request. Mr.\\nPrice, for example, says the notice should have advised class members of the “Eleventh Circuit’s\\n25% benchmark for attorneys’ fees [or] of Class Counsel’s justification for seeking a $525,000\\nbonus” above the 25% benchmark. Rule 23(h) requires only that notice of an attorney’s fee\\nmotion be “served on all parties and . . . directed to class members in a reasonable manner.” Fed.\\nR. Civ. P. 23(h). The objectors cite no authority that requires the detail they request. Decisions\\nabout the detail in descriptions about the attorney’s fees required to be included in class notice\\nare necessarily case specific and are best left to the discretion of district courts.\\n\\n\\n\\n 33\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 34 of 47\\n\\n\\nmembers were not therefore prejudiced by the objection schedule established by\\n\\nthe District Court. See Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537, 61\\n\\nS. Ct. 376, 379 (1941) (observing that “the rights of parties are habitually protected\\n\\nin court by those who act in a representative capacity”); see also O’Bannon v.\\n\\nTown Court Nursing Ctr., 447 U.S. 773, 797, 100 S. Ct. 2467, 2482 (1980)\\n\\n(Blackmun, J., concurring) (because nursing home had an interest in making the\\n\\nsame arguments as absent patients, those patients’ due process interests were\\n\\nsatisfied). The District Court did not abuse its discretion by awarding attorney’s\\n\\nfee, despite the Rule 23(h) violation.\\n\\nB. The attorney’s fee award\\n The objectors also argue that the District Court made a mistake by awarding\\n\\n33% of the class settlement fund as attorney’s fees to Dr. Muransky’s counsel.\\n\\nThe District Court’s approval of the attorney’s fee award is reviewed for abuse of\\n\\ndiscretion. Camden I Condo. Assoc. v. Dunkle, 946 F.2d 768, 770 (11th Cir.\\n\\n1991). “A district court abuses its discretion if it applies an incorrect legal\\n\\nstandard, applies the law in an unreasonable or incorrect manner, follows improper\\n\\nprocedures in making a determination, or makes findings of fact that are clearly\\n\\nerroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir.\\n\\n2014) (quotation marks omitted). Under this standard, district courts have “great\\n\\nlatitude” in setting fee awards in class action cases. See Faught v. American Home\\n\\n\\n 34\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 35 of 47\\n\\n\\nShield Corp., 668 F.3d 1233, 1242 (11th Cir. 2011) (citation and internal quotation\\n\\nmarks omitted). We conclude the District Court did not abuse its discretion.\\n\\n To begin, the objectors say the District Court applied the wrong legal test to\\n\\nevaluate Dr. Muransky’s attorney’s fee request. In their view, the District Court\\n\\nshould have applied a lodestar analysis that multiplied the number of hours counsel\\n\\nworked by the prevailing hourly rate. They claim that analysis is required by\\n\\nPerdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669 (2010).\\n\\nIn Perdue, the Supreme Court decided “whether the calculation of an attorney’s\\n\\nfee, under federal fee-shifting statutes, based on the ‘lodestar,’ i.e., the number of\\n\\nhours worked multiplied by the prevailing hourly rates, may be increased due to\\n\\nsuperior performance and results.” Id. The Court allowed the award of attorney’s\\n\\nfees under a fee-shifting statute to be enhanced above the lodestar amount, but only\\n\\nin “rare” and “exceptional” cases. Id. at 554, 130 S. Ct. at 1674. Here, the\\n\\nobjectors say the District Court should have followed Perdue because class\\n\\ncounsel’s fees would have been decided under a fee-shifting statute if the class\\n\\nprevailed against Godiva. See 15 U.S.C. § 1681n(a)(3) (providing for attorney’s\\n\\nfees “in the case of any successful action to enforce any liability” for a willful\\n\\nviolation of FACTA).\\n\\n The problem for the objectors is that class counsel sought attorney’s fees\\n\\nfrom a common fund rather than under a fee-shifting statute. See Fed. R. Civ. P.\\n\\n\\n 35\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 36 of 47\\n\\n\\n23(h) (authorizing courts to award attorney’s fees that are “authorized by law or\\n\\nby the parties’ agreement”). Camden I holds that “attorneys’ fees awarded from a\\n\\ncommon fund shall be based upon a reasonable percentage of the fund established\\n\\nfor the benefit of the class.” 946 F.2d at 774. The common-fund doctrine applies\\n\\nto class settlements that result in a common fund even when class counsel could\\n\\nhave pursued attorney’s fees under a fee-shifting statute. See Staton v. Boeing Co.,\\n\\n327 F.3d 938, 968–69 (9th Cir. 2003); Florin v. Nationsbank of Ga., 34 F.3d 560,\\n\\n563 (7th Cir. 1994). Perdue addresses fee-shifting statutes and says nothing about\\n\\nthe award of attorney’s fees from a common fund. 559 U.S. at 554, 130 S. Ct. at\\n\\n1674. Perdue is therefore not contrary to our precedent in Camden I.\\n\\n In the alternative, the objectors say that the District Court misapplied\\n\\nCamden I by awarding 33% of the fund to class counsel. In Camden I, this Circuit\\n\\ncalled 25% of a common fund a benchmark attorney’s fee award that “may be\\n\\nadjusted in accordance with the individual circumstances of each case.” 946 F.2d\\n\\nat 775. To evaluate whether the benchmark should be enhanced, district courts can\\n\\napply the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d\\n\\n714, 717–19 (5th Cir. 1974), 8 in addition to other class-settlement specific factors.\\n\\n\\n\\n 8\\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as\\nbinding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.\\nId. at 1209. We recognize that the Supreme Court criticized the Johnson factors in Perdue, 559\\nU.S. at 550–51, 130 S. Ct. at 1671–72. But as we’ve explained, Perdue arose in a different\\n\\n\\n 36\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 37 of 47\\n\\n\\nCamden I, 946 F.2d at 775. We have also said that the “majority of common fund\\n\\nfee awards fall between 20% and 30% of the fund.” Waters v. Int’l Precious\\n\\nMetals Corp., 190 F.3d 1291, 1294 (11th Cir. 1999). In this case, the objectors\\n\\nargue the District Court misapplied the Johnson factors in awarding 33% of the\\n\\nsettlement fund as attorney’s fees.\\n\\n We see no abuse of discretion in the District Court’s decision. Although the\\n\\nobjectors “are correct that the fee award is bigger than some awards in other\\n\\nsuits[,] . . . that does not mean the award is too big.” Birchmeier v. Caribbean\\n\\nCruise Line, Inc., 896 F.3d 792, 796 (7th Cir. 2018). The Magistrate Judge’s R&R\\n\\nconcluded that the Johnson factors supported the request for a fee above the 25%\\n\\nbenchmark. That conclusion was based on weighing nine Johnson factors in favor\\n\\nof the enhanced award, including, by way of example, “the novelty and difficulty\\n\\nof the issues” and “the results obtained.” After considering the objections to the\\n\\nR&R de novo, the District Court reached the same conclusion that “the requested\\n\\nattorneys’ fees are reasonable under the Johnson/Camden I analysis.” 9 The District\\n\\nCourt found that the settlement “confers substantial benefits” on class members.\\n\\nThe District Court’s order also emphasized “the results obtained,” saying the class\\n\\n\\n\\ncontext (fee-shifting statutes), and we are bound to apply our precedent in Camden I and Johnson\\nto this common fund.\\n 9\\n The District Court gave no weight to the Magistrate Judge’s characterization of Mr.\\nPrice and Mr. Isaacson as “professional objectors.” We don’t either.\\n 37\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 38 of 47\\n\\n\\nmembers who submitted claims “will receive cash payments that represent a\\n\\nsignificant portion of the damages that would be available to them were they to\\n\\nprevail in an individual action.” The District Court elaborated on these points at\\n\\nthe fairness hearing. There, the court discussed the significant legal hurdles class\\n\\ncounsel faced, including the possibility that the Supreme Court would hold in\\n\\nSpokeo that risk of identity theft could not support standing. The court explained\\n\\nthe difficulty of proving willfulness, and its own skepticism that the evidence\\n\\nwould support a willfulness finding in this case.\\n\\n The District Court properly assessed the risks faced by the class and the\\n\\ncompensation secured by class counsel. Under the circumstances, the District\\n\\nCourt did not abuse its discretion by awarding an above-benchmark percentage of\\n\\nthe common fund. The attorney’s fee award is therefore affirmed.\\n\\nC. The incentive award\\n Finally, the objectors challenge the $10,000 incentive award the District\\n\\nCourt approved for Dr. Muransky as class representative. A district court’s\\n\\ndecision to grant an incentive award to a named class representative is reviewed for\\n\\nabuse of discretion. Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003).\\n\\n The objectors make two arguments on appeal. First, Mr. Isaacson argues\\n\\nincentive awards are prohibited in common-fund settlements. Second, the\\n\\nobjectors jointly challenge the $10,000 award as too large because they say Dr.\\n\\n\\n 38\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 39 of 47\\n\\n\\nMuransky put little personal time and effort into the litigation. We reject both\\n\\narguments.\\n\\n Relying on two common fund cases, Mr. Isaacson says litigants who secure\\n\\na common fund can recover reasonable attorney’s fees and litigation expenses but\\n\\ncannot recover incentive awards for their own services. See Central R.R. &\\n\\nBanking Co. v. Pettus, 113 U.S. 116, 122, 5 S. Ct. 389, 390 (1885); Trustees v.\\n\\nGreenough, 105 U.S. 527, 538 (1882).\\n\\n We are not persuaded by this argument. Many circuits have endorsed\\n\\nincentive awards and recognize them as serving the purposes of Rule 23. See, e.g.,\\n\\nStaton, 327 F.3d at 975–77; Hadix, 322 F.3d at 897–98. No circuit has applied\\n\\nGreenough or Central Bank, which were decided well before the adoption of Rule\\n\\n23, to prohibit incentive awards in the class-action context. We do not view\\n\\ngranting a monetary award as an incentive to a named class representatives as\\n\\ncategorically improper.\\n\\n At the same time, there are limits to an appropriate incentive award. In\\n\\nHolmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), the class\\n\\nsettlement awarded the class representatives different amounts than the unnamed\\n\\nclass members because class counsel estimated that the named representatives had\\n\\nmeritorious claims. Id. at 1148–49. This Court held that “[w]hen a settlement\\n\\nexplicitly provides for preferential treatment for the named plaintiffs in a class\\n\\n\\n 39\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 40 of 47\\n\\n\\naction, a substantial burden falls upon the proponents of the settlement to\\n\\ndemonstrate and document its fairness.” Id. at 1147. We said that “a disparate\\n\\ndistribution favoring the named plaintiffs requires careful judicial scrutiny into\\n\\nwhether the settlement allocation is fair to the absent members of the class.” Id.\\n\\nAt the same time, we recognized that “the inference of unfairness” associated with\\n\\nunequal distributions “may be rebutted by a factual showing that the higher\\n\\nallocations to certain parties are rationally based on legitimate considerations.” Id.\\n\\n Like the settlement distribution in Holmes, incentive awards “provide[] for\\n\\npreferential treatment for the named plaintiffs,” see id. at 1147, and create a similar\\n\\npossibility of collusion between class representatives, their counsel, and\\n\\ndefendants. See id. at 1148; Hadix, 322 F.3d at 897 (“[I]ncentive awards are\\n\\nscrutinized carefully by courts who sensibly fear that [they] may lead named\\n\\nplaintiffs to expect a bounty for bringing suit or to compromise the interest of the\\n\\nclass for personal gain.”). As a result, we hold that incentive awards must be\\n\\nsupported by “legitimate considerations” sufficient to “dispel the cloud of\\n\\ncollusion which such a settlement suggests.” See Holmes, 706 F.2d at 1147\\n\\n(quotation marks omitted).\\n\\n The parties dispute what those considerations should be. The objectors\\n\\nfocus on the time and money actually spent on the case by the named\\n\\nrepresentative while Dr. Muransky argues that the value of the settlement to the\\n\\n\\n 40\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 41 of 47\\n\\n\\nclass members is most important. We see no reason to limit the discretion of\\n\\ndistrict courts to consider the justifications proposed by either party. Indeed, we\\n\\nare aware of a number of justifications regularly cited in support of incentive\\n\\nawards. For example, incentive awards may be given “to compensate class\\n\\nrepresentatives for work done on behalf of the class, to make up for financial or\\n\\nreputational risk undertaken in bringing the action, . . . to recognize their\\n\\nwillingness to act as a private attorney general,” Rodriguez v. W. Publ’g Corp.,\\n\\n563 F.3d 948, 958–59 (9th Cir. 2009), and to “induce an individual to become a\\n\\nnamed plaintiff,” Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 410 (7th Cir.\\n\\n2000). Although these considerations will certainly weigh differently in different\\n\\ncases, together they “help illuminate the fact that class representatives . . . have\\n\\ntypically done something the absent class members have not—stepped forward and\\n\\nworked on behalf of the class.” 5 Newberg on Class Actions § 17.3. All of these\\n\\njustifications are legitimate, and district courts may exercise their discretion to\\n\\ndetermine whether they favor an incentive award in any given case.\\n\\n Here, the District Court awarded Dr. Muransky $10,000 “for his efforts in\\n\\nthis case.” It is not clear what the District Court meant by that. Even so, we find\\n\\nthat the record supports the incentive award. See Friends of the Everglades v. S.\\n\\nFla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012) (explaining that a\\n\\ndistrict court abuses its discretion when “neither the . . . decision nor the record\\n\\n\\n 41\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 42 of 47\\n\\n\\nprovide sufficient explanation to enable meaningful appellate review” (emphasis\\n\\nadded)); Cox Enters. v. News-Journal Corp., 510 F.3d 1350, 1361 (11th Cir. 2007)\\n\\n(finding no abuse of discretion in district court’s decision not to award\\n\\nprejudgment interest based on the record). At the District Court, Dr. Muransky\\n\\nargued that an incentive award was justified by the size of the settlement. As\\n\\npreviously discussed, the District Court found that the class settlement “confers\\n\\nsubstantial benefits” on the class members. And at the fairness hearing, the\\n\\nDistrict Court observed that Dr. Muransky “was subjecting himself to\\n\\ninconvenience and time delays that didn’t materialize as much as they might have,\\n\\nbut they still were a possibility when he signed on as the class representative.”\\n\\nThese statements give meaning to the court’s $10,000 incentive award to Dr.\\n\\nMuransky “for his efforts in this case.” 10 We therefore hold that the District Court\\n\\ndid not abuse its discretion by granting this incentive award.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 10\\n By our calculation, Dr. Muransky’s incentive award had little impact on the class\\nmembers’ recovery. Assuming 48,000 class members submitted valid claims (a high-end\\napproximation) for the $4.2 million in the fund for distribution, Dr. Muransky’s incentive award\\nof $10,000 resulted in a reduction of about 21 cents in the recovery of the class members who\\nfiled claims ($87.50 vs. $87.29).\\n 42\\n\\n Case: 16-16486 Date Filed: 04/22/2019 Page: 43 of 47\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1891,"cells":{"id":{"kind":"number","value":4612396,"string":"4,612,396"},"name":{"kind":"string","value":"INVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A., a Costa Rican Corporation, Plaintiff-Appellant, v. DEL MONTE INTERNATIONAL GMBH, a Swiss Corporation, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Inversiones Y Procesadora Tropical Inprotsa, S.A. v. Del Monte International GMBH"},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"16-17623; 17-12163"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Black, Walker\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"Case: 16-17623 Date Filed: 04/23/2019 Page: 1 of 30\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 16-17623; 17-12163\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-24275-FAM\\n\\n\\nINVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A.,\\na Costa Rican Corporation,\\n\\n Plaintiff-Appellant,\\n\\n\\n versus\\n\\n\\nDEL MONTE INTERNATIONAL GMBH,\\na Swiss Corporation,\\n\\n Defendant-Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 23, 2019)\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 2 of 30\\n\\n\\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\\n\\nBLACK, Circuit Judge:\\n\\n Appellant Inversiones y Procesadora Tropical INPROTSA, S.A.\\n\\n(INPROTSA) appeals from the district court’s orders denying its petition to vacate\\n\\nand confirming an international arbitral award issued in favor of Appellee Del\\n\\nMonte International GmbH (Del Monte). INPROTSA contends the district court\\n\\nlacked subject-matter jurisdiction over its petition to vacate the arbitral award,\\n\\nwhich Del Monte removed from state court. It further contends that, even if the\\n\\ndistrict court had jurisdiction, the petition to vacate should not have been dismissed\\n\\non the ground that INPROTSA failed to assert a valid defense under the\\n\\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards (the\\n\\nConvention). Finally, INPROTSA contends the district court erred by granting Del\\n\\nMonte’s motion to confirm the award. We affirm the district court.\\n\\n I. BACKGROUND\\n\\n The MD-2 pineapple variety was developed by the Pineapple Research\\n\\nInstitute of Hawaii (the Institute), an agricultural research organization that at one\\n\\npoint was run jointly by Del Monte, the Dole Fruit Company (Dole), and the Maui\\n\\nPineapple Company (Maui). Dole withdrew from the Institute before the MD-2\\n\\n\\n *\\n Honorable John M. Walker, Jr., Circuit Judge for the United States Court of Appeals for\\nthe Second Circuit, sitting by designation.\\n\\n\\n 2\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 3 of 30\\n\\n\\nwas created. And Maui, for its part, played little to no role in developing the MD-\\n\\n2. Instead, the MD-2’s commercial development was driven largely (if not solely)\\n\\nby Del Monte. Del Monte initiated tests on the variety in 1980, released the\\n\\nvariety to its Hawaiian operations in 1981, began selling the MD-2 in North\\n\\nAmerica and Europe in 1987, and introduced the variety to Costa Rica in 1994,\\n\\nwhere it worked to adapt the MD-2 to that country’s climate and conditions.\\n\\nAccording to Del Monte, through its efforts, the MD-2 became the most popular\\n\\npineapple variety in the world.\\n\\n Del Monte did not, however, hold a patent on the MD-2. And given the\\n\\nMD-2’s commercial success, Del Monte was not the only pineapple producer\\n\\ninterested in selling the variety. Indeed, Dole commercialized the MD-2 in 2000,\\n\\nwhich prompted a federal lawsuit from Del Monte (the Dole Litigation). Del\\n\\nMonte asserted claims for unfair competition, trade-secret violations, and\\n\\nconversion of vegetative material, alleging that Dole infringed its rights by—\\n\\namong other things—misappropriating knowledge and materials Del Monte\\n\\ndeveloped in Costa Rica.\\n\\n The Dole Litigation eventually settled in 2002 and, as a result, Del Monte\\n\\nacknowledged it did not have the exclusive right to sell the MD-2. But before that\\n\\nsettlement, while the Dole Litigation was pending, INPROTSA weighed offers\\n\\nfrom both Dole and Del Monte to begin producing the MD-2 at its Costa Rican\\n\\n\\n 3\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 4 of 30\\n\\n\\nplantation. In the end, INPROTSA chose to go with Del Monte, noting among\\n\\nother factors that a ruling against Dole in the Dole Litigation might leave\\n\\nINPROTSA without a market for its pineapples.\\n\\n In May 2001, against that backdrop, INPROTSA and Del Monte entered into\\n\\nan agreement (the Agreement) for the production, packaging, and sale of MD-2\\n\\npineapples. Under the Agreement, Del Monte agreed to provide INPROTSA with\\n\\nMD-2 seeds 1 at no cost. INPROTSA, in turn, acknowledged that Del Monte\\n\\nmaintained ownership of all MD-2 seeds used on INPROTSA’s plantation.\\n\\nINPROTSA further agreed to grow, sell, package, and deliver MD-2 pineapples\\n\\nexclusively to Del Monte. The parties also stipulated that Del Monte was “the\\n\\nexclusive owner of the variety known as MD-2,” and they agreed that if the\\n\\nAgreement were terminated for any reason, including its expiration, INPROTSA\\n\\nwould cease producing the MD-2 and either destroy its plant stock or return it to\\n\\nDel Monte.\\n\\n During the 12-year term of the Agreement, Del Monte provided tens of\\n\\nmillions of MD-2 seeds at no cost, and Del Monte purchased more than $200\\n\\nmillion in pineapples from INPROTSA. After the Agreement expired in 2013,\\n\\n\\n\\n 1\\n Commercial pineapples are not grown from “seeds” in the ordinary sense of the word.\\nThey are grown by planting the leaves from the crown of the pineapple fruit or by planting\\nseedlings that grow out of the pineapple plant’s stem. The term “pineapple seeds” thus refers\\ncollectively to crowns or seedlings that can be planted in the soil to produce new plants. It is in\\nthis sense we use the term “seeds” in this Opinion.\\n 4\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 5 of 30\\n\\n\\nhowever, INPROTSA neither destroyed nor returned its MD-2 plant stock to Del\\n\\nMonte. Instead, it sold the MD-2 pineapples to third parties.\\n\\n Del Monte initiated an arbitration against INPROTSA in the International\\n\\nCourt of Arbitration of the International Chamber of Commerce (ICC) in Miami.\\n\\nDel Monte alleged that INPROTSA breached the Agreement and converted its\\n\\nplant stock, for which Del Monte sought specific performance, injunctive relief,\\n\\nand damages. INPROTSA responded by arguing—among other things—that\\n\\nbecause Del Monte did not exclusively own the MD-2 variety, which INPROTSA\\n\\ncontended was a condition precedent to its obligations under the Agreement,\\n\\nINPROTSA was not obligated to sell exclusively to Del Monte or return its MD-2\\n\\nplant stock. INPROTSA also contended it was fraudulently induced to enter the\\n\\nAgreement by Del Monte’s false representation that it had exclusive ownership of\\n\\nthe MD-2 variety.\\n\\n The arbitration tribunal issued its award (the Award) on June 10, 2016. In a\\n\\nthorough opinion, to which there was a dissent,2 the tribunal ruled in favor of Del\\n\\nMonte on its claim that INPROTSA breached the Agreement. Specifically, the\\n\\ntribunal concluded that Del Monte’s exclusive ownership of the MD-2 variety (as\\n\\n\\n 2\", \"author\": \"BLACK, Circuit Judge:\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissenting arbitrator would have ruled that INPROTSA was no longer obligated to\\nsell exclusively to Del Monte or cease its MD-2 production once Del Monte relinquished its\\nclaim to exclusive ownership of the MD-2 pineapple as part of the settlement in the Dole\\nLitigation. The dissenting arbitrator also did not agree with either the majority’s damages award\\nor its grant of injunctive relief.\\n\\n\\n 5\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 6 of 30\\n\\n\\nagainst third parties) was not a condition precedent to INPROTSA’s contractual\\n\\nobligation to return or destroy the plants derived from seeds Del Monte provided at\\n\\nno cost under the Agreement. Thus, INPROTSA breached the Agreement by\\n\\nselling, rather than returning or destroying, the pineapples it derived from Del\\n\\nMonte’s seeds.\\n\\n Further, the tribunal rejected INPROTSA’s contention that it was\\n\\nfraudulently induced to enter into the Agreement. After considering the evidence\\n\\nprovided by the parties, the tribunal first determined that Del Monte’s claim to\\n\\nexclusive ownership of the MD-2 was not fraudulent, because it was based on Del\\n\\nMonte’s reasonable belief at the time that it had a proprietary interest grounded in\\n\\nits commercial development of the MD-2—regardless of whether it held a patent\\n\\non the variety. 3 The fact that Del Monte subsequently renounced any broader\\n\\nrights to exclusive ownership of the MD-2 as against third parties did not render\\n\\nany prior representations knowingly false.\\n\\n The tribunal also found that the Agreement’s statement regarding exclusive\\n\\nownership of the MD-2 was not a unilateral representation proffered by Del\\n\\n\\n\\n 3\\n INPROTSA’s arguments on appeal rely heavily on Magistrate Judge Simonton’s\\nconclusion, in the context of a discovery dispute in the Dole Litigation, that Del Monte sought to\\nmislead growers in Costa Rica by sending out threatening letters implying it held a patent on the\\nMD-2. See USDC Doc. 1 at 155–57. The tribunal specifically found, however, that “there is no\\nevidence or allegation that Del Monte represented to INPROTSA that Del Monte held a patent or\\na trademark on the MD-2 hybrid.” USDC Doc. 1 at 113. INPROTSA points to no record\\nevidence refuting that finding.\\n 6\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 7 of 30\\n\\n\\nMonte; rather, it was a joint stipulation, accepted as true by sophisticated parties\\n\\nwith knowledge of both the pineapple industry and the contested nature of Del\\n\\nMonte’s claim to a proprietary interest in the MD-2. And even if it were a false\\n\\nrepresentation, INPROTSA could not reasonably have relied on it because\\n\\nINPROTSA knew Del Monte’s claim to exclusive ownership was contested when\\n\\nit entered into the Agreement.\\n\\n Finally, the tribunal determined INPROTSA was aware of the falsity of any\\n\\npurported representation by at least 2002, after which INPROTSA ratified the\\n\\nAgreement:\\n\\n [INPROTSA] cannot blow cold and hot at the same time: enjoy the\\n benefits of the Agreement for 12 years in which it never raised Del\\n Monte’s supposed fraudulent conduct, particularly after the Settlement\\n Agreement putting an end to the [Dole] Litigation in 2002 . . . , but\\n then seek to liberate itself under Florida law from contractual\\n stipulations it freely and knowingly accepted to be bound by and\\n enforce[d].\\n\\nUSDC Doc. 1 at 119–20.\\n\\n The tribunal thus awarded Del Monte specific performance, injunctive relief,\\n\\ndamages, interest, costs, and attorney’s fees. More specifically, it required\\n\\nINPROTSA to either return or destroy 93% of the MD-2 vegetative materials on its\\n\\nplantation—which the tribunal found were attributable to the seeds provided by\\n\\nDel Monte. It also enjoined INPROTSA from selling 93% of its MD-2 pineapples\\n\\nto third parties until it complied with its obligation to destroy or return the MD-2\\n\\n\\n 7\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 8 of 30\\n\\n\\nplant stock. With respect to damages, the tribunal determined that, under Florida\\n\\nlaw, Del Monte was entitled to disgorgement of the money INPROTSA received\\n\\nby selling the MD-2 pineapples to third parties in breach of the Agreement.\\n\\n The tribunal recognized that the evidence on which a damages award might\\n\\nbe fashioned was limited. Although it had evidence concerning INPROTSA’s\\n\\ngross sales in 2014, it lacked any information concerning INPROTSA’s sales in\\n\\n2015. Likewise, because INPROTSA refused to provide any information about its\\n\\nprofits or expenses during discovery, it was impossible to calculate an award based\\n\\nsolely on the profits INPROTSA improperly obtained after the expiration of the\\n\\nAgreement. Thus, the tribunal concluded that, under the circumstances and\\n\\nevidence provided, Del Monte’s damages should be limited to $26.133 million—\\n\\n93% of INPROTSA’s MD-2 sales in 2014. In other words, the tribunal refused to\\n\\nspeculate about either INPROTSA’s 2015 sales (which would have increased\\n\\ndamages) or INPROTSA’s expenses (which would have decreased damages).\\n\\n INPROTSA promptly moved for correction and clarification of the Award\\n\\nunder Article 35 of the ICC rules governing the arbitration, ostensibly seeking “to\\n\\ncorrect or clarify certain clerical, computational or typographical errors, or errors\\n\\nof a similar nature, contained in the Award.” 4 USDC 1 at 190. INPROTSA\\n\\n\\n 4\\n The record does not appear to contain a copy of the ICC Arbitration Rules in force at\\nthe time. We note, however, that the current version of the ICC Arbitration Rules provides in\\nArticle 36(1) that “the arbitral tribunal may correct a clerical, computational or typographical\\n 8\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 9 of 30\\n\\n\\ncontended the tribunal’s damages award was erroneous as a matter of Florida law\\n\\nbecause Del Monte did not prove the amount of INPROTSA’s profits from the\\n\\nbreach. According to INPROTSA, because Del Monte provided evidence of only\\n\\nINPROTSA’s revenues, 5 Del Monte’s claim for damages should have been\\n\\ndismissed in its entirety.\\n\\n The tribunal denied the motion, concluding it lacked authority to revisit the\\n\\nmerits of its substantive damages award. The tribunal reasoned that Article 35 of\\n\\nthe governing ICC Arbitration Rules allowed only for interpretation of the Award\\n\\nor correction of errors of the clerical, computational, and typographical variety.\\n\\nArticle 35 did not provide authority to revise an Award on the merits, based on an\\n\\nalleged substantive error of law.\\n\\n II. PROCEDURAL HISTORY\\n\\n In September 2016, INPROTSA filed a petition to vacate the Award in\\n\\nFlorida’s Eleventh Judicial Circuit. Del Monte then removed the petition to the\\n\\nUnited States District Court for the Southern District of Florida, citing 9 U.S.C.\\n\\n\\n\\nerror, or any errors of similar nature contained in an award.” ICC Arbitration Rules,\\nhttp://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/#article_36 (last\\nvisited Feb. 13, 2019). We further note that INPROTSA later contended that the tribunal’s\\npower to correct the award was grounded in Article 36. See USDC Doc. 70 at 7 (“ICC Article\\n36(2) explicitly granted the right to seek such a correction.”).\\n 5\\n INPROTSA’s motion for clarification did not address the tribunal’s finding that\\nINPROTSA refused to provide Del Monte with evidence of its expenses during discovery. Nor\\ndid it explain why such a finding would not be relevant to Del Monte’s purported burden to\\nprove the amount of INPROTSA’s profits under Florida law.\\n 9\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 10 of 30\\n\\n\\n§§ 203 and 205, as well as 28 U.S.C. §§ 1331 and 1441. Soon after, Del Monte\\n\\nfiled a combined motion to dismiss the petition to vacate and cross-petition to\\n\\nconfirm the Award. INPROTSA, in turn, filed a motion to remand the proceeding\\n\\nto state court, contending the district court lacked subject-matter jurisdiction.\\n\\n The district court granted Del Monte’s motion to dismiss the petition to\\n\\nvacate and denied INPROTSA’s motion to remand, reasoning that INPROTSA’s\\n\\npetition to vacate—which was based on Florida law—failed to assert a valid\\n\\ndefense under the Convention, as required by our opinion in Industrial Risk\\n\\nInsurers v. M.A.N. Gutehoffnungshütte GmbH, 141 F.3d 1434, 1446 (11th Cir.\\n\\n1998). The district court did not, however, expressly address Del Monte’s cross-\\n\\npetition to confirm the Award. As a result, there were some procedural detours\\n\\nthat need not be recounted in detail here. Ultimately, on limited remand from this\\n\\nCourt, the district court granted Del Monte’s cross-petition and confirmed the\\n\\nAward in a reasoned opinion.6\\n\\n The district court concluded it had subject-matter jurisdiction under 9 U.S.C.\\n\\n§ 203. It then determined that INPROTSA failed to establish a valid ground for\\n\\nresisting confirmation under the Convention.7 Specifically, as is relevant to the\\n\\n\\n 6\\n Del Monte’s motion to dismiss this appeal (Doc. 19), which is premised on the district\\ncourt’s purported failure to resolve its cross-petition, is therefore DENIED as moot.\\n 7\\n Alternatively, the district court ruled that INPROTSA was barred from asserting\\ndefenses to confirmation because it did not timely serve notice of its petition to vacate, as\\nrequired under 9 U.S.C. § 12.\\n 10\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 11 of 30\\n\\n\\nissues on appeal, the district court rejected INPROTSA’s contention that the\\n\\nAward was procured through fraud. The district court first noted there were no\\n\\narguments being raised that the arbitration process itself “was fraudulent, that the\\n\\narbitration tribunal acted fraudulently, or that the final award was procured by\\n\\nfraud.” USDC Doc. 47 at 9. It continued by noting that the tribunal reviewed the\\n\\nevidence submitted by INPROTSA and determined there was no fraud.\\n\\nINPROTSA could not avoid the Award simply because it disagreed with the\\n\\narbitrator’s conclusion on that issue. Otherwise, “any losing party raising a fraud\\n\\ndefense in an international arbitration[] could relitigate the issue in federal court.”\\n\\nId. at 10. Such a result itself would violate this country’s public policy favoring\\n\\narbitration as an efficient means for resolving disputes. In the end, the district\\n\\ncourt concluded that “[t]he arbitration panel’s consideration and ruling on the\\n\\nmerits of INPROTSA’s fraud defense does not violate the most basic notions of\\n\\nmorality and justice requiring this Court to deny confirmation of the arbitral\\n\\naward.” Id. (quotation omitted).\\n\\n INPROTSA timely appealed the district court’s orders both dismissing its\\n\\npetition to vacate the Award and granting Del Monte’s cross-petition to confirm\\n\\nthe Award.\\n\\n\\n\\n\\n 11\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 12 of 30\\n\\n\\n III. DISCUSSION\\n\\n A. Jurisdiction 8\\n\\n INPROTSA contends the district court lacked subject-matter jurisdiction\\n\\nover its petition to vacate. Its argument is based on a narrow reading of 9 U.S.C.\\n\\n§ 203, the jurisdictional provision in the statute implementing the Convention (the\\n\\nConvention Act), which provides that “[a]n action or proceeding falling under the\\n\\nConvention shall be deemed to arise under the laws and treaties of the United\\n\\nStates.” 9 U.S.C. § 203.\\n\\n According to INPROTSA, we have recognized only two causes of action\\n\\nunder the Convention—an action to compel arbitration and an action to confirm an\\n\\narbitral award. See Escobar v. Celebration Cruise Operator, Inc., 805 F.3d 1279,\\n\\n1286 (11th Cir. 2015) (“To implement the . . . Convention, the Convention Act\\n\\nprovides two causes of action in federal court for a party seeking to enforce\\n\\narbitration agreements covered by the . . . Convention: (1) an action to compel\\n\\narbitration in accord with the terms of the agreement, 9 U.S.C. § 206, and (2) at a\\n\\nlater stage, an action to confirm an arbitral award made pursuant to an arbitration\\n\\nagreement, 9 U.S.C. § 207.”); Lindo v. NCL (Bahamas), Ltd., 652 F.3d 1257,\\n\\n1262–63 (11th Cir. 2011) (same); Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d\\n\\n\\n\\n 8\\n We review de novo issues concerning federal subject-matter jurisdiction. Caron v. NCL\\n(Bahamas), Ltd., 910 F.3d 1359, 1363 (11th Cir. 2018).\\n 12\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 13 of 30\\n\\n\\n1286, 1290–91 (11th Cir. 2004) (same). Thus, INPROTSA contends, because a\\n\\npetition to vacate an arbitral award is not one of the causes of action expressly\\n\\nprovided by the Convention Act, it cannot be “[a]n action or proceeding falling\\n\\nunder the Convention.” 9 U.S.C. § 203. Consequently, a federal court cannot\\n\\nexercise subject-matter jurisdiction over a petition to vacate an arbitral award, even\\n\\nif the award itself falls under the Convention.\\n\\n INPROTSA nevertheless concedes the district court had removal\\n\\njurisdiction, because the subject matter of its petition to vacate “relates to an\\n\\narbitration agreement or award falling under the Convention.” 9 U.S.C. § 205.\\n\\nBut removal jurisdiction is not necessarily coterminous with subject-matter\\n\\njurisdiction. See Cogdell v. Wyeth, 366 F.3d 1245, 1248 (11th Cir. 2004). Thus,\\n\\nINPROTSA contends we must distinguish between the purportedly narrow scope\\n\\nof subject-matter jurisdiction provided under § 203 and the broader scope of\\n\\nremoval jurisdiction provided under § 205. In other words, INPROTSA insists\\n\\nthat, because Congress used different language in §§ 203 and 205, we must assume\\n\\nit intended to require federal courts to remand any “action[s] or proceeding[s]”\\n\\nremoved under § 205 that are not covered under § 203, which INPROTSA\\n\\ncontends is limited to those actions or proceedings expressly provided by the\\n\\nConvention Act. We disagree.\\n\\n\\n\\n\\n 13\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 14 of 30\\n\\n\\n As an initial matter, INPROTSA incorrectly assumes that the Convention\\n\\nAct provides an exhaustive list of actions and proceedings “falling under the\\n\\nConvention.” 9 U.S.C. § 203. The Convention Act is merely a statute by which\\n\\nthe Convention has been implemented in this country. See 9 U.S.C. § 201. The\\n\\nrelevant inquiry under § 203 is not whether a particular action or proceeding is\\n\\nprovided by the Convention Act; it is whether the “action or proceeding fall[s]\\n\\nunder the Convention” itself. 9 U.S.C. § 203. And our observation in previous\\n\\ncases cited by INPROTSA—that the Convention Act appears to expressly\\n\\nrecognize only two causes of action—does not resolve that inquiry. See Escobar,\\n\\n805 F.3d at 1286 9; Lindo, 652 F.3d at 1262–63; Czarina, 358 F.3d at 1290–91.\\n\\n We note further that INPROTSA acknowledged before the district court that,\\n\\n“[a]lthough the Convention does not provide grounds for vacatur, it explicitly\\n\\npermits such proceedings in the countries in which an award was rendered or\\n\\nwhose law served as governing law for the arbitration.” USDC Doc. 15 at 8\\n\\n(emphasis added) (citing the Convention art. V(1)(e)). Thus, INPROTSA must\\n\\nconcede the Convention, at the very least, contemplates and expressly recognizes\\n\\nvacatur proceedings.\\n\\n\\n\\n 9\\n Escobar implicitly undermines INPROTSA’s interpretation of § 203 in this case. In\\nEscobar, the defendant removed an action under § 205 before filing a motion to compel the case\\nto arbitration. 805 F.3d at 1282–83. Under INPROTSA’s reasoning, there would have been no\\njurisdiction, because the case removed from state court was neither an action to compel\\narbitration nor an action to confirm an arbitral award.\\n 14\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 15 of 30\\n\\n\\n But even if we assume vacatur proceedings are not expressly provided by\\n\\nthe Convention, INPROTSA’s argument fails because it incorrectly assumes an\\n\\naction or proceeding cannot fall under a particular body of law unless the action or\\n\\nproceeding is provided by that body of law. In other words, even if the Convention\\n\\ndoes not expressly provide a cause of action for vacatur, an action seeking vacatur\\n\\nnevertheless could fall under the Convention. Indeed, many causes of action are\\n\\nprovided by statutes entirely distinct from the body of law on which the action is\\n\\nbased. For example, a cause of action to vindicate certain constitutional rights is\\n\\nprovided by statute (e.g., 42 U.S.C. §§ 1981, 1983). But it would be odd to\\n\\nsuggest that an action or proceeding seeking to vindicate constitutional rights\\n\\nwould not fall under the purview of the Constitution, merely because the\\n\\nConstitution itself did not expressly provide the cause of action.\\n\\n In our view, an action or proceeding “fall[s] under the Convention,” for\\n\\npurposes of § 203, when it involves subject matter that—at least in part—is subject\\n\\nto the Convention, such that the action or proceeding implicates interests the\\n\\nConvention seeks to protect. In practice, this will require that the case sufficiently\\n\\nrelate to an agreement or award subject to the Convention, such that the agreement\\n\\nor award “could conceivably affect the outcome of the case.” Outokumpu\\n\\nStainless USA, LLC v. Converteam SAS, 902 F.3d 1316, 1324 (11th Cir. 2018).\\n\\n\\n\\n\\n 15\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 16 of 30\\n\\n\\n Our interpretation of § 203 is reinforced by our understanding of § 205.\\n\\nSection 205 demonstrates congressional intent to provide a federal forum for\\n\\nresolving issues implicating the Convention. We have explained that “[r]emoval\\n\\njurisdiction can be considered a ‘species’ of subject matter jurisdiction in that it\\n\\ndefines a federal court’s power to hear a particular kind of case—one that was\\n\\noriginally brought in a state court.” Cogdell, 366 F.3d at 1248. We agree with\\n\\nINPROTSA that removal jurisdiction is not necessarily coincident with original\\n\\nsubject-matter jurisdiction. See id.; see also Powerex Corp. v. Reliant Energy\\n\\nServs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411, 2417 (2007) (“[W]hen a district\\n\\ncourt remands a properly removed case because it nonetheless lacks subject-matter\\n\\njurisdiction, the remand is covered by [28 U.S.C.] § 1447(c) and thus shielded\\n\\nfrom review by § 1447(d).”). But the situations in which removal and subject-\\n\\nmatter jurisdiction do not line up typically involve circumstances distinct from\\n\\nthose presented in this case.\\n\\n Indeed, district courts sometimes lack removal jurisdiction, despite having\\n\\noriginal subject-matter jurisdiction, because other requirements of the removal\\n\\nstatute are not satisfied. See Cogdell, 366 F.3d at 1248. Likewise, subsequent\\n\\nevents might divest a district court of its subject-matter jurisdiction, even though\\n\\nthe case was properly removed under the applicable removal statute. See Powerex,\\n\\n551 U.S. at 232, 127 S. Ct. at 2417. For example, a case may be removed on the\\n\\n\\n 16\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 17 of 30\\n\\n\\nbasis of diversity jurisdiction and then remanded later on the ground that diversity\\n\\njurisdiction was subsequently destroyed by the addition of a non-diverse party. See\\n\\nid. at 231–32, 127 S. Ct. at 2417. But INPROTSA has provided no examples of a\\n\\ncircumstance in which a court had removal jurisdiction over a case for which it\\n\\nlacked subject-matter jurisdiction at the time of removal.\\n\\n In this case, Congress specifically authorized removal “[w]here the subject\\n\\nmatter of an action or proceeding pending in a State court relates to an arbitration\\n\\nagreement or award falling under the Convention.” 9 U.S.C. § 205. It would make\\n\\nlittle sense for Congress to specifically authorize removal of cases over which the\\n\\nfederal courts would lack subject-matter jurisdiction. It would likewise be\\n\\npuzzling for Congress to provide a federal forum for a party seeking to determine\\n\\nwhether an international arbitral award should be enforced, while requiring the\\n\\nsame litigants to remain in state court to determine whether the same award should\\n\\nbe vacated under principles controlled largely by federal law.\\n\\n It makes far more sense to conclude Congress intended § 203 to be read\\n\\nconsistently with § 205 as conferring subject-matter jurisdiction over actions or\\n\\nproceedings sufficiently related to agreements or awards subject to the Convention.\\n\\nWe therefore conclude the district court had subject-matter jurisdiction over\\n\\nINPROTSA’s petition to vacate the Award. 10\\n\\n\\n 10\\n We express no opinion on whether the Convention Act implicitly permits a petition to\\n 17\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 18 of 30\\n\\n\\n B. Dismissal of the Petition to Vacate11\\n\\n INPROTSA next challenges the district court’s summary dismissal of its\\n\\npetition to vacate on the ground that it did not raise any of the defenses outlined by\\n\\nthe Convention. INPROTSA contends the district court erred by applying our\\n\\nholding in Industrial Risk—that the defenses enumerated by the Convention\\n\\nprovide the exclusive grounds for vacating an award subject to the Convention.12\\n\\nSee 141 F.3d at 1446. According to INPROTSA, Industrial Risk was both wrongly\\n\\ndecided and abrogated by the Supreme Court’s subsequent decision in BG Group\\n\\n\\n\\n\\nvacate an international arbitral award filed directly in the district court. See 9 U.S.C. § 204 (“An\\naction or proceeding over which the district courts have jurisdiction pursuant to section 203 of\\nthis title may be brought in any such court in which save for the arbitration agreement an action\\nor proceeding with respect to the controversy between the parties could be brought, or in such\\ncourt for the district and division which embraces the place designated in the agreement as the\\nplace of arbitration if such place is within the United States.”). It is enough, in this case, to say\\nthat the district court had subject-matter jurisdiction over INPROTSA’s petition once it was\\nremoved from state court under § 205.\\n 11\\n In reviewing denials of motions to vacate arbitration awards, we review “the district\\ncourt’s findings of fact for clear error and its legal conclusions de novo.” Bamberger Rosenheim,\\nLtd., (Israel) v. OA Dev., Inc., (U.S.), 862 F.3d 1284, 1286 (11th Cir. 2017).\\n 12\\n INPROTSA also argued, in a single footnote in its opening brief, that the district court\\nerred by “retroactively” applying our precedent to a petition removed from state court. In\\nsupport, it cited a Florida case stating that state courts are not bound to follow opinions of the\\nlower federal courts. Br. of Appellant. at 39 n.8 (citing Pignato v. Great W. Bank, 664 So. 2d\\n1011, 1015 (Fla. 4th DCA 1995)). But INPROTSA provides no argument or authority for the\\ncounterintuitive proposition that, in a non-diversity case removed from state court, a district\\ncourt is free (much less required) to disregard the precedent of the court of appeals for the circuit\\nin which that district court is located, on an issue to which federal law applies. By failing to\\nsufficiently develop its argument on that issue in its opening brief, INPROTSA has abandoned it.\\nSee Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long\\nheld that an appellant abandons a claim when he either makes only passing references to it or\\nraises it in a perfunctory manner without supporting arguments and authority.”).\\n 18\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 19 of 30\\n\\n\\nPLC v. Republic of Argentina, 572 U.S. 25, 44–45, 134 S. Ct. 1198, 1212–13\\n\\n(2014).\\n\\n As an initial matter, INPROTSA’s contention that Industrial Risk was\\n\\nwrongly decided is irrelevant to our analysis of whether we are bound by its\\n\\nholding that the Convention provides the exclusive grounds for vacating an\\n\\ninternational arbitral award. See United States v. Steele, 147 F.3d 1316, 1317–18\\n\\n(11th Cir. 1998) (“[A] panel cannot overrule a prior one’s holding even though\\n\\nconvinced it is wrong.”). Under our rule concerning prior-panel precedent, “[w]e\\n\\nare bound by the holdings of earlier panels unless and until they are clearly\\n\\noverruled by this court en banc or by the Supreme Court.” Randall v. Scott, 610\\n\\nF.3d 701, 707 (11th Cir. 2010). The relevant inquiry, then, is whether Industrial\\n\\nRisk has been clearly overruled by the Supreme Court. It has not.\\n\\n “To constitute an ‘overruling’ for the purposes of [the] prior panel precedent\\n\\nrule, the Supreme Court decision ‘must be clearly on point.’” United States v.\\n\\nKaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (quoting Garrett v. Univ. of Ala. at\\n\\nBirmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003)). Moreover, “the\\n\\nintervening Supreme Court case [must] actually abrogate or directly conflict with,\\n\\nas opposed to merely weaken, the holding of the prior panel.” Id. (emphasis\\n\\nadded). Nothing in BG Group directly conflicts with Industrial Risk.\\n\\n\\n\\n\\n 19\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 20 of 30\\n\\n\\n In BG Group, the Supreme Court granted certiorari to address the narrow\\n\\nissue of whether a particular kind of decision by an arbitrator is entitled to\\n\\ndeference. See 572 U.S. at 29, 134 S. Ct. at 1203–04 (“The question before us is\\n\\nwhether a court of the United States, in reviewing an arbitration award made under\\n\\n[an investment treaty between the United Kingdom and Argentina], should\\n\\ninterpret and apply the local litigation requirement de novo, or with the deference\\n\\nthat courts ordinarily owe arbitration decisions.”). The Court was not asked to\\n\\ndecide whether the Convention provides the exclusive grounds for vacating awards\\n\\nsubject to the Convention, the parties did not brief that issue, and the Court did not\\n\\naddress that issue in its opinion.\\n\\n Rather, the Court was asked to vacate the award on the ground that the\\n\\narbitrators “exceeded their powers” within the meaning of 9 U.S.C. § 10(a)(4) of\\n\\nthe Federal Arbitration Act (FAA)—a ground not specifically provided by the\\n\\nConvention. 572 U.S. at 44, 134 S. Ct. at 1212. The Court reviewed the award\\n\\nand refused to vacate it, concluding the arbitrators had not “exceeded their\\n\\npowers.” 572 U.S. at 44–45, 134 S. Ct. at 1212–13. The Court’s reasoning in\\n\\nrefusing to vacate the award—that an asserted ground for vacatur under the FAA\\n\\ndid not apply on the merits—does not directly conflict with Industrial Risk’s\\n\\nholding that such a ground would not have warranted vacatur because the ground is\\n\\nnot enumerated in the Convention.\\n\\n\\n 20\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 21 of 30\\n\\n\\n At most, the Supreme Court’s analysis indirectly suggests that the\\n\\nConvention does not supply the exclusive grounds for vacating an international\\n\\narbitral award. See Bamberger Rosenheim, Ltd., (Israel) v. OA Dev., Inc., (U.S.),\\n\\n862 F.3d 1284, 1287 n.2 (11th Cir. 2017) (noting the tension between Industrial\\n\\nRisk and BG Group). But that is not enough under our precedent to conclude\\n\\nIndustrial Risk has been overruled. See Kaley, 579 F.3d at 1255. The district court\\n\\nthus did not err by dismissing the petition to vacate, because INPROTSA did not\\n\\nassert a valid defense under the Convention. 13\\n\\n But even if we were not bound by Industrial Risk, the petition to vacate\\n\\nwould warrant denial. Of the original grounds cited in INPROTSA’s petition, it\\n\\nasserts only three on appeal, 14 and none supports vacatur in this case.\\n\\n INPROTSA first contends the tribunal exceeded its authority when it\\n\\n“rewrote the parties’ agreement by reading out the ‘as long as’ language” which\\n\\nINPROTSA contends “condition[ed] INPROTSA’s agreement not to sell to third-\\n\\n\\n\\n\\n 13\\n INPROTSA conceded as much at oral argument, acknowledging it would lose on the\\nvacatur issue to the extent Industrial Risk was not overruled. See Oral Argument at 10:25–10:44.\\n 14\\n INPROTSA’s petition to vacate did not purport to rely on the FAA. Nevertheless, in\\nresponse to Del Monte’s motion to dismiss the petition, INPROTSA urged the district court to\\nconsider its arguments that the tribunal exceeded its powers both under state law and the FAA,\\nrepresenting that the grounds on which they relied were the same under either body of law. See\\nUSDC Doc. 15 at 9 (citing 9 U.S.C. § 10). We therefore conclude INPROTSA did not waive its\\narguments under the FAA by failing to assert them first before the district court. See Access\\nNow, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).\\n\\n\\n 21\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 22 of 30\\n\\n\\nparties [on] Del Monte’s ‘exclusive ownership’ of the MD-2 variety.” Br. of\\n\\nAppellant at 41. INPROTSA’s argument on this issue fails because the “as long\\n\\nas” language to which it refers,15 found in the Agreement’s Segunda (Second)\\n\\nclause, is ambiguous as to: (1) whether it modifies only INPROTSA’s obligation to\\n\\navoid selling to third parties; or (2) whether it also modifies INPROTSA’s\\n\\nobligation to return or destroy the plants derived from Del Monte’s MD-2 seeds\\n\\nupon termination of the Agreement. The obligation to return or destroy the plant\\n\\nstock derived from Del Monte’s seeds is found in a different part of the\\n\\nAgreement’s Segunda (Second) clause, and it is not immediately preceded by the\\n\\n“as long as” qualifier. 16 See USDC Doc. 1 at 42–43 (Spanish), 126 (tribunal’s\\n\\ninterpretation), 139–40 (parties’ competing translations).\\n\\n\\n 15\\n The tribunal based its decision on the original Agreement as written in Spanish. But\\nthe parties submitted conflicting translations of the Agreement’s Segunda (Second) clause in\\nEnglish—neither of which was adopted by the tribunal. Under INPROTSA’s version, the\\nlanguage on which it bases its argument states: “[A]s long as [Del Monte is] the exclusive\\nowner[] of this variety, [INPROTSA] guarantees that it shall only sell the MD-2 fruit grown in\\nits farm to [Del Monte] or to any of its affiliates, pursuant to the terms of this agreement.”\\nUSDC Doc. 1 at 139 (emphasis added).\\n 16\\n According to INPROTSA’s translation, the Segunda (Second) clause continues:\\n\\n [Del Monte] shall supply the MD-2 variety seed to [INPROTSA] in Buenos Aires\\n de Puntarenas and at no cost. . . . Thus, [INPROTSA] acknowledges that the seed\\n to be received in its farm is exclusively owned by [Del Monte], and it shall not\\n make any use of it or of any other vegetative material derived or obtained from\\n the planting to be developed, unless it has the prior written consent of [Del\\n Monte]. In this regard, the only purpose of this pineapple purchase and sale\\n agreement is the production of the MD-2 variety, for its exclusive sale to [Del\\n Monte], and therefore, if for any reason [INPROTSA] ceases to sell this pineapple\\n to [Del Monte], or in the event that the agreement is terminated for any reason and\\n at any time, either before or at completion of its term, [INPROTSA] shall\\n 22\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 23 of 30\\n\\n\\n It would make sense for Del Monte to impose these obligations\\n\\nindependently. For example, it would be prudent to require INPROTSA to respect\\n\\nDel Monte’s (purported) exclusive rights to the MD-2 variety, as against third\\n\\nparties, by requiring INPROTSA to refrain from selling MD-2 pineapples to such\\n\\nparties, “as long as” Del Monte maintained exclusive rights to the variety. It\\n\\nwould also make perfect sense for Del Monte to impose an independent obligation\\n\\non INPROTSA to avoid selling MD-2 pineapples derived from the seeds it\\n\\nprovided to INPROTSA at no cost—regardless of whether it held exclusive rights\\n\\nin the variety as against third parties. Interpreting these obligations as independent\\n\\nwould also be consistent with the tribunal’s observation that INPROTSA’s\\n\\nobligation to return or destroy the plant stock was acknowledged elsewhere in the\\n\\ncontract without referring to Del Monte’s exclusive ownership of the MD-2\\n\\nvariety. See USDC Doc. 1 at 122.\\n\\n It does not matter whether the tribunal’s interpretation is correct; it is enough\\n\\nto note that the “as long as” language on which INPROTSA relies does not\\n\\nunambiguously condition INPROTSA’s obligation to destroy or return the plant\\n\\nstock derived from Del Monte’s seeds on Del Monte’s maintaining exclusive\\n\\n\\n\\n\\n immediately cease production of this variety, pledging to destroy or return to [Del\\n Monte] the vegetative material owned by it.\\n\\nId. at 139–40.\\n 23\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 24 of 30\\n\\n\\nownership of the variety as against third parties. And the tribunal at least arguably\\n\\ninterpreted the contract. Thus, the tribunal did not exceed its authority. See\\n\\nWiregrass Metal Trades Council AFL-CIO v. Shaw Envt’l & Infrastructure, Inc.,\\n\\n837 F.3d 1083, 1088 (11th Cir. 2016) (holding that an arbitrator does not exceed its\\n\\nauthority by incorrectly interpreting an ambiguous contractual provision);\\n\\nComputer Task Grp., Inc. v. Palm Beach Cty., 782 So. 2d 942, 943 (Fla. 4th DCA\\n\\n2001) (“Under federal authority, which would apply to the contract in this case, the\\n\\ntest for whether an arbitrator exceeds his authority is whether the arbitrator had the\\n\\npower, based on the parties’ submissions or the arbitration agreement, to reach a\\n\\ncertain issue, not whether the arbitrator correctly decided that issue.”).\\n\\n INPROTSA next contends the tribunal “exceeded its authority by imposing\\n\\nits own rough sense of justice by awarding damages far in excess of the amount\\n\\nallowed by Florida law.” Br. of Appellant at 42. But the authorities on which\\n\\nINPROTSA relied to establish its contention that Florida law would not permit the\\n\\naward are not clearly on point—that is, they do not deal with a disgorgement award\\n\\nbased on revenues where the defendant’s profits could not be calculated because\\n\\nthe defendant refused to provide evidence of its expenses during discovery. See\\n\\nUSDC Doc. 1 at 33–34 (citing HCA Health Serv’s of Fla., Inc. v. Cyberknife Ctr.\\n\\nof Treasure Coast, LLC, 204 So. 3d 469, 470–71 (Fla. 4th DCA 2016) (dealing\\n\\nwith the measure of a plaintiff’s expectation damages rather than the measure of a\\n\\n\\n 24\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 25 of 30\\n\\n\\ndisgorgement award)). INPROTSA cited no authority holding that a disgorgement\\n\\naward under such circumstances would require speculation about the amount of the\\n\\ndefendant’s expenses.\\n\\n Moreover, under Florida law, an arbitrator’s mistake as to the correct\\n\\nmeasure of damages would not warrant vacatur. See Commc’ns Workers of Am. v.\\n\\nIndian River Cty. Sch. Bd., 888 So. 2d 96, 99 (Fla. 4th DCA 2004) (“[T]he fact that\\n\\nthe relief was such that it could not or would not be granted by a court of law or\\n\\nequity is not ground for vacating or refusing to confirm the award.” (quoting Fla.\\n\\nStat. § 682.13)); Computer Task Grp., 782 So. 2d at 943 (“[T]he arbitrator had the\\n\\nauthority to award damages under the contract. Even if he made an error of law in\\n\\nawarding some of the damages, a point we do not decide, we do not review his\\n\\nerrors of law, if any.”).\\n\\n Lastly, INPROTSA contends the tribunal exceeded its authority by “refusing\\n\\nto apply the procedural rules the parties’ [sic] had contracted for, i.e., ICC rules,\\n\\npermitting corrections of awards.” Br. of Appellant at 42. But the tribunal,\\n\\n“comparatively more expert about the meaning of [its] own rule, [is] comparatively\\n\\nbetter able to interpret and to apply it.” Howsam v. Dean Witter Reynolds, Inc.,\\n\\n537 U.S. 79, 85, 123 S. Ct. 588, 593 (2002). The tribunal did not exceed its power\\n\\nby reasonably construing its own rules as barring substantive reconsideration of the\\n\\nmerits of its damages award.\\n\\n\\n 25\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 26 of 30\\n\\n\\n Accordingly, the district court would not have erred by denying\\n\\nINPROTSA’s petition to vacate, even if our holding in Industrial Risk were not\\n\\nbinding.\\n\\n C. Confirmation of the Award17\\n\\n Finally, INPROTSA contends the Award should not have been confirmed,\\n\\nbecause the district court failed to consider the merits of INPROTSA’s public-\\n\\npolicy defenses.18 Contrary to INPROTSA’s assertion on this issue, the district\\n\\ncourt did, in fact, rule on the merits of its defenses. To the extent INPROTSA\\n\\nchallenges the manner in which the district court addressed its fraud defense,19 its\\n\\nargument lacks merit.\\n\\n INPROTSA suggests that, because it asserted a public-policy defense based\\n\\non fraud, the district court was required to disregard the arbitrator’s findings and\\n\\nconduct its own inquiry into whether the agreement was fraudulently induced.\\n\\nFrom that premise, INPROTSA contends the district court should have concluded\\n\\n\\n 17\\n In reviewing a district court’s confirmation of an arbitral award, we review its\\n“findings of fact for clear error and its legal conclusions de novo.” Bamberger Rosenheim, 862\\nF.3d at 1286.\\n 18\\n Because we affirm the district court’s conclusions on the merits of INPROTSA’s\\nconfirmation defenses, we need not address INPROTSA’s contention that the district court erred\\nby concluding INPROTSA was barred from asserting defenses to confirmation because of its\\nalleged failure to timely serve notice of the petition to vacate.\\n 19\\n INPROTSA failed to develop arguments with respect to any of its other purported\\ndefenses to confirmation. Thus, any challenge to the district court’s conclusions on those\\ndefenses is abandoned. See Sapuppo, 739 F.3d at 681.\\n\\n\\n 26\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 27 of 30\\n\\n\\nthe Award was procured by fraud, based largely on a ruling Magistrate Judge\\n\\nSimonton made in the Dole Litigation. 20 We disagree.\\n\\n INPROTSA’s argument hinges on dicta from a footnote in the Supreme\\n\\nCourt’s opinion in Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n.14, 94 S. Ct.\\n\\n2449, 2457 n.14 (1974). In Scherk, the Supreme Court presumed without deciding\\n\\nthat “the type of fraud alleged” in that case 21 “could be raised, under Art. V of the\\n\\nConvention . . . in challenging the enforcement of whatever arbitral award [was]\\n\\nproduced through arbitration.” The Court further noted that “Article V(2)(b) of the\\n\\nConvention provides that a country may refuse recognition and enforcement of an\\n\\naward if ‘recognition or enforcement of the award would be contrary to the public\\n\\npolicy of that country.’” Id. (quoting the Convention art. V(2)(b)). Based on that\\n\\nlanguage, INPROTSA contends it is entitled to re-litigate its fraud claim in federal\\n\\ncourt.\\n\\n\\n 20\\n Magistrate Judge Simonton’s finding, in the context of a discovery dispute to which\\nINPROTSA was not a party, that Del Monte attempted to mislead certain Costa Rican growers\\n(none of whom are alleged to have been INPROTSA) by sending out letters implying that it held\\na patent on the MD-2, does not establish that the Agreement between INPROTSA and Del\\nMonte was fraudulently induced.\\n 21\\n The issue in Scherk was whether to apply the now overruled holding of Wilko v. Swan,\\n346 U.S. 427, 438, 74 S. Ct. 182, 188 (1953), that an agreement to arbitrate could not preclude a\\nlawsuit alleging a violation of the Securities Act of 1933, to a lawsuit brought against a foreign\\nparty that alleged violations of Rule 10(b) of the Securities Exchange Act of 1934. See Scherk,\\n417 U.S. at 509–510, 94 S. Ct. at 2452–53. Thus, the “type of fraud alleged,” with which the\\nSupreme Court was concerned in Scherk, was securities fraud. See id. at 519 n.14, 94 S. Ct. at\\n2457 n.14. We do not interpret Scherk as suggesting that an ordinary claim of fraudulent\\ninducement, particularly one resolved through binding arbitration, would raise questions of\\npublic policy under the Convention.\\n 27\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 28 of 30\\n\\n\\n Even if we, like the Supreme Court in Scherk, were to presume without\\n\\ndeciding that a defendant can assert a fraud-based public-policy defense to\\n\\nconfirmation under the Convention, it would not allow for re-litigation of a\\n\\nfraudulent-inducement claim already determined through binding arbitration. If\\n\\nanything, public policy would require the federal courts to enforce the parties’\\n\\nagreement to arbitrate that claim. See Prima Paint Corp. v. Flood & Conklin Mfg.\\n\\nCo., 388 U.S. 395, 403–04, 87 S. Ct. 1801, 1806 (1967) (explaining that, where an\\n\\nagreement to arbitrate is broad enough to encompass fraudulent-inducement\\n\\nclaims, an arbitrator must resolve any claim that the entire contract—rather than\\n\\njust its arbitration clause—was fraudulently induced); Solymar Invs., Ltd. v. Banco\\n\\nSantander S.A., 672 F.3d 981, 995 (11th Cir. 2012) (“[S]ince the . . . allegations\\n\\nare more properly characterized as relating to fraud in the inducement, the issue\\n\\nbecomes one properly reserved for an arbitrator.”).\\n\\n Moreover, we have held in the context of the FAA that vacatur cannot be\\n\\npremised on a purported fraud known at the time of the arbitration. See Scott v.\\n\\nPrudential Sec., Inc., 141 F.3d 1007, 1015 n.16 (11th Cir. 1998) (“[T]he arbitrators\\n\\nhad all the material information before them, a fact that precludes vacatur. . . .”),\\n\\noverruled in part on other grounds by Hall Street Assocs., L.L.C. v. Mattel, Inc.,\\n\\n552 U.S. 576, 585, 128 S. Ct. 1396, 1403–04 (2008); Bonar v. Dean Witter\\n\\nReynolds, Inc., 835 F.2d 1378, 1383 (11th Cir. 1988) (holding that vacatur for\\n\\n\\n 28\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 29 of 30\\n\\n\\nfraud requires: (1) clear and convincing evidence; (2) that the fraud must not have\\n\\nbeen discoverable with due diligence prior to or during the arbitration; and (3) that\\n\\nthe fraud materially relates to an issue in the arbitration); see also A.G. Edwards &\\n\\nSons, Inc. v. McCollough, 967 F.2d 1401, 1404 (9th Cir. 1992) (“[W]here the fraud\\n\\nor undue means is not only discoverable, but discovered and brought to the\\n\\nattention of the arbitrators, a disappointed party will not be given a second bite at\\n\\nthe apple.”). A fraud-based defense under the Convention could not possibly be\\n\\nbroader than the fraud-based ground for vacatur expressly provided by the FAA.\\n\\nSee 9 U.S.C. § 10(a)(1).\\n\\n On the contrary, the public-policy defense under the Convention is very\\n\\nnarrow. It “applies only when confirmation or enforcement of a foreign arbitration\\n\\naward would violate the forum state’s most basic notions of morality and justice.”\\n\\nBamberger Rosenheim, 862 F.3d at 1289 n.4 (quoting Ministry of Def. & Support\\n\\nfor the Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc., 665\\n\\nF.3d 1091, 1096–97 (9th Cir. 2011)). INPROTSA knew about the Dole Litigation\\n\\nat the time it contracted with Del Monte; therefore, enforcing the Award in this\\n\\ncase does not offend public policy at all, much less meet the high threshold for\\n\\nsuch a defense to succeed under the Convention.\\n\\n IV. CONCLUSION\\n\\n\\n\\n\\n 29\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 30 of 30\\n\\n\\n The district court had jurisdiction over INPROTSA’s petition to vacate the\\n\\nAward after it was removed from state court. The petition was appropriately\\n\\ndismissed for failing to assert a valid ground for vacatur, and the district court did\\n\\nnot err by confirming the Award. 22\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 22\\n Del Monte’s motion for sanctions (Doc. 73) is DENIED because INPROTSA’s appeal\\nraises a number of non-frivolous challenges to the district court’s orders.\\n 30\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"BLACK"},"judge3":{"kind":"string","value":"WALKER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612396/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: INVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A., a Costa Rican Corporation, Plaintiff-Appellant, v. DEL MONTE INTERNATIONAL GMBH, a Swiss Corporation, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-17623 Date Filed: 04/23/2019 Page: 1 of 30\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 16-17623; 17-12163\n ________________________\n\n D.C. Docket No. 1:16-cv-24275-FAM\n\n\nINVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A.,\na Costa Rican Corporation,\n\n Plaintiff-Appellant,\n\n\n versus\n\n\nDEL MONTE INTERNATIONAL GMBH,\na Swiss Corporation,\n\n Defendant-Appellee.\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 23, 2019)\n\f Case: 16-17623 Date Filed: 04/23/2019 Page: 2 of 30\n\n\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\n\nBLACK, Circuit Judge:\n\n Appellant Inversiones y Procesadora Tropical INPROTSA, S.A.\n\n(INPROTSA) appeals from the district court’s orders denying its petition to vacate\n\nand confirming an international arbitral award issued in favor of Appellee Del\n\nMonte International GmbH (Del Monte). INPROTSA contends the district court\n\nlacked subject-matter jurisdiction over its petition to vacate the arbitral award,\n\nwhich Del Monte removed from state court. It further contends that, even if the\n\ndistrict court had jurisdiction, the petition to vacate should not have been dismissed\n\non the ground that INPROTSA failed to assert a valid defense under the\n\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards (the\n\nConvention). Finally, INPROTSA contends the district court erred by granting Del\n\nMonte’s motion to confirm the award. We affirm the district court.\n\n I. BACKGROUND\n\n The MD-2 pineapple variety was developed by the Pineapple Research\n\nInstitute of Hawaii (the Institute), an agricultural research organization that at one\n\npoint was run jointly by Del Monte, the Dole Fruit Company (Dole), and the Maui\n\nPineapple Company (Maui). Dole withdrew from the Institute before the MD-2\n\n\n *\n Honorable John M. Walker, Jr., Circuit Judge for the United States Court of Appeals for\nthe Second Circuit, sitting by designation.\n\n\n 2\n\f Case: 16-17623 Date Filed: 04/23/2019 Page: 3 of 30\n\n\nwas created. And Maui, for its part, played little to no role in developing the MD-\n\n2. Instead, the MD-2’s commercial development was driven largely (if not solely)\n\nby Del Monte. Del Monte initiated tests on the variety in 1980, released the\n\nvariety to its Hawaiian operations in 1981, began selling the MD-2 in North\n\nAmerica and Europe in 1987, and introduced the variety to Costa Rica in 1994,\n\nwhere it worked to adapt the MD-2 to that country’s climate and conditions.\n\nAccording to Del Monte, through its efforts, the MD-2 became the most popular\n\npineapple variety in the world.\n\n Del Monte did not, however, hold a patent on the MD-2. And given the\n\nMD-2’s commercial success, Del Monte was not the only pineapple producer\n\ninterested in selling the variety. Indeed, Dole commercialized the MD-2 in 2000,\n\nwhich prompted a federal lawsuit from Del Monte (the Dole Litigation). Del\n\nMonte asserted claims for unfair competition, trade-secret violations, and\n\nconversion of vegetative material, alleging that Dole infringed its rights by—\n\namong other things—misappropriating knowledge and materials Del Monte\n\ndeveloped in Costa Rica.\n\n The Dole Litigation eventually settled in 2002 and, as a result, Del Monte\n\nacknowledged it did not have the exclusive right to sell the MD-2. But before that\n\nsettlement, while the Dole Litigation was pending, INPROTSA weighed offers\n\nfrom both Dole and Del Monte to begin producing the MD-2 at its Costa Rican\n\n\n 3\n\f Case: 16-17623 Date Filed: 04/23/2019 Page: 4 of 30\n\n\nplantation. In the end, INPROTSA chose to go with Del Monte, noting among\n\nother factors that a ruling against Dole in the Dole Litigation might leave\n\nINPROTSA without a market for its pineapples.\n\n In May 2001, against that backdrop, INPROTSA and Del Monte entered into\n\nan agreement (the Agreement) for the production, packaging, and sale of MD-2\n\npineapples. Under the Agreement, Del Monte agreed to provide INPROTSA with\n\nMD-2 seeds 1 at no cost. INPROTSA, in turn, acknowledged that Del Monte\n\nmaintained ownership of all MD-2 seeds used on INPROTSA’s plantation.\n\nINPROTSA further agreed to grow, sell, package, and deliver MD-2 pineapples\n\nexclusively to Del Monte. The parties also stipulated that Del Monte was “the\n\nexclusive owner of the variety known as MD-2,” and they agreed that if the\n\nAgreement were terminated for any reason, including its expiration, INPROTSA\n\nwould cease producing the MD-2 and either destroy its plant stock or return it to\n\nDel Monte.\n\n During the 12-year term of the Agreement, Del Monte provided tens of\n\nmillions of MD-2 seeds at no cost, and Del Monte purchased more than $200\n\nmillion in pineapples from INPROTSA. After the Agreement expired in 2013,\n\n\n\n 1\n Commercial pineapples are not grown from “seeds” in the ordinary sense of the word.\nThey are grown by planting the leaves from the crown of the pineapple fruit or by planting\nseedlings that grow out of the pineapple plant’s stem. The term “pineapple seeds” thus refers\ncollectively to crowns or seedlings that can be planted in the soil to produce new plants. It is in\nthis sense we use the term “seeds” in this Opinion.\n 4\n\f Case: 16-17623 Date Filed: 04/23/2019 Page: 5 of 30\n\n\nhowever, INPROTSA neither destroyed nor returned its MD-2 plant stock to Del\n\nMonte. Instead, it sold the MD-2 pineapples to third parties.\n\n Del Monte initiated an arbitration against INPROTSA in the International\n\nCourt of Arbitration of the International Chamber of Commerce (ICC) in Miami.\n\nDel Monte alleged that INPROTSA breached the Agreement and converted its\n\nplant stock, for which Del Monte sought specific performance, injunctive relief,\n\nand damages. INPROTSA responded by arguing—among other things—that\n\nbecause Del Monte did not exclusively own the MD-2 variety, which INPROTSA\n\ncontended was a condition precedent to its obligations under the Agreement,\n\nINPROTSA was not obligated to sell exclusively to Del Monte or return its MD-2\n\nplant stock. INPROTSA also contended it was fraudulently induced to enter the\n\nAgreement by Del Monte’s false representation that it had exclusive ownership of\n\nthe MD-2 variety.\n\n The arbitration tribunal issued its award (the Award) on June 10, 2016. In a\n\nthorough opinion, to which there was a dissent,2 the tribunal ruled in favor of Del\n\nMonte on its claim that INPROTSA breached the Agreement. Specifically, the\n\ntribunal concluded that Del Monte’s exclusive ownership of the MD-2 variety (as\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: INVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A., a Costa Rican Corporation, Plaintiff-Appellant, v. DEL MONTE INTERNATIONAL GMBH, a Swiss Corporation, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-17623 Date Filed: 04/23/2019 Page: 1 of 30\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 16-17623; 17-12163\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-24275-FAM\\n\\n\\nINVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A.,\\na Costa Rican Corporation,\\n\\n Plaintiff-Appellant,\\n\\n\\n versus\\n\\n\\nDEL MONTE INTERNATIONAL GMBH,\\na Swiss Corporation,\\n\\n Defendant-Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 23, 2019)\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 2 of 30\\n\\n\\nBefore MARCUS, BLACK and WALKER, * Circuit Judges.\\n\\nBLACK, Circuit Judge:\\n\\n Appellant Inversiones y Procesadora Tropical INPROTSA, S.A.\\n\\n(INPROTSA) appeals from the district court’s orders denying its petition to vacate\\n\\nand confirming an international arbitral award issued in favor of Appellee Del\\n\\nMonte International GmbH (Del Monte). INPROTSA contends the district court\\n\\nlacked subject-matter jurisdiction over its petition to vacate the arbitral award,\\n\\nwhich Del Monte removed from state court. It further contends that, even if the\\n\\ndistrict court had jurisdiction, the petition to vacate should not have been dismissed\\n\\non the ground that INPROTSA failed to assert a valid defense under the\\n\\nConvention on the Recognition and Enforcement of Foreign Arbitral Awards (the\\n\\nConvention). Finally, INPROTSA contends the district court erred by granting Del\\n\\nMonte’s motion to confirm the award. We affirm the district court.\\n\\n I. BACKGROUND\\n\\n The MD-2 pineapple variety was developed by the Pineapple Research\\n\\nInstitute of Hawaii (the Institute), an agricultural research organization that at one\\n\\npoint was run jointly by Del Monte, the Dole Fruit Company (Dole), and the Maui\\n\\nPineapple Company (Maui). Dole withdrew from the Institute before the MD-2\\n\\n\\n *\\n Honorable John M. Walker, Jr., Circuit Judge for the United States Court of Appeals for\\nthe Second Circuit, sitting by designation.\\n\\n\\n 2\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 3 of 30\\n\\n\\nwas created. And Maui, for its part, played little to no role in developing the MD-\\n\\n2. Instead, the MD-2’s commercial development was driven largely (if not solely)\\n\\nby Del Monte. Del Monte initiated tests on the variety in 1980, released the\\n\\nvariety to its Hawaiian operations in 1981, began selling the MD-2 in North\\n\\nAmerica and Europe in 1987, and introduced the variety to Costa Rica in 1994,\\n\\nwhere it worked to adapt the MD-2 to that country’s climate and conditions.\\n\\nAccording to Del Monte, through its efforts, the MD-2 became the most popular\\n\\npineapple variety in the world.\\n\\n Del Monte did not, however, hold a patent on the MD-2. And given the\\n\\nMD-2’s commercial success, Del Monte was not the only pineapple producer\\n\\ninterested in selling the variety. Indeed, Dole commercialized the MD-2 in 2000,\\n\\nwhich prompted a federal lawsuit from Del Monte (the Dole Litigation). Del\\n\\nMonte asserted claims for unfair competition, trade-secret violations, and\\n\\nconversion of vegetative material, alleging that Dole infringed its rights by—\\n\\namong other things—misappropriating knowledge and materials Del Monte\\n\\ndeveloped in Costa Rica.\\n\\n The Dole Litigation eventually settled in 2002 and, as a result, Del Monte\\n\\nacknowledged it did not have the exclusive right to sell the MD-2. But before that\\n\\nsettlement, while the Dole Litigation was pending, INPROTSA weighed offers\\n\\nfrom both Dole and Del Monte to begin producing the MD-2 at its Costa Rican\\n\\n\\n 3\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 4 of 30\\n\\n\\nplantation. In the end, INPROTSA chose to go with Del Monte, noting among\\n\\nother factors that a ruling against Dole in the Dole Litigation might leave\\n\\nINPROTSA without a market for its pineapples.\\n\\n In May 2001, against that backdrop, INPROTSA and Del Monte entered into\\n\\nan agreement (the Agreement) for the production, packaging, and sale of MD-2\\n\\npineapples. Under the Agreement, Del Monte agreed to provide INPROTSA with\\n\\nMD-2 seeds 1 at no cost. INPROTSA, in turn, acknowledged that Del Monte\\n\\nmaintained ownership of all MD-2 seeds used on INPROTSA’s plantation.\\n\\nINPROTSA further agreed to grow, sell, package, and deliver MD-2 pineapples\\n\\nexclusively to Del Monte. The parties also stipulated that Del Monte was “the\\n\\nexclusive owner of the variety known as MD-2,” and they agreed that if the\\n\\nAgreement were terminated for any reason, including its expiration, INPROTSA\\n\\nwould cease producing the MD-2 and either destroy its plant stock or return it to\\n\\nDel Monte.\\n\\n During the 12-year term of the Agreement, Del Monte provided tens of\\n\\nmillions of MD-2 seeds at no cost, and Del Monte purchased more than $200\\n\\nmillion in pineapples from INPROTSA. After the Agreement expired in 2013,\\n\\n\\n\\n 1\\n Commercial pineapples are not grown from “seeds” in the ordinary sense of the word.\\nThey are grown by planting the leaves from the crown of the pineapple fruit or by planting\\nseedlings that grow out of the pineapple plant’s stem. The term “pineapple seeds” thus refers\\ncollectively to crowns or seedlings that can be planted in the soil to produce new plants. It is in\\nthis sense we use the term “seeds” in this Opinion.\\n 4\\n\\f Case: 16-17623 Date Filed: 04/23/2019 Page: 5 of 30\\n\\n\\nhowever, INPROTSA neither destroyed nor returned its MD-2 plant stock to Del\\n\\nMonte. Instead, it sold the MD-2 pineapples to third parties.\\n\\n Del Monte initiated an arbitration against INPROTSA in the International\\n\\nCourt of Arbitration of the International Chamber of Commerce (ICC) in Miami.\\n\\nDel Monte alleged that INPROTSA breached the Agreement and converted its\\n\\nplant stock, for which Del Monte sought specific performance, injunctive relief,\\n\\nand damages. INPROTSA responded by arguing—among other things—that\\n\\nbecause Del Monte did not exclusively own the MD-2 variety, which INPROTSA\\n\\ncontended was a condition precedent to its obligations under the Agreement,\\n\\nINPROTSA was not obligated to sell exclusively to Del Monte or return its MD-2\\n\\nplant stock. INPROTSA also contended it was fraudulently induced to enter the\\n\\nAgreement by Del Monte’s false representation that it had exclusive ownership of\\n\\nthe MD-2 variety.\\n\\n The arbitration tribunal issued its award (the Award) on June 10, 2016. In a\\n\\nthorough opinion, to which there was a dissent,2 the tribunal ruled in favor of Del\\n\\nMonte on its claim that INPROTSA breached the Agreement. Specifically, the\\n\\ntribunal concluded that Del Monte’s exclusive ownership of the MD-2 variety (as\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1892,"cells":{"id":{"kind":"number","value":4612606,"string":"4,612,606"},"name":{"kind":"string","value":"HARD CANDY, LLC, a Florida Limited Liability Company, Plaintiff-Appellant, v. ANASTASIA BEVERLY HILLS, INC., a California Corporation, Defendant-Appellee."},"name_abbreviation":{"kind":"string","value":"Hard Candy, LLC v. Anastasia Beverly Hills, Inc."},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"18-10877"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Grant, Hull\", \"parties\": \"\", \"opinions\": [{\"author\": \"MARCUS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10877 Date Filed: 04/23/2019 Page: 1 of 36\\n\\n\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10877\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-21203-KMW\\n\\n\\n\\nHARD CANDY, LLC,\\na Florida limited liability company,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nANASTASIA BEVERLY HILLS, INC.,\\na California Corporation,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 23, 2019)\\n\\nBefore MARCUS, GRANT, and HULL, Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 2 of 36\\n\\n\\n\\n\\n “Trial by jury,” James Madison said in a speech urging the adoption of the\\n\\nBill of Rights, “is as essential to secure the liberty of the people as any one of the\\n\\npre-existent rights of nature.” James Madison, Speech in Congress Proposing\\n\\nConstitutional Amendments, in Writings 445–46 (Jack Rakove ed., 1999). But\\n\\ncourts have long held that a jury is guaranteed only for claims that would have\\n\\nbeen heard in courts of law at the time of the Founding, not for those that would\\n\\nhave been heard in courts of equity. This appeal requires us to decide whether the\\n\\nSeventh Amendment right to trial by jury applies when a trademark plaintiff\\n\\nattempts to recover the profits the defendant made by selling the allegedly\\n\\ninfringing goods. Plaintiff Hard Candy, LLC, a cosmetics company, seeks every\\n\\nremedy permitted by the Lanham Act besides actual damages -- that is, it asked for\\n\\nan injunction to prevent future infringement, an accounting and the disgorgement\\n\\nof profits that the defendant made from the allegedly infringing goods, and\\n\\ndeclaratory relief, along with fees and costs. Because the claim didn’t include\\n\\nactual damages, the district court denied Hard Candy’s request for a jury trial.\\n\\nAfter a bench trial, the court found that there was no likelihood of confusion and\\n\\nheld that defendant Anastasia Beverly Hills, Inc., made out a fair use defense to\\n\\ninfringement. Hard Candy challenges each of these determinations on appeal.\\n\\n As a threshold matter, this case requires us to resolve a Seventh Amendment\\n\\nquestion of first impression before reaching the merits. Hard Candy argues that a\\n 2\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 3 of 36\\n\\n\\njury should have decided its claims because it was seeking to recover Anastasia’s\\n\\nprofits as a “proxy” for the damages it suffered due to infringement. This basis for\\n\\nseeking profits, the company argues, means that the remedy is legal, not equitable\\n\\nin nature and carries with it the right to a jury trial. We disagree. The remedy of\\n\\nan accounting and disgorgement of profits for trademark infringement is equitable\\n\\nin nature and has long been considered that way, so we hold that a plaintiff seeking\\n\\nthe defendant’s profits in lieu of actual damages is not entitled to a jury trial. As\\n\\nfor the district court’s merits determinations on infringement and fair use, we find\\n\\nno error and, therefore, affirm.\\n\\n I.\\n\\n Hard Candy, LLC, is a cosmetics company headquartered in Hollywood,\\n\\nFlorida. The company’s predecessor first filed a trademark application for the\\n\\nHARD CANDY mark in 1995. Since then, Hard Candy has continuously used the\\n\\nHARD CANDY mark in connection with the sale of cosmetics. 1 Hard Candy does\\n\\nnot produce cosmetics itself; it licenses the mark to a third-party cosmetics\\n\\nproducer, NuWorld Corporation, which makes nail polish, eye shadow, lip gloss,\\n\\nand various facial beauty products that are sold under the Hard Candy name.\\n\\n\\n\\n\\n1\\n Hard Candy owns at least fourteen federally registered trademarks. See Registration Nos.\\n1,987,262; 2,343,732; 2,552,029; 2,666,792; 3,695,602; 2,362,340; 2,567,186; 2,150,397;\\n2,666,793; 4,218,371; 4,735,879; 4,818,389; 2,059,480; and 4,713,229.\\n 3\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 4 of 36\\n\\n\\nThese items are sold exclusively at Wal-Mart stores and on Wal-Mart’s website,\\n\\nand have generated sales in excess of $36 million each year since 2011.\\n\\n Anastasia Beverly Hills, Inc., a California-based corporation, is also in the\\n\\ncosmetics business. In December 2015, Anastasia announced the release of a new\\n\\nedition in its line of “Glow Kits,” which are flip-open makeup palettes containing\\n\\nfour different shades of facial highlighter. The Gleam Glow Kit included the\\n\\nwords “hard candy” in capital letters on the back and inside of the package to\\n\\ndesignate a peach-pink shade of makeup. Anastasia says that it chose this name\\n\\nbecause the product had a “shimmer” that reminded the developer of candies that\\n\\nher grandmother gave her when she was young. The developer testified that she\\n\\nwas aware of Hard Candy, LLC, as a seller of nail polish in the 1990s, but she was\\n\\nnot aware of the company’s continued existence when she came up with the name.\\n\\n The following pictures show the front, back, and inside of the kit offered by\\n\\nAnastasia:\\n\\n\\n\\n\\n 4\\n\\fCase: 18-10877 Date Filed: 04/23/2019 Page: 5 of 36\\n\\n\\n\\n\\n 5\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 6 of 36\\n\\n\\n\\n\\n The day after Anastasia announced the release of the Gleam Glow Kit, Hard\\n\\nCandy sent Anastasia a cease and desist letter asserting that it had infringed on its\\n\\ntrademark. Anastasia’s owner, Anastasia Soare, attempted to call the CEO of Hard\\n\\nCandy but she was unable to make contact; Anastasia’s and Hard Candy’s\\n\\nattorneys also exchanged emails without resolving the issue before discussions\\n\\nbroke off. Anastasia went on to sell the kit -- with the “hard candy” shade -- online\\n\\nand in various retail stores, including Macy’s, Ulta, and Sephora. The words “hard\\n\\ncandy” appeared in Anastasia’s marketing materials and social media posts, as well\\n\\nas on the product itself. In documents provided to retailers, the company described\\n\\nthe shade as a “mood-changing golden peach with a pink pearl reflective finish.”\\n\\n\\n\\n 6\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 7 of 36\\n\\n\\nThe Gleam Glow Kit was on the market from December 2015 until August 2016,\\n\\nconsistent with Anastasia’s initial plan to make it a limited-edition product.\\n\\n Hard Candy filed a complaint in the United States District Court for the\\n\\nSouthern District of Florida against Anastasia, claiming trademark infringement\\n\\nunder § 32(a) of the Lanham Act, 15 U.S.C. § 1114(1); unfair competition under\\n\\n§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); common law trademark\\n\\ninfringement; and common law unfair competition. Hard Candy sought an\\n\\naccounting and the disgorgement of Anastasia’s profits, statutory damages, a\\n\\npermanent injunction barring Anastasia’s use of its mark, declaratory relief, and\\n\\nfees and costs. The complaint included a request for actual damages, but, notably,\\n\\nHard Candy dropped this application before trial. The district court then struck\\n\\nHard Candy’s jury trial demand because all of the remaining remedies were\\n\\nequitable in nature.\\n\\n To prevail on each of its claims, Hard Candy had to establish that\\n\\nAnastasia’s use of the words “hard candy” created a likelihood of confusion. See\\n\\nTally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1026 & n.14 (11th Cir.\\n\\n1989) (noting that the elements of trademark infringement under common law and\\n\\nthe Lanham Act “are the same,” and that “an unfair competition claim based only\\n\\nupon alleged trademark infringement is practically identical to an infringement\\n\\nclaim”). Applying our seven-factor likelihood of confusion test, the district court\\n\\n\\n 7\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 8 of 36\\n\\n\\ndetermined that Hard Candy had not met its burden. The court also concluded that\\n\\neven if Hard Candy could establish infringement, Anastasia had made out a fair\\n\\nuse defense because it used the term “hard candy” in good faith as a description of\\n\\nthe product, not as a mark.\\n\\n This appeal followed.\\n\\n II.\\n\\n Hard Candy first argues that the district court erred in its denial of a jury\\n\\ntrial. We review the grant of a motion to strike a jury demand de novo. FN\\n\\nHerstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080 (11th Cir. 2016).\\n\\n We have yet to address the question whether a plaintiff seeking the\\n\\ndisgorgement of the defendant’s profits and an accounting under the Lanham Act\\n\\nhas the right to have its claims decided by a jury. 2 A plaintiff is entitled to a jury\\n\\ntrial in an action that is “analogous” to a claim that would have been brought in the\\n\\nEnglish law courts at common law, but not if the claims sounded in equity or\\n\\nadmiralty. See Tull v. United States, 481 U.S. 412, 417 (1987). Hard Candy says\\n\\nthat at least “where a plaintiff seeks to recover a defendant’s profits as a ‘proxy’\\n\\nfor actual damages, the claim is a legal one that entitles the plaintiff to a jury\\n\\n\\n\\n2\\n This Court was recently presented with the same question in FN Herstal SA v. Clyde Armory\\nInc., 838 F.3d 1071 (11th Cir. 2016), but the panel affirmed the district court’s denial of a motion\\nto reinstate a demand for disgorgement of profits and so it was not required to reach the issue. Id.\\nat 1090 & n.10 (“[W]e need not reach the issue of whether recovery of profits under § 1117(a) of\\nthe Lanham Act is an equitable remedy for which there is no right to a jury trial.”).\\n 8\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 9 of 36\\n\\n\\ntrial.”3 Br. for Plaintiff-Appellants at 23. However, we agree with the district\\n\\ncourt’s conclusion that the requested remedy is equitable in nature and thus does\\n\\nnot confer a right to trial by jury.\\n\\n A.\\n\\n The Lanham Act provides that “[w]hen a violation of any right of the\\n\\nregistrant of a mark . . . shall have been established in any civil action arising under\\n\\nthis chapter, the plaintiff shall be entitled, . . . subject to the principles of equity, to\\n\\nrecover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3)\\n\\nthe costs of the action.” 15 U.S.C. § 1117(a). In “exceptional cases,” a prevailing\\n\\nparty can be awarded attorneys’ fees. Id. A different section of the Act vests\\n\\ncourts with the “power to grant injunctions, according to the principles of equity\\n\\nand upon such terms as the court may deem reasonable, to prevent the violation of\\n\\nany right of the registrant of a mark registered in the Patent and Trademark Office\\n\\nor to prevent a violation under subsection (a), (c), or (d) of [15 U.S.C. § 1125].”\\n\\nId. § 1116(a).\\n\\n\\n\\n\\n3\\n Anastasia replies that Hard Candy waived this argument, since its primary argument in district\\ncourt was that a plaintiff seeking profits is entitled to a jury trial in all circumstances, regardless\\nof the theory, rationale, or remedy. But Hard Candy has not changed its position that it was entitled\\nto a jury trial because its requested relief is legal in nature, and its argument was fairly presented\\nto the district court. “Although new claims or issues may not be raised” on appeal, “new arguments\\nrelating to preserved claims may be reviewed.” Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304\\nn.3 (11th Cir. 2008) (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).\\n 9\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 10 of 36\\n\\n\\n The Act, therefore, provides a broad menu of remedies to a plaintiff\\n\\nclaiming infringement. In “ordinary trademark infringement actions . . . complete\\n\\ninjunctions against the infringing party are the order of the day.” SunAmerica\\n\\nCorp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325, 1336 (11th Cir. 1996).\\n\\nThis is because “the public deserves not to be led astray by the use of inevitably\\n\\nconfusing marks,” and injunctive relief is the surest way to prevent future harm.\\n\\nAngel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1209 (11th Cir.\\n\\n2008); 5 McCarthy on Trademarks and Unfair Competition § 30:1 (5th ed. 2018)\\n\\n[hereinafter “McCarthy”] (describing injunctive relief as the “usual and normal\\n\\nremedy” and the “usual historical practice” after a court has found infringement).\\n\\nIndeed, injunctive relief is the quintessential form of equitable remedy; it does not\\n\\nentitle a plaintiff to a jury trial.\\n\\n The monetary damages available to a Lanham Act trademark plaintiff can be\\n\\ndivided into five rough categories: recovery of the defendant’s profits, actual\\n\\nbusiness damages and out-of-pocket losses (like corrective advertising), lost\\n\\nprofits, punitive damages, and attorneys’ fees. See id. § 30:57. “Actual damages”\\n\\nin this context covers everything from damages from lost sales or licensing fees\\n\\ndue to the infringer’s sale of offending goods to intangible harm like reputational\\n\\ndamage and loss of good will. As we have said, a trademark plaintiff “may recover\\n\\nfor all elements of injury to the business of the trademark owner proximately\\n\\n\\n 10\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 11 of 36\\n\\n\\nresulting from the infringer’s wrongful acts.” Bos. Prof’l Hockey Ass’n, Inc. v.\\n\\nDallas Cap & Emblem Mfg., Inc., 597 F.2d 71, 75 (5th Cir. 1979) (quotations\\n\\nomitted) (permitting recovery of damages in the amount that the infringer would\\n\\nhave had to pay the plaintiff for nonexclusive license to use the marks).4 The\\n\\nprimary limiting principle is that the damages may not be “speculative.” See, e.g.,\\n\\nRamada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562, 1564 (11th Cir. 1986)\\n\\n(“The partners stress that a trademark infringement award must be based on proof\\n\\nof actual damages and that some evidence of harm arising from the violation must\\n\\nexist. . . . We must decide whether the district court’s assessment of the actual\\n\\ndamages or harm suffered by Ramada Inns was speculative.”).\\n\\n The disgorgement of profits and the closely related remedy of an accounting\\n\\nare much different. “The remedy of damages seeks to compensate the victim for\\n\\nits loss, whereas the remedy of an accounting . . . [seeks] disgorgement of ill-\\n\\ngotten profits.” SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prods., LLC,\\n\\n137 S. Ct. 954, 964 (2017). The Lanham Act permits recovery of profits because\\n\\nactual damages are often difficult to prove. It “shifts the burden of proving\\n\\neconomic injury off the innocent party, and places the hardship of disproving\\n\\neconomic gain onto the infringer.” George Basch Co. v. Blue Coral, Inc., 968 F.2d\\n\\n\\n4\\n Decisions of the former Fifth Circuit issued before October 1, 1981 were adopted as binding\\nprecedent in the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.\\n1981) (en banc).\\n 11\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 12 of 36\\n\\n\\n1532, 1539 (2d Cir. 1992); Wesco Mfg., Inc. v. Tropical Attractions of Palm\\n\\nBeach, Inc., 833 F.2d 1484, 1487–88 (11th Cir. 1987). The statute does so by\\n\\nexpressly providing that “the plaintiff shall be required to prove defendant’s sales\\n\\nonly,” while the “defendant must prove all elements of cost or deduction claimed”\\n\\nagainst its profits. 15 U.S.C. § 1117(a). So, when a plaintiff seeks an accounting\\n\\nand disgorgement of profits as a remedy for trademark infringement, the focus is\\n\\nentirely on the alleged infringer’s gain; the plaintiff is not required to present any\\n\\nevidence of particular financial harm that it suffered so as to justify legal redress.\\n\\n In its complaint, Hard Candy sought just about every form of relief\\n\\navailable: declaratory relief; an injunction barring Anastasia from “[a]dvertising,\\n\\npromoting, selling, offering for sale, or distributing any services or products that\\n\\nuse any words or symbols that so resemble the Hard Candy Marks,” among other\\n\\nactivities; an order “that Defendant hold in trust, as constructive trustee for the\\n\\nbenefit of Hard Candy, LLC, its profits obtained from the infringement”; an\\n\\n“accounting of all amounts due and owing to Hard Candy, LLC as a result of\\n\\nDefendant’s infringing activities”; money damages, including actual and statutory\\n\\ndamages; punitive damages; and attorneys’ fees and costs. Hard Candy dropped its\\n\\nclaim for actual damages before trial, but it did not withdraw all of its claims for\\n\\nmonetary relief, nor did it withdraw its demand for a jury trial. But just because\\n\\nHard Candy seeks a monetary recovery does not mean that it is entitled to a jury\\n\\n\\n 12\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 13 of 36\\n\\n\\ntrial; in fact, the Supreme Court has rejected the notion that “any award of\\n\\nmonetary relief must necessarily be ‘legal’ relief.” Curtis v. Loether, 415 U.S.\\n\\n189, 196 (1974).\\n\\n B.\\n\\n To determine whether a plaintiff is entitled to a jury trial, we look to the\\n\\nSeventh Amendment: “In Suits at common law, where the value in controversy\\n\\nshall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” U.S.\\n\\nConst. amend. VII.; see also Fed. R. Civ. P. 38(a) (“The right of trial by jury as\\n\\ndeclared by the Seventh Amendment to the Constitution -- or as provided by a\\n\\nfederal statute -- is preserved to the parties inviolate.”). Because the Seventh\\n\\nAmendment requires that the right to a jury trial only be “preserved” as it then\\n\\nexisted, the inquiry requires us to look to the right as it existed at the time of the\\n\\nFounding. At common law, jury trials were limited to cases heard in courts of law,\\n\\nas opposed to those in courts of equity or admiralty. See Tull, 481 U.S. at 417.\\n\\nThe Seventh Amendment right has thus long been understood to extend only to\\n\\n“suits in which legal rights were to be ascertained and determined, in\\n\\ncontradistinction to those where equitable rights alone were recognized, and\\n\\nequitable remedies were administered.” Parsons v. Bedford, 28 U.S. (3 Pet.) 433,\\n\\n447 (1830) (Story, J.).\\n\\n\\n\\n\\n 13\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 14 of 36\\n\\n\\n The Supreme Court has set out a two-part test to determine whether the\\n\\nSeventh Amendment’s guarantee applies to a particular claim:\\n\\n To determine whether a statutory action is more similar to cases that\\n were tried in courts of law than to suits tried in courts of equity or\\n admiralty, the Court must examine both the nature of the action and of\\n the remedy sought. First, we compare the statutory action to 18th-\\n century actions brought in the courts of England prior to the merger of\\n the courts of law and equity. Second, we examine the remedy sought\\n and determine whether it is legal or equitable in nature.\\n\\nTull, 481 U.S. at 417–18 (citations omitted). The dispute in this case in the main\\n\\ncenters on the second part -- the nature of the profits remedy sought by Hard\\n\\nCandy.\\n\\n We begin, then, by examining the nature of the action, here trademark\\n\\ninfringement and unfair competition based on infringement. “Trademarks and\\n\\ntheir precursors have ancient origins, and trademarks were protected at common\\n\\nlaw and in equity at the time of the founding of our country.” Matal v. Tam, 137\\n\\nS. Ct. 1744, 1751 (2017). Trademark infringement claims began as common law\\n\\nactions for fraud or “deceit.” Sandforth’s Case, heard in an English court of law in\\n\\n1584, may be the earliest trademark infringement action at common law. See\\n\\nKeith M. Stolte, How Early Did Anglo-American Trademark Law Begin? An\\n\\nAnswer to Schechter’s Conundrum, 8 Fordham Intell. Prop. Media & Ent. L.J. 505,\\n\\n509 (1998); 1 McCarthy § 5:2. The plaintiff there was a maker of woolen cloth\\n\\nwho claimed that a competitor used his mark and placed it on his own goods,\\n\\n\\n 14\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 15 of 36\\n\\n\\nwhich were comparatively “ill, insufficient and unmerchantable.” Stolte, supra, at\\n\\n530. The court held that he could bring a claim at common law sounding in the\\n\\ntort of deceit. Id. at 538.\\n\\n By the time the Seventh Amendment was ratified in 1791, the common law\\n\\ntrademark infringement action was well established. See, e.g., Singleton v. Bolton\\n\\n(1783) 99 Eng. Rep. 661, 661; 3 Dougl. 293, 293 (stating that “if the defendant had\\n\\nsold a medicine of his own under the plaintiffs name or mark, that would be a fraud\\n\\nfor which an action would lie”). Trademark actions also were brought in courts of\\n\\nequity during the same period. Blanchard v. Hill (1742) 26 Eng. Rep. 692; 2 Atk.\\n\\n484, is the earliest reported trademark case brought in equity. See Mark P.\\n\\nMcKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev.\\n\\n1839, 1852 (2007). Shortly thereafter, the accepted rule was “that equity could be\\n\\ninvoked to protect the plaintiff’s title to his marks.” See id. at 1854. Early\\n\\nAmerican case law likewise demonstrates that trademark rights could be enforced\\n\\nat equity. See, e.g., Taylor v. Carpenter, 23 F. Cas. 742, 744 (Story, Circuit\\n\\nJustice, C.C.D. Mass. 1844) (No. 13,784). Thus, because when the Seventh\\n\\nAmendment was ratified trademark rights had “been long recognized by the\\n\\ncommon law and the chancery courts of England,” Trade-Mark Cases, 100 U.S.\\n\\n82, 92 (1879), this part of the Supreme Court’s test is indeterminate.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 16 of 36\\n\\n\\n The second prong -- the nature of the remedy -- is the “[m]ore important”\\n\\nconsideration and provides substantially more guidance here. Curtis, 415 U.S. at\\n\\n196. Hard Candy does not seek actual damages, and it is undisputed that a plaintiff\\n\\nseeking only injunctive relief, costs, and fees would not be entitled to a jury trial.\\n\\nThus, our analysis centers on Hard Candy’s request for an accounting of\\n\\nAnastasia’s profits and for the accompanying disgorgement of those gains. Our\\n\\nreview is necessarily broader than the origins of the statutory remedy contained in\\n\\nthe Lanham Act. As the Second Circuit recently explained, “the ancient remedies\\n\\nof accounting, constructive trust, and restitution have compelled wrongdoers to\\n\\n‘disgorge’ -- i.e., account for and surrender -- their ill-gotten gains for centuries.”\\n\\nS.E.C. v. Cavanagh, 445 F.3d 105, 119 (2d Cir. 2006). To determine the nature of\\n\\nthe Lanham Act profits remedy at issue here, we look to the foundation of these\\n\\nremedies more generally.\\n\\n The remedy sought by Hard Candy, an accounting and disgorgement of\\n\\nprofits, was historically a matter for courts of equity. Justice Story explained that\\n\\nalthough “[o]ne of the most ancient forms of action at the common law [was] the\\n\\naction of account,” the “Courts of Equity began to assume jurisdiction in matters of\\n\\naccount . . . at a very early period.” 2 Joseph Story, Commentaries on Equity\\n\\nJurisprudence as Administered in England and America § 581 (14th ed. 1918).\\n\\nBefore the courts of equity assumed jurisdiction in such cases, they could only\\n\\n\\n 16\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 17 of 36\\n\\n\\nissue an injunction to prevent ongoing or future harm and, therefore, could not\\n\\noffer full relief. A plaintiff would have to enter a court of law to receive\\n\\ncompensation for past injuries. Not surprisingly, the accounting remedy was soon\\n\\ncarried over to courts of equity as a means of “permitting an award of monetary\\n\\nand injunctive relief in the same action,” and thereby preventing duplicative\\n\\nlitigation. Restatement (Third) of Unfair Competition § 37 cmt. b (Am. Law Inst.\\n\\n1995); see also George Basch Co., 968 F.2d at 1537–38. In fact, courts of equity\\n\\nquickly became the preferred forum for accounting, and the action at law, though\\n\\nolder, fell “into almost total disuse.” Story, supra, § 581.\\n\\n This story unfolded the same way in the case of trademark infringement.\\n\\nThe Restatement (First) of Torts explained that disgorgement of profits “is a form\\n\\nof equitable relief” that “was granted initially in [trademark and unfair\\n\\ncompetition] cases as an equivalent or substitute for legal damages when equity\\n\\njurisdiction was properly invoked for injunctive relief.” Restatement (First) of\\n\\nTorts § 747 cmt. b (Am. Law. Inst. 1938). The English Court of Chancery made\\n\\nthis exact point far earlier in an 1803 trademark case, observing that when\\n\\ninfringement is proven, “a Court of Equity in these cases is not content with an\\n\\naction for damages . . . and therefore the remedy here, though not compensating\\n\\nthe pecuniary damage except by an account of the profits, is the best: the remedy\\n\\nby an injunction and account.” Hogg v. Kirby (1803) 32 Eng. Rep. 336, 339; 8\\n\\n\\n 17\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 18 of 36\\n\\n\\nVes. Jun. 214, 223; see also Millington v. Fox (1838) 40 Eng. Rep. 956, 961; 3\\n\\nMy. & Cr. 388, 352 (noting that trademark plaintiffs “undoubtedly had a right to\\n\\nthe assistance of a Court of Equity to enforce” their rights in a mark and deeming\\n\\nan accounting to be an appropriate ancillary to injunctive relief). In other words, a\\n\\ncourt of law, limited to providing legal relief, would not be able to provide full\\n\\nredress to a trademark infringement plaintiff, but a court of equity could do so by\\n\\nproviding an injunction along with ordering an accounting and disgorgement of the\\n\\ndefendant’s profits -- precisely the remedy Hard Candy seeks here.\\n\\n The distinction between legal damages and the equitable accounting also is\\n\\nreflected in early American trademark case law. Shortly after the 1870 passage of\\n\\nthe first federal trademark legislation, the Supreme Court explained that in\\n\\ntrademark cases, “damages may be recovered in an action at law,” but “the\\n\\ncontinued violation of [trademark rights would] be enjoined by a court of equity,\\n\\nwith compensation for past infringement.” Trade-Mark Cases, 100 U.S. at 92.\\n\\n“[C]ompensation for past infringement” must refer to the disgorgement of the\\n\\ndefendant’s profits, because courts of equity could not provide legal damages. By\\n\\nthe end of the nineteenth century, “a clear division” between the remedies available\\n\\nat law and equity had arisen in trademark cases: “Common law courts awarded\\n\\ndamages; equity issued injunctions and awarded defendant’s profits to provide\\n\\ncomplete relief in a single proceeding.” Mark A. Thurmon, Ending the Seventh\\n\\n\\n 18\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 19 of 36\\n\\n\\nAmendment Confusion: A Critical Analysis of the Right to a Jury Trial in\\n\\nTrademark Cases, 11 Tex. Intell. Prop. L.J. 1, 67 (2002).\\n\\n The theoretical justification offered for providing an accounting and\\n\\ndisgorgement in trademark cases further reveals that Hard Candy’s requested\\n\\nremedy is equitable in nature. Long ago, the Supreme Court explained that the\\n\\nremedy is based on the legal fiction of the trust ex maleficio, a constructive trust in\\n\\nwhich a holder of property is recognized to have obtained that property by\\n\\nwrongful means. The Court put it this way:\\n\\n The right to use a trade-mark is recognized as a kind of property, of\\n which the owner is entitled to the exclusive enjoyment to the extent\\n that it has been actually used. The infringer is required in equity to\\n account for and yield up his gains to the true owner, upon a principle\\n analogous to that which charges a trustee with the profits acquired by\\n wrongful use of the property of the cestui que trust. . . . [T]he\\n jurisdiction must be rested upon some other equitable ground, -- in\\n ordinary cases, as in the present, the right to an injunction -- but the\\n court of equity, having acquired jurisdiction upon such a ground,\\n retains it for the purpose of administering complete relief, rather than\\n send the injured party to a court of law for his damages. And profits\\n are then allowed as an equitable measure of compensation, on the\\n theory of a trust ex maleficio.\\n\\nHamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 259 (1916)\\n\\n(citations omitted and emphasis added). The Court’s theory was that a trademark\\n\\ninfringer wrongfully benefits by using property owned by the trademark owner --\\n\\nnamely, the mark -- and so “a defendant who is liable in a trademark or trade dress\\n\\ninfringement action may be deemed to hold its profits in constructive trust for the\\n\\n\\n 19\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 20 of 36\\n\\n\\ninjured plaintiff.” George Basch Co., 968 F.2d at 1537–38. This theoretical\\n\\nfoundation sounds in equity: the remedy of an equitable accounting was originally\\n\\nprovided for disputes with a “trust or fiduciary relation existing between the\\n\\nparties.” Story, supra, § 598. When the profits remedy is properly understood as\\n\\n“an equitable measure of the compensation” justified by “the analogy of the\\n\\nliability of a trustee who wrongfully appropriated trust property,” its foundation in\\n\\nthe reasoning of equity is clear. Restatement (First) of Torts § 747 cmt. b. In\\n\\nshort, the historical record establishes that the remedy requested by Hard Candy is\\n\\nequitable, not legal, in nature.\\n\\n C.\\n\\n In the face of this history, Hard Candy submits that the Supreme Court’s\\n\\ndecision in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), overcomes the\\n\\ntraditional characterization of the disgorgement of profits remedy as equitable, and,\\n\\nsomehow, converts it into a legal remedy. In Dairy Queen, a restaurant company\\n\\nsued a franchisee for breach of contract and trademark infringement and sought\\n\\n“an accounting to determine the exact amount of money owing by [the franchisee]\\n\\nand a judgment for that amount” along with injunctive relief. Id. at 475. The\\n\\nCourt held that a jury trial was required because “insofar as the complaint requests\\n\\na money judgment it presents a claim which is unquestionably legal.” Id. at 476.\\n\\nHard Candy claims that the Supreme Court’s bottom-line answer in Dairy Queen --\\n\\n\\n 20\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 21 of 36\\n\\n\\n“we think it plain that their claim for a money judgment is a claim wholly legal in\\n\\nits nature,” id. at 477 -- supports its demand for a jury trial. We remain\\n\\nunpersuaded.\\n\\n Importantly, the Court seemed skeptical of the plaintiff’s characterization of\\n\\nits requested relief as an “accounting” of profits:\\n\\n The respondents’ contention that this money claim is “purely\\n equitable” is based primarily upon the fact that their complaint is cast\\n in terms of an “accounting,” rather than in terms of an action for\\n “debt” or “damages.” But the constitutional right to trial by jury\\n cannot be made to depend upon the choice of words used in the\\n pleadings.\\n\\nId. at 477–78. An action for “debt” or “damages” would certainly provide a legal\\n\\nremedy, and this is the better understanding of the basis for the Court’s conclusion\\n\\nthat a jury trial was required. Elsewhere, the Court said that “[t]he most natural\\n\\nconstruction of the respondents’ claim for a money judgment would seem to be\\n\\nthat it is a claim that they are entitled to recover whatever was owed them under\\n\\nthe contract as of the date of its purported termination plus damages for\\n\\ninfringement of their trademark since that date.” Id. at 476 (emphasis added).\\n\\nPlainly, an action for contract damages and a claim for damages for infringement\\n\\nare legal in nature. Tellingly, the Supreme Court later described Dairy Queen as\\n\\nan “action for damages for trademark infringement ‘subject to cognizance by a\\n\\ncourt of law.’” Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346\\n\\n(1998) (quoting Dairy Queen, 369 U.S. at 477).\\n 21\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 22 of 36\\n\\n\\n We do not read Dairy Queen as holding that the accounting and\\n\\ndisgorgement of profits was a legal remedy, since that isn’t what the plaintiff had\\n\\nsought. See Dairy Queen, 369 U.S. at 479 (“A jury, under proper instructions from\\n\\nthe court, could readily determine the recovery, if any, to be had here, whether the\\n\\ntheory finally settled upon is that of breach of contract, that of trademark\\n\\ninfringement, or any combination of the two.”). Indeed, it would have been\\n\\nstrange for the Court to have implicitly held, without any historical analysis, that it\\n\\ndeemed accounting and disgorgement of profits to be a legal remedy requiring a\\n\\njury trial. We presume that the Supreme Court does not hide elephants in such\\n\\nwell-disguised mouseholes. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,\\n\\n468 (2001). And we cannot ignore the clear lessons of history, most notably the\\n\\nSupreme Court’s designation of profits as an “equitable measure of compensation”\\n\\nprovided “on the theory of a trust ex maleficio,” when our task is to explain the\\n\\n“nature of the remedy” sought by the plaintiff. Hamilton-Brown Shoe Co., 240\\n\\nU.S. at 259; see also Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 132–33 (2d Cir.\\n\\n2014) (“Dairy Queen does not abrogate the longstanding treatment of an\\n\\naccounting of profits as an equitable remedy, nor could it change how the remedy\\n\\nwas treated at the time of the Court of Chancery.”).\\n\\n The two Courts of Appeals that have addressed this precise question -- the\\n\\nSixth and Ninth Circuits -- have agreed with our conclusion that a claim for an\\n\\n\\n 22\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 23 of 36\\n\\n\\naccounting and disgorgement of profits under the Lanham Act is equitable in\\n\\nnature and, therefore, that the Seventh Amendment’s guarantee of a jury trial does\\n\\nnot apply. Ferrari S.p.A. v. Roberts, 944 F.2d 1235, 1248 (6th Cir. 1991)\\n\\n(“Ferrari’s complaint requested only equitable relief; an injunction and\\n\\ndisgorgement of profits.”); Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc.,\\n\\n778 F.3d 1059, 1074–76 (9th Cir. 2015). And outside of the Seventh Amendment\\n\\ncontext, we have already held that Lanham Act disgorgement is an equitable\\n\\nremedy. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987\\n\\n(11th Cir. 1995) (“Here, [the plaintiff] seeks a permanent injunction and the\\n\\nequitable remedy of receiving appellants’ profits from counterfeiting under 15\\n\\nU.S.C. § 1117.”). In Levi Strauss, the district court had entered a preliminary\\n\\ninjunction against an alleged infringer and froze the infringer’s assets. Id. at 984.\\n\\nA panel of this Court held that the asset freeze was a valid exercise of the district\\n\\ncourt’s equitable powers because the underlying claim involved a request for\\n\\nequitable relief -- namely, the disgorgement of profits under the Lanham Act. Id.\\n\\nat 987.\\n\\n We would also be remiss if we overlooked the Court’s repeated statements,\\n\\nalbeit in dicta, that the disgorgement of wrongful gains is equitable. As we’ve\\n\\nsaid, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”\\n\\nSchwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). Thus, for example, in\\n\\n\\n 23\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 24 of 36\\n\\n\\nTull, the Supreme Court said in passing that “an action for disgorgement of\\n\\nimproper profits [is] traditionally considered an equitable remedy.” Tull, 481 U.S.\\n\\nat 424. Later, the Supreme Court observed that damages are equitable “where\\n\\nthey are restitutionary, such as in action[s] for disgorgement of improper profits.”\\n\\nChauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570\\n\\n(1990) (quotation marks omitted); see also Great-West Life & Annuity Ins. Co. v.\\n\\nKnudson, 534 U.S. 204, 214 n.2 (2002) (describing “an accounting for profits” as\\n\\n“a form of equitable restitution”). Our sister circuits too have offered similar\\n\\nobservations. E.g., Tamko Roofing Prods., Inc. v. Ideal Roofing Co., 282 F.3d 23,\\n\\n36 (1st Cir. 2002) (noting “the Lanham Act’s designation of an accounting of\\n\\ndefendant’s profits as an equitable remedy”); A & H Sportswear, Inc. v. Victoria’s\\n\\nSecret Stores, Inc., 166 F.3d 197, 209 (3d Cir. 1999) (en banc) (“[A]n accounting\\n\\nfor profits is a form of equitable relief . . . .” (quoting Williamson-Dickie Mfg. Co.\\n\\nv. Davis Mfg. Co., 251 F.2d 924, 927 (3d Cir. 1958)); Fuller Prods. Co. v. Fuller\\n\\nBrush Co., 299 F.2d 772, 777 (7th Cir. 1962) (“An accounting for profits . . . is an\\n\\nequitable remedy subject to the principles of equity.”).\\n\\n All of this leads us to the conclusion that an accounting and disgorgement of\\n\\na defendant’s profits in a trademark infringement case is equitable in nature and\\n\\ndoes not carry with it a right to a jury trial. So, returning to Hard Candy’s claim\\n\\nand the Seventh Amendment test laid out by the Supreme Court, the first prong --\\n\\n\\n 24\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 25 of 36\\n\\n\\nthe nature of the cause of action -- is a wash since trademark actions were\\n\\ncognizable at both law and equity; but the more important second prong -- the\\n\\nnature of the remedy -- weighs decidedly in favor of Anastasia. Because Hard\\n\\nCandy abandoned any claim for legal relief, the district court did not err in\\n\\ndetermining that the plaintiff was not entitled to a jury trial.\\n\\n Lest there be any doubt, the record is clear that Hard Candy expressly\\n\\ndisclaimed its request for actual damages prior to trial. In a joint filing, Hard\\n\\nCandy “stipulate[d] that it is not seeking actual damages or lost profits” and instead\\n\\nwas “seek[ing] to recover Defendant Anastasia’s profits from its sales.” On the\\n\\nbasis of that stipulation, Anastasia withdrew its motion for partial summary\\n\\njudgment on actual damages. And, again, during the trial Hard Candy repeatedly\\n\\nobjected when Anastasia sought to elicit testimony about actual damages. Thus,\\n\\nfor instance, when Anastasia asked Jerome Falic, Hard Candy’s CEO, to confirm\\n\\nthat the company was “not seeking to recover any of its own los[t] profits in this\\n\\ncase,” Hard Candy’s counsel objected because they “stipulated to that fact” and it\\n\\nwas “irrelevant.” When Anastasia asked its expert about his statement that he had\\n\\nnot “seen any evidence of financial or economic harm to the plaintiff,” Hard Candy\\n\\nobjected and said, “Harm to the plaintiff is not an element of this case.” And when\\n\\nAnastasia asked the president of NuWorld -- the corporation that manufactures\\n\\ncosmetics for Hard Candy -- whether he had any “evidence that NuWorld was\\n\\n\\n 25\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 26 of 36\\n\\n\\nharmed by Anastasia’s use of the words ‘hard candy’ in the Gleam Glow Kit,”\\n\\nHard Candy again objected on grounds of relevance.\\n\\n To allow Hard Candy on the one hand to object to the introduction of any\\n\\nevidence related to its actual injuries and on the other to insist on a jury trial\\n\\nbecause it is seeking redress for that same harm would be incongruous, even if it\\n\\nhadn’t expressly dropped its claim for actual damages. What’s more, Hard\\n\\nCandy’s proposed rule would make the Seventh Amendment right fully depend on\\n\\nthe rationale the plaintiff offered for seeking to recover the defendant’s profits.\\n\\nThat rule is inconsistent with the longstanding interpretation of the Seventh\\n\\nAmendment set out by the Supreme Court, which requires us to look to the nature\\n\\nof the action and the nature of the requested remedy. Hard Candy was not entitled\\n\\nto a jury trial on its claim for an accounting and disgorgement of the defendant’s\\n\\nprofits.\\n\\n III.\\n\\n Hard Candy also challenges the district court’s resolution of its claims on the\\n\\nmerits. “After a bench trial, we review the district court’s conclusions of law de\\n\\nnovo and the district court’s factual findings for clear error.” Proudfoot Consulting\\n\\nCo. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). Findings as to whether a\\n\\nplaintiff has ultimately shown a likelihood of confusion, as to each of the factors,\\n\\nand as to the elements of the fair use defense are subject only to clear error review.\\n\\n\\n 26\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 27 of 36\\n\\n\\nN. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1220 (11th Cir.\\n\\n2008) (likelihood of confusion); Sands, Taylor & Wood Co. v. Quaker Oats Co.,\\n\\n978 F.2d 947, 952 (7th Cir. 1992) (fair use).\\n\\n A.\\n\\n We begin with the likelihood of confusion. The district court applied our\\n\\nseven-factor test and concluded that Hard Candy had not shown a likelihood of\\n\\nconfusion. On review, “[t]he real question is whether the court’s ultimate\\n\\ndetermination about the ‘likelihood of confusion’ was correct.” Univ. of Ga.\\n\\nAthletic Ass’n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985); see also Safeway\\n\\nStores, Inc. v. Safeway Disc. Drugs, Inc., 675 F.2d 1160, 1164 n.3 (11th Cir. 1982)\\n\\n(“Our review . . . is governed by the clearly erroneous test even though the court’s\\n\\nanalysis of the factors relevant to a finding of likelihood of confusion was\\n\\nincomplete.”), abrogated on other grounds by Tobinick v. Novella, 884 F.3d 1110,\\n\\n1118 (11th Cir. 2018). Accordingly, “we may affirm an ultimate finding on the\\n\\nissue of confusion that is not clearly erroneous, even when the district court fails to\\n\\nconsider all seven factors” of the test or errs in its analysis of any one. See Wesco\\n\\nMfg., Inc., 833 F.2d at 1489.\\n\\n Our precedent sets out a seven-factor test to determine whether a purportedly\\n\\ninfringing product creates a likelihood of consumer confusion. We look to the:\\n\\n (1) type of mark, (2) similarity of mark, (3) similarity of the products\\n the marks represent, (4) similarity of the parties’ retail outlets and\\n 27\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 28 of 36\\n\\n\\n customers, (5) similarity of advertising media used, (6) defendant’s\\n intent and (7) actual confusion.\\n\\nLone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 122 F.3d 1379,\\n\\n1382 (11th Cir. 1997). On summary judgment, the court determined that three of\\n\\nthem -- similarity of products, similarity of trade channels and customers, and\\n\\nsimilarity of advertising -- favored Hard Candy. There was no dispute that both\\n\\ncompanies sell cosmetics products online and in retail stores, their customers are\\n\\nprimarily women between the ages of 18 and 35, and both advertise their products\\n\\nthrough trade shows, social media, and traditional print media. The court rejected\\n\\nAnastasia’s proposed distinction between the “high-end” and “low-end” segments\\n\\nof the cosmetics market.\\n\\n The district court then held a three-day bench trial. Afterwards, the court\\n\\ndetermined that the mark was “arbitrary” since it bears no relationship to the\\n\\nproducts, which meant that the mark was “strong” and that the type-of-mark factor\\n\\nweighed in Hard Candy’s favor; that the similarity-of-mark factor favored\\n\\nAnastasia, because it was not using “hard candy” as a mark; that Anastasia did not\\n\\nintentionally infringe on the mark; and that there was no evidence of actual\\n\\nconfusion. Viewing the evidence as a whole, the trial court determined that Hard\\n\\nCandy had not established a likelihood of confusion and issued a decision to that\\n\\neffect from the bench. The record indicates that there was ample factual evidence\\n\\n\\n\\n 28\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 29 of 36\\n\\n\\nto support the trial court’s findings and, indeed, that the court weighed each of the\\n\\nfactors with great care.\\n\\n Hard Candy responds with three legal arguments; none of them are\\n\\npersuasive. For starters, Hard Candy asserts that the district court erred by finding\\n\\nthat the “similarity of mark” factor favored Anastasia. The district court concluded\\n\\nthat “Anastasia’s use of ‘Hard Candy’ does not create a likelihood of confusion on\\n\\nthis factor [because] while Anastasia uses the same words, all in capital letters, the\\n\\nCourt must consider the overall impression created by the use of the mark as a\\n\\nwhole, rather than comparing the individual features, and . . . the use creates a\\n\\ndifferent overall impression.” Hard Candy, in essence, claims that the trial court\\n\\nshould have stopped at the point that it recognized that Anastasia’s use of the term\\n\\n“hard candy” was formally identical to the company’s mark -- HARD CANDY, in\\n\\ncapital letters -- and concluded that the factor weighed in its favor.\\n\\n But the trial court must “compare[] the marks and consider[] the overall\\n\\nimpressions that the marks create, including the sound, appearance, and manner in\\n\\nwhich they are used.” Frehling Enters., Inc. v. Int’l Select Grp., Inc., 192 F.3d\\n\\n1330, 1337 (11th Cir. 1999) (emphasis added); John H. Harland Co. v. Clarke\\n\\nChecks, Inc., 711 F.2d 966, 975 (11th Cir. 1983) (“This consideration includes a\\n\\ncomparison of the appearance, sound and meaning of the marks, as well as the\\n\\nmanner in which the marks are used.”). The district court looked to the overall\\n\\n\\n 29\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 30 of 36\\n\\n\\nimpression created by the Gleam Glow Kit -- the words “HARD CANDY”\\n\\nappeared only on the back and inside of the kit, “nam[ing] one shade of a product\\n\\nthat is otherwise clearly and prominently featured as an Anastasia Beverly Hills\\n\\nmark.” In this way, the district court concluded that Anastasia was using the words\\n\\nmerely “to describe a shade,” and for that reason it found that this factor favored\\n\\nAnastasia.\\n\\n The district court’s analysis is fully consistent with our precedent. In John\\n\\nH. Harland Co., we considered as part of this analysis things like the placement of\\n\\nthe mark, the mark’s usage to label a specific part of the product, and the size of\\n\\nthe print. 711 F.2d at 975–76. Hard Candy has provided no case law holding that\\n\\nthe similarity-of-mark factor bars consideration of whether the alleged infringer\\n\\nwas using the words as a mark. The point of the similarity-of-mark analysis “is\\n\\nthat the closer the marks are, the more likely reasonable consumers will mistake\\n\\nthe source of the product that each mark represents.” Frehling Enters., Inc., 192\\n\\nF.3d at 1337. For that reason, “[t]he probability of this potential confusion is the\\n\\ntouchstone.” Id. Thus, although Anastasia used words that are identical to Hard\\n\\nCandy’s mark, it was reasonable for the district court to determine that Anastasia\\n\\nwas not using the words in a “manner” likely to cause confusion as to the source of\\n\\nthe goods.\\n\\n\\n\\n\\n 30\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 31 of 36\\n\\n\\n Second, Hard Candy claims that the district court erred by giving\\n\\n“substantial and overwhelming weight to Anastasia’s lack of intent to infringe.”\\n\\nBr. for Plaintiff-Appellants at 49. Hard Candy argues that we should follow courts\\n\\noutside this Circuit that have said that “[i]ntent . . . is an issue whose resolution\\n\\nmay benefit only the cause of a [plaintiff], not of an alleged infringer.” Daddy’s\\n\\nJunky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 287\\n\\n(6th Cir. 1997); see also Beacon Mut. Ins. Co. v. OneBeacon Ins. Grp., 376 F.3d 8,\\n\\n19 (1st Cir. 2004). The problem with the argument is that the factual predicate is\\n\\nnot reflected in the record. The district court never said that it was giving any\\n\\naffirmative (let alone overwhelming) weight to its finding that Anastasia lacked\\n\\nintent to infringe. The court concluded its discussion this way: “And for all of\\n\\nthese reasons, and the cases I’ve cited, I find that Anastasia did not intend to\\n\\ninfringe on the mark and was not intentionally blind after receiving the cease and\\n\\ndesist.” It did not say that this factor weighed in Anastasia’s favor. Hard Candy\\n\\nseems to assume that the district court gave it too much weight merely because the\\n\\nissue took up more space in the ruling, but there is no indication in the record that\\n\\nAnastasia’s intent received undue consideration.\\n\\n Finally, Hard Candy argues that the district court placed too much weight on\\n\\nthe lack of a showing of actual confusion. We have said that evidence of actual\\n\\nconfusion “is not necessary to a finding of likelihood of confusion.” John H.\\n\\n\\n 31\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 32 of 36\\n\\n\\nHarland Co., 711 F.2d at 978. Hard Candy says that the district court erred by\\n\\ngiving the lack of actual confusion evidence “substantial weight,” since this\\n\\nevidence is often difficult to produce and the product was on the market for only\\n\\neight months.\\n\\n Our cases have often recognized actual confusion as one of the most\\n\\nimportant factors. Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d\\n\\n1242, 1264 (11th Cir. 2016) (“the best evidence of a likelihood of confusion”);\\n\\nCaliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d\\n\\n931, 936 (11th Cir. 2010) (“the most weighty consideration”); Lone Star\\n\\nSteakhouse & Saloon, Inc., 122 F.3d at 1382 (one of “the two most important\\n\\nfactors”); John H. Harland Co., 711 F.2d at 978 (“the best evidence of likelihood\\n\\nof confusion”). “The presence or absence of actual confusion can be highly\\n\\neffective in showing a high, or a low, likelihood of confusion if there has been\\n\\nample opportunity for consumer confusion.” Nabisco, Inc. v. PF Brands, Inc., 191\\n\\nF.3d 208, 228 (2d Cir. 1999) (emphasis omitted), abrogated on other grounds by\\n\\nMoseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003). “If consumers have\\n\\nbeen exposed to two allegedly similar trademarks in the marketplace for an\\n\\nadequate period of time and no actual confusion is detected either by survey or in\\n\\nactual reported instances of confusion, that can be powerful indication that the\\n\\njunior trademark does not cause a meaningful likelihood of confusion.” Id.\\n\\n\\n 32\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 33 of 36\\n\\n\\n In this case, there was enough opportunity for confusion to make the absence\\n\\nof any evidence significant. Uncontroverted testimony at trial established that\\n\\nAnastasia sold 248,075 Gleam Glow Kits, totaling over $5 million in revenue. The\\n\\nproduct was posted on Anastasia’s corporate social media accounts, which have\\n\\nmillions of followers. And still, Hard Candy did not produce any evidence that a\\n\\ncustomer was ever actually confused about the source of the Gleam Glow Kit. A\\n\\nreasonable person could conclude that the lack of evidence is at least probative of\\n\\nthe conclusion that there was no likelihood of confusion -- hundreds of thousands\\n\\nof cosmetics consumers purchased the allegedly infringing kit, several times more\\n\\nlikely saw it on store shelves or online, and still there is no evidence that anyone,\\n\\nanywhere, was ever confused about whether Anastasia or Hard Candy was\\n\\nresponsible for the product. Hard Candy hasn’t established clear error here either.\\n\\n In sum, the record does not suggest that the district court committed clear\\n\\nerror as to any of its findings, and it does not show clear error as to the court’s\\n\\nultimate conclusion that Hard Candy had not shown a likelihood of confusion.\\n\\nEven if we were to accept one or two of Hard Candy’s arguments -- and on this\\n\\nrecord, we don’t -- that would not compel reversal. “[A] district court’s error in its\\n\\nanalysis of one of the subsidiary factors in the likelihood of confusion test is not\\n\\nenough to allow us to overturn the district court’s decision.” Fla. Int’l Univ. Bd. of\\n\\nTrs., 830 F.3d at 1255 (internal quotation marks omitted). Our review of the\\n\\n\\n 33\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 34 of 36\\n\\n\\nrecord, taken as a whole, does not leave us “with the definite and firm conviction\\n\\nthat a mistake has been committed” about the district court’s basic finding that\\n\\nthere was no likelihood of confusion. See United States v. U.S. Gypsum Co., 333\\n\\nU.S. 364, 395 (1948).\\n\\n B.\\n\\n Hard Candy also challenges the district court’s conclusion that Anastasia\\n\\nmade out a fair use defense to infringement. A defendant is entitled to the fair use\\n\\ndefense if it establishes that it used the allegedly infringing term “(1) other than as\\n\\na mark, (2) in a descriptive sense, and (3) in good faith.” Int’l Stamp Art, Inc. v.\\n\\nU.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (internal quotation marks\\n\\nomitted). Hard Candy challenges the district court’s finding as to the second\\n\\nelement, arguing that the district court erred “by completely disregarding the\\n\\ncentral requirement that whether a trademark is being used in a ‘descriptive sense’\\n\\nstarts and ends with consumer perception.” Br. for Plaintiff-Appellants at 41.\\n\\n “The ‘fair-use’ defense, in essence, forbids a trademark registrant to\\n\\nappropriate a descriptive term for [its] exclusive use and so prevent others from\\n\\naccurately describing a characteristic of their goods.” Int’l Stamp Art, Inc., 456\\n\\nF.3d at 1274 (quoting Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir.\\n\\n1980)). This Court has not elaborated on what it means to use a mark “in a\\n\\ndescriptive sense.” We have, however, explained that a descriptive mark\\n\\n\\n 34\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 35 of 36\\n\\n\\n“identifies a characteristic or quality of an article or service as, for example, its\\n\\ncolor, odor, function, dimensions, or ingredients.” Soweco, Inc., 617 F.2d at 1183\\n\\n(citation and quotations omitted). The Seventh Circuit has interpreted the fair use\\n\\nelement of use “in a descriptive sense” in a roughly similar way, explaining that “it\\n\\nis not necessary that a descriptive term depict the [product] itself, but only that the\\n\\nterm refer to a characteristic of the [product].” Sands, Taylor & Wood Co., 978\\n\\nF.2d at 952.\\n\\n To the extent that Hard Candy argues that the district court erred by not\\n\\nconsidering how a hypothetical consumer would perceive the use of the mark, we\\n\\nthink it has ignored what the district court said in its ruling. The court looked to\\n\\n“the overall context; the lettering, the type, the style, the size, [and] the visual\\n\\nplacement” of the words on the product. It accepted the argument that “hard\\n\\ncandy” was used in a descriptive sense because “it was used to describe the sheen”\\n\\nof the makeup shade that the term labeled. Anastasia introduced evidence that\\n\\ncosmetics companies regularly describe shades with words that are not literal color\\n\\ndescriptions, like the other three shades in the kit named “Starburst,” “Mimosa,”\\n\\nand “Crushed Pearl.” The district court was attempting to discern how a\\n\\nreasonable consumer of cosmetics would perceive Anastasia’s use of the mark, not\\n\\nrelying purely on Anastasia’s subjective intent, contrary to Hard Candy’s assertion.\\n\\nAnd to the extent Hard Candy argues that the district court should have required\\n\\n\\n 35\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 36 of 36\\n\\n\\nAnastasia to introduce evidence of actual consumer perception, that proposition\\n\\nhas no support in the law. See, e.g., Sorensen v. WD-40 Co., 792 F.3d 712, 725\\n\\n(7th Cir. 2015) (upholding fair use defense without any such evidence);\\n\\nCosmetically Sealed Indus., Inc. v. Chesebrough-Pond’s USA Co., 125 F.3d 28, 30\\n\\n(2d Cir. 1997) (same). We are hard-pressed to find clear error of any kind.\\n\\n IV.\\n\\n The long and the short of it is that Hard Candy has failed to convince us that\\n\\nthe district court erred in its resolution of this case. The historical evidence reveals\\n\\nthat the particular remedy sought by Hard Candy -- an accounting and\\n\\ndisgorgement of Anastasia’s profits as an alleged infringer -- is a creature of\\n\\nequity. For that reason the Seventh Amendment’s guarantee of a jury trial does not\\n\\napply. On the merits, we can discern no error in the district court’s resolution of\\n\\nHard Candy’s claims, and, accordingly, affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 36\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389859/\", \"author_raw\": \"MARCUS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"GRANT"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612606/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: HARD CANDY, LLC, a Florida Limited Liability Company, Plaintiff-Appellant, v. ANASTASIA BEVERLY HILLS, INC., a California Corporation, Defendant-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10877 Date Filed: 04/23/2019 Page: 1 of 36\n\n\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-10877\n ________________________\n\n D.C. Docket No. 1:16-cv-21203-KMW\n\n\n\nHARD CANDY, LLC,\na Florida limited liability company,\n\n Plaintiff - Appellant,\n\nversus\n\nANASTASIA BEVERLY HILLS, INC.,\na California Corporation,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 23, 2019)\n\nBefore MARCUS, GRANT, and HULL, Circuit Judges.\n\nMARCUS, Circuit Judge:\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 2 of 36\n\n\n\n\n “Trial by jury,” James Madison said in a speech urging the adoption of the\n\nBill of Rights, “is as essential to secure the liberty of the people as any one of the\n\npre-existent rights of nature.” James Madison, Speech in Congress Proposing\n\nConstitutional Amendments, in Writings 445–46 (Jack Rakove ed., 1999). But\n\ncourts have long held that a jury is guaranteed only for claims that would have\n\nbeen heard in courts of law at the time of the Founding, not for those that would\n\nhave been heard in courts of equity. This appeal requires us to decide whether the\n\nSeventh Amendment right to trial by jury applies when a trademark plaintiff\n\nattempts to recover the profits the defendant made by selling the allegedly\n\ninfringing goods. Plaintiff Hard Candy, LLC, a cosmetics company, seeks every\n\nremedy permitted by the Lanham Act besides actual damages -- that is, it asked for\n\nan injunction to prevent future infringement, an accounting and the disgorgement\n\nof profits that the defendant made from the allegedly infringing goods, and\n\ndeclaratory relief, along with fees and costs. Because the claim didn’t include\n\nactual damages, the district court denied Hard Candy’s request for a jury trial.\n\nAfter a bench trial, the court found that there was no likelihood of confusion and\n\nheld that defendant Anastasia Beverly Hills, Inc., made out a fair use defense to\n\ninfringement. Hard Candy challenges each of these determinations on appeal.\n\n As a threshold matter, this case requires us to resolve a Seventh Amendment\n\nquestion of first impression before reaching the merits. Hard Candy argues that a\n 2\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 3 of 36\n\n\njury should have decided its claims because it was seeking to recover Anastasia’s\n\nprofits as a “proxy” for the damages it suffered due to infringement. This basis for\n\nseeking profits, the company argues, means that the remedy is legal, not equitable\n\nin nature and carries with it the right to a jury trial. We disagree. The remedy of\n\nan accounting and disgorgement of profits for trademark infringement is equitable\n\nin nature and has long been considered that way, so we hold that a plaintiff seeking\n\nthe defendant’s profits in lieu of actual damages is not entitled to a jury trial. As\n\nfor the district court’s merits determinations on infringement and fair use, we find\n\nno error and, therefore, affirm.\n\n I.\n\n Hard Candy, LLC, is a cosmetics company headquartered in Hollywood,\n\nFlorida. The company’s predecessor first filed a trademark application for the\n\nHARD CANDY mark in 1995. Since then, Hard Candy has continuously used the\n\nHARD CANDY mark in connection with the sale of cosmetics. 1 Hard Candy does\n\nnot produce cosmetics itself; it licenses the mark to a third-party cosmetics\n\nproducer, NuWorld Corporation, which makes nail polish, eye shadow, lip gloss,\n\nand various facial beauty products that are sold under the Hard Candy name.\n\n\n\n\n1\n Hard Candy owns at least fourteen federally registered trademarks. See Registration Nos.\n1,987,262; 2,343,732; 2,552,029; 2,666,792; 3,695,602; 2,362,340; 2,567,186; 2,150,397;\n2,666,793; 4,218,371; 4,735,879; 4,818,389; 2,059,480; and 4,713,229.\n 3\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 4 of 36\n\n\nThese items are sold exclusively at Wal-Mart stores and on Wal-Mart’s website,\n\nand have generated sales in excess of $36 million each year since 2011.\n\n Anastasia Beverly Hills, Inc., a California-based corporation, is also in the\n\ncosmetics business. In December 2015, Anastasia announced the release of a new\n\nedition in its line of “Glow Kits,” which are flip-open makeup palettes containing\n\nfour different shades of facial highlighter. The Gleam Glow Kit included the\n\nwords “hard candy” in capital letters on the back and inside of the package to\n\ndesignate a peach-pink shade of makeup. Anastasia says that it chose this name\n\nbecause the product had a “shimmer” that reminded the developer of candies that\n\nher grandmother gave her when she was young. The developer testified that she\n\nwas aware of Hard Candy, LLC, as a seller of nail polish in the 1990s, but she was\n\nnot aware of the company’s continued existence when she came up with the name.\n\n The following pictures show the front, back, and inside of the kit offered by\n\nAnastasia:\n\n\n\n\n 4\n\fCase: 18-10877 Date Filed: 04/23/2019 Page: 5 of 36\n\n\n\n\n 5\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 6 of 36\n\n\n\n\n The day after Anastasia announced the release of the Gleam Glow Kit, Hard\n\nCandy sent Anastasia a cease and desist letter asserting that it had infringed on its\n\ntrademark. Anastasia’s owner, Anastasia Soare, attempted to call the CEO of Hard\n\nCandy but she was unable to make contact; Anastasia’s and Hard Candy’s\n\nattorneys also exchanged emails without resolving the issue before discussions\n\nbroke off. Anastasia went on to sell the kit -- with the “hard candy” shade -- online\n\nand in various retail stores, including Macy’s, Ulta, and Sephora. The words “hard\n\ncandy” appeared in Anastasia’s marketing materials and social media posts, as well\n\nas on the product itself. In documents provided to retailers, the company described\n\nthe shade as a “mood-changing golden peach with a pink pearl reflective finish.”\n\n\n\n 6\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 7 of 36\n\n\nThe Gleam Glow Kit was on the market from December 2015 until August 2016,\n\nconsistent with Anastasia’s initial plan to make it a limited-edition product.\n\n Hard Candy filed a complaint in the United States District Court for the\n\nSouthern District of Florida against Anastasia, claiming trademark infringement\n\nunder § 32(a) of the Lanham Act, 15 U.S.C. § 1114(1); unfair competition under\n\n§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); common law trademark\n\ninfringement; and common law unfair competition. Hard Candy sought an\n\naccounting and the disgorgement of Anastasia’s profits, statutory damages, a\n\npermanent injunction barring Anastasia’s use of its mark, declaratory relief, and\n\nfees and costs. The complaint included a request for actual damages, but, notably,\n\nHard Candy dropped this application before trial. The district court then struck\n\nHard Candy’s jury trial demand because all of the remaining remedies were\n\nequitable in nature.\n\n To prevail on each of its claims, Hard Candy had to establish that\n\nAnastasia’s use of the words “hard candy” created a likelihood of confusion. See\n\nTally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1026 & n.14 (11th Cir.\n\n1989) (noting that the elements of trademark infringement under common law and\n\nthe Lanham Act “are the same,” and that “an unfair competition claim based only\n\nupon alleged trademark infringement is practically identical to an infringement\n\nclaim”). Applying our seven-factor likelihood of confusion test, the district court\n\n\n 7\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 8 of 36\n\n\ndetermined that Hard Candy had not met its burden. The court also concluded that\n\neven if Hard Candy could establish infringement, Anastasia had made out a fair\n\nuse defense because it used the term “hard candy” in good faith as a description of\n\nthe product, not as a mark.\n\n This appeal followed.\n\n II.\n\n Hard Candy first argues that the district court erred in its denial of a jury\n\ntrial. We review the grant of a motion to strike a jury demand de novo. FN\n\nHerstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080 (11th Cir. 2016).\n\n We have yet to address the question whether a plaintiff seeking the\n\ndisgorgement of the defendant’s profits and an accounting under the Lanham Act\n\nhas the right to have its claims decided by a jury. 2 A plaintiff is entitled to a jury\n\ntrial in an action that is “analogous” to a claim that would have been brought in the\n\nEnglish law courts at common law, but not if the claims sounded in equity or\n\nadmiralty. See Tull v. United States, 481 U.S. 412, 417 (1987). Hard Candy says\n\nthat at least “where a plaintiff seeks to recover a defendant’s profits as a ‘proxy’\n\nfor actual damages, the claim is a legal one that entitles the plaintiff to a jury\n\n\n\n2\n This Court was recently presented with the same question in FN Herstal SA v. Clyde Armory\nInc., 838 F.3d 1071 (11th Cir. 2016), but the panel affirmed the district court’s denial of a motion\nto reinstate a demand for disgorgement of profits and so it was not required to reach the issue. Id.\nat 1090 & n.10 (“[W]e need not reach the issue of whether recovery of profits under § 1117(a) of\nthe Lanham Act is an equitable remedy for which there is no right to a jury trial.”).\n 8\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 9 of 36\n\n\ntrial.”3 Br. for Plaintiff-Appellants at 23. However, we agree with the district\n\ncourt’s conclusion that the requested remedy is equitable in nature and thus does\n\nnot confer a right to trial by jury.\n\n A.\n\n The Lanham Act provides that “[w]hen a violation of any right of the\n\nregistrant of a mark . . . shall have been established in any civil action arising under\n\nthis chapter, the plaintiff shall be entitled, . . . subject to the principles of equity, to\n\nrecover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3)\n\nthe costs of the action.” 15 U.S.C. § 1117(a). In “exceptional cases,” a prevailing\n\nparty can be awarded attorneys’ fees. Id. A different section of the Act vests\n\ncourts with the “power to grant injunctions, according to the principles of equity\n\nand upon such terms as the court may deem reasonable, to prevent the violation of\n\nany right of the registrant of a mark registered in the Patent and Trademark Office\n\nor to prevent a violation under subsection (a), (c), or (d) of [15 U.S.C. § 1125].”\n\nId. § 1116(a).\n\n\n\n\n3\n Anastasia replies that Hard Candy waived this argument, since its primary argument in district\ncourt was that a plaintiff seeking profits is entitled to a jury trial in all circumstances, regardless\nof the theory, rationale, or remedy. But Hard Candy has not changed its position that it was entitled\nto a jury trial because its requested relief is legal in nature, and its argument was fairly presented\nto the district court. “Although new claims or issues may not be raised” on appeal, “new arguments\nrelating to preserved claims may be reviewed.” Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304\nn.3 (11th Cir. 2008) (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).\n 9\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 10 of 36\n\n\n The Act, therefore, provides a broad menu of remedies to a plaintiff\n\nclaiming infringement. In “ordinary trademark infringement actions . . . complete\n\ninjunctions against the infringing party are the order of the day.” SunAmerica\n\nCorp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325, 1336 (11th Cir. 1996).\n\nThis is because “the public deserves not to be led astray by the use of inevitably\n\nconfusing marks,” and injunctive relief is the surest way to prevent future harm.\n\nAngel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1209 (11th Cir.\n\n2008); 5 McCarthy on Trademarks and Unfair Competition § 30:1 (5th ed. 2018)\n\n[hereinafter “McCarthy”] (describing injunctive relief as the “usual and normal\n\nremedy” and the “usual historical practice” after a court has found infringement).\n\nIndeed, injunctive relief is the quintessential form of equitable remedy; it does not\n\nentitle a plaintiff to a jury trial.\n\n The monetary damages available to a Lanham Act trademark plaintiff can be\n\ndivided into five rough categories: recovery of the defendant’s profits, actual\n\nbusiness damages and out-of-pocket losses (like corrective advertising), lost\n\nprofits, punitive damages, and attorneys’ fees. See id. § 30:57. “Actual damages”\n\nin this context covers everything from damages from lost sales or licensing fees\n\ndue to the infringer’s sale of offending goods to intangible harm like reputational\n\ndamage and loss of good will. As we have said, a trademark plaintiff “may recover\n\nfor all elements of injury to the business of the trademark owner proximately\n\n\n 10\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 11 of 36\n\n\nresulting from the infringer’s wrongful acts.” Bos. Prof’l Hockey Ass’n, Inc. v.\n\nDallas Cap & Emblem Mfg., Inc., 597 F.2d 71, 75 (5th Cir. 1979) (quotations\n\nomitted) (permitting recovery of damages in the amount that the infringer would\n\nhave had to pay the plaintiff for nonexclusive license to use the marks).4 The\n\nprimary limiting principle is that the damages may not be “speculative.” See, e.g.,\n\nRamada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562, 1564 (11th Cir. 1986)\n\n(“The partners stress that a trademark infringement award must be based on proof\n\nof actual damages and that some evidence of harm arising from the violation must\n\nexist. . . . We must decide whether the district court’s assessment of the actual\n\ndamages or harm suffered by Ramada Inns was speculative.”).\n\n The disgorgement of profits and the closely related remedy of an accounting\n\nare much different. “The remedy of damages seeks to compensate the victim for\n\nits loss, whereas the remedy of an accounting . . . [seeks] disgorgement of ill-\n\ngotten profits.” SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prods., LLC,\n\n137 S. Ct. 954, 964 (2017). The Lanham Act permits recovery of profits because\n\nactual damages are often difficult to prove. It “shifts the burden of proving\n\neconomic injury off the innocent party, and places the hardship of disproving\n\neconomic gain onto the infringer.” George Basch Co. v. Blue Coral, Inc., 968 F.2d\n\n\n4\n Decisions of the former Fifth Circuit issued before October 1, 1981 were adopted as binding\nprecedent in the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.\n1981) (en banc).\n 11\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 12 of 36\n\n\n1532, 1539 (2d Cir. 1992); Wesco Mfg., Inc. v. Tropical Attractions of Palm\n\nBeach, Inc., 833 F.2d 1484, 1487–88 (11th Cir. 1987). The statute does so by\n\nexpressly providing that “the plaintiff shall be required to prove defendant’s sales\n\nonly,” while the “defendant must prove all elements of cost or deduction claimed”\n\nagainst its profits. 15 U.S.C. § 1117(a). So, when a plaintiff seeks an accounting\n\nand disgorgement of profits as a remedy for trademark infringement, the focus is\n\nentirely on the alleged infringer’s gain; the plaintiff is not required to present any\n\nevidence of particular financial harm that it suffered so as to justify legal redress.\n\n In its complaint, Hard Candy sought just about every form of relief\n\navailable: declaratory relief; an injunction barring Anastasia from “[a]dvertising,\n\npromoting, selling, offering for sale, or distributing any services or products that\n\nuse any words or symbols that so resemble the Hard Candy Marks,” among other\n\nactivities; an order “that Defendant hold in trust, as constructive trustee for the\n\nbenefit of Hard Candy, LLC, its profits obtained from the infringement”; an\n\n“accounting of all amounts due and owing to Hard Candy, LLC as a result of\n\nDefendant’s infringing activities”; money damages, including actual and statutory\n\ndamages; punitive damages; and attorneys’ fees and costs. Hard Candy dropped its\n\nclaim for actual damages before trial, but it did not withdraw all of its claims for\n\nmonetary relief, nor did it withdraw its demand for a jury trial. But just because\n\nHard Candy seeks a monetary recovery does not mean that it is entitled to a jury\n\n\n 12\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 13 of 36\n\n\ntrial; in fact, the Supreme Court has rejected the notion that “any award of\n\nmonetary relief must necessarily be ‘legal’ relief.” Curtis v. Loether, 415 U.S.\n\n189, 196 (1974).\n\n B.\n\n To determine whether a plaintiff is entitled to a jury trial, we look to the\n\nSeventh Amendment: “In Suits at common law, where the value in controversy\n\nshall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” U.S.\n\nConst. amend. VII.; see also Fed. R. Civ. P. 38(a) (“The right of trial by jury as\n\ndeclared by the Seventh Amendment to the Constitution -- or as provided by a\n\nfederal statute -- is preserved to the parties inviolate.”). Because the Seventh\n\nAmendment requires that the right to a jury trial only be “preserved” as it then\n\nexisted, the inquiry requires us to look to the right as it existed at the time of the\n\nFounding. At common law, jury trials were limited to cases heard in courts of law,\n\nas opposed to those in courts of equity or admiralty. See Tull, 481 U.S. at 417.\n\nThe Seventh Amendment right has thus long been understood to extend only to\n\n“suits in which legal rights were to be ascertained and determined, in\n\ncontradistinction to those where equitable rights alone were recognized, and\n\nequitable remedies were administered.” Parsons v. Bedford, 28 U.S. (3 Pet.) 433,\n\n447 (1830) (Story, J.).\n\n\n\n\n 13\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 14 of 36\n\n\n The Supreme Court has set out a two-part test to determine whether the\n\nSeventh Amendment’s guarantee applies to a particular claim:\n\n To determine whether a statutory action is more similar to cases that\n were tried in courts of law than to suits tried in courts of equity or\n admiralty, the Court must examine both the nature of the action and of\n the remedy sought. First, we compare the statutory action to 18th-\n century actions brought in the courts of England prior to the merger of\n the courts of law and equity. Second, we examine the remedy sought\n and determine whether it is legal or equitable in nature.\n\nTull, 481 U.S. at 417–18 (citations omitted). The dispute in this case in the main\n\ncenters on the second part -- the nature of the profits remedy sought by Hard\n\nCandy.\n\n We begin, then, by examining the nature of the action, here trademark\n\ninfringement and unfair competition based on infringement. “Trademarks and\n\ntheir precursors have ancient origins, and trademarks were protected at common\n\nlaw and in equity at the time of the founding of our country.” Matal v. Tam, 137\n\nS. Ct. 1744, 1751 (2017). Trademark infringement claims began as common law\n\nactions for fraud or “deceit.” Sandforth’s Case, heard in an English court of law in\n\n1584, may be the earliest trademark infringement action at common law. See\n\nKeith M. Stolte, How Early Did Anglo-American Trademark Law Begin? An\n\nAnswer to Schechter’s Conundrum, 8 Fordham Intell. Prop. Media & Ent. L.J. 505,\n\n509 (1998); 1 McCarthy § 5:2. The plaintiff there was a maker of woolen cloth\n\nwho claimed that a competitor used his mark and placed it on his own goods,\n\n\n 14\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 15 of 36\n\n\nwhich were comparatively “ill, insufficient and unmerchantable.” Stolte, supra, at\n\n530. The court held that he could bring a claim at common law sounding in the\n\ntort of deceit. Id. at 538.\n\n By the time the Seventh Amendment was ratified in 1791, the common law\n\ntrademark infringement action was well established. See, e.g., Singleton v. Bolton\n\n(1783) 99 Eng. Rep. 661, 661; 3 Dougl. 293, 293 (stating that “if the defendant had\n\nsold a medicine of his own under the plaintiffs name or mark, that would be a fraud\n\nfor which an action would lie”). Trademark actions also were brought in courts of\n\nequity during the same period. Blanchard v. Hill (1742) 26 Eng. Rep. 692; 2 Atk.\n\n484, is the earliest reported trademark case brought in equity. See Mark P.\n\nMcKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev.\n\n1839, 1852 (2007). Shortly thereafter, the accepted rule was “that equity could be\n\ninvoked to protect the plaintiff’s title to his marks.” See id. at 1854. Early\n\nAmerican case law likewise demonstrates that trademark rights could be enforced\n\nat equity. See, e.g., Taylor v. Carpenter, 23 F. Cas. 742, 744 (Story, Circuit\n\nJustice, C.C.D. Mass. 1844) (No. 13,784). Thus, because when the Seventh\n\nAmendment was ratified trademark rights had “been long recognized by the\n\ncommon law and the chancery courts of England,” Trade-Mark Cases, 100 U.S.\n\n82, 92 (1879), this part of the Supreme Court’s test is indeterminate.\n\n\n\n\n 15\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 16 of 36\n\n\n The second prong -- the nature of the remedy -- is the “[m]ore important”\n\nconsideration and provides substantially more guidance here. Curtis, 415 U.S. at\n\n196. Hard Candy does not seek actual damages, and it is undisputed that a plaintiff\n\nseeking only injunctive relief, costs, and fees would not be entitled to a jury trial.\n\nThus, our analysis centers on Hard Candy’s request for an accounting of\n\nAnastasia’s profits and for the accompanying disgorgement of those gains. Our\n\nreview is necessarily broader than the origins of the statutory remedy contained in\n\nthe Lanham Act. As the Second Circuit recently explained, “the ancient remedies\n\nof accounting, constructive trust, and restitution have compelled wrongdoers to\n\n‘disgorge’ -- i.e., account for and surrender -- their ill-gotten gains for centuries.”\n\nS.E.C. v. Cavanagh, 445 F.3d 105, 119 (2d Cir. 2006). To determine the nature of\n\nthe Lanham Act profits remedy at issue here, we look to the foundation of these\n\nremedies more generally.\n\n The remedy sought by Hard Candy, an accounting and disgorgement of\n\nprofits, was historically a matter for courts of equity. Justice Story explained that\n\nalthough “[o]ne of the most ancient forms of action at the common law [was] the\n\naction of account,” the “Courts of Equity began to assume jurisdiction in matters of\n\naccount . . . at a very early period.” 2 Joseph Story, Commentaries on Equity\n\nJurisprudence as Administered in England and America § 581 (14th ed. 1918).\n\nBefore the courts of equity assumed jurisdiction in such cases, they could only\n\n\n 16\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 17 of 36\n\n\nissue an injunction to prevent ongoing or future harm and, therefore, could not\n\noffer full relief. A plaintiff would have to enter a court of law to receive\n\ncompensation for past injuries. Not surprisingly, the accounting remedy was soon\n\ncarried over to courts of equity as a means of “permitting an award of monetary\n\nand injunctive relief in the same action,” and thereby preventing duplicative\n\nlitigation. Restatement (Third) of Unfair Competition § 37 cmt. b (Am. Law Inst.\n\n1995); see also George Basch Co., 968 F.2d at 1537–38. In fact, courts of equity\n\nquickly became the preferred forum for accounting, and the action at law, though\n\nolder, fell “into almost total disuse.” Story, supra, § 581.\n\n This story unfolded the same way in the case of trademark infringement.\n\nThe Restatement (First) of Torts explained that disgorgement of profits “is a form\n\nof equitable relief” that “was granted initially in [trademark and unfair\n\ncompetition] cases as an equivalent or substitute for legal damages when equity\n\njurisdiction was properly invoked for injunctive relief.” Restatement (First) of\n\nTorts § 747 cmt. b (Am. Law. Inst. 1938). The English Court of Chancery made\n\nthis exact point far earlier in an 1803 trademark case, observing that when\n\ninfringement is proven, “a Court of Equity in these cases is not content with an\n\naction for damages . . . and therefore the remedy here, though not compensating\n\nthe pecuniary damage except by an account of the profits, is the best: the remedy\n\nby an injunction and account.” Hogg v. Kirby (1803) 32 Eng. Rep. 336, 339; 8\n\n\n 17\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 18 of 36\n\n\nVes. Jun. 214, 223; see also Millington v. Fox (1838) 40 Eng. Rep. 956, 961; 3\n\nMy. & Cr. 388, 352 (noting that trademark plaintiffs “undoubtedly had a right to\n\nthe assistance of a Court of Equity to enforce” their rights in a mark and deeming\n\nan accounting to be an appropriate ancillary to injunctive relief). In other words, a\n\ncourt of law, limited to providing legal relief, would not be able to provide full\n\nredress to a trademark infringement plaintiff, but a court of equity could do so by\n\nproviding an injunction along with ordering an accounting and disgorgement of the\n\ndefendant’s profits -- precisely the remedy Hard Candy seeks here.\n\n The distinction between legal damages and the equitable accounting also is\n\nreflected in early American trademark case law. Shortly after the 1870 passage of\n\nthe first federal trademark legislation, the Supreme Court explained that in\n\ntrademark cases, “damages may be recovered in an action at law,” but “the\n\ncontinued violation of [trademark rights would] be enjoined by a court of equity,\n\nwith compensation for past infringement.” Trade-Mark Cases, 100 U.S. at 92.\n\n“[C]ompensation for past infringement” must refer to the disgorgement of the\n\ndefendant’s profits, because courts of equity could not provide legal damages. By\n\nthe end of the nineteenth century, “a clear division” between the remedies available\n\nat law and equity had arisen in trademark cases: “Common law courts awarded\n\ndamages; equity issued injunctions and awarded defendant’s profits to provide\n\ncomplete relief in a single proceeding.” Mark A. Thurmon, Ending the Seventh\n\n\n 18\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 19 of 36\n\n\nAmendment Confusion: A Critical Analysis of the Right to a Jury Trial in\n\nTrademark Cases, 11 Tex. Intell. Prop. L.J. 1, 67 (2002).\n\n The theoretical justification offered for providing an accounting and\n\ndisgorgement in trademark cases further reveals that Hard Candy’s requested\n\nremedy is equitable in nature. Long ago, the Supreme Court explained that the\n\nremedy is based on the legal fiction of the trust ex maleficio, a constructive trust in\n\nwhich a holder of property is recognized to have obtained that property by\n\nwrongful means. The Court put it this way:\n\n The right to use a trade-mark is recognized as a kind of property, of\n which the owner is entitled to the exclusive enjoyment to the extent\n that it has been actually used. The infringer is required in equity to\n account for and yield up his gains to the true owner, upon a principle\n analogous to that which charges a trustee with the profits acquired by\n wrongful use of the property of the cestui que trust. . . . [T]he\n jurisdiction must be rested upon some other equitable ground, -- in\n ordinary cases, as in the present, the right to an injunction -- but the\n court of equity, having acquired jurisdiction upon such a ground,\n retains it for the purpose of administering complete relief, rather than\n send the injured party to a court of law for his damages. And profits\n are then allowed as an equitable measure of compensation, on the\n theory of a trust ex maleficio.\n\nHamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 259 (1916)\n\n(citations omitted and emphasis added). The Court’s theory was that a trademark\n\ninfringer wrongfully benefits by using property owned by the trademark owner --\n\nnamely, the mark -- and so “a defendant who is liable in a trademark or trade dress\n\ninfringement action may be deemed to hold its profits in constructive trust for the\n\n\n 19\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 20 of 36\n\n\ninjured plaintiff.” George Basch Co., 968 F.2d at 1537–38. This theoretical\n\nfoundation sounds in equity: the remedy of an equitable accounting was originally\n\nprovided for disputes with a “trust or fiduciary relation existing between the\n\nparties.” Story, supra, § 598. When the profits remedy is properly understood as\n\n“an equitable measure of the compensation” justified by “the analogy of the\n\nliability of a trustee who wrongfully appropriated trust property,” its foundation in\n\nthe reasoning of equity is clear. Restatement (First) of Torts § 747 cmt. b. In\n\nshort, the historical record establishes that the remedy requested by Hard Candy is\n\nequitable, not legal, in nature.\n\n C.\n\n In the face of this history, Hard Candy submits that the Supreme Court’s\n\ndecision in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), overcomes the\n\ntraditional characterization of the disgorgement of profits remedy as equitable, and,\n\nsomehow, converts it into a legal remedy. In Dairy Queen, a restaurant company\n\nsued a franchisee for breach of contract and trademark infringement and sought\n\n“an accounting to determine the exact amount of money owing by [the franchisee]\n\nand a judgment for that amount” along with injunctive relief. Id. at 475. The\n\nCourt held that a jury trial was required because “insofar as the complaint requests\n\na money judgment it presents a claim which is unquestionably legal.” Id. at 476.\n\nHard Candy claims that the Supreme Court’s bottom-line answer in Dairy Queen --\n\n\n 20\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 21 of 36\n\n\n“we think it plain that their claim for a money judgment is a claim wholly legal in\n\nits nature,” id. at 477 -- supports its demand for a jury trial. We remain\n\nunpersuaded.\n\n Importantly, the Court seemed skeptical of the plaintiff’s characterization of\n\nits requested relief as an “accounting” of profits:\n\n The respondents’ contention that this money claim is “purely\n equitable” is based primarily upon the fact that their complaint is cast\n in terms of an “accounting,” rather than in terms of an action for\n “debt” or “damages.” But the constitutional right to trial by jury\n cannot be made to depend upon the choice of words used in the\n pleadings.\n\nId. at 477–78. An action for “debt” or “damages” would certainly provide a legal\n\nremedy, and this is the better understanding of the basis for the Court’s conclusion\n\nthat a jury trial was required. Elsewhere, the Court said that “[t]he most natural\n\nconstruction of the respondents’ claim for a money judgment would seem to be\n\nthat it is a claim that they are entitled to recover whatever was owed them under\n\nthe contract as of the date of its purported termination plus damages for\n\ninfringement of their trademark since that date.” Id. at 476 (emphasis added).\n\nPlainly, an action for contract damages and a claim for damages for infringement\n\nare legal in nature. Tellingly, the Supreme Court later described Dairy Queen as\n\nan “action for damages for trademark infringement ‘subject to cognizance by a\n\ncourt of law.’” Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346\n\n(1998) (quoting Dairy Queen, 369 U.S. at 477).\n 21\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 22 of 36\n\n\n We do not read Dairy Queen as holding that the accounting and\n\ndisgorgement of profits was a legal remedy, since that isn’t what the plaintiff had\n\nsought. See Dairy Queen, 369 U.S. at 479 (“A jury, under proper instructions from\n\nthe court, could readily determine the recovery, if any, to be had here, whether the\n\ntheory finally settled upon is that of breach of contract, that of trademark\n\ninfringement, or any combination of the two.”). Indeed, it would have been\n\nstrange for the Court to have implicitly held, without any historical analysis, that it\n\ndeemed accounting and disgorgement of profits to be a legal remedy requiring a\n\njury trial. We presume that the Supreme Court does not hide elephants in such\n\nwell-disguised mouseholes. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,\n\n468 (2001). And we cannot ignore the clear lessons of history, most notably the\n\nSupreme Court’s designation of profits as an “equitable measure of compensation”\n\nprovided “on the theory of a trust ex maleficio,” when our task is to explain the\n\n“nature of the remedy” sought by the plaintiff. Hamilton-Brown Shoe Co., 240\n\nU.S. at 259; see also Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 132–33 (2d Cir.\n\n2014) (“Dairy Queen does not abrogate the longstanding treatment of an\n\naccounting of profits as an equitable remedy, nor could it change how the remedy\n\nwas treated at the time of the Court of Chancery.”).\n\n The two Courts of Appeals that have addressed this precise question -- the\n\nSixth and Ninth Circuits -- have agreed with our conclusion that a claim for an\n\n\n 22\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 23 of 36\n\n\naccounting and disgorgement of profits under the Lanham Act is equitable in\n\nnature and, therefore, that the Seventh Amendment’s guarantee of a jury trial does\n\nnot apply. Ferrari S.p.A. v. Roberts, 944 F.2d 1235, 1248 (6th Cir. 1991)\n\n(“Ferrari’s complaint requested only equitable relief; an injunction and\n\ndisgorgement of profits.”); Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc.,\n\n778 F.3d 1059, 1074–76 (9th Cir. 2015). And outside of the Seventh Amendment\n\ncontext, we have already held that Lanham Act disgorgement is an equitable\n\nremedy. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987\n\n(11th Cir. 1995) (“Here, [the plaintiff] seeks a permanent injunction and the\n\nequitable remedy of receiving appellants’ profits from counterfeiting under 15\n\nU.S.C. § 1117.”). In Levi Strauss, the district court had entered a preliminary\n\ninjunction against an alleged infringer and froze the infringer’s assets. Id. at 984.\n\nA panel of this Court held that the asset freeze was a valid exercise of the district\n\ncourt’s equitable powers because the underlying claim involved a request for\n\nequitable relief -- namely, the disgorgement of profits under the Lanham Act. Id.\n\nat 987.\n\n We would also be remiss if we overlooked the Court’s repeated statements,\n\nalbeit in dicta, that the disgorgement of wrongful gains is equitable. As we’ve\n\nsaid, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”\n\nSchwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). Thus, for example, in\n\n\n 23\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 24 of 36\n\n\nTull, the Supreme Court said in passing that “an action for disgorgement of\n\nimproper profits [is] traditionally considered an equitable remedy.” Tull, 481 U.S.\n\nat 424. Later, the Supreme Court observed that damages are equitable “where\n\nthey are restitutionary, such as in action[s] for disgorgement of improper profits.”\n\nChauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570\n\n(1990) (quotation marks omitted); see also Great-West Life & Annuity Ins. Co. v.\n\nKnudson, 534 U.S. 204, 214 n.2 (2002) (describing “an accounting for profits” as\n\n“a form of equitable restitution”). Our sister circuits too have offered similar\n\nobservations. E.g., Tamko Roofing Prods., Inc. v. Ideal Roofing Co., 282 F.3d 23,\n\n36 (1st Cir. 2002) (noting “the Lanham Act’s designation of an accounting of\n\ndefendant’s profits as an equitable remedy”); A & H Sportswear, Inc. v. Victoria’s\n\nSecret Stores, Inc., 166 F.3d 197, 209 (3d Cir. 1999) (en banc) (“[A]n accounting\n\nfor profits is a form of equitable relief . . . .” (quoting Williamson-Dickie Mfg. Co.\n\nv. Davis Mfg. Co., 251 F.2d 924, 927 (3d Cir. 1958)); Fuller Prods. Co. v. Fuller\n\nBrush Co., 299 F.2d 772, 777 (7th Cir. 1962) (“An accounting for profits . . . is an\n\nequitable remedy subject to the principles of equity.”).\n\n All of this leads us to the conclusion that an accounting and disgorgement of\n\na defendant’s profits in a trademark infringement case is equitable in nature and\n\ndoes not carry with it a right to a jury trial. So, returning to Hard Candy’s claim\n\nand the Seventh Amendment test laid out by the Supreme Court, the first prong --\n\n\n 24\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 25 of 36\n\n\nthe nature of the cause of action -- is a wash since trademark actions were\n\ncognizable at both law and equity; but the more important second prong -- the\n\nnature of the remedy -- weighs decidedly in favor of Anastasia. Because Hard\n\nCandy abandoned any claim for legal relief, the district court did not err in\n\ndetermining that the plaintiff was not entitled to a jury trial.\n\n Lest there be any doubt, the record is clear that Hard Candy expressly\n\ndisclaimed its request for actual damages prior to trial. In a joint filing, Hard\n\nCandy “stipulate[d] that it is not seeking actual damages or lost profits” and instead\n\nwas “seek[ing] to recover Defendant Anastasia’s profits from its sales.” On the\n\nbasis of that stipulation, Anastasia withdrew its motion for partial summary\n\njudgment on actual damages. And, again, during the trial Hard Candy repeatedly\n\nobjected when Anastasia sought to elicit testimony about actual damages. Thus,\n\nfor instance, when Anastasia asked Jerome Falic, Hard Candy’s CEO, to confirm\n\nthat the company was “not seeking to recover any of its own los[t] profits in this\n\ncase,” Hard Candy’s counsel objected because they “stipulated to that fact” and it\n\nwas “irrelevant.” When Anastasia asked its expert about his statement that he had\n\nnot “seen any evidence of financial or economic harm to the plaintiff,” Hard Candy\n\nobjected and said, “Harm to the plaintiff is not an element of this case.” And when\n\nAnastasia asked the president of NuWorld -- the corporation that manufactures\n\ncosmetics for Hard Candy -- whether he had any “evidence that NuWorld was\n\n\n 25\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 26 of 36\n\n\nharmed by Anastasia’s use of the words ‘hard candy’ in the Gleam Glow Kit,”\n\nHard Candy again objected on grounds of relevance.\n\n To allow Hard Candy on the one hand to object to the introduction of any\n\nevidence related to its actual injuries and on the other to insist on a jury trial\n\nbecause it is seeking redress for that same harm would be incongruous, even if it\n\nhadn’t expressly dropped its claim for actual damages. What’s more, Hard\n\nCandy’s proposed rule would make the Seventh Amendment right fully depend on\n\nthe rationale the plaintiff offered for seeking to recover the defendant’s profits.\n\nThat rule is inconsistent with the longstanding interpretation of the Seventh\n\nAmendment set out by the Supreme Court, which requires us to look to the nature\n\nof the action and the nature of the requested remedy. Hard Candy was not entitled\n\nto a jury trial on its claim for an accounting and disgorgement of the defendant’s\n\nprofits.\n\n III.\n\n Hard Candy also challenges the district court’s resolution of its claims on the\n\nmerits. “After a bench trial, we review the district court’s conclusions of law de\n\nnovo and the district court’s factual findings for clear error.” Proudfoot Consulting\n\nCo. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). Findings as to whether a\n\nplaintiff has ultimately shown a likelihood of confusion, as to each of the factors,\n\nand as to the elements of the fair use defense are subject only to clear error review.\n\n\n 26\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 27 of 36\n\n\nN. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1220 (11th Cir.\n\n2008) (likelihood of confusion); Sands, Taylor & Wood Co. v. Quaker Oats Co.,\n\n978 F.2d 947, 952 (7th Cir. 1992) (fair use).\n\n A.\n\n We begin with the likelihood of confusion. The district court applied our\n\nseven-factor test and concluded that Hard Candy had not shown a likelihood of\n\nconfusion. On review, “[t]he real question is whether the court’s ultimate\n\ndetermination about the ‘likelihood of confusion’ was correct.” Univ. of Ga.\n\nAthletic Ass’n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985); see also Safeway\n\nStores, Inc. v. Safeway Disc. Drugs, Inc., 675 F.2d 1160, 1164 n.3 (11th Cir. 1982)\n\n(“Our review . . . is governed by the clearly erroneous test even though the court’s\n\nanalysis of the factors relevant to a finding of likelihood of confusion was\n\nincomplete.”), abrogated on other grounds by Tobinick v. Novella, 884 F.3d 1110,\n\n1118 (11th Cir. 2018). Accordingly, “we may affirm an ultimate finding on the\n\nissue of confusion that is not clearly erroneous, even when the district court fails to\n\nconsider all seven factors” of the test or errs in its analysis of any one. See Wesco\n\nMfg., Inc., 833 F.2d at 1489.\n\n Our precedent sets out a seven-factor test to determine whether a purportedly\n\ninfringing product creates a likelihood of consumer confusion. We look to the:\n\n (1) type of mark, (2) similarity of mark, (3) similarity of the products\n the marks represent, (4) similarity of the parties’ retail outlets and\n 27\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 28 of 36\n\n\n customers, (5) similarity of advertising media used, (6) defendant’s\n intent and (7) actual confusion.\n\nLone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 122 F.3d 1379,\n\n1382 (11th Cir. 1997). On summary judgment, the court determined that three of\n\nthem -- similarity of products, similarity of trade channels and customers, and\n\nsimilarity of advertising -- favored Hard Candy. There was no dispute that both\n\ncompanies sell cosmetics products online and in retail stores, their customers are\n\nprimarily women between the ages of 18 and 35, and both advertise their products\n\nthrough trade shows, social media, and traditional print media. The court rejected\n\nAnastasia’s proposed distinction between the “high-end” and “low-end” segments\n\nof the cosmetics market.\n\n The district court then held a three-day bench trial. Afterwards, the court\n\ndetermined that the mark was “arbitrary” since it bears no relationship to the\n\nproducts, which meant that the mark was “strong” and that the type-of-mark factor\n\nweighed in Hard Candy’s favor; that the similarity-of-mark factor favored\n\nAnastasia, because it was not using “hard candy” as a mark; that Anastasia did not\n\nintentionally infringe on the mark; and that there was no evidence of actual\n\nconfusion. Viewing the evidence as a whole, the trial court determined that Hard\n\nCandy had not established a likelihood of confusion and issued a decision to that\n\neffect from the bench. The record indicates that there was ample factual evidence\n\n\n\n 28\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 29 of 36\n\n\nto support the trial court’s findings and, indeed, that the court weighed each of the\n\nfactors with great care.\n\n Hard Candy responds with three legal arguments; none of them are\n\npersuasive. For starters, Hard Candy asserts that the district court erred by finding\n\nthat the “similarity of mark” factor favored Anastasia. The district court concluded\n\nthat “Anastasia’s use of ‘Hard Candy’ does not create a likelihood of confusion on\n\nthis factor [because] while Anastasia uses the same words, all in capital letters, the\n\nCourt must consider the overall impression created by the use of the mark as a\n\nwhole, rather than comparing the individual features, and . . . the use creates a\n\ndifferent overall impression.” Hard Candy, in essence, claims that the trial court\n\nshould have stopped at the point that it recognized that Anastasia’s use of the term\n\n“hard candy” was formally identical to the company’s mark -- HARD CANDY, in\n\ncapital letters -- and concluded that the factor weighed in its favor.\n\n But the trial court must “compare[] the marks and consider[] the overall\n\nimpressions that the marks create, including the sound, appearance, and manner in\n\nwhich they are used.” Frehling Enters., Inc. v. Int’l Select Grp., Inc., 192 F.3d\n\n1330, 1337 (11th Cir. 1999) (emphasis added); John H. Harland Co. v. Clarke\n\nChecks, Inc., 711 F.2d 966, 975 (11th Cir. 1983) (“This consideration includes a\n\ncomparison of the appearance, sound and meaning of the marks, as well as the\n\nmanner in which the marks are used.”). The district court looked to the overall\n\n\n 29\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 30 of 36\n\n\nimpression created by the Gleam Glow Kit -- the words “HARD CANDY”\n\nappeared only on the back and inside of the kit, “nam[ing] one shade of a product\n\nthat is otherwise clearly and prominently featured as an Anastasia Beverly Hills\n\nmark.” In this way, the district court concluded that Anastasia was using the words\n\nmerely “to describe a shade,” and for that reason it found that this factor favored\n\nAnastasia.\n\n The district court’s analysis is fully consistent with our precedent. In John\n\nH. Harland Co., we considered as part of this analysis things like the placement of\n\nthe mark, the mark’s usage to label a specific part of the product, and the size of\n\nthe print. 711 F.2d at 975–76. Hard Candy has provided no case law holding that\n\nthe similarity-of-mark factor bars consideration of whether the alleged infringer\n\nwas using the words as a mark. The point of the similarity-of-mark analysis “is\n\nthat the closer the marks are, the more likely reasonable consumers will mistake\n\nthe source of the product that each mark represents.” Frehling Enters., Inc., 192\n\nF.3d at 1337. For that reason, “[t]he probability of this potential confusion is the\n\ntouchstone.” Id. Thus, although Anastasia used words that are identical to Hard\n\nCandy’s mark, it was reasonable for the district court to determine that Anastasia\n\nwas not using the words in a “manner” likely to cause confusion as to the source of\n\nthe goods.\n\n\n\n\n 30\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 31 of 36\n\n\n Second, Hard Candy claims that the district court erred by giving\n\n“substantial and overwhelming weight to Anastasia’s lack of intent to infringe.”\n\nBr. for Plaintiff-Appellants at 49. Hard Candy argues that we should follow courts\n\noutside this Circuit that have said that “[i]ntent . . . is an issue whose resolution\n\nmay benefit only the cause of a [plaintiff], not of an alleged infringer.” Daddy’s\n\nJunky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 287\n\n(6th Cir. 1997); see also Beacon Mut. Ins. Co. v. OneBeacon Ins. Grp., 376 F.3d 8,\n\n19 (1st Cir. 2004). The problem with the argument is that the factual predicate is\n\nnot reflected in the record. The district court never said that it was giving any\n\naffirmative (let alone overwhelming) weight to its finding that Anastasia lacked\n\nintent to infringe. The court concluded its discussion this way: “And for all of\n\nthese reasons, and the cases I’ve cited, I find that Anastasia did not intend to\n\ninfringe on the mark and was not intentionally blind after receiving the cease and\n\ndesist.” It did not say that this factor weighed in Anastasia’s favor. Hard Candy\n\nseems to assume that the district court gave it too much weight merely because the\n\nissue took up more space in the ruling, but there is no indication in the record that\n\nAnastasia’s intent received undue consideration.\n\n Finally, Hard Candy argues that the district court placed too much weight on\n\nthe lack of a showing of actual confusion. We have said that evidence of actual\n\nconfusion “is not necessary to a finding of likelihood of confusion.” John H.\n\n\n 31\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 32 of 36\n\n\nHarland Co., 711 F.2d at 978. Hard Candy says that the district court erred by\n\ngiving the lack of actual confusion evidence “substantial weight,” since this\n\nevidence is often difficult to produce and the product was on the market for only\n\neight months.\n\n Our cases have often recognized actual confusion as one of the most\n\nimportant factors. Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d\n\n1242, 1264 (11th Cir. 2016) (“the best evidence of a likelihood of confusion”);\n\nCaliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d\n\n931, 936 (11th Cir. 2010) (“the most weighty consideration”); Lone Star\n\nSteakhouse & Saloon, Inc., 122 F.3d at 1382 (one of “the two most important\n\nfactors”); John H. Harland Co., 711 F.2d at 978 (“the best evidence of likelihood\n\nof confusion”). “The presence or absence of actual confusion can be highly\n\neffective in showing a high, or a low, likelihood of confusion if there has been\n\nample opportunity for consumer confusion.” Nabisco, Inc. v. PF Brands, Inc., 191\n\nF.3d 208, 228 (2d Cir. 1999) (emphasis omitted), abrogated on other grounds by\n\nMoseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003). “If consumers have\n\nbeen exposed to two allegedly similar trademarks in the marketplace for an\n\nadequate period of time and no actual confusion is detected either by survey or in\n\nactual reported instances of confusion, that can be powerful indication that the\n\njunior trademark does not cause a meaningful likelihood of confusion.” Id.\n\n\n 32\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 33 of 36\n\n\n In this case, there was enough opportunity for confusion to make the absence\n\nof any evidence significant. Uncontroverted testimony at trial established that\n\nAnastasia sold 248,075 Gleam Glow Kits, totaling over $5 million in revenue. The\n\nproduct was posted on Anastasia’s corporate social media accounts, which have\n\nmillions of followers. And still, Hard Candy did not produce any evidence that a\n\ncustomer was ever actually confused about the source of the Gleam Glow Kit. A\n\nreasonable person could conclude that the lack of evidence is at least probative of\n\nthe conclusion that there was no likelihood of confusion -- hundreds of thousands\n\nof cosmetics consumers purchased the allegedly infringing kit, several times more\n\nlikely saw it on store shelves or online, and still there is no evidence that anyone,\n\nanywhere, was ever confused about whether Anastasia or Hard Candy was\n\nresponsible for the product. Hard Candy hasn’t established clear error here either.\n\n In sum, the record does not suggest that the district court committed clear\n\nerror as to any of its findings, and it does not show clear error as to the court’s\n\nultimate conclusion that Hard Candy had not shown a likelihood of confusion.\n\nEven if we were to accept one or two of Hard Candy’s arguments -- and on this\n\nrecord, we don’t -- that would not compel reversal. “[A] district court’s error in its\n\nanalysis of one of the subsidiary factors in the likelihood of confusion test is not\n\nenough to allow us to overturn the district court’s decision.” Fla. Int’l Univ. Bd. of\n\nTrs., 830 F.3d at 1255 (internal quotation marks omitted). Our review of the\n\n\n 33\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 34 of 36\n\n\nrecord, taken as a whole, does not leave us “with the definite and firm conviction\n\nthat a mistake has been committed” about the district court’s basic finding that\n\nthere was no likelihood of confusion. See United States v. U.S. Gypsum Co., 333\n\nU.S. 364, 395 (1948).\n\n B.\n\n Hard Candy also challenges the district court’s conclusion that Anastasia\n\nmade out a fair use defense to infringement. A defendant is entitled to the fair use\n\ndefense if it establishes that it used the allegedly infringing term “(1) other than as\n\na mark, (2) in a descriptive sense, and (3) in good faith.” Int’l Stamp Art, Inc. v.\n\nU.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (internal quotation marks\n\nomitted). Hard Candy challenges the district court’s finding as to the second\n\nelement, arguing that the district court erred “by completely disregarding the\n\ncentral requirement that whether a trademark is being used in a ‘descriptive sense’\n\nstarts and ends with consumer perception.” Br. for Plaintiff-Appellants at 41.\n\n “The ‘fair-use’ defense, in essence, forbids a trademark registrant to\n\nappropriate a descriptive term for [its] exclusive use and so prevent others from\n\naccurately describing a characteristic of their goods.” Int’l Stamp Art, Inc., 456\n\nF.3d at 1274 (quoting Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir.\n\n1980)). This Court has not elaborated on what it means to use a mark “in a\n\ndescriptive sense.” We have, however, explained that a descriptive mark\n\n\n 34\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 35 of 36\n\n\n“identifies a characteristic or quality of an article or service as, for example, its\n\ncolor, odor, function, dimensions, or ingredients.” Soweco, Inc., 617 F.2d at 1183\n\n(citation and quotations omitted). The Seventh Circuit has interpreted the fair use\n\nelement of use “in a descriptive sense” in a roughly similar way, explaining that “it\n\nis not necessary that a descriptive term depict the [product] itself, but only that the\n\nterm refer to a characteristic of the [product].” Sands, Taylor & Wood Co., 978\n\nF.2d at 952.\n\n To the extent that Hard Candy argues that the district court erred by not\n\nconsidering how a hypothetical consumer would perceive the use of the mark, we\n\nthink it has ignored what the district court said in its ruling. The court looked to\n\n“the overall context; the lettering, the type, the style, the size, [and] the visual\n\nplacement” of the words on the product. It accepted the argument that “hard\n\ncandy” was used in a descriptive sense because “it was used to describe the sheen”\n\nof the makeup shade that the term labeled. Anastasia introduced evidence that\n\ncosmetics companies regularly describe shades with words that are not literal color\n\ndescriptions, like the other three shades in the kit named “Starburst,” “Mimosa,”\n\nand “Crushed Pearl.” The district court was attempting to discern how a\n\nreasonable consumer of cosmetics would perceive Anastasia’s use of the mark, not\n\nrelying purely on Anastasia’s subjective intent, contrary to Hard Candy’s assertion.\n\nAnd to the extent Hard Candy argues that the district court should have required\n\n\n 35\n\f Case: 18-10877 Date Filed: 04/23/2019 Page: 36 of 36\n\n\nAnastasia to introduce evidence of actual consumer perception, that proposition\n\nhas no support in the law. See, e.g., Sorensen v. WD-40 Co., 792 F.3d 712, 725\n\n(7th Cir. 2015) (upholding fair use defense without any such evidence);\n\nCosmetically Sealed Indus., Inc. v. Chesebrough-Pond’s USA Co., 125 F.3d 28, 30\n\n(2d Cir. 1997) (same). We are hard-pressed to find clear error of any kind.\n\n IV.\n\n The long and the short of it is that Hard Candy has failed to convince us that\n\nthe district court erred in its resolution of this case. The historical evidence reveals\n\nthat the particular remedy sought by Hard Candy -- an accounting and\n\ndisgorgement of Anastasia’s profits as an alleged infringer -- is a creature of\n\nequity. For that reason the Seventh Amendment’s guarantee of a jury trial does not\n\napply. On the merits, we can discern no error in the district court’s resolution of\n\nHard Candy’s claims, and, accordingly, affirm.\n\n AFFIRMED.\n\n\n\n\n 36\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: HARD CANDY, LLC, a Florida Limited Liability Company, Plaintiff-Appellant, v. ANASTASIA BEVERLY HILLS, INC., a California Corporation, Defendant-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10877 Date Filed: 04/23/2019 Page: 1 of 36\\n\\n\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10877\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-21203-KMW\\n\\n\\n\\nHARD CANDY, LLC,\\na Florida limited liability company,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\nANASTASIA BEVERLY HILLS, INC.,\\na California Corporation,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 23, 2019)\\n\\nBefore MARCUS, GRANT, and HULL, Circuit Judges.\\n\\nMARCUS, Circuit Judge:\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 2 of 36\\n\\n\\n\\n\\n “Trial by jury,” James Madison said in a speech urging the adoption of the\\n\\nBill of Rights, “is as essential to secure the liberty of the people as any one of the\\n\\npre-existent rights of nature.” James Madison, Speech in Congress Proposing\\n\\nConstitutional Amendments, in Writings 445–46 (Jack Rakove ed., 1999). But\\n\\ncourts have long held that a jury is guaranteed only for claims that would have\\n\\nbeen heard in courts of law at the time of the Founding, not for those that would\\n\\nhave been heard in courts of equity. This appeal requires us to decide whether the\\n\\nSeventh Amendment right to trial by jury applies when a trademark plaintiff\\n\\nattempts to recover the profits the defendant made by selling the allegedly\\n\\ninfringing goods. Plaintiff Hard Candy, LLC, a cosmetics company, seeks every\\n\\nremedy permitted by the Lanham Act besides actual damages -- that is, it asked for\\n\\nan injunction to prevent future infringement, an accounting and the disgorgement\\n\\nof profits that the defendant made from the allegedly infringing goods, and\\n\\ndeclaratory relief, along with fees and costs. Because the claim didn’t include\\n\\nactual damages, the district court denied Hard Candy’s request for a jury trial.\\n\\nAfter a bench trial, the court found that there was no likelihood of confusion and\\n\\nheld that defendant Anastasia Beverly Hills, Inc., made out a fair use defense to\\n\\ninfringement. Hard Candy challenges each of these determinations on appeal.\\n\\n As a threshold matter, this case requires us to resolve a Seventh Amendment\\n\\nquestion of first impression before reaching the merits. Hard Candy argues that a\\n 2\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 3 of 36\\n\\n\\njury should have decided its claims because it was seeking to recover Anastasia’s\\n\\nprofits as a “proxy” for the damages it suffered due to infringement. This basis for\\n\\nseeking profits, the company argues, means that the remedy is legal, not equitable\\n\\nin nature and carries with it the right to a jury trial. We disagree. The remedy of\\n\\nan accounting and disgorgement of profits for trademark infringement is equitable\\n\\nin nature and has long been considered that way, so we hold that a plaintiff seeking\\n\\nthe defendant’s profits in lieu of actual damages is not entitled to a jury trial. As\\n\\nfor the district court’s merits determinations on infringement and fair use, we find\\n\\nno error and, therefore, affirm.\\n\\n I.\\n\\n Hard Candy, LLC, is a cosmetics company headquartered in Hollywood,\\n\\nFlorida. The company’s predecessor first filed a trademark application for the\\n\\nHARD CANDY mark in 1995. Since then, Hard Candy has continuously used the\\n\\nHARD CANDY mark in connection with the sale of cosmetics. 1 Hard Candy does\\n\\nnot produce cosmetics itself; it licenses the mark to a third-party cosmetics\\n\\nproducer, NuWorld Corporation, which makes nail polish, eye shadow, lip gloss,\\n\\nand various facial beauty products that are sold under the Hard Candy name.\\n\\n\\n\\n\\n1\\n Hard Candy owns at least fourteen federally registered trademarks. See Registration Nos.\\n1,987,262; 2,343,732; 2,552,029; 2,666,792; 3,695,602; 2,362,340; 2,567,186; 2,150,397;\\n2,666,793; 4,218,371; 4,735,879; 4,818,389; 2,059,480; and 4,713,229.\\n 3\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 4 of 36\\n\\n\\nThese items are sold exclusively at Wal-Mart stores and on Wal-Mart’s website,\\n\\nand have generated sales in excess of $36 million each year since 2011.\\n\\n Anastasia Beverly Hills, Inc., a California-based corporation, is also in the\\n\\ncosmetics business. In December 2015, Anastasia announced the release of a new\\n\\nedition in its line of “Glow Kits,” which are flip-open makeup palettes containing\\n\\nfour different shades of facial highlighter. The Gleam Glow Kit included the\\n\\nwords “hard candy” in capital letters on the back and inside of the package to\\n\\ndesignate a peach-pink shade of makeup. Anastasia says that it chose this name\\n\\nbecause the product had a “shimmer” that reminded the developer of candies that\\n\\nher grandmother gave her when she was young. The developer testified that she\\n\\nwas aware of Hard Candy, LLC, as a seller of nail polish in the 1990s, but she was\\n\\nnot aware of the company’s continued existence when she came up with the name.\\n\\n The following pictures show the front, back, and inside of the kit offered by\\n\\nAnastasia:\\n\\n\\n\\n\\n 4\\n\\fCase: 18-10877 Date Filed: 04/23/2019 Page: 5 of 36\\n\\n\\n\\n\\n 5\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 6 of 36\\n\\n\\n\\n\\n The day after Anastasia announced the release of the Gleam Glow Kit, Hard\\n\\nCandy sent Anastasia a cease and desist letter asserting that it had infringed on its\\n\\ntrademark. Anastasia’s owner, Anastasia Soare, attempted to call the CEO of Hard\\n\\nCandy but she was unable to make contact; Anastasia’s and Hard Candy’s\\n\\nattorneys also exchanged emails without resolving the issue before discussions\\n\\nbroke off. Anastasia went on to sell the kit -- with the “hard candy” shade -- online\\n\\nand in various retail stores, including Macy’s, Ulta, and Sephora. The words “hard\\n\\ncandy” appeared in Anastasia’s marketing materials and social media posts, as well\\n\\nas on the product itself. In documents provided to retailers, the company described\\n\\nthe shade as a “mood-changing golden peach with a pink pearl reflective finish.”\\n\\n\\n\\n 6\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 7 of 36\\n\\n\\nThe Gleam Glow Kit was on the market from December 2015 until August 2016,\\n\\nconsistent with Anastasia’s initial plan to make it a limited-edition product.\\n\\n Hard Candy filed a complaint in the United States District Court for the\\n\\nSouthern District of Florida against Anastasia, claiming trademark infringement\\n\\nunder § 32(a) of the Lanham Act, 15 U.S.C. § 1114(1); unfair competition under\\n\\n§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); common law trademark\\n\\ninfringement; and common law unfair competition. Hard Candy sought an\\n\\naccounting and the disgorgement of Anastasia’s profits, statutory damages, a\\n\\npermanent injunction barring Anastasia’s use of its mark, declaratory relief, and\\n\\nfees and costs. The complaint included a request for actual damages, but, notably,\\n\\nHard Candy dropped this application before trial. The district court then struck\\n\\nHard Candy’s jury trial demand because all of the remaining remedies were\\n\\nequitable in nature.\\n\\n To prevail on each of its claims, Hard Candy had to establish that\\n\\nAnastasia’s use of the words “hard candy” created a likelihood of confusion. See\\n\\nTally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1026 & n.14 (11th Cir.\\n\\n1989) (noting that the elements of trademark infringement under common law and\\n\\nthe Lanham Act “are the same,” and that “an unfair competition claim based only\\n\\nupon alleged trademark infringement is practically identical to an infringement\\n\\nclaim”). Applying our seven-factor likelihood of confusion test, the district court\\n\\n\\n 7\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 8 of 36\\n\\n\\ndetermined that Hard Candy had not met its burden. The court also concluded that\\n\\neven if Hard Candy could establish infringement, Anastasia had made out a fair\\n\\nuse defense because it used the term “hard candy” in good faith as a description of\\n\\nthe product, not as a mark.\\n\\n This appeal followed.\\n\\n II.\\n\\n Hard Candy first argues that the district court erred in its denial of a jury\\n\\ntrial. We review the grant of a motion to strike a jury demand de novo. FN\\n\\nHerstal SA v. Clyde Armory Inc., 838 F.3d 1071, 1080 (11th Cir. 2016).\\n\\n We have yet to address the question whether a plaintiff seeking the\\n\\ndisgorgement of the defendant’s profits and an accounting under the Lanham Act\\n\\nhas the right to have its claims decided by a jury. 2 A plaintiff is entitled to a jury\\n\\ntrial in an action that is “analogous” to a claim that would have been brought in the\\n\\nEnglish law courts at common law, but not if the claims sounded in equity or\\n\\nadmiralty. See Tull v. United States, 481 U.S. 412, 417 (1987). Hard Candy says\\n\\nthat at least “where a plaintiff seeks to recover a defendant’s profits as a ‘proxy’\\n\\nfor actual damages, the claim is a legal one that entitles the plaintiff to a jury\\n\\n\\n\\n2\\n This Court was recently presented with the same question in FN Herstal SA v. Clyde Armory\\nInc., 838 F.3d 1071 (11th Cir. 2016), but the panel affirmed the district court’s denial of a motion\\nto reinstate a demand for disgorgement of profits and so it was not required to reach the issue. Id.\\nat 1090 & n.10 (“[W]e need not reach the issue of whether recovery of profits under § 1117(a) of\\nthe Lanham Act is an equitable remedy for which there is no right to a jury trial.”).\\n 8\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 9 of 36\\n\\n\\ntrial.”3 Br. for Plaintiff-Appellants at 23. However, we agree with the district\\n\\ncourt’s conclusion that the requested remedy is equitable in nature and thus does\\n\\nnot confer a right to trial by jury.\\n\\n A.\\n\\n The Lanham Act provides that “[w]hen a violation of any right of the\\n\\nregistrant of a mark . . . shall have been established in any civil action arising under\\n\\nthis chapter, the plaintiff shall be entitled, . . . subject to the principles of equity, to\\n\\nrecover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3)\\n\\nthe costs of the action.” 15 U.S.C. § 1117(a). In “exceptional cases,” a prevailing\\n\\nparty can be awarded attorneys’ fees. Id. A different section of the Act vests\\n\\ncourts with the “power to grant injunctions, according to the principles of equity\\n\\nand upon such terms as the court may deem reasonable, to prevent the violation of\\n\\nany right of the registrant of a mark registered in the Patent and Trademark Office\\n\\nor to prevent a violation under subsection (a), (c), or (d) of [15 U.S.C. § 1125].”\\n\\nId. § 1116(a).\\n\\n\\n\\n\\n3\\n Anastasia replies that Hard Candy waived this argument, since its primary argument in district\\ncourt was that a plaintiff seeking profits is entitled to a jury trial in all circumstances, regardless\\nof the theory, rationale, or remedy. But Hard Candy has not changed its position that it was entitled\\nto a jury trial because its requested relief is legal in nature, and its argument was fairly presented\\nto the district court. “Although new claims or issues may not be raised” on appeal, “new arguments\\nrelating to preserved claims may be reviewed.” Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304\\nn.3 (11th Cir. 2008) (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992)).\\n 9\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 10 of 36\\n\\n\\n The Act, therefore, provides a broad menu of remedies to a plaintiff\\n\\nclaiming infringement. In “ordinary trademark infringement actions . . . complete\\n\\ninjunctions against the infringing party are the order of the day.” SunAmerica\\n\\nCorp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325, 1336 (11th Cir. 1996).\\n\\nThis is because “the public deserves not to be led astray by the use of inevitably\\n\\nconfusing marks,” and injunctive relief is the surest way to prevent future harm.\\n\\nAngel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1209 (11th Cir.\\n\\n2008); 5 McCarthy on Trademarks and Unfair Competition § 30:1 (5th ed. 2018)\\n\\n[hereinafter “McCarthy”] (describing injunctive relief as the “usual and normal\\n\\nremedy” and the “usual historical practice” after a court has found infringement).\\n\\nIndeed, injunctive relief is the quintessential form of equitable remedy; it does not\\n\\nentitle a plaintiff to a jury trial.\\n\\n The monetary damages available to a Lanham Act trademark plaintiff can be\\n\\ndivided into five rough categories: recovery of the defendant’s profits, actual\\n\\nbusiness damages and out-of-pocket losses (like corrective advertising), lost\\n\\nprofits, punitive damages, and attorneys’ fees. See id. § 30:57. “Actual damages”\\n\\nin this context covers everything from damages from lost sales or licensing fees\\n\\ndue to the infringer’s sale of offending goods to intangible harm like reputational\\n\\ndamage and loss of good will. As we have said, a trademark plaintiff “may recover\\n\\nfor all elements of injury to the business of the trademark owner proximately\\n\\n\\n 10\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 11 of 36\\n\\n\\nresulting from the infringer’s wrongful acts.” Bos. Prof’l Hockey Ass’n, Inc. v.\\n\\nDallas Cap & Emblem Mfg., Inc., 597 F.2d 71, 75 (5th Cir. 1979) (quotations\\n\\nomitted) (permitting recovery of damages in the amount that the infringer would\\n\\nhave had to pay the plaintiff for nonexclusive license to use the marks).4 The\\n\\nprimary limiting principle is that the damages may not be “speculative.” See, e.g.,\\n\\nRamada Inns, Inc. v. Gadsden Motel Co., 804 F.2d 1562, 1564 (11th Cir. 1986)\\n\\n(“The partners stress that a trademark infringement award must be based on proof\\n\\nof actual damages and that some evidence of harm arising from the violation must\\n\\nexist. . . . We must decide whether the district court’s assessment of the actual\\n\\ndamages or harm suffered by Ramada Inns was speculative.”).\\n\\n The disgorgement of profits and the closely related remedy of an accounting\\n\\nare much different. “The remedy of damages seeks to compensate the victim for\\n\\nits loss, whereas the remedy of an accounting . . . [seeks] disgorgement of ill-\\n\\ngotten profits.” SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prods., LLC,\\n\\n137 S. Ct. 954, 964 (2017). The Lanham Act permits recovery of profits because\\n\\nactual damages are often difficult to prove. It “shifts the burden of proving\\n\\neconomic injury off the innocent party, and places the hardship of disproving\\n\\neconomic gain onto the infringer.” George Basch Co. v. Blue Coral, Inc., 968 F.2d\\n\\n\\n4\\n Decisions of the former Fifth Circuit issued before October 1, 1981 were adopted as binding\\nprecedent in the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.\\n1981) (en banc).\\n 11\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 12 of 36\\n\\n\\n1532, 1539 (2d Cir. 1992); Wesco Mfg., Inc. v. Tropical Attractions of Palm\\n\\nBeach, Inc., 833 F.2d 1484, 1487–88 (11th Cir. 1987). The statute does so by\\n\\nexpressly providing that “the plaintiff shall be required to prove defendant’s sales\\n\\nonly,” while the “defendant must prove all elements of cost or deduction claimed”\\n\\nagainst its profits. 15 U.S.C. § 1117(a). So, when a plaintiff seeks an accounting\\n\\nand disgorgement of profits as a remedy for trademark infringement, the focus is\\n\\nentirely on the alleged infringer’s gain; the plaintiff is not required to present any\\n\\nevidence of particular financial harm that it suffered so as to justify legal redress.\\n\\n In its complaint, Hard Candy sought just about every form of relief\\n\\navailable: declaratory relief; an injunction barring Anastasia from “[a]dvertising,\\n\\npromoting, selling, offering for sale, or distributing any services or products that\\n\\nuse any words or symbols that so resemble the Hard Candy Marks,” among other\\n\\nactivities; an order “that Defendant hold in trust, as constructive trustee for the\\n\\nbenefit of Hard Candy, LLC, its profits obtained from the infringement”; an\\n\\n“accounting of all amounts due and owing to Hard Candy, LLC as a result of\\n\\nDefendant’s infringing activities”; money damages, including actual and statutory\\n\\ndamages; punitive damages; and attorneys’ fees and costs. Hard Candy dropped its\\n\\nclaim for actual damages before trial, but it did not withdraw all of its claims for\\n\\nmonetary relief, nor did it withdraw its demand for a jury trial. But just because\\n\\nHard Candy seeks a monetary recovery does not mean that it is entitled to a jury\\n\\n\\n 12\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 13 of 36\\n\\n\\ntrial; in fact, the Supreme Court has rejected the notion that “any award of\\n\\nmonetary relief must necessarily be ‘legal’ relief.” Curtis v. Loether, 415 U.S.\\n\\n189, 196 (1974).\\n\\n B.\\n\\n To determine whether a plaintiff is entitled to a jury trial, we look to the\\n\\nSeventh Amendment: “In Suits at common law, where the value in controversy\\n\\nshall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” U.S.\\n\\nConst. amend. VII.; see also Fed. R. Civ. P. 38(a) (“The right of trial by jury as\\n\\ndeclared by the Seventh Amendment to the Constitution -- or as provided by a\\n\\nfederal statute -- is preserved to the parties inviolate.”). Because the Seventh\\n\\nAmendment requires that the right to a jury trial only be “preserved” as it then\\n\\nexisted, the inquiry requires us to look to the right as it existed at the time of the\\n\\nFounding. At common law, jury trials were limited to cases heard in courts of law,\\n\\nas opposed to those in courts of equity or admiralty. See Tull, 481 U.S. at 417.\\n\\nThe Seventh Amendment right has thus long been understood to extend only to\\n\\n“suits in which legal rights were to be ascertained and determined, in\\n\\ncontradistinction to those where equitable rights alone were recognized, and\\n\\nequitable remedies were administered.” Parsons v. Bedford, 28 U.S. (3 Pet.) 433,\\n\\n447 (1830) (Story, J.).\\n\\n\\n\\n\\n 13\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 14 of 36\\n\\n\\n The Supreme Court has set out a two-part test to determine whether the\\n\\nSeventh Amendment’s guarantee applies to a particular claim:\\n\\n To determine whether a statutory action is more similar to cases that\\n were tried in courts of law than to suits tried in courts of equity or\\n admiralty, the Court must examine both the nature of the action and of\\n the remedy sought. First, we compare the statutory action to 18th-\\n century actions brought in the courts of England prior to the merger of\\n the courts of law and equity. Second, we examine the remedy sought\\n and determine whether it is legal or equitable in nature.\\n\\nTull, 481 U.S. at 417–18 (citations omitted). The dispute in this case in the main\\n\\ncenters on the second part -- the nature of the profits remedy sought by Hard\\n\\nCandy.\\n\\n We begin, then, by examining the nature of the action, here trademark\\n\\ninfringement and unfair competition based on infringement. “Trademarks and\\n\\ntheir precursors have ancient origins, and trademarks were protected at common\\n\\nlaw and in equity at the time of the founding of our country.” Matal v. Tam, 137\\n\\nS. Ct. 1744, 1751 (2017). Trademark infringement claims began as common law\\n\\nactions for fraud or “deceit.” Sandforth’s Case, heard in an English court of law in\\n\\n1584, may be the earliest trademark infringement action at common law. See\\n\\nKeith M. Stolte, How Early Did Anglo-American Trademark Law Begin? An\\n\\nAnswer to Schechter’s Conundrum, 8 Fordham Intell. Prop. Media & Ent. L.J. 505,\\n\\n509 (1998); 1 McCarthy § 5:2. The plaintiff there was a maker of woolen cloth\\n\\nwho claimed that a competitor used his mark and placed it on his own goods,\\n\\n\\n 14\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 15 of 36\\n\\n\\nwhich were comparatively “ill, insufficient and unmerchantable.” Stolte, supra, at\\n\\n530. The court held that he could bring a claim at common law sounding in the\\n\\ntort of deceit. Id. at 538.\\n\\n By the time the Seventh Amendment was ratified in 1791, the common law\\n\\ntrademark infringement action was well established. See, e.g., Singleton v. Bolton\\n\\n(1783) 99 Eng. Rep. 661, 661; 3 Dougl. 293, 293 (stating that “if the defendant had\\n\\nsold a medicine of his own under the plaintiffs name or mark, that would be a fraud\\n\\nfor which an action would lie”). Trademark actions also were brought in courts of\\n\\nequity during the same period. Blanchard v. Hill (1742) 26 Eng. Rep. 692; 2 Atk.\\n\\n484, is the earliest reported trademark case brought in equity. See Mark P.\\n\\nMcKenna, The Normative Foundations of Trademark Law, 82 Notre Dame L. Rev.\\n\\n1839, 1852 (2007). Shortly thereafter, the accepted rule was “that equity could be\\n\\ninvoked to protect the plaintiff’s title to his marks.” See id. at 1854. Early\\n\\nAmerican case law likewise demonstrates that trademark rights could be enforced\\n\\nat equity. See, e.g., Taylor v. Carpenter, 23 F. Cas. 742, 744 (Story, Circuit\\n\\nJustice, C.C.D. Mass. 1844) (No. 13,784). Thus, because when the Seventh\\n\\nAmendment was ratified trademark rights had “been long recognized by the\\n\\ncommon law and the chancery courts of England,” Trade-Mark Cases, 100 U.S.\\n\\n82, 92 (1879), this part of the Supreme Court’s test is indeterminate.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 16 of 36\\n\\n\\n The second prong -- the nature of the remedy -- is the “[m]ore important”\\n\\nconsideration and provides substantially more guidance here. Curtis, 415 U.S. at\\n\\n196. Hard Candy does not seek actual damages, and it is undisputed that a plaintiff\\n\\nseeking only injunctive relief, costs, and fees would not be entitled to a jury trial.\\n\\nThus, our analysis centers on Hard Candy’s request for an accounting of\\n\\nAnastasia’s profits and for the accompanying disgorgement of those gains. Our\\n\\nreview is necessarily broader than the origins of the statutory remedy contained in\\n\\nthe Lanham Act. As the Second Circuit recently explained, “the ancient remedies\\n\\nof accounting, constructive trust, and restitution have compelled wrongdoers to\\n\\n‘disgorge’ -- i.e., account for and surrender -- their ill-gotten gains for centuries.”\\n\\nS.E.C. v. Cavanagh, 445 F.3d 105, 119 (2d Cir. 2006). To determine the nature of\\n\\nthe Lanham Act profits remedy at issue here, we look to the foundation of these\\n\\nremedies more generally.\\n\\n The remedy sought by Hard Candy, an accounting and disgorgement of\\n\\nprofits, was historically a matter for courts of equity. Justice Story explained that\\n\\nalthough “[o]ne of the most ancient forms of action at the common law [was] the\\n\\naction of account,” the “Courts of Equity began to assume jurisdiction in matters of\\n\\naccount . . . at a very early period.” 2 Joseph Story, Commentaries on Equity\\n\\nJurisprudence as Administered in England and America § 581 (14th ed. 1918).\\n\\nBefore the courts of equity assumed jurisdiction in such cases, they could only\\n\\n\\n 16\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 17 of 36\\n\\n\\nissue an injunction to prevent ongoing or future harm and, therefore, could not\\n\\noffer full relief. A plaintiff would have to enter a court of law to receive\\n\\ncompensation for past injuries. Not surprisingly, the accounting remedy was soon\\n\\ncarried over to courts of equity as a means of “permitting an award of monetary\\n\\nand injunctive relief in the same action,” and thereby preventing duplicative\\n\\nlitigation. Restatement (Third) of Unfair Competition § 37 cmt. b (Am. Law Inst.\\n\\n1995); see also George Basch Co., 968 F.2d at 1537–38. In fact, courts of equity\\n\\nquickly became the preferred forum for accounting, and the action at law, though\\n\\nolder, fell “into almost total disuse.” Story, supra, § 581.\\n\\n This story unfolded the same way in the case of trademark infringement.\\n\\nThe Restatement (First) of Torts explained that disgorgement of profits “is a form\\n\\nof equitable relief” that “was granted initially in [trademark and unfair\\n\\ncompetition] cases as an equivalent or substitute for legal damages when equity\\n\\njurisdiction was properly invoked for injunctive relief.” Restatement (First) of\\n\\nTorts § 747 cmt. b (Am. Law. Inst. 1938). The English Court of Chancery made\\n\\nthis exact point far earlier in an 1803 trademark case, observing that when\\n\\ninfringement is proven, “a Court of Equity in these cases is not content with an\\n\\naction for damages . . . and therefore the remedy here, though not compensating\\n\\nthe pecuniary damage except by an account of the profits, is the best: the remedy\\n\\nby an injunction and account.” Hogg v. Kirby (1803) 32 Eng. Rep. 336, 339; 8\\n\\n\\n 17\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 18 of 36\\n\\n\\nVes. Jun. 214, 223; see also Millington v. Fox (1838) 40 Eng. Rep. 956, 961; 3\\n\\nMy. & Cr. 388, 352 (noting that trademark plaintiffs “undoubtedly had a right to\\n\\nthe assistance of a Court of Equity to enforce” their rights in a mark and deeming\\n\\nan accounting to be an appropriate ancillary to injunctive relief). In other words, a\\n\\ncourt of law, limited to providing legal relief, would not be able to provide full\\n\\nredress to a trademark infringement plaintiff, but a court of equity could do so by\\n\\nproviding an injunction along with ordering an accounting and disgorgement of the\\n\\ndefendant’s profits -- precisely the remedy Hard Candy seeks here.\\n\\n The distinction between legal damages and the equitable accounting also is\\n\\nreflected in early American trademark case law. Shortly after the 1870 passage of\\n\\nthe first federal trademark legislation, the Supreme Court explained that in\\n\\ntrademark cases, “damages may be recovered in an action at law,” but “the\\n\\ncontinued violation of [trademark rights would] be enjoined by a court of equity,\\n\\nwith compensation for past infringement.” Trade-Mark Cases, 100 U.S. at 92.\\n\\n“[C]ompensation for past infringement” must refer to the disgorgement of the\\n\\ndefendant’s profits, because courts of equity could not provide legal damages. By\\n\\nthe end of the nineteenth century, “a clear division” between the remedies available\\n\\nat law and equity had arisen in trademark cases: “Common law courts awarded\\n\\ndamages; equity issued injunctions and awarded defendant’s profits to provide\\n\\ncomplete relief in a single proceeding.” Mark A. Thurmon, Ending the Seventh\\n\\n\\n 18\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 19 of 36\\n\\n\\nAmendment Confusion: A Critical Analysis of the Right to a Jury Trial in\\n\\nTrademark Cases, 11 Tex. Intell. Prop. L.J. 1, 67 (2002).\\n\\n The theoretical justification offered for providing an accounting and\\n\\ndisgorgement in trademark cases further reveals that Hard Candy’s requested\\n\\nremedy is equitable in nature. Long ago, the Supreme Court explained that the\\n\\nremedy is based on the legal fiction of the trust ex maleficio, a constructive trust in\\n\\nwhich a holder of property is recognized to have obtained that property by\\n\\nwrongful means. The Court put it this way:\\n\\n The right to use a trade-mark is recognized as a kind of property, of\\n which the owner is entitled to the exclusive enjoyment to the extent\\n that it has been actually used. The infringer is required in equity to\\n account for and yield up his gains to the true owner, upon a principle\\n analogous to that which charges a trustee with the profits acquired by\\n wrongful use of the property of the cestui que trust. . . . [T]he\\n jurisdiction must be rested upon some other equitable ground, -- in\\n ordinary cases, as in the present, the right to an injunction -- but the\\n court of equity, having acquired jurisdiction upon such a ground,\\n retains it for the purpose of administering complete relief, rather than\\n send the injured party to a court of law for his damages. And profits\\n are then allowed as an equitable measure of compensation, on the\\n theory of a trust ex maleficio.\\n\\nHamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 259 (1916)\\n\\n(citations omitted and emphasis added). The Court’s theory was that a trademark\\n\\ninfringer wrongfully benefits by using property owned by the trademark owner --\\n\\nnamely, the mark -- and so “a defendant who is liable in a trademark or trade dress\\n\\ninfringement action may be deemed to hold its profits in constructive trust for the\\n\\n\\n 19\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 20 of 36\\n\\n\\ninjured plaintiff.” George Basch Co., 968 F.2d at 1537–38. This theoretical\\n\\nfoundation sounds in equity: the remedy of an equitable accounting was originally\\n\\nprovided for disputes with a “trust or fiduciary relation existing between the\\n\\nparties.” Story, supra, § 598. When the profits remedy is properly understood as\\n\\n“an equitable measure of the compensation” justified by “the analogy of the\\n\\nliability of a trustee who wrongfully appropriated trust property,” its foundation in\\n\\nthe reasoning of equity is clear. Restatement (First) of Torts § 747 cmt. b. In\\n\\nshort, the historical record establishes that the remedy requested by Hard Candy is\\n\\nequitable, not legal, in nature.\\n\\n C.\\n\\n In the face of this history, Hard Candy submits that the Supreme Court’s\\n\\ndecision in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), overcomes the\\n\\ntraditional characterization of the disgorgement of profits remedy as equitable, and,\\n\\nsomehow, converts it into a legal remedy. In Dairy Queen, a restaurant company\\n\\nsued a franchisee for breach of contract and trademark infringement and sought\\n\\n“an accounting to determine the exact amount of money owing by [the franchisee]\\n\\nand a judgment for that amount” along with injunctive relief. Id. at 475. The\\n\\nCourt held that a jury trial was required because “insofar as the complaint requests\\n\\na money judgment it presents a claim which is unquestionably legal.” Id. at 476.\\n\\nHard Candy claims that the Supreme Court’s bottom-line answer in Dairy Queen --\\n\\n\\n 20\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 21 of 36\\n\\n\\n“we think it plain that their claim for a money judgment is a claim wholly legal in\\n\\nits nature,” id. at 477 -- supports its demand for a jury trial. We remain\\n\\nunpersuaded.\\n\\n Importantly, the Court seemed skeptical of the plaintiff’s characterization of\\n\\nits requested relief as an “accounting” of profits:\\n\\n The respondents’ contention that this money claim is “purely\\n equitable” is based primarily upon the fact that their complaint is cast\\n in terms of an “accounting,” rather than in terms of an action for\\n “debt” or “damages.” But the constitutional right to trial by jury\\n cannot be made to depend upon the choice of words used in the\\n pleadings.\\n\\nId. at 477–78. An action for “debt” or “damages” would certainly provide a legal\\n\\nremedy, and this is the better understanding of the basis for the Court’s conclusion\\n\\nthat a jury trial was required. Elsewhere, the Court said that “[t]he most natural\\n\\nconstruction of the respondents’ claim for a money judgment would seem to be\\n\\nthat it is a claim that they are entitled to recover whatever was owed them under\\n\\nthe contract as of the date of its purported termination plus damages for\\n\\ninfringement of their trademark since that date.” Id. at 476 (emphasis added).\\n\\nPlainly, an action for contract damages and a claim for damages for infringement\\n\\nare legal in nature. Tellingly, the Supreme Court later described Dairy Queen as\\n\\nan “action for damages for trademark infringement ‘subject to cognizance by a\\n\\ncourt of law.’” Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346\\n\\n(1998) (quoting Dairy Queen, 369 U.S. at 477).\\n 21\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 22 of 36\\n\\n\\n We do not read Dairy Queen as holding that the accounting and\\n\\ndisgorgement of profits was a legal remedy, since that isn’t what the plaintiff had\\n\\nsought. See Dairy Queen, 369 U.S. at 479 (“A jury, under proper instructions from\\n\\nthe court, could readily determine the recovery, if any, to be had here, whether the\\n\\ntheory finally settled upon is that of breach of contract, that of trademark\\n\\ninfringement, or any combination of the two.”). Indeed, it would have been\\n\\nstrange for the Court to have implicitly held, without any historical analysis, that it\\n\\ndeemed accounting and disgorgement of profits to be a legal remedy requiring a\\n\\njury trial. We presume that the Supreme Court does not hide elephants in such\\n\\nwell-disguised mouseholes. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,\\n\\n468 (2001). And we cannot ignore the clear lessons of history, most notably the\\n\\nSupreme Court’s designation of profits as an “equitable measure of compensation”\\n\\nprovided “on the theory of a trust ex maleficio,” when our task is to explain the\\n\\n“nature of the remedy” sought by the plaintiff. Hamilton-Brown Shoe Co., 240\\n\\nU.S. at 259; see also Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 132–33 (2d Cir.\\n\\n2014) (“Dairy Queen does not abrogate the longstanding treatment of an\\n\\naccounting of profits as an equitable remedy, nor could it change how the remedy\\n\\nwas treated at the time of the Court of Chancery.”).\\n\\n The two Courts of Appeals that have addressed this precise question -- the\\n\\nSixth and Ninth Circuits -- have agreed with our conclusion that a claim for an\\n\\n\\n 22\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 23 of 36\\n\\n\\naccounting and disgorgement of profits under the Lanham Act is equitable in\\n\\nnature and, therefore, that the Seventh Amendment’s guarantee of a jury trial does\\n\\nnot apply. Ferrari S.p.A. v. Roberts, 944 F.2d 1235, 1248 (6th Cir. 1991)\\n\\n(“Ferrari’s complaint requested only equitable relief; an injunction and\\n\\ndisgorgement of profits.”); Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc.,\\n\\n778 F.3d 1059, 1074–76 (9th Cir. 2015). And outside of the Seventh Amendment\\n\\ncontext, we have already held that Lanham Act disgorgement is an equitable\\n\\nremedy. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987\\n\\n(11th Cir. 1995) (“Here, [the plaintiff] seeks a permanent injunction and the\\n\\nequitable remedy of receiving appellants’ profits from counterfeiting under 15\\n\\nU.S.C. § 1117.”). In Levi Strauss, the district court had entered a preliminary\\n\\ninjunction against an alleged infringer and froze the infringer’s assets. Id. at 984.\\n\\nA panel of this Court held that the asset freeze was a valid exercise of the district\\n\\ncourt’s equitable powers because the underlying claim involved a request for\\n\\nequitable relief -- namely, the disgorgement of profits under the Lanham Act. Id.\\n\\nat 987.\\n\\n We would also be remiss if we overlooked the Court’s repeated statements,\\n\\nalbeit in dicta, that the disgorgement of wrongful gains is equitable. As we’ve\\n\\nsaid, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”\\n\\nSchwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006). Thus, for example, in\\n\\n\\n 23\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 24 of 36\\n\\n\\nTull, the Supreme Court said in passing that “an action for disgorgement of\\n\\nimproper profits [is] traditionally considered an equitable remedy.” Tull, 481 U.S.\\n\\nat 424. Later, the Supreme Court observed that damages are equitable “where\\n\\nthey are restitutionary, such as in action[s] for disgorgement of improper profits.”\\n\\nChauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 570\\n\\n(1990) (quotation marks omitted); see also Great-West Life & Annuity Ins. Co. v.\\n\\nKnudson, 534 U.S. 204, 214 n.2 (2002) (describing “an accounting for profits” as\\n\\n“a form of equitable restitution”). Our sister circuits too have offered similar\\n\\nobservations. E.g., Tamko Roofing Prods., Inc. v. Ideal Roofing Co., 282 F.3d 23,\\n\\n36 (1st Cir. 2002) (noting “the Lanham Act’s designation of an accounting of\\n\\ndefendant’s profits as an equitable remedy”); A & H Sportswear, Inc. v. Victoria’s\\n\\nSecret Stores, Inc., 166 F.3d 197, 209 (3d Cir. 1999) (en banc) (“[A]n accounting\\n\\nfor profits is a form of equitable relief . . . .” (quoting Williamson-Dickie Mfg. Co.\\n\\nv. Davis Mfg. Co., 251 F.2d 924, 927 (3d Cir. 1958)); Fuller Prods. Co. v. Fuller\\n\\nBrush Co., 299 F.2d 772, 777 (7th Cir. 1962) (“An accounting for profits . . . is an\\n\\nequitable remedy subject to the principles of equity.”).\\n\\n All of this leads us to the conclusion that an accounting and disgorgement of\\n\\na defendant’s profits in a trademark infringement case is equitable in nature and\\n\\ndoes not carry with it a right to a jury trial. So, returning to Hard Candy’s claim\\n\\nand the Seventh Amendment test laid out by the Supreme Court, the first prong --\\n\\n\\n 24\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 25 of 36\\n\\n\\nthe nature of the cause of action -- is a wash since trademark actions were\\n\\ncognizable at both law and equity; but the more important second prong -- the\\n\\nnature of the remedy -- weighs decidedly in favor of Anastasia. Because Hard\\n\\nCandy abandoned any claim for legal relief, the district court did not err in\\n\\ndetermining that the plaintiff was not entitled to a jury trial.\\n\\n Lest there be any doubt, the record is clear that Hard Candy expressly\\n\\ndisclaimed its request for actual damages prior to trial. In a joint filing, Hard\\n\\nCandy “stipulate[d] that it is not seeking actual damages or lost profits” and instead\\n\\nwas “seek[ing] to recover Defendant Anastasia’s profits from its sales.” On the\\n\\nbasis of that stipulation, Anastasia withdrew its motion for partial summary\\n\\njudgment on actual damages. And, again, during the trial Hard Candy repeatedly\\n\\nobjected when Anastasia sought to elicit testimony about actual damages. Thus,\\n\\nfor instance, when Anastasia asked Jerome Falic, Hard Candy’s CEO, to confirm\\n\\nthat the company was “not seeking to recover any of its own los[t] profits in this\\n\\ncase,” Hard Candy’s counsel objected because they “stipulated to that fact” and it\\n\\nwas “irrelevant.” When Anastasia asked its expert about his statement that he had\\n\\nnot “seen any evidence of financial or economic harm to the plaintiff,” Hard Candy\\n\\nobjected and said, “Harm to the plaintiff is not an element of this case.” And when\\n\\nAnastasia asked the president of NuWorld -- the corporation that manufactures\\n\\ncosmetics for Hard Candy -- whether he had any “evidence that NuWorld was\\n\\n\\n 25\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 26 of 36\\n\\n\\nharmed by Anastasia’s use of the words ‘hard candy’ in the Gleam Glow Kit,”\\n\\nHard Candy again objected on grounds of relevance.\\n\\n To allow Hard Candy on the one hand to object to the introduction of any\\n\\nevidence related to its actual injuries and on the other to insist on a jury trial\\n\\nbecause it is seeking redress for that same harm would be incongruous, even if it\\n\\nhadn’t expressly dropped its claim for actual damages. What’s more, Hard\\n\\nCandy’s proposed rule would make the Seventh Amendment right fully depend on\\n\\nthe rationale the plaintiff offered for seeking to recover the defendant’s profits.\\n\\nThat rule is inconsistent with the longstanding interpretation of the Seventh\\n\\nAmendment set out by the Supreme Court, which requires us to look to the nature\\n\\nof the action and the nature of the requested remedy. Hard Candy was not entitled\\n\\nto a jury trial on its claim for an accounting and disgorgement of the defendant’s\\n\\nprofits.\\n\\n III.\\n\\n Hard Candy also challenges the district court’s resolution of its claims on the\\n\\nmerits. “After a bench trial, we review the district court’s conclusions of law de\\n\\nnovo and the district court’s factual findings for clear error.” Proudfoot Consulting\\n\\nCo. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). Findings as to whether a\\n\\nplaintiff has ultimately shown a likelihood of confusion, as to each of the factors,\\n\\nand as to the elements of the fair use defense are subject only to clear error review.\\n\\n\\n 26\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 27 of 36\\n\\n\\nN. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1220 (11th Cir.\\n\\n2008) (likelihood of confusion); Sands, Taylor & Wood Co. v. Quaker Oats Co.,\\n\\n978 F.2d 947, 952 (7th Cir. 1992) (fair use).\\n\\n A.\\n\\n We begin with the likelihood of confusion. The district court applied our\\n\\nseven-factor test and concluded that Hard Candy had not shown a likelihood of\\n\\nconfusion. On review, “[t]he real question is whether the court’s ultimate\\n\\ndetermination about the ‘likelihood of confusion’ was correct.” Univ. of Ga.\\n\\nAthletic Ass’n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985); see also Safeway\\n\\nStores, Inc. v. Safeway Disc. Drugs, Inc., 675 F.2d 1160, 1164 n.3 (11th Cir. 1982)\\n\\n(“Our review . . . is governed by the clearly erroneous test even though the court’s\\n\\nanalysis of the factors relevant to a finding of likelihood of confusion was\\n\\nincomplete.”), abrogated on other grounds by Tobinick v. Novella, 884 F.3d 1110,\\n\\n1118 (11th Cir. 2018). Accordingly, “we may affirm an ultimate finding on the\\n\\nissue of confusion that is not clearly erroneous, even when the district court fails to\\n\\nconsider all seven factors” of the test or errs in its analysis of any one. See Wesco\\n\\nMfg., Inc., 833 F.2d at 1489.\\n\\n Our precedent sets out a seven-factor test to determine whether a purportedly\\n\\ninfringing product creates a likelihood of consumer confusion. We look to the:\\n\\n (1) type of mark, (2) similarity of mark, (3) similarity of the products\\n the marks represent, (4) similarity of the parties’ retail outlets and\\n 27\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 28 of 36\\n\\n\\n customers, (5) similarity of advertising media used, (6) defendant’s\\n intent and (7) actual confusion.\\n\\nLone Star Steakhouse & Saloon, Inc. v. Longhorn Steaks, Inc., 122 F.3d 1379,\\n\\n1382 (11th Cir. 1997). On summary judgment, the court determined that three of\\n\\nthem -- similarity of products, similarity of trade channels and customers, and\\n\\nsimilarity of advertising -- favored Hard Candy. There was no dispute that both\\n\\ncompanies sell cosmetics products online and in retail stores, their customers are\\n\\nprimarily women between the ages of 18 and 35, and both advertise their products\\n\\nthrough trade shows, social media, and traditional print media. The court rejected\\n\\nAnastasia’s proposed distinction between the “high-end” and “low-end” segments\\n\\nof the cosmetics market.\\n\\n The district court then held a three-day bench trial. Afterwards, the court\\n\\ndetermined that the mark was “arbitrary” since it bears no relationship to the\\n\\nproducts, which meant that the mark was “strong” and that the type-of-mark factor\\n\\nweighed in Hard Candy’s favor; that the similarity-of-mark factor favored\\n\\nAnastasia, because it was not using “hard candy” as a mark; that Anastasia did not\\n\\nintentionally infringe on the mark; and that there was no evidence of actual\\n\\nconfusion. Viewing the evidence as a whole, the trial court determined that Hard\\n\\nCandy had not established a likelihood of confusion and issued a decision to that\\n\\neffect from the bench. The record indicates that there was ample factual evidence\\n\\n\\n\\n 28\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 29 of 36\\n\\n\\nto support the trial court’s findings and, indeed, that the court weighed each of the\\n\\nfactors with great care.\\n\\n Hard Candy responds with three legal arguments; none of them are\\n\\npersuasive. For starters, Hard Candy asserts that the district court erred by finding\\n\\nthat the “similarity of mark” factor favored Anastasia. The district court concluded\\n\\nthat “Anastasia’s use of ‘Hard Candy’ does not create a likelihood of confusion on\\n\\nthis factor [because] while Anastasia uses the same words, all in capital letters, the\\n\\nCourt must consider the overall impression created by the use of the mark as a\\n\\nwhole, rather than comparing the individual features, and . . . the use creates a\\n\\ndifferent overall impression.” Hard Candy, in essence, claims that the trial court\\n\\nshould have stopped at the point that it recognized that Anastasia’s use of the term\\n\\n“hard candy” was formally identical to the company’s mark -- HARD CANDY, in\\n\\ncapital letters -- and concluded that the factor weighed in its favor.\\n\\n But the trial court must “compare[] the marks and consider[] the overall\\n\\nimpressions that the marks create, including the sound, appearance, and manner in\\n\\nwhich they are used.” Frehling Enters., Inc. v. Int’l Select Grp., Inc., 192 F.3d\\n\\n1330, 1337 (11th Cir. 1999) (emphasis added); John H. Harland Co. v. Clarke\\n\\nChecks, Inc., 711 F.2d 966, 975 (11th Cir. 1983) (“This consideration includes a\\n\\ncomparison of the appearance, sound and meaning of the marks, as well as the\\n\\nmanner in which the marks are used.”). The district court looked to the overall\\n\\n\\n 29\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 30 of 36\\n\\n\\nimpression created by the Gleam Glow Kit -- the words “HARD CANDY”\\n\\nappeared only on the back and inside of the kit, “nam[ing] one shade of a product\\n\\nthat is otherwise clearly and prominently featured as an Anastasia Beverly Hills\\n\\nmark.” In this way, the district court concluded that Anastasia was using the words\\n\\nmerely “to describe a shade,” and for that reason it found that this factor favored\\n\\nAnastasia.\\n\\n The district court’s analysis is fully consistent with our precedent. In John\\n\\nH. Harland Co., we considered as part of this analysis things like the placement of\\n\\nthe mark, the mark’s usage to label a specific part of the product, and the size of\\n\\nthe print. 711 F.2d at 975–76. Hard Candy has provided no case law holding that\\n\\nthe similarity-of-mark factor bars consideration of whether the alleged infringer\\n\\nwas using the words as a mark. The point of the similarity-of-mark analysis “is\\n\\nthat the closer the marks are, the more likely reasonable consumers will mistake\\n\\nthe source of the product that each mark represents.” Frehling Enters., Inc., 192\\n\\nF.3d at 1337. For that reason, “[t]he probability of this potential confusion is the\\n\\ntouchstone.” Id. Thus, although Anastasia used words that are identical to Hard\\n\\nCandy’s mark, it was reasonable for the district court to determine that Anastasia\\n\\nwas not using the words in a “manner” likely to cause confusion as to the source of\\n\\nthe goods.\\n\\n\\n\\n\\n 30\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 31 of 36\\n\\n\\n Second, Hard Candy claims that the district court erred by giving\\n\\n“substantial and overwhelming weight to Anastasia’s lack of intent to infringe.”\\n\\nBr. for Plaintiff-Appellants at 49. Hard Candy argues that we should follow courts\\n\\noutside this Circuit that have said that “[i]ntent . . . is an issue whose resolution\\n\\nmay benefit only the cause of a [plaintiff], not of an alleged infringer.” Daddy’s\\n\\nJunky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 287\\n\\n(6th Cir. 1997); see also Beacon Mut. Ins. Co. v. OneBeacon Ins. Grp., 376 F.3d 8,\\n\\n19 (1st Cir. 2004). The problem with the argument is that the factual predicate is\\n\\nnot reflected in the record. The district court never said that it was giving any\\n\\naffirmative (let alone overwhelming) weight to its finding that Anastasia lacked\\n\\nintent to infringe. The court concluded its discussion this way: “And for all of\\n\\nthese reasons, and the cases I’ve cited, I find that Anastasia did not intend to\\n\\ninfringe on the mark and was not intentionally blind after receiving the cease and\\n\\ndesist.” It did not say that this factor weighed in Anastasia’s favor. Hard Candy\\n\\nseems to assume that the district court gave it too much weight merely because the\\n\\nissue took up more space in the ruling, but there is no indication in the record that\\n\\nAnastasia’s intent received undue consideration.\\n\\n Finally, Hard Candy argues that the district court placed too much weight on\\n\\nthe lack of a showing of actual confusion. We have said that evidence of actual\\n\\nconfusion “is not necessary to a finding of likelihood of confusion.” John H.\\n\\n\\n 31\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 32 of 36\\n\\n\\nHarland Co., 711 F.2d at 978. Hard Candy says that the district court erred by\\n\\ngiving the lack of actual confusion evidence “substantial weight,” since this\\n\\nevidence is often difficult to produce and the product was on the market for only\\n\\neight months.\\n\\n Our cases have often recognized actual confusion as one of the most\\n\\nimportant factors. Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d\\n\\n1242, 1264 (11th Cir. 2016) (“the best evidence of a likelihood of confusion”);\\n\\nCaliber Auto. Liquidators, Inc. v. Premier Chrysler, Jeep, Dodge, LLC, 605 F.3d\\n\\n931, 936 (11th Cir. 2010) (“the most weighty consideration”); Lone Star\\n\\nSteakhouse & Saloon, Inc., 122 F.3d at 1382 (one of “the two most important\\n\\nfactors”); John H. Harland Co., 711 F.2d at 978 (“the best evidence of likelihood\\n\\nof confusion”). “The presence or absence of actual confusion can be highly\\n\\neffective in showing a high, or a low, likelihood of confusion if there has been\\n\\nample opportunity for consumer confusion.” Nabisco, Inc. v. PF Brands, Inc., 191\\n\\nF.3d 208, 228 (2d Cir. 1999) (emphasis omitted), abrogated on other grounds by\\n\\nMoseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003). “If consumers have\\n\\nbeen exposed to two allegedly similar trademarks in the marketplace for an\\n\\nadequate period of time and no actual confusion is detected either by survey or in\\n\\nactual reported instances of confusion, that can be powerful indication that the\\n\\njunior trademark does not cause a meaningful likelihood of confusion.” Id.\\n\\n\\n 32\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 33 of 36\\n\\n\\n In this case, there was enough opportunity for confusion to make the absence\\n\\nof any evidence significant. Uncontroverted testimony at trial established that\\n\\nAnastasia sold 248,075 Gleam Glow Kits, totaling over $5 million in revenue. The\\n\\nproduct was posted on Anastasia’s corporate social media accounts, which have\\n\\nmillions of followers. And still, Hard Candy did not produce any evidence that a\\n\\ncustomer was ever actually confused about the source of the Gleam Glow Kit. A\\n\\nreasonable person could conclude that the lack of evidence is at least probative of\\n\\nthe conclusion that there was no likelihood of confusion -- hundreds of thousands\\n\\nof cosmetics consumers purchased the allegedly infringing kit, several times more\\n\\nlikely saw it on store shelves or online, and still there is no evidence that anyone,\\n\\nanywhere, was ever confused about whether Anastasia or Hard Candy was\\n\\nresponsible for the product. Hard Candy hasn’t established clear error here either.\\n\\n In sum, the record does not suggest that the district court committed clear\\n\\nerror as to any of its findings, and it does not show clear error as to the court’s\\n\\nultimate conclusion that Hard Candy had not shown a likelihood of confusion.\\n\\nEven if we were to accept one or two of Hard Candy’s arguments -- and on this\\n\\nrecord, we don’t -- that would not compel reversal. “[A] district court’s error in its\\n\\nanalysis of one of the subsidiary factors in the likelihood of confusion test is not\\n\\nenough to allow us to overturn the district court’s decision.” Fla. Int’l Univ. Bd. of\\n\\nTrs., 830 F.3d at 1255 (internal quotation marks omitted). Our review of the\\n\\n\\n 33\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 34 of 36\\n\\n\\nrecord, taken as a whole, does not leave us “with the definite and firm conviction\\n\\nthat a mistake has been committed” about the district court’s basic finding that\\n\\nthere was no likelihood of confusion. See United States v. U.S. Gypsum Co., 333\\n\\nU.S. 364, 395 (1948).\\n\\n B.\\n\\n Hard Candy also challenges the district court’s conclusion that Anastasia\\n\\nmade out a fair use defense to infringement. A defendant is entitled to the fair use\\n\\ndefense if it establishes that it used the allegedly infringing term “(1) other than as\\n\\na mark, (2) in a descriptive sense, and (3) in good faith.” Int’l Stamp Art, Inc. v.\\n\\nU.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (internal quotation marks\\n\\nomitted). Hard Candy challenges the district court’s finding as to the second\\n\\nelement, arguing that the district court erred “by completely disregarding the\\n\\ncentral requirement that whether a trademark is being used in a ‘descriptive sense’\\n\\nstarts and ends with consumer perception.” Br. for Plaintiff-Appellants at 41.\\n\\n “The ‘fair-use’ defense, in essence, forbids a trademark registrant to\\n\\nappropriate a descriptive term for [its] exclusive use and so prevent others from\\n\\naccurately describing a characteristic of their goods.” Int’l Stamp Art, Inc., 456\\n\\nF.3d at 1274 (quoting Soweco, Inc. v. Shell Oil Co., 617 F.2d 1178, 1185 (5th Cir.\\n\\n1980)). This Court has not elaborated on what it means to use a mark “in a\\n\\ndescriptive sense.” We have, however, explained that a descriptive mark\\n\\n\\n 34\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 35 of 36\\n\\n\\n“identifies a characteristic or quality of an article or service as, for example, its\\n\\ncolor, odor, function, dimensions, or ingredients.” Soweco, Inc., 617 F.2d at 1183\\n\\n(citation and quotations omitted). The Seventh Circuit has interpreted the fair use\\n\\nelement of use “in a descriptive sense” in a roughly similar way, explaining that “it\\n\\nis not necessary that a descriptive term depict the [product] itself, but only that the\\n\\nterm refer to a characteristic of the [product].” Sands, Taylor & Wood Co., 978\\n\\nF.2d at 952.\\n\\n To the extent that Hard Candy argues that the district court erred by not\\n\\nconsidering how a hypothetical consumer would perceive the use of the mark, we\\n\\nthink it has ignored what the district court said in its ruling. The court looked to\\n\\n“the overall context; the lettering, the type, the style, the size, [and] the visual\\n\\nplacement” of the words on the product. It accepted the argument that “hard\\n\\ncandy” was used in a descriptive sense because “it was used to describe the sheen”\\n\\nof the makeup shade that the term labeled. Anastasia introduced evidence that\\n\\ncosmetics companies regularly describe shades with words that are not literal color\\n\\ndescriptions, like the other three shades in the kit named “Starburst,” “Mimosa,”\\n\\nand “Crushed Pearl.” The district court was attempting to discern how a\\n\\nreasonable consumer of cosmetics would perceive Anastasia’s use of the mark, not\\n\\nrelying purely on Anastasia’s subjective intent, contrary to Hard Candy’s assertion.\\n\\nAnd to the extent Hard Candy argues that the district court should have required\\n\\n\\n 35\\n\\f Case: 18-10877 Date Filed: 04/23/2019 Page: 36 of 36\\n\\n\\nAnastasia to introduce evidence of actual consumer perception, that proposition\\n\\nhas no support in the law. See, e.g., Sorensen v. WD-40 Co., 792 F.3d 712, 725\\n\\n(7th Cir. 2015) (upholding fair use defense without any such evidence);\\n\\nCosmetically Sealed Indus., Inc. v. Chesebrough-Pond’s USA Co., 125 F.3d 28, 30\\n\\n(2d Cir. 1997) (same). We are hard-pressed to find clear error of any kind.\\n\\n IV.\\n\\n The long and the short of it is that Hard Candy has failed to convince us that\\n\\nthe district court erred in its resolution of this case. The historical evidence reveals\\n\\nthat the particular remedy sought by Hard Candy -- an accounting and\\n\\ndisgorgement of Anastasia’s profits as an alleged infringer -- is a creature of\\n\\nequity. For that reason the Seventh Amendment’s guarantee of a jury trial does not\\n\\napply. On the merits, we can discern no error in the district court’s resolution of\\n\\nHard Candy’s claims, and, accordingly, affirm.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 36\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1893,"cells":{"id":{"kind":"number","value":4612640,"string":"4,612,640"},"name":{"kind":"string","value":"SECURITY WALLS, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner."},"name_abbreviation":{"kind":"string","value":"Security Walls, Inc. v. National Labor Relations Board"},"decision_date":{"kind":"string","value":"2019-04-23"},"docket_number":{"kind":"string","value":"17-13154"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Pryor, Murphy\", \"parties\": \"\", \"opinions\": [{\"author\": \"TJOFLAT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-13154 Date Filed: 04/23/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13154\\n ________________________\\n\\n Agency No. 16-CA-152423\\n\\n\\n\\nSECURITY WALLS, INC.,\\n\\n Petitioner - Cross Respondent,\\n\\n versus\\n\\nNATIONAL LABOR RELATIONS BOARD,\\n\\n Respondent - Cross Petitioner.\\n\\n ________________________\\n\\n Petitions for Review of a Decision of the\\n National Labor Relations Board\\n ________________________\\n\\n (April 23, 2019)\\n\\nBefore TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, *\\nDistrict Judge.\\n\\nTJOFLAT, Circuit Judge:\\n\\n *\\n Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District\\nof Michigan, sitting by designation.\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 2 of 16\\n\\n\\n\\n\\n A private security contractor signed an agreement with the Internal Revenue\\n\\nService (the “IRS”) to provide protective services at one of its facilities. The\\n\\nagreement required the contractor to ensure that the guards it employed conformed\\n\\nto specifically enumerated standards of conduct. The contractor designed a\\n\\ndiscipline system to monitor guard compliance with those standards. But the IRS\\n\\nprovided itself with another layer of protection: power to short-circuit that system\\n\\nand require the immediate removal of a non-conforming guard.\\n\\n Three guards misbehaved. The contractor, without prompting from the IRS,\\n\\nsuspended (and then terminated) them, a consequence much harsher than what the\\n\\ncontractor’s own discipline system called for. It turns out that by circumventing its\\n\\nown system, the contractor violated the National Labor Relations Act of 1935 (the\\n\\n“NLRA”), 29 U.S.C. §§ 151–69.\\n\\n The contractor has an explanation for its wrongdoing: Its contract with the\\n\\nIRS required it to fire the guards. The question on appeal is whether the National\\n\\nLabor Relations Board (the “Board”) abused its discretion by not reopening the\\n\\nadministrative record to allow the contractor to establish that point. Because the\\n\\ncontractor’s proffer does not prove the point, we hold that the Board did not abuse\\n\\nits discretion in letting the record stand as it was.\\n\\n\\n\\n\\n 2\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 3 of 16\\n\\n\\n I.\\n\\n A.\\n\\n Security Walls is a governmental security contractor. On March 1, 2014, it\\n\\nentered into a contract with the IRS to provide guard services at the agency’s\\n\\nfacility in Austin, Texas (the “Facility”). The contractor that it replaced was a\\n\\nparty to a collective-bargaining agreement with the International Union, Security,\\n\\nPolice and Fire Professionals of America (the “Union”), for a unit of guards that\\n\\nworked at the Facility. Declining to adopt that agreement, however, Security\\n\\nWalls commenced new collective-bargaining negotiations in August 2014.1 When\\n\\nit first began providing services under the contract, Security Walls posted at the\\n\\nFacility a document called the “Performance Work Statement” (the “PWS”), which\\n\\nwas part of its contract with the IRS.\\n\\n The PWS requires Security Walls to ensure that its employees conform to\\n\\n“acceptable standards of conduct.” It sets out thirty-five “actions, behaviors, or\\n\\nconditions” by employees that constitute “cause for immediate removal from\\n\\nperforming on the contract.” Security Walls must “maintain[] satisfactory\\n\\nstandards of employee . . . conduct” and “tak[e] such disciplinary action with\\n\\nrespect to [its] employees as may be necessary.” At the same time, however, the\\n\\n\\n\\n 1\\n The parties eventually negotiated an agreement that became effective on September 1,\\n2015, but that agreement is not in play here.\\n\\n\\n 3\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 4 of 16\\n\\n\\nIRS “may request [Security Walls] to immediately remove any\\n\\nemployee . . . should it be determined that the employee has been disqualified for\\n\\neither employment suitability, performance suitability, or security reasons, or who\\n\\nis found to be unfit for performing security duties during his/her tour of duty.” 2\\n\\nThe IRS’s power to demand an employee’s removal is vested in the Contracting\\n\\nOfficer (the “CO”) and the Contracting Officer’s Representative (the “COR”), who\\n\\nmay require the “retraining . . ., suspension, or removal of any Contract employee\\n\\nfrom the contract who does not meet and adhere to the Standards of Conduct as\\n\\nrequired in th[e] contract.” Security Walls “must comply with these requests in a\\n\\ntimely manner.”\\n\\n Before we recount the events that gave rise to this suit, we briefly introduce\\n\\nthe key players in our discussion. On the Security Walls side, Juanita Walls is the\\n\\ncontractor’s chief manager, Scott Carpenter manages this particular contract\\n\\nbetween the contractor and the IRS, and Frederico Salazar supervises the Facility.\\n\\nOn the IRS side, John Sears is the COR, and Bernadette Briggs is a senior\\n\\ncontracting specialist.\\n\\n On April 25, 2014, Security Walls, through Juanita Walls and Carpenter,\\n\\nadopted a new policy, the “Disciplinary Action/Policy Statement” (the “Policy\\n\\n\\n\\n 2\\n A “determination of unfitness may be made from . . . violations of the Standards of\\nConduct.”\\n\\n\\n 4\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 5 of 16\\n\\n\\nStatement”). The Policy Statement, on its face, purports to be the “official policy\\n\\nof ‘Security Walls’ and supersedes all other policies concerning this subject.” It\\n\\nputs forth a progressive disciplinary system: Though some violations result in\\n\\nimmediate termination, 3 others result in more graduated discipline.\\n\\n Fast forward about one year after the Policy Statement was adopted. On\\n\\nApril 15, 2015, guard John Klabunde was manning the Facility’s visitor center\\n\\nwhen guard Jason Schneider arrived to relieve him for his scheduled break.\\n\\nDuring the transition, while the two men were both focused on correcting an error\\n\\nin the logbook, a woman walked into the Facility undetected. Security Walls\\n\\nindefinitely suspended both guards the following day. Guard Christopher Marinez\\n\\nfaced a similar fate. On April 22—exactly one week after the prior incident—\\n\\nMarinez was adjusting his chair when a woman and her child also passed through\\n\\n(undetected) the area he was supposed to be monitoring. He was indefinitely\\n\\nsuspended the same day.\\n\\n The day after Marinez’s suspension, on April 23, the Union filed a grievance\\n\\nover all three suspensions. Because Security Walls had failed to follow the\\n\\n\\n\\n\\n 3\\n These offenses are refusing to cooperate in an investigation; sleeping or engaging in\\nsexual activity while on duty; falsifying, concealing, removing, mutilating, or destroying official\\ndocuments or records; and willfully concealing material facts from official documents, records,\\nor statements.\\n\\n\\n 5\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 6 of 16\\n\\n\\nprogressive disciplinary protocol outlined in its own Policy Statement, the Union\\n\\ndemanded reinstatement of the guards.\\n\\n On the same day, Carpenter, who was effectively the customer-service\\n\\nrepresentative for Security Walls, exchanged a series of emails with Sears, who\\n\\nwas effectively the client.4\\n\\n Sears, who initiated the communication, stated that he would not accept\\n\\n“substandard services” from Security Walls. “If individual guards do not have the\\n\\ncharacter and self-discipline to work at a federal installation and comply with the\\n\\nresponsibilities associated,” he went on, “they will need to be removed.” He\\n\\nnonetheless expressed hope that Security Walls would “adopt an effective system\\n\\nof discipline for these types of violations and deter them from happening.” Later\\n\\nthat day, after having reviewed the video footage involving Marinez, he contacted\\n\\nCarpenter again. From the footage, he concluded that Marinez “turned his back\\n\\nmomentarily to apparently adjust his chair,” which in Sears’s mind did not\\n\\nconstitute “careless behavior.” He analogized this mishap to the incident the prior\\n\\nweek involving Klabunde and Schneider. Sears qualified this concession,\\n\\nhowever, by stating that guards “must be able to multi-task and recognize what’s\\n\\ngoing on around them.” He expressed hope that Security Walls “can address this\\n\\n\\n\\n 4\\n Carpenter managed this particular contract on behalf of Security Walls, and Sears was\\nthe IRS’s COR, who under the PWS had the ability to demand an employee’s removal.\\n\\n\\n 6\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 7 of 16\\n\\n\\nso that guards are paying greater attention to details so we don’t miss these types of\\n\\nincidents.”\\n\\n Carpenter responded by saying that the guards “neglected their most primary\\n\\nduty,” by expressing gratitude that an “angry, armed person [didn’t] gain access,”\\n\\nand by indicating that he looked forward to an-already scheduled meeting between\\n\\nhim and Sears the following day. Meanwhile, he would be conducting an internal\\n\\ninvestigation.\\n\\n That’s where Sears left it: fully aware of the incidents but deferring to\\n\\nCarpenter’s judgment on how to proceed.\\n\\n The following day, on April 24, Carpenter completed his investigation. He\\n\\ndetermined that Schneider, Klabunde, and Marinez violated two of the thirty-five\\n\\noffenses under the PWS: “[v]iolation of security procedures” and “[n]eglecting\\n\\nduties.” In his view, the enumerated standards of conduct “are non-discretionary\\n\\nand necessarily supersede and take precedence over any other policy or standard\\n\\nnot contained in the PWS, including Security Walls[’s] internal disciplinary\\n\\nstandards and policies.” Invoking Security Walls’s obligation under the PWS to\\n\\nensure that its employees conform to “acceptable standards of conduct,” Carpenter\\n\\nrecommended that the three guards be terminated.\\n\\n On April 28, Salazar notified Schneider, Klabunde, and Marinez that they\\n\\nwere terminated. The following day, Security Walls, through counsel, clarified to\\n\\n\\n\\n 7\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 8 of 16\\n\\n\\nthe Union that the guards were only suspended, not terminated. They would\\n\\n“remain on suspension pending a final decision by [Juanita Walls] as to whether\\n\\neither of the officers has committed a violation of the Standards of Conduct set out\\n\\nin the PWS.” Counsel repeated Carpenter’s assertion that the guards’ actions “fall\\n\\nunder the specifications of the PWS[] and are outside the conduct defined in\\n\\nSecurity Walls[’s] [Policy Statement].” The guards were eventually terminated,\\n\\nand on May 14, 2015, the Union filed a charge alleging unfair labor practices\\n\\nunder the NLRA, an action that prompted the Board to issue a complaint.\\n\\n B.\\n\\n The NLRA makes it unlawful for an employer to “refuse to bargain\\n\\ncollectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). 5\\n\\nThis refusal to bargain includes “unilaterally changing the terms and conditions of\\n\\nemployment without first granting its employees’ exclusive bargaining\\n\\nrepresentative the opportunity to bargain about ‘mandatory’ subjects.” NLRB v.\\n\\nHaberman Constr. Co., 641 F.2d 351, 357 (5th Cir. Apr. 1981) (en banc). 6 An\\n\\nemployer’s disciplinary system is a mandatory subject, Toledo Blade Co., 343\\n\\n\\n\\n\\n 5\\n Section 158(a)(1) makes it unlawful to “interfere with, restrain, or coerce employees”\\nwhile they exercise various rights under the NLRA. 29 U.S.C. § 158(a)(1).\\n 6\\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court\\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\\nOctober 1, 1981.\\n\\n\\n 8\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 9 of 16\\n\\n\\nN.L.R.B. 385, 387 (2004), as are negotiations over termination of employment,\\n\\nRyder Distrib. Res., Inc., 302 N.L.R.B. 76, 90 (1991).\\n\\n The administrative law judge (the “ALJ”) found that Security Walls violated\\n\\nthese provisions when (1) in violation of the Policy Statement’s graduated\\n\\ndisciplinary protocol, it suspended indefinitely and then discharged the guards and\\n\\n(2) it refused to bargain with the Union following those discharges. Security\\n\\nWalls, Inc., 365 N.L.R.B. No. 99, slip op. at 3 (June 15, 2017). The ALJ reasoned\\n\\nthat the PWS—on its face—put the guards’ removal within Security Walls’s and\\n\\nthe IRS’s discretion. Id. He also observed that Security Walls admitted in its\\n\\nAnswer that it exercised discretion in terminating the guards. Id. Security Walls\\n\\nappealed the ALJ’s decision to the Board.\\n\\n After the ALJ issued his decision but while the matter was pending before\\n\\nthe Board, on March 16, 2016, Security Walls moved the Board, under its\\n\\nregulations, to reopen the record for two purposes: (1) to introduce an affidavit and\\n\\n(2) to amend its Answer. The affidavit, sworn to by Juanita Walls (the “Walls\\n\\naffidavit”), stated that she had received an email from Briggs 7 on March 9, 2016,\\n\\nin which Briggs stated that Schneider, Klabunde, and Marinez “[would] not be\\n\\npermitted to perform services under th[e] contract, effective immediately.” Walls\\n\\nfurther swore, “I believe that if Ms. Briggs or the COR were aware of the\\n\\n 7\\n Recall that Briggs was a senior contract specialist with the IRS.\\n\\n\\n 9\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 10 of 16\\n\\n\\ncircumstances surrounding the three officers in April 2015, they would have taken\\n\\nthe same position as when they became aware of the incidents recently.” In\\n\\nSecurity Walls’s view, the Walls affidavit precluded any finding that the\\n\\nterminations were discretionary. Security Walls thus sought to amend its Answer\\n\\nto withdraw its admission to the contrary.\\n\\n As to the violations, the Board affirmed the ALJ’s findings. It held that\\n\\nneither the Policy Statement nor the PWS required Security Walls to remove the\\n\\nguards. Id. Under the PWS, the CO or the COR had the “authority to” require the\\n\\nguards’ removal. Id. But Sears—as the COR—declined to exercise that authority,\\n\\nid., and the record contained no evidence of any CO that was charged with\\n\\nenforcing the contract, id. at n.6. Contrary to Walls’s speculation that if the COR\\n\\nwere aware of the circumstances he would have required removal, the Board\\n\\nreasoned that Sears was aware of the circumstances and neither required the\\n\\nguards’ removal nor told Carpenter that Security Walls’s contract was in\\n\\n“jeopardy.” Id. at 3. He was aware that he could take action, moreover, because\\n\\nhe had required an employee’s removal at least once in the past. Id.\\n\\n As to reopening the record, the Board concluded that Security Walls had not\\n\\nmade the requisite showing under the regulations. A party may move to reopen the\\n\\nrecord due to “extraordinary circumstances.” 29 C.F.R. § 102.48(d)(1) (amended\\n\\n2017). The evidence either must “ha[ve] become available only since the close of\\n\\n\\n\\n 10\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 11 of 16\\n\\n\\nthe hearing” or, in the Board’s view, “should have been taken at the hearing.” Id.\\n\\nThe movant must state “the additional evidence sought to be adduced, why it was\\n\\nnot presented previously, and that, if adduced and credited, it would require a\\n\\ndifferent result.” Id.\\n\\n The Board denied the motion because neither admitting the Walls affidavit\\n\\nnor allowing the pleading amendment would have demanded a “different result.”\\n\\nSecurity Walls, Inc., slip op. at 6. It reasoned that (1) “neither the PWS nor the\\n\\n[Policy Statement] mandated these discharges. As such, [Security Walls’s]\\n\\nadmission is consistent with, but not an indispensable part of, the evidence\\n\\nunderlying this finding,” id. at 7 n.18, and (2) neither Sears nor any other IRS\\n\\nrepresentative demanded the guards’ removal at the time, and the Walls affidavit,\\n\\nsworn to “some 10 months after the discharges and after the [ALJ] had found that\\n\\n[Security Walls] acted unlawfully” would not change that fact, id. at 7. 8\\n\\n The Board required Security Walls to rescind the unilateral change to its\\n\\nPolicy Statement; to offer Schneider, Klabunde, and Marinez reinstatement; to\\n\\nmake them whole for any losses to earnings or other benefits; to remove any\\n\\nreference to the discharges from their personnel files; and to post a remedial notice\\n\\nat the Facility. Id. at 7−8.\\n\\n\\n 8\\n It also reasoned that the Walls affidavit came into existence “after the [alleged events]\\nin this case” and thus, “by definition, is not ‘newly discovered’ or ‘previously unavailable,’”\\nwhich the Board’s precedents required. Id.\\n\\n\\n 11\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 12 of 16\\n\\n\\n Security Walls then petitioned this Court for review under 29 U.S.C.\\n\\n§ 160(f), which grants us jurisdiction over final orders of the Board.\\n\\n II.\\n\\n The question in this case is not whether the guards’ terminations were proper\\n\\nunder the Policy Statement; everyone, including Security Walls, agrees that none\\n\\nof the guards’ conduct could have resulted in their indefinite suspension and\\n\\neventual termination under the Policy Statement. 9 Security Walls’s argument on\\n\\nappeal is straightforward: the PWS—and this is Security Walls’s phrasing, not\\n\\nours—“supersedes” the Policy Statement, and Security Walls is absolved of\\n\\nliability to the extent the PWS compels an outcome that would otherwise place\\n\\nSecurity Walls in violation of its collective-bargaining obligations under the\\n\\nNLRA. From there, Security Walls tells us, it’s easy to see why the record should\\n\\nbe reopened. The Walls affidavit confirms its position that the PWS left it with\\n\\n“no choice” but to terminate the guards, and Security Walls should be permitted to\\n\\namend its Answer to withdraw its admission to the contrary—that the terminations\\n\\nwere in fact discretionary.\\n\\n\\n 9\\n The guards’ conduct constituted “violation of written rules, regulations or policy.” For\\nfirst-time offenders, the Policy Statement prescribes verbal counseling and a memorandum to be\\nincluded in the personnel file; second-time offenders get a letter of reprimand; third-time\\noffenders get a two-day suspension; and fourth-time offenders are terminated. If a violation\\nresults in a security breach, however, the protocol accelerates the discipline for first offenses to\\nsuspension and for second offenses to termination. None of the three guards had previously been\\ndisciplined, so the Policy Statement called for, at most, two-day suspensions.\\n\\n\\n 12\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 13 of 16\\n\\n\\n As an initial matter, we are skeptical of Security Walls’s premise that it\\n\\nholds a get-out-of-jail-free card when it cannot simultaneously comport with both\\n\\nthe PWS and the NLRA. 10 As the Board reasoned, the PWS is a “non-personal\\n\\nservices contract between [Security Walls] and the IRS” and thus “reflects the\\n\\nagreement between [Security Walls] and the IRS, but not necessarily between\\n\\n[Security Walls] and its own employees.” Security Walls, Inc., slip op. at 4 n.8.\\n\\nSecurity Walls subjected itself to two masters—its contractual obligations to the\\n\\nIRS on the one hand and its duties under the NLRA to its employees on the other.\\n\\nAs such, it might have voluntarily put itself between a rock and a hard place from\\n\\nwhich there is no painless resolution. We assume for purposes of discussion,\\n\\nhowever, that Security Walls’s contention is correct and thus that the PWS\\n\\n“supersedes” the Policy Statement. We do so because nothing about the PWS\\n\\nrequired the guards’ removal; Security Walls was able to comply with both the\\n\\nPWS and the Policy Statement.\\n\\n We review the Board’s “procedural determinations,” like denial of a motion\\n\\nto reopen the record, for abuse of discretion. See U.S. Mosaic Tile Co. v. NLRB,\\n\\n 10\\n The doctrinal hook for this argument is unclear, if for no other reason than because\\nSecurity Walls has provided us no law on point. The argument sounds in something akin to\\nconflict preemption, a doctrine corollary to the Supremacy Clause, see U.S. Const. art. VI, cl. 2,\\nwhich results where “‘compliance with both state and federal law is impossible,’ or where ‘the\\nstate law stands as an obstacle to the accomplishment and execution of the full purposes and\\nobjectives of Congress.’” Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S. Ct. 1591, 1595\\n(2015) (quoting California v. ARC Am. Corp., 490 U.S. 93, 100, 101, 109 S. Ct. 1661, 1665\\n(1989)).\\n\\n\\n 13\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 14 of 16\\n\\n\\n935 F.2d 1249, 1254 (11th Cir. 1991); see also 5 U.S.C. § 706(2)(A). In doing so,\\n\\nwe look through the decision to the logical pillars on which it rests. In U.S. Mosaic\\n\\nTile Co., for example, we reviewed the Board’s denial of a motion for\\n\\nreconsideration, but that decision rested on interpretation of a statute and\\n\\napplication of the agency’s own caselaw. 935 F.2d at 1254. We afforded Chevron\\n\\ndeference 11 to the statutory interpretation and subjected the caselaw application to\\n\\narbitrary-and-capricious review. 935 F.2d at 1254. We then determined, in light\\n\\nof our conclusions on those issues, whether the Board abused its discretion in\\n\\ndenying the motion. Id. at 1254–55.\\n\\n What are the bases of the Board’s decision here? The Board denied Security\\n\\nWalls’s motion because neither the Walls affidavit nor a pleading amendment\\n\\nwould have demanded a “different result.” Security Walls, Inc., slip op. at 6.\\n\\nAgain, it reasoned that (1) the PWS did not mandate the terminations and (2)\\n\\nneither Sears nor any other IRS representative demanded the guards’ removal\\n\\nwhen they were terminated. Id. at 7, 7 n.18.\\n\\n The Board’s first reason flows from its interpretation of the PWS. The\\n\\ndeference we afford to an agency’s interpretation of a contract, like the PWS,\\n\\nvaries on a case-by-case basis. See Muratore v. U.S. Office of Pers. Mgmt., 222\\n\\n\\n\\n 11\\n Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778\\n(1984).\\n\\n\\n 14\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 15 of 16\\n\\n\\nF.3d 918, 921–23 (11th Cir. 2000) (reasoning that whether an agency’s\\n\\ninterpretation of a contract is subject to de novo or arbitrary-and-capricious review\\n\\nturns on, among other things, the agency’s “relevant expertise” in negotiating the\\n\\ncontract at issue). We do not determine which standard applies here because our\\n\\ninterpretation of the PWS and the Board’s are identical: The PWS is purely\\n\\npermissive. The IRS “may request” removal of an employee, but nothing requires\\n\\nit to do so. That’s it. From there, holding that the Board did not abuse its\\n\\ndiscretion is a cakewalk.\\n\\n Security Walls wants to amend its Answer for no reason other than to argue\\n\\nthat the terminations were required. But the Board—looking to the text of the\\n\\nPWS rather than Security Walls’s self-serving statement—concluded otherwise.\\n\\nIndeed, the Board twice stated that the Answer was “consistent with” its\\n\\nconclusion but made perfectly clear that it was “not an indispensable part of[] the\\n\\nevidence underlying this finding.” Security Walls, Inc., slip op. at 7 n.18. The\\n\\nWalls affidavit serves the same purpose. Security Walls does not dispute the\\n\\nBoard’s finding that no one at the IRS ordered the guards’ removal. So its\\n\\nargument that the IRS would have required as much is beside the point. The Walls\\n\\naffidavit is thus irrelevant.\\n\\n In short, we find it “entirely reasonable” for the Board to deny Security\\n\\nWalls’s motion to reopen the record when the record supports its conclusion that\\n\\n\\n\\n 15\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 16 of 16\\n\\n\\ndoing so would not compel a “different result.” See U.S. Mosaic Tile Co., 935\\n\\nF.2d at 1257.\\n\\n III.\\n\\n For these reasons, Security Walls’s petition for review is DENIED.\\n\\n SO ORDERED.\\n\\n\\n\\n\\n 16\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4389893/\", \"author_raw\": \"TJOFLAT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"PRYOR"},"judge3":{"kind":"string","value":"MURPHY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4612640/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: SECURITY WALLS, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13154 Date Filed: 04/23/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13154\n ________________________\n\n Agency No. 16-CA-152423\n\n\n\nSECURITY WALLS, INC.,\n\n Petitioner - Cross Respondent,\n\n versus\n\nNATIONAL LABOR RELATIONS BOARD,\n\n Respondent - Cross Petitioner.\n\n ________________________\n\n Petitions for Review of a Decision of the\n National Labor Relations Board\n ________________________\n\n (April 23, 2019)\n\nBefore TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, *\nDistrict Judge.\n\nTJOFLAT, Circuit Judge:\n\n *\n Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District\nof Michigan, sitting by designation.\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 2 of 16\n\n\n\n\n A private security contractor signed an agreement with the Internal Revenue\n\nService (the “IRS”) to provide protective services at one of its facilities. The\n\nagreement required the contractor to ensure that the guards it employed conformed\n\nto specifically enumerated standards of conduct. The contractor designed a\n\ndiscipline system to monitor guard compliance with those standards. But the IRS\n\nprovided itself with another layer of protection: power to short-circuit that system\n\nand require the immediate removal of a non-conforming guard.\n\n Three guards misbehaved. The contractor, without prompting from the IRS,\n\nsuspended (and then terminated) them, a consequence much harsher than what the\n\ncontractor’s own discipline system called for. It turns out that by circumventing its\n\nown system, the contractor violated the National Labor Relations Act of 1935 (the\n\n“NLRA”), 29 U.S.C. §§ 151–69.\n\n The contractor has an explanation for its wrongdoing: Its contract with the\n\nIRS required it to fire the guards. The question on appeal is whether the National\n\nLabor Relations Board (the “Board”) abused its discretion by not reopening the\n\nadministrative record to allow the contractor to establish that point. Because the\n\ncontractor’s proffer does not prove the point, we hold that the Board did not abuse\n\nits discretion in letting the record stand as it was.\n\n\n\n\n 2\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 3 of 16\n\n\n I.\n\n A.\n\n Security Walls is a governmental security contractor. On March 1, 2014, it\n\nentered into a contract with the IRS to provide guard services at the agency’s\n\nfacility in Austin, Texas (the “Facility”). The contractor that it replaced was a\n\nparty to a collective-bargaining agreement with the International Union, Security,\n\nPolice and Fire Professionals of America (the “Union”), for a unit of guards that\n\nworked at the Facility. Declining to adopt that agreement, however, Security\n\nWalls commenced new collective-bargaining negotiations in August 2014.1 When\n\nit first began providing services under the contract, Security Walls posted at the\n\nFacility a document called the “Performance Work Statement” (the “PWS”), which\n\nwas part of its contract with the IRS.\n\n The PWS requires Security Walls to ensure that its employees conform to\n\n“acceptable standards of conduct.” It sets out thirty-five “actions, behaviors, or\n\nconditions” by employees that constitute “cause for immediate removal from\n\nperforming on the contract.” Security Walls must “maintain[] satisfactory\n\nstandards of employee . . . conduct” and “tak[e] such disciplinary action with\n\nrespect to [its] employees as may be necessary.” At the same time, however, the\n\n\n\n 1\n The parties eventually negotiated an agreement that became effective on September 1,\n2015, but that agreement is not in play here.\n\n\n 3\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 4 of 16\n\n\nIRS “may request [Security Walls] to immediately remove any\n\nemployee . . . should it be determined that the employee has been disqualified for\n\neither employment suitability, performance suitability, or security reasons, or who\n\nis found to be unfit for performing security duties during his/her tour of duty.” 2\n\nThe IRS’s power to demand an employee’s removal is vested in the Contracting\n\nOfficer (the “CO”) and the Contracting Officer’s Representative (the “COR”), who\n\nmay require the “retraining . . ., suspension, or removal of any Contract employee\n\nfrom the contract who does not meet and adhere to the Standards of Conduct as\n\nrequired in th[e] contract.” Security Walls “must comply with these requests in a\n\ntimely manner.”\n\n Before we recount the events that gave rise to this suit, we briefly introduce\n\nthe key players in our discussion. On the Security Walls side, Juanita Walls is the\n\ncontractor’s chief manager, Scott Carpenter manages this particular contract\n\nbetween the contractor and the IRS, and Frederico Salazar supervises the Facility.\n\nOn the IRS side, John Sears is the COR, and Bernadette Briggs is a senior\n\ncontracting specialist.\n\n On April 25, 2014, Security Walls, through Juanita Walls and Carpenter,\n\nadopted a new policy, the “Disciplinary Action/Policy Statement” (the “Policy\n\n\n\n 2\n A “determination of unfitness may be made from . . . violations of the Standards of\nConduct.”\n\n\n 4\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 5 of 16\n\n\nStatement”). The Policy Statement, on its face, purports to be the “official policy\n\nof ‘Security Walls’ and supersedes all other policies concerning this subject.” It\n\nputs forth a progressive disciplinary system: Though some violations result in\n\nimmediate termination, 3 others result in more graduated discipline.\n\n Fast forward about one year after the Policy Statement was adopted. On\n\nApril 15, 2015, guard John Klabunde was manning the Facility’s visitor center\n\nwhen guard Jason Schneider arrived to relieve him for his scheduled break.\n\nDuring the transition, while the two men were both focused on correcting an error\n\nin the logbook, a woman walked into the Facility undetected. Security Walls\n\nindefinitely suspended both guards the following day. Guard Christopher Marinez\n\nfaced a similar fate. On April 22—exactly one week after the prior incident—\n\nMarinez was adjusting his chair when a woman and her child also passed through\n\n(undetected) the area he was supposed to be monitoring. He was indefinitely\n\nsuspended the same day.\n\n The day after Marinez’s suspension, on April 23, the Union filed a grievance\n\nover all three suspensions. Because Security Walls had failed to follow the\n\n\n\n\n 3\n These offenses are refusing to cooperate in an investigation; sleeping or engaging in\nsexual activity while on duty; falsifying, concealing, removing, mutilating, or destroying official\ndocuments or records; and willfully concealing material facts from official documents, records,\nor statements.\n\n\n 5\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 6 of 16\n\n\nprogressive disciplinary protocol outlined in its own Policy Statement, the Union\n\ndemanded reinstatement of the guards.\n\n On the same day, Carpenter, who was effectively the customer-service\n\nrepresentative for Security Walls, exchanged a series of emails with Sears, who\n\nwas effectively the client.4\n\n Sears, who initiated the communication, stated that he would not accept\n\n“substandard services” from Security Walls. “If individual guards do not have the\n\ncharacter and self-discipline to work at a federal installation and comply with the\n\nresponsibilities associated,” he went on, “they will need to be removed.” He\n\nnonetheless expressed hope that Security Walls would “adopt an effective system\n\nof discipline for these types of violations and deter them from happening.” Later\n\nthat day, after having reviewed the video footage involving Marinez, he contacted\n\nCarpenter again. From the footage, he concluded that Marinez “turned his back\n\nmomentarily to apparently adjust his chair,” which in Sears’s mind did not\n\nconstitute “careless behavior.” He analogized this mishap to the incident the prior\n\nweek involving Klabunde and Schneider. Sears qualified this concession,\n\nhowever, by stating that guards “must be able to multi-task and recognize what’s\n\ngoing on around them.” He expressed hope that Security Walls “can address this\n\n\n\n 4\n Carpenter managed this particular contract on behalf of Security Walls, and Sears was\nthe IRS’s COR, who under the PWS had the ability to demand an employee’s removal.\n\n\n 6\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 7 of 16\n\n\nso that guards are paying greater attention to details so we don’t miss these types of\n\nincidents.”\n\n Carpenter responded by saying that the guards “neglected their most primary\n\nduty,” by expressing gratitude that an “angry, armed person [didn’t] gain access,”\n\nand by indicating that he looked forward to an-already scheduled meeting between\n\nhim and Sears the following day. Meanwhile, he would be conducting an internal\n\ninvestigation.\n\n That’s where Sears left it: fully aware of the incidents but deferring to\n\nCarpenter’s judgment on how to proceed.\n\n The following day, on April 24, Carpenter completed his investigation. He\n\ndetermined that Schneider, Klabunde, and Marinez violated two of the thirty-five\n\noffenses under the PWS: “[v]iolation of security procedures” and “[n]eglecting\n\nduties.” In his view, the enumerated standards of conduct “are non-discretionary\n\nand necessarily supersede and take precedence over any other policy or standard\n\nnot contained in the PWS, including Security Walls[’s] internal disciplinary\n\nstandards and policies.” Invoking Security Walls’s obligation under the PWS to\n\nensure that its employees conform to “acceptable standards of conduct,” Carpenter\n\nrecommended that the three guards be terminated.\n\n On April 28, Salazar notified Schneider, Klabunde, and Marinez that they\n\nwere terminated. The following day, Security Walls, through counsel, clarified to\n\n\n\n 7\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 8 of 16\n\n\nthe Union that the guards were only suspended, not terminated. They would\n\n“remain on suspension pending a final decision by [Juanita Walls] as to whether\n\neither of the officers has committed a violation of the Standards of Conduct set out\n\nin the PWS.” Counsel repeated Carpenter’s assertion that the guards’ actions “fall\n\nunder the specifications of the PWS[] and are outside the conduct defined in\n\nSecurity Walls[’s] [Policy Statement].” The guards were eventually terminated,\n\nand on May 14, 2015, the Union filed a charge alleging unfair labor practices\n\nunder the NLRA, an action that prompted the Board to issue a complaint.\n\n B.\n\n The NLRA makes it unlawful for an employer to “refuse to bargain\n\ncollectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). 5\n\nThis refusal to bargain includes “unilaterally changing the terms and conditions of\n\nemployment without first granting its employees’ exclusive bargaining\n\nrepresentative the opportunity to bargain about ‘mandatory’ subjects.” NLRB v.\n\nHaberman Constr. Co., 641 F.2d 351, 357 (5th Cir. Apr. 1981) (en banc). 6 An\n\nemployer’s disciplinary system is a mandatory subject, Toledo Blade Co., 343\n\n\n\n\n 5\n Section 158(a)(1) makes it unlawful to “interfere with, restrain, or coerce employees”\nwhile they exercise various rights under the NLRA. 29 U.S.C. § 158(a)(1).\n 6\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\nOctober 1, 1981.\n\n\n 8\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 9 of 16\n\n\nN.L.R.B. 385, 387 (2004), as are negotiations over termination of employment,\n\nRyder Distrib. Res., Inc., 302 N.L.R.B. 76, 90 (1991).\n\n The administrative law judge (the “ALJ”) found that Security Walls violated\n\nthese provisions when (1) in violation of the Policy Statement’s graduated\n\ndisciplinary protocol, it suspended indefinitely and then discharged the guards and\n\n(2) it refused to bargain with the Union following those discharges. Security\n\nWalls, Inc., 365 N.L.R.B. No. 99, slip op. at 3 (June 15, 2017). The ALJ reasoned\n\nthat the PWS—on its face—put the guards’ removal within Security Walls’s and\n\nthe IRS’s discretion. Id. He also observed that Security Walls admitted in its\n\nAnswer that it exercised discretion in terminating the guards. Id. Security Walls\n\nappealed the ALJ’s decision to the Board.\n\n After the ALJ issued his decision but while the matter was pending before\n\nthe Board, on March 16, 2016, Security Walls moved the Board, under its\n\nregulations, to reopen the record for two purposes: (1) to introduce an affidavit and\n\n(2) to amend its Answer. The affidavit, sworn to by Juanita Walls (the “Walls\n\naffidavit”), stated that she had received an email from Briggs 7 on March 9, 2016,\n\nin which Briggs stated that Schneider, Klabunde, and Marinez “[would] not be\n\npermitted to perform services under th[e] contract, effective immediately.” Walls\n\nfurther swore, “I believe that if Ms. Briggs or the COR were aware of the\n\n 7\n Recall that Briggs was a senior contract specialist with the IRS.\n\n\n 9\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 10 of 16\n\n\ncircumstances surrounding the three officers in April 2015, they would have taken\n\nthe same position as when they became aware of the incidents recently.” In\n\nSecurity Walls’s view, the Walls affidavit precluded any finding that the\n\nterminations were discretionary. Security Walls thus sought to amend its Answer\n\nto withdraw its admission to the contrary.\n\n As to the violations, the Board affirmed the ALJ’s findings. It held that\n\nneither the Policy Statement nor the PWS required Security Walls to remove the\n\nguards. Id. Under the PWS, the CO or the COR had the “authority to” require the\n\nguards’ removal. Id. But Sears—as the COR—declined to exercise that authority,\n\nid., and the record contained no evidence of any CO that was charged with\n\nenforcing the contract, id. at n.6. Contrary to Walls’s speculation that if the COR\n\nwere aware of the circumstances he would have required removal, the Board\n\nreasoned that Sears was aware of the circumstances and neither required the\n\nguards’ removal nor told Carpenter that Security Walls’s contract was in\n\n“jeopardy.” Id. at 3. He was aware that he could take action, moreover, because\n\nhe had required an employee’s removal at least once in the past. Id.\n\n As to reopening the record, the Board concluded that Security Walls had not\n\nmade the requisite showing under the regulations. A party may move to reopen the\n\nrecord due to “extraordinary circumstances.” 29 C.F.R. § 102.48(d)(1) (amended\n\n2017). The evidence either must “ha[ve] become available only since the close of\n\n\n\n 10\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 11 of 16\n\n\nthe hearing” or, in the Board’s view, “should have been taken at the hearing.” Id.\n\nThe movant must state “the additional evidence sought to be adduced, why it was\n\nnot presented previously, and that, if adduced and credited, it would require a\n\ndifferent result.” Id.\n\n The Board denied the motion because neither admitting the Walls affidavit\n\nnor allowing the pleading amendment would have demanded a “different result.”\n\nSecurity Walls, Inc., slip op. at 6. It reasoned that (1) “neither the PWS nor the\n\n[Policy Statement] mandated these discharges. As such, [Security Walls’s]\n\nadmission is consistent with, but not an indispensable part of, the evidence\n\nunderlying this finding,” id. at 7 n.18, and (2) neither Sears nor any other IRS\n\nrepresentative demanded the guards’ removal at the time, and the Walls affidavit,\n\nsworn to “some 10 months after the discharges and after the [ALJ] had found that\n\n[Security Walls] acted unlawfully” would not change that fact, id. at 7. 8\n\n The Board required Security Walls to rescind the unilateral change to its\n\nPolicy Statement; to offer Schneider, Klabunde, and Marinez reinstatement; to\n\nmake them whole for any losses to earnings or other benefits; to remove any\n\nreference to the discharges from their personnel files; and to post a remedial notice\n\nat the Facility. Id. at 7−8.\n\n\n 8\n It also reasoned that the Walls affidavit came into existence “after the [alleged events]\nin this case” and thus, “by definition, is not ‘newly discovered’ or ‘previously unavailable,’”\nwhich the Board’s precedents required. Id.\n\n\n 11\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 12 of 16\n\n\n Security Walls then petitioned this Court for review under 29 U.S.C.\n\n§ 160(f), which grants us jurisdiction over final orders of the Board.\n\n II.\n\n The question in this case is not whether the guards’ terminations were proper\n\nunder the Policy Statement; everyone, including Security Walls, agrees that none\n\nof the guards’ conduct could have resulted in their indefinite suspension and\n\neventual termination under the Policy Statement. 9 Security Walls’s argument on\n\nappeal is straightforward: the PWS—and this is Security Walls’s phrasing, not\n\nours—“supersedes” the Policy Statement, and Security Walls is absolved of\n\nliability to the extent the PWS compels an outcome that would otherwise place\n\nSecurity Walls in violation of its collective-bargaining obligations under the\n\nNLRA. From there, Security Walls tells us, it’s easy to see why the record should\n\nbe reopened. The Walls affidavit confirms its position that the PWS left it with\n\n“no choice” but to terminate the guards, and Security Walls should be permitted to\n\namend its Answer to withdraw its admission to the contrary—that the terminations\n\nwere in fact discretionary.\n\n\n 9\n The guards’ conduct constituted “violation of written rules, regulations or policy.” For\nfirst-time offenders, the Policy Statement prescribes verbal counseling and a memorandum to be\nincluded in the personnel file; second-time offenders get a letter of reprimand; third-time\noffenders get a two-day suspension; and fourth-time offenders are terminated. If a violation\nresults in a security breach, however, the protocol accelerates the discipline for first offenses to\nsuspension and for second offenses to termination. None of the three guards had previously been\ndisciplined, so the Policy Statement called for, at most, two-day suspensions.\n\n\n 12\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 13 of 16\n\n\n As an initial matter, we are skeptical of Security Walls’s premise that it\n\nholds a get-out-of-jail-free card when it cannot simultaneously comport with both\n\nthe PWS and the NLRA. 10 As the Board reasoned, the PWS is a “non-personal\n\nservices contract between [Security Walls] and the IRS” and thus “reflects the\n\nagreement between [Security Walls] and the IRS, but not necessarily between\n\n[Security Walls] and its own employees.” Security Walls, Inc., slip op. at 4 n.8.\n\nSecurity Walls subjected itself to two masters—its contractual obligations to the\n\nIRS on the one hand and its duties under the NLRA to its employees on the other.\n\nAs such, it might have voluntarily put itself between a rock and a hard place from\n\nwhich there is no painless resolution. We assume for purposes of discussion,\n\nhowever, that Security Walls’s contention is correct and thus that the PWS\n\n“supersedes” the Policy Statement. We do so because nothing about the PWS\n\nrequired the guards’ removal; Security Walls was able to comply with both the\n\nPWS and the Policy Statement.\n\n We review the Board’s “procedural determinations,” like denial of a motion\n\nto reopen the record, for abuse of discretion. See U.S. Mosaic Tile Co. v. NLRB,\n\n 10\n The doctrinal hook for this argument is unclear, if for no other reason than because\nSecurity Walls has provided us no law on point. The argument sounds in something akin to\nconflict preemption, a doctrine corollary to the Supremacy Clause, see U.S. Const. art. VI, cl. 2,\nwhich results where “‘compliance with both state and federal law is impossible,’ or where ‘the\nstate law stands as an obstacle to the accomplishment and execution of the full purposes and\nobjectives of Congress.’” Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S. Ct. 1591, 1595\n(2015) (quoting California v. ARC Am. Corp., 490 U.S. 93, 100, 101, 109 S. Ct. 1661, 1665\n(1989)).\n\n\n 13\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 14 of 16\n\n\n935 F.2d 1249, 1254 (11th Cir. 1991); see also 5 U.S.C. § 706(2)(A). In doing so,\n\nwe look through the decision to the logical pillars on which it rests. In U.S. Mosaic\n\nTile Co., for example, we reviewed the Board’s denial of a motion for\n\nreconsideration, but that decision rested on interpretation of a statute and\n\napplication of the agency’s own caselaw. 935 F.2d at 1254. We afforded Chevron\n\ndeference 11 to the statutory interpretation and subjected the caselaw application to\n\narbitrary-and-capricious review. 935 F.2d at 1254. We then determined, in light\n\nof our conclusions on those issues, whether the Board abused its discretion in\n\ndenying the motion. Id. at 1254–55.\n\n What are the bases of the Board’s decision here? The Board denied Security\n\nWalls’s motion because neither the Walls affidavit nor a pleading amendment\n\nwould have demanded a “different result.” Security Walls, Inc., slip op. at 6.\n\nAgain, it reasoned that (1) the PWS did not mandate the terminations and (2)\n\nneither Sears nor any other IRS representative demanded the guards’ removal\n\nwhen they were terminated. Id. at 7, 7 n.18.\n\n The Board’s first reason flows from its interpretation of the PWS. The\n\ndeference we afford to an agency’s interpretation of a contract, like the PWS,\n\nvaries on a case-by-case basis. See Muratore v. U.S. Office of Pers. Mgmt., 222\n\n\n\n 11\n Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778\n(1984).\n\n\n 14\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 15 of 16\n\n\nF.3d 918, 921–23 (11th Cir. 2000) (reasoning that whether an agency’s\n\ninterpretation of a contract is subject to de novo or arbitrary-and-capricious review\n\nturns on, among other things, the agency’s “relevant expertise” in negotiating the\n\ncontract at issue). We do not determine which standard applies here because our\n\ninterpretation of the PWS and the Board’s are identical: The PWS is purely\n\npermissive. The IRS “may request” removal of an employee, but nothing requires\n\nit to do so. That’s it. From there, holding that the Board did not abuse its\n\ndiscretion is a cakewalk.\n\n Security Walls wants to amend its Answer for no reason other than to argue\n\nthat the terminations were required. But the Board—looking to the text of the\n\nPWS rather than Security Walls’s self-serving statement—concluded otherwise.\n\nIndeed, the Board twice stated that the Answer was “consistent with” its\n\nconclusion but made perfectly clear that it was “not an indispensable part of[] the\n\nevidence underlying this finding.” Security Walls, Inc., slip op. at 7 n.18. The\n\nWalls affidavit serves the same purpose. Security Walls does not dispute the\n\nBoard’s finding that no one at the IRS ordered the guards’ removal. So its\n\nargument that the IRS would have required as much is beside the point. The Walls\n\naffidavit is thus irrelevant.\n\n In short, we find it “entirely reasonable” for the Board to deny Security\n\nWalls’s motion to reopen the record when the record supports its conclusion that\n\n\n\n 15\n\f Case: 17-13154 Date Filed: 04/23/2019 Page: 16 of 16\n\n\ndoing so would not compel a “different result.” See U.S. Mosaic Tile Co., 935\n\nF.2d at 1257.\n\n III.\n\n For these reasons, Security Walls’s petition for review is DENIED.\n\n SO ORDERED.\n\n\n\n\n 16\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: SECURITY WALLS, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13154 Date Filed: 04/23/2019 Page: 1 of 16\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13154\\n ________________________\\n\\n Agency No. 16-CA-152423\\n\\n\\n\\nSECURITY WALLS, INC.,\\n\\n Petitioner - Cross Respondent,\\n\\n versus\\n\\nNATIONAL LABOR RELATIONS BOARD,\\n\\n Respondent - Cross Petitioner.\\n\\n ________________________\\n\\n Petitions for Review of a Decision of the\\n National Labor Relations Board\\n ________________________\\n\\n (April 23, 2019)\\n\\nBefore TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, *\\nDistrict Judge.\\n\\nTJOFLAT, Circuit Judge:\\n\\n *\\n Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District\\nof Michigan, sitting by designation.\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 2 of 16\\n\\n\\n\\n\\n A private security contractor signed an agreement with the Internal Revenue\\n\\nService (the “IRS”) to provide protective services at one of its facilities. The\\n\\nagreement required the contractor to ensure that the guards it employed conformed\\n\\nto specifically enumerated standards of conduct. The contractor designed a\\n\\ndiscipline system to monitor guard compliance with those standards. But the IRS\\n\\nprovided itself with another layer of protection: power to short-circuit that system\\n\\nand require the immediate removal of a non-conforming guard.\\n\\n Three guards misbehaved. The contractor, without prompting from the IRS,\\n\\nsuspended (and then terminated) them, a consequence much harsher than what the\\n\\ncontractor’s own discipline system called for. It turns out that by circumventing its\\n\\nown system, the contractor violated the National Labor Relations Act of 1935 (the\\n\\n“NLRA”), 29 U.S.C. §§ 151–69.\\n\\n The contractor has an explanation for its wrongdoing: Its contract with the\\n\\nIRS required it to fire the guards. The question on appeal is whether the National\\n\\nLabor Relations Board (the “Board”) abused its discretion by not reopening the\\n\\nadministrative record to allow the contractor to establish that point. Because the\\n\\ncontractor’s proffer does not prove the point, we hold that the Board did not abuse\\n\\nits discretion in letting the record stand as it was.\\n\\n\\n\\n\\n 2\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 3 of 16\\n\\n\\n I.\\n\\n A.\\n\\n Security Walls is a governmental security contractor. On March 1, 2014, it\\n\\nentered into a contract with the IRS to provide guard services at the agency’s\\n\\nfacility in Austin, Texas (the “Facility”). The contractor that it replaced was a\\n\\nparty to a collective-bargaining agreement with the International Union, Security,\\n\\nPolice and Fire Professionals of America (the “Union”), for a unit of guards that\\n\\nworked at the Facility. Declining to adopt that agreement, however, Security\\n\\nWalls commenced new collective-bargaining negotiations in August 2014.1 When\\n\\nit first began providing services under the contract, Security Walls posted at the\\n\\nFacility a document called the “Performance Work Statement” (the “PWS”), which\\n\\nwas part of its contract with the IRS.\\n\\n The PWS requires Security Walls to ensure that its employees conform to\\n\\n“acceptable standards of conduct.” It sets out thirty-five “actions, behaviors, or\\n\\nconditions” by employees that constitute “cause for immediate removal from\\n\\nperforming on the contract.” Security Walls must “maintain[] satisfactory\\n\\nstandards of employee . . . conduct” and “tak[e] such disciplinary action with\\n\\nrespect to [its] employees as may be necessary.” At the same time, however, the\\n\\n\\n\\n 1\\n The parties eventually negotiated an agreement that became effective on September 1,\\n2015, but that agreement is not in play here.\\n\\n\\n 3\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 4 of 16\\n\\n\\nIRS “may request [Security Walls] to immediately remove any\\n\\nemployee . . . should it be determined that the employee has been disqualified for\\n\\neither employment suitability, performance suitability, or security reasons, or who\\n\\nis found to be unfit for performing security duties during his/her tour of duty.” 2\\n\\nThe IRS’s power to demand an employee’s removal is vested in the Contracting\\n\\nOfficer (the “CO”) and the Contracting Officer’s Representative (the “COR”), who\\n\\nmay require the “retraining . . ., suspension, or removal of any Contract employee\\n\\nfrom the contract who does not meet and adhere to the Standards of Conduct as\\n\\nrequired in th[e] contract.” Security Walls “must comply with these requests in a\\n\\ntimely manner.”\\n\\n Before we recount the events that gave rise to this suit, we briefly introduce\\n\\nthe key players in our discussion. On the Security Walls side, Juanita Walls is the\\n\\ncontractor’s chief manager, Scott Carpenter manages this particular contract\\n\\nbetween the contractor and the IRS, and Frederico Salazar supervises the Facility.\\n\\nOn the IRS side, John Sears is the COR, and Bernadette Briggs is a senior\\n\\ncontracting specialist.\\n\\n On April 25, 2014, Security Walls, through Juanita Walls and Carpenter,\\n\\nadopted a new policy, the “Disciplinary Action/Policy Statement” (the “Policy\\n\\n\\n\\n 2\\n A “determination of unfitness may be made from . . . violations of the Standards of\\nConduct.”\\n\\n\\n 4\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 5 of 16\\n\\n\\nStatement”). The Policy Statement, on its face, purports to be the “official policy\\n\\nof ‘Security Walls’ and supersedes all other policies concerning this subject.” It\\n\\nputs forth a progressive disciplinary system: Though some violations result in\\n\\nimmediate termination, 3 others result in more graduated discipline.\\n\\n Fast forward about one year after the Policy Statement was adopted. On\\n\\nApril 15, 2015, guard John Klabunde was manning the Facility’s visitor center\\n\\nwhen guard Jason Schneider arrived to relieve him for his scheduled break.\\n\\nDuring the transition, while the two men were both focused on correcting an error\\n\\nin the logbook, a woman walked into the Facility undetected. Security Walls\\n\\nindefinitely suspended both guards the following day. Guard Christopher Marinez\\n\\nfaced a similar fate. On April 22—exactly one week after the prior incident—\\n\\nMarinez was adjusting his chair when a woman and her child also passed through\\n\\n(undetected) the area he was supposed to be monitoring. He was indefinitely\\n\\nsuspended the same day.\\n\\n The day after Marinez’s suspension, on April 23, the Union filed a grievance\\n\\nover all three suspensions. Because Security Walls had failed to follow the\\n\\n\\n\\n\\n 3\\n These offenses are refusing to cooperate in an investigation; sleeping or engaging in\\nsexual activity while on duty; falsifying, concealing, removing, mutilating, or destroying official\\ndocuments or records; and willfully concealing material facts from official documents, records,\\nor statements.\\n\\n\\n 5\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 6 of 16\\n\\n\\nprogressive disciplinary protocol outlined in its own Policy Statement, the Union\\n\\ndemanded reinstatement of the guards.\\n\\n On the same day, Carpenter, who was effectively the customer-service\\n\\nrepresentative for Security Walls, exchanged a series of emails with Sears, who\\n\\nwas effectively the client.4\\n\\n Sears, who initiated the communication, stated that he would not accept\\n\\n“substandard services” from Security Walls. “If individual guards do not have the\\n\\ncharacter and self-discipline to work at a federal installation and comply with the\\n\\nresponsibilities associated,” he went on, “they will need to be removed.” He\\n\\nnonetheless expressed hope that Security Walls would “adopt an effective system\\n\\nof discipline for these types of violations and deter them from happening.” Later\\n\\nthat day, after having reviewed the video footage involving Marinez, he contacted\\n\\nCarpenter again. From the footage, he concluded that Marinez “turned his back\\n\\nmomentarily to apparently adjust his chair,” which in Sears’s mind did not\\n\\nconstitute “careless behavior.” He analogized this mishap to the incident the prior\\n\\nweek involving Klabunde and Schneider. Sears qualified this concession,\\n\\nhowever, by stating that guards “must be able to multi-task and recognize what’s\\n\\ngoing on around them.” He expressed hope that Security Walls “can address this\\n\\n\\n\\n 4\\n Carpenter managed this particular contract on behalf of Security Walls, and Sears was\\nthe IRS’s COR, who under the PWS had the ability to demand an employee’s removal.\\n\\n\\n 6\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 7 of 16\\n\\n\\nso that guards are paying greater attention to details so we don’t miss these types of\\n\\nincidents.”\\n\\n Carpenter responded by saying that the guards “neglected their most primary\\n\\nduty,” by expressing gratitude that an “angry, armed person [didn’t] gain access,”\\n\\nand by indicating that he looked forward to an-already scheduled meeting between\\n\\nhim and Sears the following day. Meanwhile, he would be conducting an internal\\n\\ninvestigation.\\n\\n That’s where Sears left it: fully aware of the incidents but deferring to\\n\\nCarpenter’s judgment on how to proceed.\\n\\n The following day, on April 24, Carpenter completed his investigation. He\\n\\ndetermined that Schneider, Klabunde, and Marinez violated two of the thirty-five\\n\\noffenses under the PWS: “[v]iolation of security procedures” and “[n]eglecting\\n\\nduties.” In his view, the enumerated standards of conduct “are non-discretionary\\n\\nand necessarily supersede and take precedence over any other policy or standard\\n\\nnot contained in the PWS, including Security Walls[’s] internal disciplinary\\n\\nstandards and policies.” Invoking Security Walls’s obligation under the PWS to\\n\\nensure that its employees conform to “acceptable standards of conduct,” Carpenter\\n\\nrecommended that the three guards be terminated.\\n\\n On April 28, Salazar notified Schneider, Klabunde, and Marinez that they\\n\\nwere terminated. The following day, Security Walls, through counsel, clarified to\\n\\n\\n\\n 7\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 8 of 16\\n\\n\\nthe Union that the guards were only suspended, not terminated. They would\\n\\n“remain on suspension pending a final decision by [Juanita Walls] as to whether\\n\\neither of the officers has committed a violation of the Standards of Conduct set out\\n\\nin the PWS.” Counsel repeated Carpenter’s assertion that the guards’ actions “fall\\n\\nunder the specifications of the PWS[] and are outside the conduct defined in\\n\\nSecurity Walls[’s] [Policy Statement].” The guards were eventually terminated,\\n\\nand on May 14, 2015, the Union filed a charge alleging unfair labor practices\\n\\nunder the NLRA, an action that prompted the Board to issue a complaint.\\n\\n B.\\n\\n The NLRA makes it unlawful for an employer to “refuse to bargain\\n\\ncollectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). 5\\n\\nThis refusal to bargain includes “unilaterally changing the terms and conditions of\\n\\nemployment without first granting its employees’ exclusive bargaining\\n\\nrepresentative the opportunity to bargain about ‘mandatory’ subjects.” NLRB v.\\n\\nHaberman Constr. Co., 641 F.2d 351, 357 (5th Cir. Apr. 1981) (en banc). 6 An\\n\\nemployer’s disciplinary system is a mandatory subject, Toledo Blade Co., 343\\n\\n\\n\\n\\n 5\\n Section 158(a)(1) makes it unlawful to “interfere with, restrain, or coerce employees”\\nwhile they exercise various rights under the NLRA. 29 U.S.C. § 158(a)(1).\\n 6\\n In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court\\nadopted as binding precedent all decisions of the former Fifth Circuit handed down prior to\\nOctober 1, 1981.\\n\\n\\n 8\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 9 of 16\\n\\n\\nN.L.R.B. 385, 387 (2004), as are negotiations over termination of employment,\\n\\nRyder Distrib. Res., Inc., 302 N.L.R.B. 76, 90 (1991).\\n\\n The administrative law judge (the “ALJ”) found that Security Walls violated\\n\\nthese provisions when (1) in violation of the Policy Statement’s graduated\\n\\ndisciplinary protocol, it suspended indefinitely and then discharged the guards and\\n\\n(2) it refused to bargain with the Union following those discharges. Security\\n\\nWalls, Inc., 365 N.L.R.B. No. 99, slip op. at 3 (June 15, 2017). The ALJ reasoned\\n\\nthat the PWS—on its face—put the guards’ removal within Security Walls’s and\\n\\nthe IRS’s discretion. Id. He also observed that Security Walls admitted in its\\n\\nAnswer that it exercised discretion in terminating the guards. Id. Security Walls\\n\\nappealed the ALJ’s decision to the Board.\\n\\n After the ALJ issued his decision but while the matter was pending before\\n\\nthe Board, on March 16, 2016, Security Walls moved the Board, under its\\n\\nregulations, to reopen the record for two purposes: (1) to introduce an affidavit and\\n\\n(2) to amend its Answer. The affidavit, sworn to by Juanita Walls (the “Walls\\n\\naffidavit”), stated that she had received an email from Briggs 7 on March 9, 2016,\\n\\nin which Briggs stated that Schneider, Klabunde, and Marinez “[would] not be\\n\\npermitted to perform services under th[e] contract, effective immediately.” Walls\\n\\nfurther swore, “I believe that if Ms. Briggs or the COR were aware of the\\n\\n 7\\n Recall that Briggs was a senior contract specialist with the IRS.\\n\\n\\n 9\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 10 of 16\\n\\n\\ncircumstances surrounding the three officers in April 2015, they would have taken\\n\\nthe same position as when they became aware of the incidents recently.” In\\n\\nSecurity Walls’s view, the Walls affidavit precluded any finding that the\\n\\nterminations were discretionary. Security Walls thus sought to amend its Answer\\n\\nto withdraw its admission to the contrary.\\n\\n As to the violations, the Board affirmed the ALJ’s findings. It held that\\n\\nneither the Policy Statement nor the PWS required Security Walls to remove the\\n\\nguards. Id. Under the PWS, the CO or the COR had the “authority to” require the\\n\\nguards’ removal. Id. But Sears—as the COR—declined to exercise that authority,\\n\\nid., and the record contained no evidence of any CO that was charged with\\n\\nenforcing the contract, id. at n.6. Contrary to Walls’s speculation that if the COR\\n\\nwere aware of the circumstances he would have required removal, the Board\\n\\nreasoned that Sears was aware of the circumstances and neither required the\\n\\nguards’ removal nor told Carpenter that Security Walls’s contract was in\\n\\n“jeopardy.” Id. at 3. He was aware that he could take action, moreover, because\\n\\nhe had required an employee’s removal at least once in the past. Id.\\n\\n As to reopening the record, the Board concluded that Security Walls had not\\n\\nmade the requisite showing under the regulations. A party may move to reopen the\\n\\nrecord due to “extraordinary circumstances.” 29 C.F.R. § 102.48(d)(1) (amended\\n\\n2017). The evidence either must “ha[ve] become available only since the close of\\n\\n\\n\\n 10\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 11 of 16\\n\\n\\nthe hearing” or, in the Board’s view, “should have been taken at the hearing.” Id.\\n\\nThe movant must state “the additional evidence sought to be adduced, why it was\\n\\nnot presented previously, and that, if adduced and credited, it would require a\\n\\ndifferent result.” Id.\\n\\n The Board denied the motion because neither admitting the Walls affidavit\\n\\nnor allowing the pleading amendment would have demanded a “different result.”\\n\\nSecurity Walls, Inc., slip op. at 6. It reasoned that (1) “neither the PWS nor the\\n\\n[Policy Statement] mandated these discharges. As such, [Security Walls’s]\\n\\nadmission is consistent with, but not an indispensable part of, the evidence\\n\\nunderlying this finding,” id. at 7 n.18, and (2) neither Sears nor any other IRS\\n\\nrepresentative demanded the guards’ removal at the time, and the Walls affidavit,\\n\\nsworn to “some 10 months after the discharges and after the [ALJ] had found that\\n\\n[Security Walls] acted unlawfully” would not change that fact, id. at 7. 8\\n\\n The Board required Security Walls to rescind the unilateral change to its\\n\\nPolicy Statement; to offer Schneider, Klabunde, and Marinez reinstatement; to\\n\\nmake them whole for any losses to earnings or other benefits; to remove any\\n\\nreference to the discharges from their personnel files; and to post a remedial notice\\n\\nat the Facility. Id. at 7−8.\\n\\n\\n 8\\n It also reasoned that the Walls affidavit came into existence “after the [alleged events]\\nin this case” and thus, “by definition, is not ‘newly discovered’ or ‘previously unavailable,’”\\nwhich the Board’s precedents required. Id.\\n\\n\\n 11\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 12 of 16\\n\\n\\n Security Walls then petitioned this Court for review under 29 U.S.C.\\n\\n§ 160(f), which grants us jurisdiction over final orders of the Board.\\n\\n II.\\n\\n The question in this case is not whether the guards’ terminations were proper\\n\\nunder the Policy Statement; everyone, including Security Walls, agrees that none\\n\\nof the guards’ conduct could have resulted in their indefinite suspension and\\n\\neventual termination under the Policy Statement. 9 Security Walls’s argument on\\n\\nappeal is straightforward: the PWS—and this is Security Walls’s phrasing, not\\n\\nours—“supersedes” the Policy Statement, and Security Walls is absolved of\\n\\nliability to the extent the PWS compels an outcome that would otherwise place\\n\\nSecurity Walls in violation of its collective-bargaining obligations under the\\n\\nNLRA. From there, Security Walls tells us, it’s easy to see why the record should\\n\\nbe reopened. The Walls affidavit confirms its position that the PWS left it with\\n\\n“no choice” but to terminate the guards, and Security Walls should be permitted to\\n\\namend its Answer to withdraw its admission to the contrary—that the terminations\\n\\nwere in fact discretionary.\\n\\n\\n 9\\n The guards’ conduct constituted “violation of written rules, regulations or policy.” For\\nfirst-time offenders, the Policy Statement prescribes verbal counseling and a memorandum to be\\nincluded in the personnel file; second-time offenders get a letter of reprimand; third-time\\noffenders get a two-day suspension; and fourth-time offenders are terminated. If a violation\\nresults in a security breach, however, the protocol accelerates the discipline for first offenses to\\nsuspension and for second offenses to termination. None of the three guards had previously been\\ndisciplined, so the Policy Statement called for, at most, two-day suspensions.\\n\\n\\n 12\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 13 of 16\\n\\n\\n As an initial matter, we are skeptical of Security Walls’s premise that it\\n\\nholds a get-out-of-jail-free card when it cannot simultaneously comport with both\\n\\nthe PWS and the NLRA. 10 As the Board reasoned, the PWS is a “non-personal\\n\\nservices contract between [Security Walls] and the IRS” and thus “reflects the\\n\\nagreement between [Security Walls] and the IRS, but not necessarily between\\n\\n[Security Walls] and its own employees.” Security Walls, Inc., slip op. at 4 n.8.\\n\\nSecurity Walls subjected itself to two masters—its contractual obligations to the\\n\\nIRS on the one hand and its duties under the NLRA to its employees on the other.\\n\\nAs such, it might have voluntarily put itself between a rock and a hard place from\\n\\nwhich there is no painless resolution. We assume for purposes of discussion,\\n\\nhowever, that Security Walls’s contention is correct and thus that the PWS\\n\\n“supersedes” the Policy Statement. We do so because nothing about the PWS\\n\\nrequired the guards’ removal; Security Walls was able to comply with both the\\n\\nPWS and the Policy Statement.\\n\\n We review the Board’s “procedural determinations,” like denial of a motion\\n\\nto reopen the record, for abuse of discretion. See U.S. Mosaic Tile Co. v. NLRB,\\n\\n 10\\n The doctrinal hook for this argument is unclear, if for no other reason than because\\nSecurity Walls has provided us no law on point. The argument sounds in something akin to\\nconflict preemption, a doctrine corollary to the Supremacy Clause, see U.S. Const. art. VI, cl. 2,\\nwhich results where “‘compliance with both state and federal law is impossible,’ or where ‘the\\nstate law stands as an obstacle to the accomplishment and execution of the full purposes and\\nobjectives of Congress.’” Oneok, Inc. v. Learjet, Inc., ___ U.S. ___, 135 S. Ct. 1591, 1595\\n(2015) (quoting California v. ARC Am. Corp., 490 U.S. 93, 100, 101, 109 S. Ct. 1661, 1665\\n(1989)).\\n\\n\\n 13\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 14 of 16\\n\\n\\n935 F.2d 1249, 1254 (11th Cir. 1991); see also 5 U.S.C. § 706(2)(A). In doing so,\\n\\nwe look through the decision to the logical pillars on which it rests. In U.S. Mosaic\\n\\nTile Co., for example, we reviewed the Board’s denial of a motion for\\n\\nreconsideration, but that decision rested on interpretation of a statute and\\n\\napplication of the agency’s own caselaw. 935 F.2d at 1254. We afforded Chevron\\n\\ndeference 11 to the statutory interpretation and subjected the caselaw application to\\n\\narbitrary-and-capricious review. 935 F.2d at 1254. We then determined, in light\\n\\nof our conclusions on those issues, whether the Board abused its discretion in\\n\\ndenying the motion. Id. at 1254–55.\\n\\n What are the bases of the Board’s decision here? The Board denied Security\\n\\nWalls’s motion because neither the Walls affidavit nor a pleading amendment\\n\\nwould have demanded a “different result.” Security Walls, Inc., slip op. at 6.\\n\\nAgain, it reasoned that (1) the PWS did not mandate the terminations and (2)\\n\\nneither Sears nor any other IRS representative demanded the guards’ removal\\n\\nwhen they were terminated. Id. at 7, 7 n.18.\\n\\n The Board’s first reason flows from its interpretation of the PWS. The\\n\\ndeference we afford to an agency’s interpretation of a contract, like the PWS,\\n\\nvaries on a case-by-case basis. See Muratore v. U.S. Office of Pers. Mgmt., 222\\n\\n\\n\\n 11\\n Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778\\n(1984).\\n\\n\\n 14\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 15 of 16\\n\\n\\nF.3d 918, 921–23 (11th Cir. 2000) (reasoning that whether an agency’s\\n\\ninterpretation of a contract is subject to de novo or arbitrary-and-capricious review\\n\\nturns on, among other things, the agency’s “relevant expertise” in negotiating the\\n\\ncontract at issue). We do not determine which standard applies here because our\\n\\ninterpretation of the PWS and the Board’s are identical: The PWS is purely\\n\\npermissive. The IRS “may request” removal of an employee, but nothing requires\\n\\nit to do so. That’s it. From there, holding that the Board did not abuse its\\n\\ndiscretion is a cakewalk.\\n\\n Security Walls wants to amend its Answer for no reason other than to argue\\n\\nthat the terminations were required. But the Board—looking to the text of the\\n\\nPWS rather than Security Walls’s self-serving statement—concluded otherwise.\\n\\nIndeed, the Board twice stated that the Answer was “consistent with” its\\n\\nconclusion but made perfectly clear that it was “not an indispensable part of[] the\\n\\nevidence underlying this finding.” Security Walls, Inc., slip op. at 7 n.18. The\\n\\nWalls affidavit serves the same purpose. Security Walls does not dispute the\\n\\nBoard’s finding that no one at the IRS ordered the guards’ removal. So its\\n\\nargument that the IRS would have required as much is beside the point. The Walls\\n\\naffidavit is thus irrelevant.\\n\\n In short, we find it “entirely reasonable” for the Board to deny Security\\n\\nWalls’s motion to reopen the record when the record supports its conclusion that\\n\\n\\n\\n 15\\n\\f Case: 17-13154 Date Filed: 04/23/2019 Page: 16 of 16\\n\\n\\ndoing so would not compel a “different result.” See U.S. Mosaic Tile Co., 935\\n\\nF.2d at 1257.\\n\\n III.\\n\\n For these reasons, Security Walls’s petition for review is DENIED.\\n\\n SO ORDERED.\\n\\n\\n\\n\\n 16\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1894,"cells":{"id":{"kind":"number","value":4613268,"string":"4,613,268"},"name":{"kind":"string","value":"Terry Eugene SEARS, Plaintiff-Appellant, v. Vernia ROBERTS, F. Dexter, David Prince, Jeffrey Hart, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Terry Eugene Sears v. Vernia Roberts"},"decision_date":{"kind":"string","value":"2019-04-24"},"docket_number":{"kind":"string","value":"15-15080"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carnes, Martin, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888391/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"030concurrence\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/9888392/\", \"author_raw\": \"\"}, {\"author\": \"ED CARNES, Chief Judge\", \"type\": \"010combined\", \"text\": \"Case: 15-15080 Date Filed: 04/24/2019 Page: 1 of 21\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 15-15080\\n ________________________\\n\\n D.C. Docket No. 8:12-cv-00288-VMC-TGW\\n\\n\\nTERRY EUGENE SEARS,\\n\\n Plaintiff-Appellant,\\n\\n versus\\n\\nVERNIA ROBERTS,\\nF. DEXTER,\\nDAVID PRINCE,\\nJEFFREY HART,\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 24, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\\n\\nED CARNES, Chief Judge:\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 2 of 21\\n\\n\\n Terry Eugene Sears is a Florida inmate who claims that three correctional\\n\\nofficers physically assaulted him and that one of them sprayed a chemical agent on\\n\\nhim for 16 minutes after he was handcuffed and compliant. He also claims that\\n\\nthree supervisory officers watched the attack without doing anything to intervene.\\n\\nThis is Sears’ appeal from the district court’s grant of summary judgment to the\\n\\ncorrectional officers on his 42 U.S.C. § 1983 excessive force and deliberate\\n\\nindifference claims. The district court’s misreading of our decision in O’Bryant v.\\n\\nFinch, 637 F.3d 1207 (11th Cir. 2011), led it to limit the evidence from Sears that\\n\\nit considered and to credit the defendants’ version of events over Sears’ sworn\\n\\nallegations. We vacate the judgment and remand for further proceedings.\\n\\n I.\\n\\n This appeal arises from events that occurred at the Polk Correctional\\n\\nInstitution in Polk City, Florida. Because of the procedural posture of the case, we\\n\\nview all the evidence in the light most favorable to Sears and will assume that the\\n\\nfacts he alleged in his verified complaint, sworn response, and affidavit are true.\\n\\nSee Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.\\n\\n2012).\\n\\n A.\\n\\n On the morning of March 18, 2010, Sears was inside his prison dormitory\\n\\nwhen he was approached by Robert Dees, a correctional officer. Sears ignored\\n\\n 2\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 3 of 21\\n\\n\\nDees’ attempt to make conversation and refused his order to submit to a pat-down\\n\\nsearch. As Sears started to leave the dormitory, Dees reached out and grabbed him\\n\\nby the shoulder. Sears “snatched away” and told Dees not to touch him. Dees\\n\\nagain grabbed Sears and verbally threatened him, letting go only when another\\n\\nofficer intervened.\\n\\n Once free from Dees’ grip, Sears left the dormitory and went to Colonel\\n\\nVernia Roberts’ office to complain about Dees. When Roberts refused to see him\\n\\nbecause he didn’t have a pass, Sears headed outside to talk to Captain Felishia\\n\\nDexter, who had just exited another dormitory. While Sears was telling her about\\n\\nwhat Dees had done, Officers Dwight Smith and Steven Plough approached and\\n\\nsaid that they had received a radio call from Dees about Sears. Sears told them that\\n\\nDees was just retaliating against him.\\n\\n Smith and Plough tried to handcuff Sears, but Sears resisted and, in his\\n\\nwords, “refused to allow myself to be handcuffed.” At this point, Sergeant David\\n\\nPrince arrived on scene and began spraying Sears in the face with a chemical\\n\\nagent. Then Smith and Plough “slammed” Sears to the ground and handcuffed his\\n\\nhands behind his back. While Sears was restrained in that way, Smith began\\n\\npunching him in the back of his head and on the side of his face, and Plough\\n\\ngrabbed Sears around the neck and choked him. Sears cried out that he couldn’t\\n\\n\\n\\n\\n 3\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 4 of 21\\n\\n\\nbreathe. Through it all Prince kept spraying Sears in the face with the chemical\\n\\nagent.\\n\\n While Sears was still lying on the ground handcuffed, Smith stood on Sears’\\n\\nright leg, shackled his ankles, and repeatedly pushed his face into the dirt. Plough\\n\\nthen punched Sears several times in the ribs and kicked him in the back. Finally,\\n\\nSmith and Plough lifted Sears to his feet, and Prince began spraying him in the\\n\\nface with a second canister of chemical agent. Sears swears that the whole\\n\\nphysical altercation lasted for about 16 minutes. He also swears that during the\\n\\nentire time Dexter, Roberts, and Lieutenant Jeffrey Hart watched and did nothing\\n\\nto help.\\n\\n After the correctional officers had finished spraying and hitting Sears,\\n\\nPlough and Smith escorted him to the medical building, and Roberts and Hart\\n\\nfollowed. Prince unlocked the rear door of the building and turned to Sears and\\n\\nsucker-punched him in the face. Sears fell to the ground and nearly lost\\n\\nconsciousness. Prince continued to assault Sears while he was on the ground,\\n\\nkicking him in the buttocks and stepping on his legs. Smith then slapped Sears\\n\\ntwice in the face, and then asked if he was alright. Sears cried out for help from\\n\\nRoberts, and he then attempted to shield himself from further blows by hiding his\\n\\nface in his hands.\\n\\n\\n\\n\\n 4\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 5 of 21\\n\\n\\n When the assault finally ended, Sears was sent to the showers to wash off\\n\\nthe chemical spray. As a result of the beating, he was left with a black-eye, blurred\\n\\nvision, blisters and burning sensations on his face, a busted lip, knots on his head\\n\\nand right knee, swelling in his wrists, ankles, and face, pain in his ribcage and\\n\\nabdomen, skinned knees, a broken dental plate, and many scrapes and bruises.\\n\\nLater that same day, he reported that he was having a “psychological emergency”\\n\\nand threatened to commit suicide. He was placed in an isolation cell for a week.\\n\\n B.\\n\\n After the altercation, Prince and Dees filed prison disciplinary reports\\n\\nagainst Sears. Dees charged Sears with disobeying an order by refusing to submit\\n\\nto being handcuffed, and Prince charged him with battery or attempted battery of a\\n\\ncorrectional officer. Prince stated in his disciplinary report that Sears had refused\\n\\nto comply with repeated orders to submit to being handcuffed and that when Sears\\n\\n“snatched away” from his grip, Prince had “administered an approximate one\\n\\nsecond burst of chemical agent to Sears’ facial area.” Prince also reported that\\n\\nonce he did that, Sears “charged towards [him] and began striking [him] in the\\n\\nhead and shoulder area with his fists” before the other officers subdued Sears and\\n\\ngot him handcuffed and shackled.\\n\\n Representing himself in the disciplinary hearings, Sears was found guilty by\\n\\nboth disciplinary panels. He received 30 days of disciplinary confinement for\\n\\n 5\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 6 of 21\\n\\n\\ndisobeying orders and 60 days of confinement for the attempted battery. He was\\n\\nalso docked 60 days of gain time, though this had no practical effect because of the\\n\\nsentence he was serving. Sears unsuccessfully appealed both sanctions to the\\n\\nprison warden.\\n\\n C.\\n\\n Sears filed this action under 42 U.S.C. § 1983 in December 2011. He\\n\\nclaimed that Prince had used excessive force against him in violation of the Eighth\\n\\nAmendment, and that Roberts, Dexter, and Hart had been deliberately indifferent\\n\\nto a substantial risk of serious harm when they watched the assault without\\n\\nintervening, also in violation of the Eighth Amendment. 1 The district court\\n\\ninitially denied the defendants’ motion to dismiss these claims because it found\\n\\nthat Sears’ allegations, taken as true, were sufficient to establish constitutional\\n\\nviolations. But the court later granted the defendants’ motion for summary\\n\\njudgment, which is the order now on appeal.\\n\\n In its summary judgment order, the district court reasoned that because the\\n\\nprison disciplinary panel had found Sears guilty of battery or attempted battery\\n\\nagainst Prince, and because that hearing satisfied due process, Sears could not\\n\\nchallenge the panel’s factual findings in this lawsuit. The court wrote: “Sears is\\n\\n\\n 1\\n Sears also named Smith and Plough as defendants in his excessive force claim, but they\\nwere never properly served, and the district court stated in its summary judgment order that they\\nwere no longer defendants in this action. Sears does not contest that ruling on appeal.\\n 6\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 7 of 21\\n\\n\\nnot permitted to dispute the facts as stated in [Prince’s disciplinary report]. Sears\\n\\ncannot deny the conduct in the [disciplinary report]; and cannot imply that the\\n\\n[disciplinary report] was false by making allegations that explicitly contradict it.”\\n\\nThe court also drew solely from the summary judgment exhibits submitted by the\\n\\nofficers when it described in its summary judgment order what the “undisputed\\n\\nfacts” of the case were. 2 As a result, the district court found that Prince’s “single\\n\\napplication of chemical spray, along with the physical efforts of Smith and\\n\\nPlough[,] brought Sears into compliance,” and that “[n]o other force was used or\\n\\nneeded.” Based on those findings, which it treated as “undisputed” facts, the\\n\\ndistrict court granted summary judgment to all of the defendants. This is Sears’\\n\\nappeal.\\n\\n II.\\n\\n We review de novo the district court’s grant of summary judgment,\\n\\nconsidering all of the evidence in the light most favorable to Sears as the non-\\n\\nmoving party. See Hamilton, 680 F.3d at 1318. Summary judgment is proper “if\\n\\n\\n\\n 2\\n Those exhibits included: affidavits by Dexter and Prince; reports of force by Prince,\\nSmith, and Plough; incident reports by Dexter, Prince, Smith, Plough, and Dees; Sears’\\ndisciplinary hearing reports, charges, and witness statements; incident reports by the officer who\\nvideotaped Sears’ decontamination process and the nurse who examined the officers and Sears;\\nmedical reports by the prison nurse of her examinations of Prince, Smith, Plough, and Sears;\\nSears’ written declaration of a psychological emergency; a use of force checklist and risk\\nassessment for use of chemical restraint agents; a chemical agent accountability log showing the\\nweight of Prince’s canister before and after the incident; and a chemical agent accountability log\\nshowing signatures of the officers who checked out and then returned canisters.\\n 7\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 8 of 21\\n\\n\\nthe movant shows that there is no genuine dispute as to any material fact and the\\n\\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]t the\\n\\nsummary judgment stage the judge’s function is not himself to weigh the evidence\\n\\nand determine the truth of the matter but to determine whether there is a genuine\\n\\nissue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.\\n\\n2505, 2511 (1986).\\n\\n III.\\n\\n Under the Eighth Amendment, force is deemed legitimate in a custodial\\n\\nsetting if it is “applied in a good-faith effort to maintain or restore discipline” and\\n\\nnot “maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S.\\n\\n1, 7, 112 S. Ct. 995, 999 (1992). In determining whether force was used\\n\\n“maliciously and sadistically,” we consider: (1) “the need for the application of\\n\\nforce”; (2) “the relationship between the need and the amount of force that was\\n\\nused”; (3) “the extent of the injury inflicted upon the prisoner”; (4) “the extent of\\n\\nthe threat to the safety of staff and inmates”; and (5) “any efforts made to temper\\n\\nthe severity of a forceful response.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th\\n\\nCir. 2007) (quotation marks omitted). “Not only that, but we must also give a wide\\n\\nrange of deference to prison officials acting to preserve discipline and security,\\n\\nincluding when considering decisions made at the scene of a disturbance.” Id.\\n\\n(quotation marks and alteration omitted). The focus of our Eighth Amendment\\n\\n 8\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 9 of 21\\n\\n\\ninquiry is on the nature of the force applied, not on the extent of the injury\\n\\ninflicted. Wilkins v. Gaddy, 559 U.S. 34, 37–38, 130 S. Ct. 1175, 1178–79 (2010).\\n\\nAdditionally, “an officer who is present at the scene and who fails to take\\n\\nreasonable steps to protect the victim of another officer’s use of excessive force\\n\\ncan be held personally liable for his nonfeasance.” Skrtich v. Thornton, 280 F.3d\\n\\n1295, 1301 (11th Cir. 2002).\\n\\n In granting summary judgment to the correctional officers, the district court\\n\\nstated, but failed to apply, the appropriate standard under Federal Rule of Civil\\n\\nProcedure 56. Instead of viewing the evidence in the light most favorable to Sears,\\n\\nthe court accepted as true the correctional officers’ version of events, relying\\n\\nexclusively on the facts set forth in their affidavits and in the prison disciplinary\\n\\nreports, prison medical records, and other prison records the officers submitted.\\n\\nThe court barely mentioned Sears’ version of events. When it did, it was usually to\\n\\nreject his statements as “not correct,” as refuted by the record evidence submitted\\n\\nby the correctional officers, or as otherwise insufficient because the only source of\\n\\nthem was Sears.\\n\\n That was error. Sears’ statements in his verified complaint, sworn response\\n\\nto the officers’ motion for summary judgment, and sworn affidavit attached to that\\n\\nresponse should have been treated as testimony by the district court. See United\\n\\nStates v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc) (“[O]ur cases\\n\\n 9\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 10 of 21\\n\\n\\ncorrectly explain that a litigant’s self-serving statements based on personal\\n\\nknowledge or observation can defeat summary judgment.”); see id. at 856–57\\n\\n(explaining that Rule 56(c) “allows a nonmoving party to dispute a material fact\\n\\nthrough an affidavit”); Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A\\n\\n1981) (stating that a verified complaint serves as the equivalent of an affidavit for\\n\\npurposes of summary judgment).\\n\\n It appears from the district court’s order that it may have mistakenly relied\\n\\non our decision in O’Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011), to exclude\\n\\nSears’ statements from consideration, or it may have viewed the evidence\\n\\nsubmitted by the officers as establishing the kind of record that no reasonable jury\\n\\ncould disbelieve regardless of sworn statements to the contrary. Or maybe both.\\n\\nRegardless, the district court erred in not accepting Sears’ version of events as true\\n\\nfor purposes of summary judgment.\\n\\n A.\\n\\n In O’Bryant, an inmate filed a First Amendment retaliation claim under 42\\n\\nU.S.C. § 1983 against two correctional officers who had submitted prison\\n\\ndisciplinary reports against him. Id. at 1209. The inmate alleged that the reports\\n\\nwere false, that he had not violated any rules, and that the officers filed the reports\\n\\nto retaliate against him for having filed grievances against them. Id. at 1209, 1211.\\n\\nThe district court granted the officers’ motion for summary judgment, and we\\n\\n 10\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 11 of 21\\n\\n\\naffirmed. Id. at 1212, 1220. The problem for the inmate, as we saw it, was that the\\n\\nprison’s disciplinary panels had already found him guilty of the rule infractions\\n\\ncharged in the reports that he claimed were retaliatory. Id. at 1215–16. As a\\n\\nresult, his federal claim was based on a factual finding that conflicted with the\\n\\ndisciplinary panel’s decision. It could not both be true that (1) the reports against\\n\\nhim were false and retaliatory (as his federal claim alleged), and (2) those same\\n\\nreports were true and not retaliatory (as the disciplinary panel concluded).\\n\\n We held that “[i]f a prisoner is found guilty of an actual disciplinary\\n\\ninfraction after being afforded due process and there was evidence to support the\\n\\ndisciplinary panel’s fact finding, the prisoner cannot later state a retaliation claim\\n\\nagainst the prison employee who reported the infraction in a disciplinary report.”\\n\\nId. at 1215. “To find otherwise,” we explained, “would render the prison\\n\\ndisciplinary system impotent by inviting prisoners to petition the courts for a full\\n\\nretrial each time they are found guilty of an actual disciplinary infraction after\\n\\nhaving filed a grievance.” Id. at 1216 (emphasis omitted).\\n\\n Sears’ situation does not fall within the O’Bryant rule. Unlike the plaintiff\\n\\nin that case, Sears does not challenge the disciplinary panel’s finding that he\\n\\nviolated a prison rule, nor does the success of his Eighth Amendment claims\\n\\ndepend on a finding that the disciplinary panel’s decision was wrong. As we have\\n\\nexplained in a different context: “A prisoner may be punished for battery on a\\n\\n 11\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 12 of 21\\n\\n\\nprison guard, and that prison guard may be held liable for using excessive force on\\n\\nthe prisoner in subduing him; both may be true.” Dixon v. Hodges, 887 F.3d 1235,\\n\\n1238 (11th Cir. 2018). Here the prison disciplinary panel decided only that Sears\\n\\ncommitted battery against Prince. The panel did not make any factual findings\\n\\nabout what the officers did to Sears after that.\\n\\n Whether Prince sprayed Sears with a chemical agent just once or more than\\n\\nthat, whether the officers beat Sears after placing him in handcuffs and leg\\n\\nshackles, whether Prince sucker-punched Sears in the face when he arrived at the\\n\\nmedical building, are factual questions that were not essential to the disciplinary\\n\\npanel’s decision. They were not decided by it. The district court erred to the\\n\\nextent that it interpreted O’Bryant as precluding it from considering under the\\n\\ntraditional summary judgment standard Sears’ sworn factual allegations about the\\n\\nphysical abuse he suffered.3\\n\\n B.\\n\\n The correctional officers concede that O’Bryant does not limit the evidence\\n\\nthe district court could consider on Sears’ behalf. But they argue that the district\\n\\ncourt properly granted summary judgment in their favor because Sears offered\\n\\n\\n 3\\n There may be other reasons a disciplinary panel’s factfindings preclude a § 1983\\nexcessive force claim, but because the defendants have not argued any other reason, we will not\\nhypothesize about them. Cf. Peterson v. Johnson, 714 F.3d 905, 906, 917–18 (6th Cir. 2013)\\n(applying collateral estoppel to bar inmate’s § 1983 excessive force claim against a correctional\\nofficer where a prison disciplinary panel had found that the inmate started the fight, which\\ndefeated the particular federal claim that he had pleaded).\\n 12\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 13 of 21\\n\\n\\nnothing more “than continued argument” relying “on his sworn statements to carry\\n\\nhis summary judgment burden.” They acknowledge that if they “had submitted\\n\\nonly continued argument with affidavits, the situation of ‘dueling affidavits’\\n\\nc[ould] certainly be present.” They contend, however, that because they “did not\\n\\nrest on affidavits” but also submitted an “overwhelming amount of documentary\\n\\nevidence,” Sears could not rest on his sworn affidavit, sworn response, and verified\\n\\ncomplaint to defeat all of the evidence they produced. They are mistaken.\\n\\n The question on summary judgment is not about which side has offered the\\n\\nmost evidence. Instead, that question is simply whether there is “sufficient\\n\\nevidence favoring the nonmoving party for a jury to return a verdict for that party.”\\n\\nAnderson, 477 U.S. at 249, 106 S. Ct. at 2511. While a plaintiff “may not rest\\n\\nupon the mere allegations or denials of his pleading, but must set forth specific\\n\\nfacts showing that there is a genuine issue for trial,” id. at 248, 106 S. Ct. at 2510\\n\\n(quotation marks and alterations omitted), we have long recognized that “[c]ourts\\n\\nroutinely and properly deny summary judgment on the basis of a party’s sworn\\n\\ntestimony,” Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005).\\n\\n That Sears’ evidence consists mainly of his own testimony in his verified\\n\\ncomplaint, sworn response, and sworn affidavit does not preclude a finding that a\\n\\ngenuine dispute of material fact exists. “As a general principle, a plaintiff’s\\n\\ntestimony cannot be discounted on summary judgment unless it is blatantly\\n\\n 13\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 14 of 21\\n\\n\\ncontradicted by the record, blatantly inconsistent, or incredible as a matter of law,\\n\\nmeaning that it relates to facts that could not have possibly been observed or events\\n\\nthat are contrary to the laws of nature.” Feliciano v. City of Miami Beach, 707\\n\\nF.3d 1244, 1253 (11th Cir. 2013). Sears’ statements are none of that. His\\n\\nstatements contain “non-conclusory descriptions of specific, discrete facts of the\\n\\nwho, what, when, and where variety.” Id. For instance, Sears swears that on\\n\\nMarch 18, 2010, Prince sprayed him multiple times with two different canisters of\\n\\nchemical spray; that Prince and the other correctional officers physically assaulted\\n\\nhim while he was handcuffed, shackled, and lying face down on the ground; and\\n\\nthat he saw Dexter, Roberts, and Hart close enough to the incident that they could\\n\\nhave intervened but didn’t. Those statements directly contradict the correctional\\n\\nofficers’ testimony that they used only enough force to bring Sears into\\n\\ncompliance. That presents us with “a classic swearing match, which is the stuff of\\n\\nwhich jury trials are made.” Id.\\n\\n The correctional officers believe that their reliance on “documentary and\\n\\nmedical evidence” makes this case fit within the “blatantly contradicted by the\\n\\nrecord” exception of Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007). In that\\n\\ncase the Supreme Court held that “[w]hen opposing parties tell two different\\n\\nstories, one of which is blatantly contradicted by the record, so that no reasonable\\n\\n\\n\\n\\n 14\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 15 of 21\\n\\n\\njury could believe it, a court should not adopt that version of the facts for purposes\\n\\nof ruling on a motion for summary judgment.” Id. at 380, 127 S. Ct. at 1776.\\n\\n But there’s a big difference between the record evidence presented in Scott\\n\\nand the evidence proffered here. In Scott, the record evidence that blatantly\\n\\ncontradicted the plaintiff’s version of events was a videotape of the car chase at\\n\\nissue. Id. at 378–79, 127 S. Ct. at 1775. Here, the officers’ documentary evidence\\n\\nconsists mainly of various forms of their own testimony: affidavits by Dexter and\\n\\nPrince, disciplinary reports by Prince and Dees, reports of force and incident\\n\\nreports by Prince, Smith, and Plough. Those reports just pit the correctional\\n\\nofficers’ word against Sears’ word. That is different from Scott where a videotape\\n\\nof the incident definitively established what happened and what did not. 4 See id. at\\n\\n380, 127 S. Ct. at 1776; see also Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th\\n\\n\\n\\n 4\\n The correctional officers point to a chemical agent log showing the weight-out and\\nweight-in of Prince’s chemical agent canister on the day he sprayed Sears. The log showed that\\n6.4 grams of spray had been expended. But because the log shows only the weight of one single\\ncanister, its existence does not mean that “no reasonable jury could believe” Sears’ testimony\\nthat Prince used two different chemical spray canisters on him. Cf. Scott, 550 U.S. at 380, 127\\nS. Ct. at 1776. And it is not clear that the log is accurate, which is another issue for the jury to\\nresolve.\\n\\n So, too, for the nurse’s record of her medical examination of Sears, which listed only\\nsome of the injuries he later recounted in his verified complaint and sworn affidavit. A\\nreasonable jury could believe that Sears suffered more injuries than the nurse recorded, or that\\nsome of those injuries, such as the swelling and pain in his ribcage, abdomen, and jaw, did not\\nmanifest themselves until the next day. In any event, the nurse’s report does not establish\\nwhether force was applied to Sears after he was handcuffed and compliant. See Fennell v.\\nGilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (explaining that the extent of the injury inflicted\\nupon the prisoner is but one factor to consider in an excessive force claim).\\n 15\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 16 of 21\\n\\n\\nCir. 2013) (affirming denial of summary judgment because, absent a video\\n\\nrecording of the incident, defendant’s forensic evidence did “not so utterly\\n\\ndiscredit [plaintiff’s] testimony that no reasonable jury could believe it”). At this\\n\\nstage in the proceedings, we must resolve the conflict of evidence in favor of\\n\\nSears. The district court erred by weighing the evidence and making its own\\n\\ncredibility determinations at the summary judgment stage. See Anderson, 477 U.S.\\n\\nat 249, 106 S. Ct. at 2510–11.\\n\\n C.\\n\\n Reviewing the record under the correct standard, we conclude that the\\n\\ncorrectional officers are not entitled to summary judgment. Given Sears’ admitted\\n\\nfailure to obey commands and his resistance to being handcuffed, some use of\\n\\nforce was necessary to maintain or restore order. But Sears has sworn that for 16\\n\\nminutes, including when he was handcuffed, shackled, and lying on the ground, the\\n\\ncorrectional officers beat him to the point that he was nearly unconscious. And he\\n\\nswears that Prince sprayed him in the face with a chemical agent for nearly that\\n\\nentire time, using two different chemical agent canisters to do so.\\n\\n Even if his sworn statements turn out to be exaggerations or false, they are\\n\\nenough to raise a genuine issue of material fact about the amount of force Prince\\n\\nused and whether he applied it “in a good-faith effort to maintain or restore\\n\\ndiscipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7,\\n\\n 16\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 17 of 21\\n\\n\\n112 S. Ct. at 999; see Skrtich, 280 F.3d at 1303 (explaining that the Eighth\\n\\nAmendment prohibits the use of “gratuitous force against a prisoner who has been\\n\\nalready subdued or . . . incapacitated”). Because Sears’ sworn testimony is that\\n\\nDexter, Roberts, and Hart witnessed the incident but did not attempt to intervene, a\\n\\ngenuine issue of material fact precluding summary judgment for them also exists.\\n\\nSee Skrtich, 280 F.3d at 1301 (“[A]n officer who is present at the scene and who\\n\\nfails to take reasonable steps to protect the victim of another officer’s use of\\n\\nexcessive force can be held liable for his nonfeasance.”).\\n\\n IV.\\n\\n We do not know what the true facts are, but we do know that a genuine\\n\\ndispute of material fact exists, and it precludes granting summary judgment to the\\n\\ncorrectional officers on Sears’ § 1983 excessive force and deliberate indifference\\n\\nby failure to intervene claims. For that reason, we vacate the district court’s grant\\n\\nof summary judgment and remand for further proceedings.\\n\\n VACATED and REMANDED.\\n\\n\\n\\n\\n 17\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 18 of 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4390521/\", \"author_raw\": \"ED CARNES, Chief Judge\"}, {\"author\": \"MARTIN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"MARTIN, Circuit Judge, concurring:\\n\\n I concur entirely in the well-reasoned opinion of the majority. Mr. Sears’s\\n\\nsworn allegations directly contradict the prison officials’ version of the incident.\\n\\nOur legal system tasks juries with arriving at the truth from among conflicting\\n\\naccounts. Cases brought by inmates are no exception.\\n\\n Our Circuit departed from this allocation of factfinding responsibilities in\\n\\nO’Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011) (per curiam), and it was\\n\\nO’Bryant that led the District Court to deny Mr. Sears a trial. O’Bryant held that\\n\\nno inmate can state a First Amendment retaliation claim based on a disciplinary\\n\\nreport if that inmate is found guilty of the infraction after a hearing that satisfies\\n\\ndue process. Id. at 1215–16. The majority here rightly holds O’Bryant does not\\n\\ncontrol the outcome for Mr. Sears. Maj. Op. 2, 10–13. I write separately now to\\n\\npoint out the flaws in the reasoning of O’Bryant and in hopes that this Court will\\n\\ncorrect them in an appropriate case.\\n\\n O’Bryant was wrong to hold that being found guilty of an infraction\\n\\nnecessarily precludes a First Amendment retaliation claim. To state a retaliation\\n\\nclaim, an inmate must show he (1) engaged in First Amendment protected conduct\\n\\nand (2) suffered an adverse action that would deter a person of ordinary firmness\\n\\nfrom exercising his First Amendment rights (3) because he engaged in protected\\n\\nconduct. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). First\\n\\n 18\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 19 of 21\\n\\n\\nAmendment retaliation claims turn on whether a prison official took retaliatory\\n\\naction against an inmate because the inmate exercised his First Amendment rights.\\n\\nSee id. at 1212. In other words, the question of whether retaliation occurred looks\\n\\nto why officials took the action they did, not whether they had a factual basis for\\n\\ndoing so.\\n\\n That there is a factual basis for an inmate to be charged with an infraction\\n\\ndoes not negate the possibility of a retaliatory motive in bringing those charges. It\\n\\nplainly can be true both that an inmate violated a prison disciplinary rule and that a\\n\\nprison official disciplined the inmate because the inmate engaged in First\\n\\nAmendment-protected conduct. O’Bryant’s ruling that guilt of an infraction\\n\\nprecludes a retaliation claim overlooks the point that prison officials might impose\\n\\ndiscipline in order to retaliate. In missing this point, O’Bryant undermines the very\\n\\npurpose of retaliation claims: to ensure that prison officials do not chill inmates in\\n\\nthe exercise of their First Amendment rights.\\n\\n O’Bryant’s error took root when it transplanted due process principles to the\\n\\nFirst Amendment’s altogether different soil. O’Bryant read two Supreme Court\\n\\ncases, Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974), and\\n\\nSuperintendent v. Hill, 472 U.S. 445, 105 S. Ct. 2768 (1985), as precluding\\n\\nretaliation claims based on disciplinary charges. O’Bryant, 637 F.3d at 1213–15.\\n\\nBut neither Wolff nor Hill had anything to do with the First Amendment. Instead,\\n\\n 19\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 20 of 21\\n\\n\\nthey addressed the procedures prisons must afford inmates in order to satisfy the\\n\\ndue process clause. See Wolff, 418 U.S. at 555–72, 94 S. Ct. at 2974–82; Hill, 472\\n\\nU.S. at 454–57, 105 S. Ct. at 2773–75. But, again, prison officials can comply\\n\\nwith due process—even by providing a hearing with the most intricate of\\n\\nprocedures—and still have initiated disciplinary proceedings for the purpose of\\n\\nretaliation. Neither a finding that due process was accorded nor a finding that the\\n\\ndisciplinary infraction happened should dispose of an inquiry into why officials\\n\\ntook the action they did.\\n\\n O’Bryant’s holding also puts us on the short side of a circuit split. The\\n\\nThird, Fifth, Sixth, Seventh, and Ninth Circuits have all taken a view contrary to\\n\\nours. Maben v. Thelen, 887 F.3d 252, 261–63 (6th Cir. 2018); Watson v. Rozum,\\n\\n834 F.3d 417, 426 (3d Cir. 2016); Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir.\\n\\n2003); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); Cain v. Lane, 857\\n\\nF.2d 1139, 1145 (7th Cir. 1988). But see Requena v. Roberts, 893 F.3d 1195, 1211\\n\\n(10th Cir. 2018); Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994). To my\\n\\nmind, they have the better of the argument.\\n\\n Under our Circuit rules, no panel may overrule O’Bryant. See United States\\n\\nv. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (acknowledging that, under our\\n\\nCourt’s prior panel precedent rule, “a prior panel’s holding is binding on all\\n\\nsubsequent panels unless and until it is overruled or undermined to the point of\\n\\n 20\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 21 of 21\\n\\n\\nabrogation by the Supreme Court or by this court sitting en banc”). Here, the panel\\n\\nhas determined that the rule from O’Bryant does not apply in any event.\\n\\nNevertheless, when the appropriate case presents itself, I believe the holding in\\n\\nO’Bryant merits the attention of the whole Court.\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4390521/\", \"author_raw\": \"MARTIN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"CARNES"},"judge2":{"kind":"string","value":"MARTIN"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":4,"string":"4"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":2,"string":"2"},"other_count":{"kind":"number","value":2,"string":"2"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4613268/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":1,"string":"1"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Terry Eugene SEARS, Plaintiff-Appellant, v. Vernia ROBERTS, F. Dexter, David Prince, Jeffrey Hart, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 15-15080 Date Filed: 04/24/2019 Page: 1 of 21\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 15-15080\n ________________________\n\n D.C. Docket No. 8:12-cv-00288-VMC-TGW\n\n\nTERRY EUGENE SEARS,\n\n Plaintiff-Appellant,\n\n versus\n\nVERNIA ROBERTS,\nF. DEXTER,\nDAVID PRINCE,\nJEFFREY HART,\n\n Defendants-Appellees.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 24, 2019)\n\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\n\nED CARNES, Chief Judge:\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 2 of 21\n\n\n Terry Eugene Sears is a Florida inmate who claims that three correctional\n\nofficers physically assaulted him and that one of them sprayed a chemical agent on\n\nhim for 16 minutes after he was handcuffed and compliant. He also claims that\n\nthree supervisory officers watched the attack without doing anything to intervene.\n\nThis is Sears’ appeal from the district court’s grant of summary judgment to the\n\ncorrectional officers on his 42 U.S.C. § 1983 excessive force and deliberate\n\nindifference claims. The district court’s misreading of our decision in O’Bryant v.\n\nFinch, 637 F.3d 1207 (11th Cir. 2011), led it to limit the evidence from Sears that\n\nit considered and to credit the defendants’ version of events over Sears’ sworn\n\nallegations. We vacate the judgment and remand for further proceedings.\n\n I.\n\n This appeal arises from events that occurred at the Polk Correctional\n\nInstitution in Polk City, Florida. Because of the procedural posture of the case, we\n\nview all the evidence in the light most favorable to Sears and will assume that the\n\nfacts he alleged in his verified complaint, sworn response, and affidavit are true.\n\nSee Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.\n\n2012).\n\n A.\n\n On the morning of March 18, 2010, Sears was inside his prison dormitory\n\nwhen he was approached by Robert Dees, a correctional officer. Sears ignored\n\n 2\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 3 of 21\n\n\nDees’ attempt to make conversation and refused his order to submit to a pat-down\n\nsearch. As Sears started to leave the dormitory, Dees reached out and grabbed him\n\nby the shoulder. Sears “snatched away” and told Dees not to touch him. Dees\n\nagain grabbed Sears and verbally threatened him, letting go only when another\n\nofficer intervened.\n\n Once free from Dees’ grip, Sears left the dormitory and went to Colonel\n\nVernia Roberts’ office to complain about Dees. When Roberts refused to see him\n\nbecause he didn’t have a pass, Sears headed outside to talk to Captain Felishia\n\nDexter, who had just exited another dormitory. While Sears was telling her about\n\nwhat Dees had done, Officers Dwight Smith and Steven Plough approached and\n\nsaid that they had received a radio call from Dees about Sears. Sears told them that\n\nDees was just retaliating against him.\n\n Smith and Plough tried to handcuff Sears, but Sears resisted and, in his\n\nwords, “refused to allow myself to be handcuffed.” At this point, Sergeant David\n\nPrince arrived on scene and began spraying Sears in the face with a chemical\n\nagent. Then Smith and Plough “slammed” Sears to the ground and handcuffed his\n\nhands behind his back. While Sears was restrained in that way, Smith began\n\npunching him in the back of his head and on the side of his face, and Plough\n\ngrabbed Sears around the neck and choked him. Sears cried out that he couldn’t\n\n\n\n\n 3\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 4 of 21\n\n\nbreathe. Through it all Prince kept spraying Sears in the face with the chemical\n\nagent.\n\n While Sears was still lying on the ground handcuffed, Smith stood on Sears’\n\nright leg, shackled his ankles, and repeatedly pushed his face into the dirt. Plough\n\nthen punched Sears several times in the ribs and kicked him in the back. Finally,\n\nSmith and Plough lifted Sears to his feet, and Prince began spraying him in the\n\nface with a second canister of chemical agent. Sears swears that the whole\n\nphysical altercation lasted for about 16 minutes. He also swears that during the\n\nentire time Dexter, Roberts, and Lieutenant Jeffrey Hart watched and did nothing\n\nto help.\n\n After the correctional officers had finished spraying and hitting Sears,\n\nPlough and Smith escorted him to the medical building, and Roberts and Hart\n\nfollowed. Prince unlocked the rear door of the building and turned to Sears and\n\nsucker-punched him in the face. Sears fell to the ground and nearly lost\n\nconsciousness. Prince continued to assault Sears while he was on the ground,\n\nkicking him in the buttocks and stepping on his legs. Smith then slapped Sears\n\ntwice in the face, and then asked if he was alright. Sears cried out for help from\n\nRoberts, and he then attempted to shield himself from further blows by hiding his\n\nface in his hands.\n\n\n\n\n 4\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 5 of 21\n\n\n When the assault finally ended, Sears was sent to the showers to wash off\n\nthe chemical spray. As a result of the beating, he was left with a black-eye, blurred\n\nvision, blisters and burning sensations on his face, a busted lip, knots on his head\n\nand right knee, swelling in his wrists, ankles, and face, pain in his ribcage and\n\nabdomen, skinned knees, a broken dental plate, and many scrapes and bruises.\n\nLater that same day, he reported that he was having a “psychological emergency”\n\nand threatened to commit suicide. He was placed in an isolation cell for a week.\n\n B.\n\n After the altercation, Prince and Dees filed prison disciplinary reports\n\nagainst Sears. Dees charged Sears with disobeying an order by refusing to submit\n\nto being handcuffed, and Prince charged him with battery or attempted battery of a\n\ncorrectional officer. Prince stated in his disciplinary report that Sears had refused\n\nto comply with repeated orders to submit to being handcuffed and that when Sears\n\n“snatched away” from his grip, Prince had “administered an approximate one\n\nsecond burst of chemical agent to Sears’ facial area.” Prince also reported that\n\nonce he did that, Sears “charged towards [him] and began striking [him] in the\n\nhead and shoulder area with his fists” before the other officers subdued Sears and\n\ngot him handcuffed and shackled.\n\n Representing himself in the disciplinary hearings, Sears was found guilty by\n\nboth disciplinary panels. He received 30 days of disciplinary confinement for\n\n 5\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 6 of 21\n\n\ndisobeying orders and 60 days of confinement for the attempted battery. He was\n\nalso docked 60 days of gain time, though this had no practical effect because of the\n\nsentence he was serving. Sears unsuccessfully appealed both sanctions to the\n\nprison warden.\n\n C.\n\n Sears filed this action under 42 U.S.C. § 1983 in December 2011. He\n\nclaimed that Prince had used excessive force against him in violation of the Eighth\n\nAmendment, and that Roberts, Dexter, and Hart had been deliberately indifferent\n\nto a substantial risk of serious harm when they watched the assault without\n\nintervening, also in violation of the Eighth Amendment. 1 The district court\n\ninitially denied the defendants’ motion to dismiss these claims because it found\n\nthat Sears’ allegations, taken as true, were sufficient to establish constitutional\n\nviolations. But the court later granted the defendants’ motion for summary\n\njudgment, which is the order now on appeal.\n\n In its summary judgment order, the district court reasoned that because the\n\nprison disciplinary panel had found Sears guilty of battery or attempted battery\n\nagainst Prince, and because that hearing satisfied due process, Sears could not\n\nchallenge the panel’s factual findings in this lawsuit. The court wrote: “Sears is\n\n\n 1\n Sears also named Smith and Plough as defendants in his excessive force claim, but they\nwere never properly served, and the district court stated in its summary judgment order that they\nwere no longer defendants in this action. Sears does not contest that ruling on appeal.\n 6\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 7 of 21\n\n\nnot permitted to dispute the facts as stated in [Prince’s disciplinary report]. Sears\n\ncannot deny the conduct in the [disciplinary report]; and cannot imply that the\n\n[disciplinary report] was false by making allegations that explicitly contradict it.”\n\nThe court also drew solely from the summary judgment exhibits submitted by the\n\nofficers when it described in its summary judgment order what the “undisputed\n\nfacts” of the case were. 2 As a result, the district court found that Prince’s “single\n\napplication of chemical spray, along with the physical efforts of Smith and\n\nPlough[,] brought Sears into compliance,” and that “[n]o other force was used or\n\nneeded.” Based on those findings, which it treated as “undisputed” facts, the\n\ndistrict court granted summary judgment to all of the defendants. This is Sears’\n\nappeal.\n\n II.\n\n We review de novo the district court’s grant of summary judgment,\n\nconsidering all of the evidence in the light most favorable to Sears as the non-\n\nmoving party. See Hamilton, 680 F.3d at 1318. Summary judgment is proper “if\n\n\n\n 2\n Those exhibits included: affidavits by Dexter and Prince; reports of force by Prince,\nSmith, and Plough; incident reports by Dexter, Prince, Smith, Plough, and Dees; Sears’\ndisciplinary hearing reports, charges, and witness statements; incident reports by the officer who\nvideotaped Sears’ decontamination process and the nurse who examined the officers and Sears;\nmedical reports by the prison nurse of her examinations of Prince, Smith, Plough, and Sears;\nSears’ written declaration of a psychological emergency; a use of force checklist and risk\nassessment for use of chemical restraint agents; a chemical agent accountability log showing the\nweight of Prince’s canister before and after the incident; and a chemical agent accountability log\nshowing signatures of the officers who checked out and then returned canisters.\n 7\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 8 of 21\n\n\nthe movant shows that there is no genuine dispute as to any material fact and the\n\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]t the\n\nsummary judgment stage the judge’s function is not himself to weigh the evidence\n\nand determine the truth of the matter but to determine whether there is a genuine\n\nissue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.\n\n2505, 2511 (1986).\n\n III.\n\n Under the Eighth Amendment, force is deemed legitimate in a custodial\n\nsetting if it is “applied in a good-faith effort to maintain or restore discipline” and\n\nnot “maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S.\n\n1, 7, 112 S. Ct. 995, 999 (1992). In determining whether force was used\n\n“maliciously and sadistically,” we consider: (1) “the need for the application of\n\nforce”; (2) “the relationship between the need and the amount of force that was\n\nused”; (3) “the extent of the injury inflicted upon the prisoner”; (4) “the extent of\n\nthe threat to the safety of staff and inmates”; and (5) “any efforts made to temper\n\nthe severity of a forceful response.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th\n\nCir. 2007) (quotation marks omitted). “Not only that, but we must also give a wide\n\nrange of deference to prison officials acting to preserve discipline and security,\n\nincluding when considering decisions made at the scene of a disturbance.” Id.\n\n(quotation marks and alteration omitted). The focus of our Eighth Amendment\n\n 8\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 9 of 21\n\n\ninquiry is on the nature of the force applied, not on the extent of the injury\n\ninflicted. Wilkins v. Gaddy, 559 U.S. 34, 37–38, 130 S. Ct. 1175, 1178–79 (2010).\n\nAdditionally, “an officer who is present at the scene and who fails to take\n\nreasonable steps to protect the victim of another officer’s use of excessive force\n\ncan be held personally liable for his nonfeasance.” Skrtich v. Thornton, 280 F.3d\n\n1295, 1301 (11th Cir. 2002).\n\n In granting summary judgment to the correctional officers, the district court\n\nstated, but failed to apply, the appropriate standard under Federal Rule of Civil\n\nProcedure 56. Instead of viewing the evidence in the light most favorable to Sears,\n\nthe court accepted as true the correctional officers’ version of events, relying\n\nexclusively on the facts set forth in their affidavits and in the prison disciplinary\n\nreports, prison medical records, and other prison records the officers submitted.\n\nThe court barely mentioned Sears’ version of events. When it did, it was usually to\n\nreject his statements as “not correct,” as refuted by the record evidence submitted\n\nby the correctional officers, or as otherwise insufficient because the only source of\n\nthem was Sears.\n\n That was error. Sears’ statements in his verified complaint, sworn response\n\nto the officers’ motion for summary judgment, and sworn affidavit attached to that\n\nresponse should have been treated as testimony by the district court. See United\n\nStates v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc) (“[O]ur cases\n\n 9\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 10 of 21\n\n\ncorrectly explain that a litigant’s self-serving statements based on personal\n\nknowledge or observation can defeat summary judgment.”); see id. at 856–57\n\n(explaining that Rule 56(c) “allows a nonmoving party to dispute a material fact\n\nthrough an affidavit”); Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A\n\n1981) (stating that a verified complaint serves as the equivalent of an affidavit for\n\npurposes of summary judgment).\n\n It appears from the district court’s order that it may have mistakenly relied\n\non our decision in O’Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011), to exclude\n\nSears’ statements from consideration, or it may have viewed the evidence\n\nsubmitted by the officers as establishing the kind of record that no reasonable jury\n\ncould disbelieve regardless of sworn statements to the contrary. Or maybe both.\n\nRegardless, the district court erred in not accepting Sears’ version of events as true\n\nfor purposes of summary judgment.\n\n A.\n\n In O’Bryant, an inmate filed a First Amendment retaliation claim under 42\n\nU.S.C. § 1983 against two correctional officers who had submitted prison\n\ndisciplinary reports against him. Id. at 1209. The inmate alleged that the reports\n\nwere false, that he had not violated any rules, and that the officers filed the reports\n\nto retaliate against him for having filed grievances against them. Id. at 1209, 1211.\n\nThe district court granted the officers’ motion for summary judgment, and we\n\n 10\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 11 of 21\n\n\naffirmed. Id. at 1212, 1220. The problem for the inmate, as we saw it, was that the\n\nprison’s disciplinary panels had already found him guilty of the rule infractions\n\ncharged in the reports that he claimed were retaliatory. Id. at 1215–16. As a\n\nresult, his federal claim was based on a factual finding that conflicted with the\n\ndisciplinary panel’s decision. It could not both be true that (1) the reports against\n\nhim were false and retaliatory (as his federal claim alleged), and (2) those same\n\nreports were true and not retaliatory (as the disciplinary panel concluded).\n\n We held that “[i]f a prisoner is found guilty of an actual disciplinary\n\ninfraction after being afforded due process and there was evidence to support the\n\ndisciplinary panel’s fact finding, the prisoner cannot later state a retaliation claim\n\nagainst the prison employee who reported the infraction in a disciplinary report.”\n\nId. at 1215. “To find otherwise,” we explained, “would render the prison\n\ndisciplinary system impotent by inviting prisoners to petition the courts for a full\n\nretrial each time they are found guilty of an actual disciplinary infraction after\n\nhaving filed a grievance.” Id. at 1216 (emphasis omitted).\n\n Sears’ situation does not fall within the O’Bryant rule. Unlike the plaintiff\n\nin that case, Sears does not challenge the disciplinary panel’s finding that he\n\nviolated a prison rule, nor does the success of his Eighth Amendment claims\n\ndepend on a finding that the disciplinary panel’s decision was wrong. As we have\n\nexplained in a different context: “A prisoner may be punished for battery on a\n\n 11\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 12 of 21\n\n\nprison guard, and that prison guard may be held liable for using excessive force on\n\nthe prisoner in subduing him; both may be true.” Dixon v. Hodges, 887 F.3d 1235,\n\n1238 (11th Cir. 2018). Here the prison disciplinary panel decided only that Sears\n\ncommitted battery against Prince. The panel did not make any factual findings\n\nabout what the officers did to Sears after that.\n\n Whether Prince sprayed Sears with a chemical agent just once or more than\n\nthat, whether the officers beat Sears after placing him in handcuffs and leg\n\nshackles, whether Prince sucker-punched Sears in the face when he arrived at the\n\nmedical building, are factual questions that were not essential to the disciplinary\n\npanel’s decision. They were not decided by it. The district court erred to the\n\nextent that it interpreted O’Bryant as precluding it from considering under the\n\ntraditional summary judgment standard Sears’ sworn factual allegations about the\n\nphysical abuse he suffered.3\n\n B.\n\n The correctional officers concede that O’Bryant does not limit the evidence\n\nthe district court could consider on Sears’ behalf. But they argue that the district\n\ncourt properly granted summary judgment in their favor because Sears offered\n\n\n 3\n There may be other reasons a disciplinary panel’s factfindings preclude a § 1983\nexcessive force claim, but because the defendants have not argued any other reason, we will not\nhypothesize about them. Cf. Peterson v. Johnson, 714 F.3d 905, 906, 917–18 (6th Cir. 2013)\n(applying collateral estoppel to bar inmate’s § 1983 excessive force claim against a correctional\nofficer where a prison disciplinary panel had found that the inmate started the fight, which\ndefeated the particular federal claim that he had pleaded).\n 12\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 13 of 21\n\n\nnothing more “than continued argument” relying “on his sworn statements to carry\n\nhis summary judgment burden.” They acknowledge that if they “had submitted\n\nonly continued argument with affidavits, the situation of ‘dueling affidavits’\n\nc[ould] certainly be present.” They contend, however, that because they “did not\n\nrest on affidavits” but also submitted an “overwhelming amount of documentary\n\nevidence,” Sears could not rest on his sworn affidavit, sworn response, and verified\n\ncomplaint to defeat all of the evidence they produced. They are mistaken.\n\n The question on summary judgment is not about which side has offered the\n\nmost evidence. Instead, that question is simply whether there is “sufficient\n\nevidence favoring the nonmoving party for a jury to return a verdict for that party.”\n\nAnderson, 477 U.S. at 249, 106 S. Ct. at 2511. While a plaintiff “may not rest\n\nupon the mere allegations or denials of his pleading, but must set forth specific\n\nfacts showing that there is a genuine issue for trial,” id. at 248, 106 S. Ct. at 2510\n\n(quotation marks and alterations omitted), we have long recognized that “[c]ourts\n\nroutinely and properly deny summary judgment on the basis of a party’s sworn\n\ntestimony,” Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005).\n\n That Sears’ evidence consists mainly of his own testimony in his verified\n\ncomplaint, sworn response, and sworn affidavit does not preclude a finding that a\n\ngenuine dispute of material fact exists. “As a general principle, a plaintiff’s\n\ntestimony cannot be discounted on summary judgment unless it is blatantly\n\n 13\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 14 of 21\n\n\ncontradicted by the record, blatantly inconsistent, or incredible as a matter of law,\n\nmeaning that it relates to facts that could not have possibly been observed or events\n\nthat are contrary to the laws of nature.” Feliciano v. City of Miami Beach, 707\n\nF.3d 1244, 1253 (11th Cir. 2013). Sears’ statements are none of that. His\n\nstatements contain “non-conclusory descriptions of specific, discrete facts of the\n\nwho, what, when, and where variety.” Id. For instance, Sears swears that on\n\nMarch 18, 2010, Prince sprayed him multiple times with two different canisters of\n\nchemical spray; that Prince and the other correctional officers physically assaulted\n\nhim while he was handcuffed, shackled, and lying face down on the ground; and\n\nthat he saw Dexter, Roberts, and Hart close enough to the incident that they could\n\nhave intervened but didn’t. Those statements directly contradict the correctional\n\nofficers’ testimony that they used only enough force to bring Sears into\n\ncompliance. That presents us with “a classic swearing match, which is the stuff of\n\nwhich jury trials are made.” Id.\n\n The correctional officers believe that their reliance on “documentary and\n\nmedical evidence” makes this case fit within the “blatantly contradicted by the\n\nrecord” exception of Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007). In that\n\ncase the Supreme Court held that “[w]hen opposing parties tell two different\n\nstories, one of which is blatantly contradicted by the record, so that no reasonable\n\n\n\n\n 14\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 15 of 21\n\n\njury could believe it, a court should not adopt that version of the facts for purposes\n\nof ruling on a motion for summary judgment.” Id. at 380, 127 S. Ct. at 1776.\n\n But there’s a big difference between the record evidence presented in Scott\n\nand the evidence proffered here. In Scott, the record evidence that blatantly\n\ncontradicted the plaintiff’s version of events was a videotape of the car chase at\n\nissue. Id. at 378–79, 127 S. Ct. at 1775. Here, the officers’ documentary evidence\n\nconsists mainly of various forms of their own testimony: affidavits by Dexter and\n\nPrince, disciplinary reports by Prince and Dees, reports of force and incident\n\nreports by Prince, Smith, and Plough. Those reports just pit the correctional\n\nofficers’ word against Sears’ word. That is different from Scott where a videotape\n\nof the incident definitively established what happened and what did not. 4 See id. at\n\n380, 127 S. Ct. at 1776; see also Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th\n\n\n\n 4\n The correctional officers point to a chemical agent log showing the weight-out and\nweight-in of Prince’s chemical agent canister on the day he sprayed Sears. The log showed that\n6.4 grams of spray had been expended. But because the log shows only the weight of one single\ncanister, its existence does not mean that “no reasonable jury could believe” Sears’ testimony\nthat Prince used two different chemical spray canisters on him. Cf. Scott, 550 U.S. at 380, 127\nS. Ct. at 1776. And it is not clear that the log is accurate, which is another issue for the jury to\nresolve.\n\n So, too, for the nurse’s record of her medical examination of Sears, which listed only\nsome of the injuries he later recounted in his verified complaint and sworn affidavit. A\nreasonable jury could believe that Sears suffered more injuries than the nurse recorded, or that\nsome of those injuries, such as the swelling and pain in his ribcage, abdomen, and jaw, did not\nmanifest themselves until the next day. In any event, the nurse’s report does not establish\nwhether force was applied to Sears after he was handcuffed and compliant. See Fennell v.\nGilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (explaining that the extent of the injury inflicted\nupon the prisoner is but one factor to consider in an excessive force claim).\n 15\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 16 of 21\n\n\nCir. 2013) (affirming denial of summary judgment because, absent a video\n\nrecording of the incident, defendant’s forensic evidence did “not so utterly\n\ndiscredit [plaintiff’s] testimony that no reasonable jury could believe it”). At this\n\nstage in the proceedings, we must resolve the conflict of evidence in favor of\n\nSears. The district court erred by weighing the evidence and making its own\n\ncredibility determinations at the summary judgment stage. See Anderson, 477 U.S.\n\nat 249, 106 S. Ct. at 2510–11.\n\n C.\n\n Reviewing the record under the correct standard, we conclude that the\n\ncorrectional officers are not entitled to summary judgment. Given Sears’ admitted\n\nfailure to obey commands and his resistance to being handcuffed, some use of\n\nforce was necessary to maintain or restore order. But Sears has sworn that for 16\n\nminutes, including when he was handcuffed, shackled, and lying on the ground, the\n\ncorrectional officers beat him to the point that he was nearly unconscious. And he\n\nswears that Prince sprayed him in the face with a chemical agent for nearly that\n\nentire time, using two different chemical agent canisters to do so.\n\n Even if his sworn statements turn out to be exaggerations or false, they are\n\nenough to raise a genuine issue of material fact about the amount of force Prince\n\nused and whether he applied it “in a good-faith effort to maintain or restore\n\ndiscipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7,\n\n 16\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 17 of 21\n\n\n112 S. Ct. at 999; see Skrtich, 280 F.3d at 1303 (explaining that the Eighth\n\nAmendment prohibits the use of “gratuitous force against a prisoner who has been\n\nalready subdued or . . . incapacitated”). Because Sears’ sworn testimony is that\n\nDexter, Roberts, and Hart witnessed the incident but did not attempt to intervene, a\n\ngenuine issue of material fact precluding summary judgment for them also exists.\n\nSee Skrtich, 280 F.3d at 1301 (“[A]n officer who is present at the scene and who\n\nfails to take reasonable steps to protect the victim of another officer’s use of\n\nexcessive force can be held liable for his nonfeasance.”).\n\n IV.\n\n We do not know what the true facts are, but we do know that a genuine\n\ndispute of material fact exists, and it precludes granting summary judgment to the\n\ncorrectional officers on Sears’ § 1983 excessive force and deliberate indifference\n\nby failure to intervene claims. For that reason, we vacate the district court’s grant\n\nof summary judgment and remand for further proceedings.\n\n VACATED and REMANDED.\n\n\n\n\n 17\n\n Case: 15-15080 Date Filed: 04/24/2019 Page: 18 of 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Terry Eugene SEARS, Plaintiff-Appellant, v. Vernia ROBERTS, F. Dexter, David Prince, Jeffrey Hart, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 15-15080 Date Filed: 04/24/2019 Page: 1 of 21\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 15-15080\\n ________________________\\n\\n D.C. Docket No. 8:12-cv-00288-VMC-TGW\\n\\n\\nTERRY EUGENE SEARS,\\n\\n Plaintiff-Appellant,\\n\\n versus\\n\\nVERNIA ROBERTS,\\nF. DEXTER,\\nDAVID PRINCE,\\nJEFFREY HART,\\n\\n Defendants-Appellees.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 24, 2019)\\n\\nBefore ED CARNES, Chief Judge, MARTIN, and ANDERSON, Circuit Judges.\\n\\nED CARNES, Chief Judge:\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 2 of 21\\n\\n\\n Terry Eugene Sears is a Florida inmate who claims that three correctional\\n\\nofficers physically assaulted him and that one of them sprayed a chemical agent on\\n\\nhim for 16 minutes after he was handcuffed and compliant. He also claims that\\n\\nthree supervisory officers watched the attack without doing anything to intervene.\\n\\nThis is Sears’ appeal from the district court’s grant of summary judgment to the\\n\\ncorrectional officers on his 42 U.S.C. § 1983 excessive force and deliberate\\n\\nindifference claims. The district court’s misreading of our decision in O’Bryant v.\\n\\nFinch, 637 F.3d 1207 (11th Cir. 2011), led it to limit the evidence from Sears that\\n\\nit considered and to credit the defendants’ version of events over Sears’ sworn\\n\\nallegations. We vacate the judgment and remand for further proceedings.\\n\\n I.\\n\\n This appeal arises from events that occurred at the Polk Correctional\\n\\nInstitution in Polk City, Florida. Because of the procedural posture of the case, we\\n\\nview all the evidence in the light most favorable to Sears and will assume that the\\n\\nfacts he alleged in his verified complaint, sworn response, and affidavit are true.\\n\\nSee Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.\\n\\n2012).\\n\\n A.\\n\\n On the morning of March 18, 2010, Sears was inside his prison dormitory\\n\\nwhen he was approached by Robert Dees, a correctional officer. Sears ignored\\n\\n 2\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 3 of 21\\n\\n\\nDees’ attempt to make conversation and refused his order to submit to a pat-down\\n\\nsearch. As Sears started to leave the dormitory, Dees reached out and grabbed him\\n\\nby the shoulder. Sears “snatched away” and told Dees not to touch him. Dees\\n\\nagain grabbed Sears and verbally threatened him, letting go only when another\\n\\nofficer intervened.\\n\\n Once free from Dees’ grip, Sears left the dormitory and went to Colonel\\n\\nVernia Roberts’ office to complain about Dees. When Roberts refused to see him\\n\\nbecause he didn’t have a pass, Sears headed outside to talk to Captain Felishia\\n\\nDexter, who had just exited another dormitory. While Sears was telling her about\\n\\nwhat Dees had done, Officers Dwight Smith and Steven Plough approached and\\n\\nsaid that they had received a radio call from Dees about Sears. Sears told them that\\n\\nDees was just retaliating against him.\\n\\n Smith and Plough tried to handcuff Sears, but Sears resisted and, in his\\n\\nwords, “refused to allow myself to be handcuffed.” At this point, Sergeant David\\n\\nPrince arrived on scene and began spraying Sears in the face with a chemical\\n\\nagent. Then Smith and Plough “slammed” Sears to the ground and handcuffed his\\n\\nhands behind his back. While Sears was restrained in that way, Smith began\\n\\npunching him in the back of his head and on the side of his face, and Plough\\n\\ngrabbed Sears around the neck and choked him. Sears cried out that he couldn’t\\n\\n\\n\\n\\n 3\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 4 of 21\\n\\n\\nbreathe. Through it all Prince kept spraying Sears in the face with the chemical\\n\\nagent.\\n\\n While Sears was still lying on the ground handcuffed, Smith stood on Sears’\\n\\nright leg, shackled his ankles, and repeatedly pushed his face into the dirt. Plough\\n\\nthen punched Sears several times in the ribs and kicked him in the back. Finally,\\n\\nSmith and Plough lifted Sears to his feet, and Prince began spraying him in the\\n\\nface with a second canister of chemical agent. Sears swears that the whole\\n\\nphysical altercation lasted for about 16 minutes. He also swears that during the\\n\\nentire time Dexter, Roberts, and Lieutenant Jeffrey Hart watched and did nothing\\n\\nto help.\\n\\n After the correctional officers had finished spraying and hitting Sears,\\n\\nPlough and Smith escorted him to the medical building, and Roberts and Hart\\n\\nfollowed. Prince unlocked the rear door of the building and turned to Sears and\\n\\nsucker-punched him in the face. Sears fell to the ground and nearly lost\\n\\nconsciousness. Prince continued to assault Sears while he was on the ground,\\n\\nkicking him in the buttocks and stepping on his legs. Smith then slapped Sears\\n\\ntwice in the face, and then asked if he was alright. Sears cried out for help from\\n\\nRoberts, and he then attempted to shield himself from further blows by hiding his\\n\\nface in his hands.\\n\\n\\n\\n\\n 4\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 5 of 21\\n\\n\\n When the assault finally ended, Sears was sent to the showers to wash off\\n\\nthe chemical spray. As a result of the beating, he was left with a black-eye, blurred\\n\\nvision, blisters and burning sensations on his face, a busted lip, knots on his head\\n\\nand right knee, swelling in his wrists, ankles, and face, pain in his ribcage and\\n\\nabdomen, skinned knees, a broken dental plate, and many scrapes and bruises.\\n\\nLater that same day, he reported that he was having a “psychological emergency”\\n\\nand threatened to commit suicide. He was placed in an isolation cell for a week.\\n\\n B.\\n\\n After the altercation, Prince and Dees filed prison disciplinary reports\\n\\nagainst Sears. Dees charged Sears with disobeying an order by refusing to submit\\n\\nto being handcuffed, and Prince charged him with battery or attempted battery of a\\n\\ncorrectional officer. Prince stated in his disciplinary report that Sears had refused\\n\\nto comply with repeated orders to submit to being handcuffed and that when Sears\\n\\n“snatched away” from his grip, Prince had “administered an approximate one\\n\\nsecond burst of chemical agent to Sears’ facial area.” Prince also reported that\\n\\nonce he did that, Sears “charged towards [him] and began striking [him] in the\\n\\nhead and shoulder area with his fists” before the other officers subdued Sears and\\n\\ngot him handcuffed and shackled.\\n\\n Representing himself in the disciplinary hearings, Sears was found guilty by\\n\\nboth disciplinary panels. He received 30 days of disciplinary confinement for\\n\\n 5\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 6 of 21\\n\\n\\ndisobeying orders and 60 days of confinement for the attempted battery. He was\\n\\nalso docked 60 days of gain time, though this had no practical effect because of the\\n\\nsentence he was serving. Sears unsuccessfully appealed both sanctions to the\\n\\nprison warden.\\n\\n C.\\n\\n Sears filed this action under 42 U.S.C. § 1983 in December 2011. He\\n\\nclaimed that Prince had used excessive force against him in violation of the Eighth\\n\\nAmendment, and that Roberts, Dexter, and Hart had been deliberately indifferent\\n\\nto a substantial risk of serious harm when they watched the assault without\\n\\nintervening, also in violation of the Eighth Amendment. 1 The district court\\n\\ninitially denied the defendants’ motion to dismiss these claims because it found\\n\\nthat Sears’ allegations, taken as true, were sufficient to establish constitutional\\n\\nviolations. But the court later granted the defendants’ motion for summary\\n\\njudgment, which is the order now on appeal.\\n\\n In its summary judgment order, the district court reasoned that because the\\n\\nprison disciplinary panel had found Sears guilty of battery or attempted battery\\n\\nagainst Prince, and because that hearing satisfied due process, Sears could not\\n\\nchallenge the panel’s factual findings in this lawsuit. The court wrote: “Sears is\\n\\n\\n 1\\n Sears also named Smith and Plough as defendants in his excessive force claim, but they\\nwere never properly served, and the district court stated in its summary judgment order that they\\nwere no longer defendants in this action. Sears does not contest that ruling on appeal.\\n 6\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 7 of 21\\n\\n\\nnot permitted to dispute the facts as stated in [Prince’s disciplinary report]. Sears\\n\\ncannot deny the conduct in the [disciplinary report]; and cannot imply that the\\n\\n[disciplinary report] was false by making allegations that explicitly contradict it.”\\n\\nThe court also drew solely from the summary judgment exhibits submitted by the\\n\\nofficers when it described in its summary judgment order what the “undisputed\\n\\nfacts” of the case were. 2 As a result, the district court found that Prince’s “single\\n\\napplication of chemical spray, along with the physical efforts of Smith and\\n\\nPlough[,] brought Sears into compliance,” and that “[n]o other force was used or\\n\\nneeded.” Based on those findings, which it treated as “undisputed” facts, the\\n\\ndistrict court granted summary judgment to all of the defendants. This is Sears’\\n\\nappeal.\\n\\n II.\\n\\n We review de novo the district court’s grant of summary judgment,\\n\\nconsidering all of the evidence in the light most favorable to Sears as the non-\\n\\nmoving party. See Hamilton, 680 F.3d at 1318. Summary judgment is proper “if\\n\\n\\n\\n 2\\n Those exhibits included: affidavits by Dexter and Prince; reports of force by Prince,\\nSmith, and Plough; incident reports by Dexter, Prince, Smith, Plough, and Dees; Sears’\\ndisciplinary hearing reports, charges, and witness statements; incident reports by the officer who\\nvideotaped Sears’ decontamination process and the nurse who examined the officers and Sears;\\nmedical reports by the prison nurse of her examinations of Prince, Smith, Plough, and Sears;\\nSears’ written declaration of a psychological emergency; a use of force checklist and risk\\nassessment for use of chemical restraint agents; a chemical agent accountability log showing the\\nweight of Prince’s canister before and after the incident; and a chemical agent accountability log\\nshowing signatures of the officers who checked out and then returned canisters.\\n 7\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 8 of 21\\n\\n\\nthe movant shows that there is no genuine dispute as to any material fact and the\\n\\nmovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A]t the\\n\\nsummary judgment stage the judge’s function is not himself to weigh the evidence\\n\\nand determine the truth of the matter but to determine whether there is a genuine\\n\\nissue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.\\n\\n2505, 2511 (1986).\\n\\n III.\\n\\n Under the Eighth Amendment, force is deemed legitimate in a custodial\\n\\nsetting if it is “applied in a good-faith effort to maintain or restore discipline” and\\n\\nnot “maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S.\\n\\n1, 7, 112 S. Ct. 995, 999 (1992). In determining whether force was used\\n\\n“maliciously and sadistically,” we consider: (1) “the need for the application of\\n\\nforce”; (2) “the relationship between the need and the amount of force that was\\n\\nused”; (3) “the extent of the injury inflicted upon the prisoner”; (4) “the extent of\\n\\nthe threat to the safety of staff and inmates”; and (5) “any efforts made to temper\\n\\nthe severity of a forceful response.” Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th\\n\\nCir. 2007) (quotation marks omitted). “Not only that, but we must also give a wide\\n\\nrange of deference to prison officials acting to preserve discipline and security,\\n\\nincluding when considering decisions made at the scene of a disturbance.” Id.\\n\\n(quotation marks and alteration omitted). The focus of our Eighth Amendment\\n\\n 8\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 9 of 21\\n\\n\\ninquiry is on the nature of the force applied, not on the extent of the injury\\n\\ninflicted. Wilkins v. Gaddy, 559 U.S. 34, 37–38, 130 S. Ct. 1175, 1178–79 (2010).\\n\\nAdditionally, “an officer who is present at the scene and who fails to take\\n\\nreasonable steps to protect the victim of another officer’s use of excessive force\\n\\ncan be held personally liable for his nonfeasance.” Skrtich v. Thornton, 280 F.3d\\n\\n1295, 1301 (11th Cir. 2002).\\n\\n In granting summary judgment to the correctional officers, the district court\\n\\nstated, but failed to apply, the appropriate standard under Federal Rule of Civil\\n\\nProcedure 56. Instead of viewing the evidence in the light most favorable to Sears,\\n\\nthe court accepted as true the correctional officers’ version of events, relying\\n\\nexclusively on the facts set forth in their affidavits and in the prison disciplinary\\n\\nreports, prison medical records, and other prison records the officers submitted.\\n\\nThe court barely mentioned Sears’ version of events. When it did, it was usually to\\n\\nreject his statements as “not correct,” as refuted by the record evidence submitted\\n\\nby the correctional officers, or as otherwise insufficient because the only source of\\n\\nthem was Sears.\\n\\n That was error. Sears’ statements in his verified complaint, sworn response\\n\\nto the officers’ motion for summary judgment, and sworn affidavit attached to that\\n\\nresponse should have been treated as testimony by the district court. See United\\n\\nStates v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (en banc) (“[O]ur cases\\n\\n 9\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 10 of 21\\n\\n\\ncorrectly explain that a litigant’s self-serving statements based on personal\\n\\nknowledge or observation can defeat summary judgment.”); see id. at 856–57\\n\\n(explaining that Rule 56(c) “allows a nonmoving party to dispute a material fact\\n\\nthrough an affidavit”); Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A\\n\\n1981) (stating that a verified complaint serves as the equivalent of an affidavit for\\n\\npurposes of summary judgment).\\n\\n It appears from the district court’s order that it may have mistakenly relied\\n\\non our decision in O’Bryant v. Finch, 637 F.3d 1207 (11th Cir. 2011), to exclude\\n\\nSears’ statements from consideration, or it may have viewed the evidence\\n\\nsubmitted by the officers as establishing the kind of record that no reasonable jury\\n\\ncould disbelieve regardless of sworn statements to the contrary. Or maybe both.\\n\\nRegardless, the district court erred in not accepting Sears’ version of events as true\\n\\nfor purposes of summary judgment.\\n\\n A.\\n\\n In O’Bryant, an inmate filed a First Amendment retaliation claim under 42\\n\\nU.S.C. § 1983 against two correctional officers who had submitted prison\\n\\ndisciplinary reports against him. Id. at 1209. The inmate alleged that the reports\\n\\nwere false, that he had not violated any rules, and that the officers filed the reports\\n\\nto retaliate against him for having filed grievances against them. Id. at 1209, 1211.\\n\\nThe district court granted the officers’ motion for summary judgment, and we\\n\\n 10\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 11 of 21\\n\\n\\naffirmed. Id. at 1212, 1220. The problem for the inmate, as we saw it, was that the\\n\\nprison’s disciplinary panels had already found him guilty of the rule infractions\\n\\ncharged in the reports that he claimed were retaliatory. Id. at 1215–16. As a\\n\\nresult, his federal claim was based on a factual finding that conflicted with the\\n\\ndisciplinary panel’s decision. It could not both be true that (1) the reports against\\n\\nhim were false and retaliatory (as his federal claim alleged), and (2) those same\\n\\nreports were true and not retaliatory (as the disciplinary panel concluded).\\n\\n We held that “[i]f a prisoner is found guilty of an actual disciplinary\\n\\ninfraction after being afforded due process and there was evidence to support the\\n\\ndisciplinary panel’s fact finding, the prisoner cannot later state a retaliation claim\\n\\nagainst the prison employee who reported the infraction in a disciplinary report.”\\n\\nId. at 1215. “To find otherwise,” we explained, “would render the prison\\n\\ndisciplinary system impotent by inviting prisoners to petition the courts for a full\\n\\nretrial each time they are found guilty of an actual disciplinary infraction after\\n\\nhaving filed a grievance.” Id. at 1216 (emphasis omitted).\\n\\n Sears’ situation does not fall within the O’Bryant rule. Unlike the plaintiff\\n\\nin that case, Sears does not challenge the disciplinary panel’s finding that he\\n\\nviolated a prison rule, nor does the success of his Eighth Amendment claims\\n\\ndepend on a finding that the disciplinary panel’s decision was wrong. As we have\\n\\nexplained in a different context: “A prisoner may be punished for battery on a\\n\\n 11\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 12 of 21\\n\\n\\nprison guard, and that prison guard may be held liable for using excessive force on\\n\\nthe prisoner in subduing him; both may be true.” Dixon v. Hodges, 887 F.3d 1235,\\n\\n1238 (11th Cir. 2018). Here the prison disciplinary panel decided only that Sears\\n\\ncommitted battery against Prince. The panel did not make any factual findings\\n\\nabout what the officers did to Sears after that.\\n\\n Whether Prince sprayed Sears with a chemical agent just once or more than\\n\\nthat, whether the officers beat Sears after placing him in handcuffs and leg\\n\\nshackles, whether Prince sucker-punched Sears in the face when he arrived at the\\n\\nmedical building, are factual questions that were not essential to the disciplinary\\n\\npanel’s decision. They were not decided by it. The district court erred to the\\n\\nextent that it interpreted O’Bryant as precluding it from considering under the\\n\\ntraditional summary judgment standard Sears’ sworn factual allegations about the\\n\\nphysical abuse he suffered.3\\n\\n B.\\n\\n The correctional officers concede that O’Bryant does not limit the evidence\\n\\nthe district court could consider on Sears’ behalf. But they argue that the district\\n\\ncourt properly granted summary judgment in their favor because Sears offered\\n\\n\\n 3\\n There may be other reasons a disciplinary panel’s factfindings preclude a § 1983\\nexcessive force claim, but because the defendants have not argued any other reason, we will not\\nhypothesize about them. Cf. Peterson v. Johnson, 714 F.3d 905, 906, 917–18 (6th Cir. 2013)\\n(applying collateral estoppel to bar inmate’s § 1983 excessive force claim against a correctional\\nofficer where a prison disciplinary panel had found that the inmate started the fight, which\\ndefeated the particular federal claim that he had pleaded).\\n 12\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 13 of 21\\n\\n\\nnothing more “than continued argument” relying “on his sworn statements to carry\\n\\nhis summary judgment burden.” They acknowledge that if they “had submitted\\n\\nonly continued argument with affidavits, the situation of ‘dueling affidavits’\\n\\nc[ould] certainly be present.” They contend, however, that because they “did not\\n\\nrest on affidavits” but also submitted an “overwhelming amount of documentary\\n\\nevidence,” Sears could not rest on his sworn affidavit, sworn response, and verified\\n\\ncomplaint to defeat all of the evidence they produced. They are mistaken.\\n\\n The question on summary judgment is not about which side has offered the\\n\\nmost evidence. Instead, that question is simply whether there is “sufficient\\n\\nevidence favoring the nonmoving party for a jury to return a verdict for that party.”\\n\\nAnderson, 477 U.S. at 249, 106 S. Ct. at 2511. While a plaintiff “may not rest\\n\\nupon the mere allegations or denials of his pleading, but must set forth specific\\n\\nfacts showing that there is a genuine issue for trial,” id. at 248, 106 S. Ct. at 2510\\n\\n(quotation marks and alterations omitted), we have long recognized that “[c]ourts\\n\\nroutinely and properly deny summary judgment on the basis of a party’s sworn\\n\\ntestimony,” Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005).\\n\\n That Sears’ evidence consists mainly of his own testimony in his verified\\n\\ncomplaint, sworn response, and sworn affidavit does not preclude a finding that a\\n\\ngenuine dispute of material fact exists. “As a general principle, a plaintiff’s\\n\\ntestimony cannot be discounted on summary judgment unless it is blatantly\\n\\n 13\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 14 of 21\\n\\n\\ncontradicted by the record, blatantly inconsistent, or incredible as a matter of law,\\n\\nmeaning that it relates to facts that could not have possibly been observed or events\\n\\nthat are contrary to the laws of nature.” Feliciano v. City of Miami Beach, 707\\n\\nF.3d 1244, 1253 (11th Cir. 2013). Sears’ statements are none of that. His\\n\\nstatements contain “non-conclusory descriptions of specific, discrete facts of the\\n\\nwho, what, when, and where variety.” Id. For instance, Sears swears that on\\n\\nMarch 18, 2010, Prince sprayed him multiple times with two different canisters of\\n\\nchemical spray; that Prince and the other correctional officers physically assaulted\\n\\nhim while he was handcuffed, shackled, and lying face down on the ground; and\\n\\nthat he saw Dexter, Roberts, and Hart close enough to the incident that they could\\n\\nhave intervened but didn’t. Those statements directly contradict the correctional\\n\\nofficers’ testimony that they used only enough force to bring Sears into\\n\\ncompliance. That presents us with “a classic swearing match, which is the stuff of\\n\\nwhich jury trials are made.” Id.\\n\\n The correctional officers believe that their reliance on “documentary and\\n\\nmedical evidence” makes this case fit within the “blatantly contradicted by the\\n\\nrecord” exception of Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007). In that\\n\\ncase the Supreme Court held that “[w]hen opposing parties tell two different\\n\\nstories, one of which is blatantly contradicted by the record, so that no reasonable\\n\\n\\n\\n\\n 14\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 15 of 21\\n\\n\\njury could believe it, a court should not adopt that version of the facts for purposes\\n\\nof ruling on a motion for summary judgment.” Id. at 380, 127 S. Ct. at 1776.\\n\\n But there’s a big difference between the record evidence presented in Scott\\n\\nand the evidence proffered here. In Scott, the record evidence that blatantly\\n\\ncontradicted the plaintiff’s version of events was a videotape of the car chase at\\n\\nissue. Id. at 378–79, 127 S. Ct. at 1775. Here, the officers’ documentary evidence\\n\\nconsists mainly of various forms of their own testimony: affidavits by Dexter and\\n\\nPrince, disciplinary reports by Prince and Dees, reports of force and incident\\n\\nreports by Prince, Smith, and Plough. Those reports just pit the correctional\\n\\nofficers’ word against Sears’ word. That is different from Scott where a videotape\\n\\nof the incident definitively established what happened and what did not. 4 See id. at\\n\\n380, 127 S. Ct. at 1776; see also Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th\\n\\n\\n\\n 4\\n The correctional officers point to a chemical agent log showing the weight-out and\\nweight-in of Prince’s chemical agent canister on the day he sprayed Sears. The log showed that\\n6.4 grams of spray had been expended. But because the log shows only the weight of one single\\ncanister, its existence does not mean that “no reasonable jury could believe” Sears’ testimony\\nthat Prince used two different chemical spray canisters on him. Cf. Scott, 550 U.S. at 380, 127\\nS. Ct. at 1776. And it is not clear that the log is accurate, which is another issue for the jury to\\nresolve.\\n\\n So, too, for the nurse’s record of her medical examination of Sears, which listed only\\nsome of the injuries he later recounted in his verified complaint and sworn affidavit. A\\nreasonable jury could believe that Sears suffered more injuries than the nurse recorded, or that\\nsome of those injuries, such as the swelling and pain in his ribcage, abdomen, and jaw, did not\\nmanifest themselves until the next day. In any event, the nurse’s report does not establish\\nwhether force was applied to Sears after he was handcuffed and compliant. See Fennell v.\\nGilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009) (explaining that the extent of the injury inflicted\\nupon the prisoner is but one factor to consider in an excessive force claim).\\n 15\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 16 of 21\\n\\n\\nCir. 2013) (affirming denial of summary judgment because, absent a video\\n\\nrecording of the incident, defendant’s forensic evidence did “not so utterly\\n\\ndiscredit [plaintiff’s] testimony that no reasonable jury could believe it”). At this\\n\\nstage in the proceedings, we must resolve the conflict of evidence in favor of\\n\\nSears. The district court erred by weighing the evidence and making its own\\n\\ncredibility determinations at the summary judgment stage. See Anderson, 477 U.S.\\n\\nat 249, 106 S. Ct. at 2510–11.\\n\\n C.\\n\\n Reviewing the record under the correct standard, we conclude that the\\n\\ncorrectional officers are not entitled to summary judgment. Given Sears’ admitted\\n\\nfailure to obey commands and his resistance to being handcuffed, some use of\\n\\nforce was necessary to maintain or restore order. But Sears has sworn that for 16\\n\\nminutes, including when he was handcuffed, shackled, and lying on the ground, the\\n\\ncorrectional officers beat him to the point that he was nearly unconscious. And he\\n\\nswears that Prince sprayed him in the face with a chemical agent for nearly that\\n\\nentire time, using two different chemical agent canisters to do so.\\n\\n Even if his sworn statements turn out to be exaggerations or false, they are\\n\\nenough to raise a genuine issue of material fact about the amount of force Prince\\n\\nused and whether he applied it “in a good-faith effort to maintain or restore\\n\\ndiscipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7,\\n\\n 16\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 17 of 21\\n\\n\\n112 S. Ct. at 999; see Skrtich, 280 F.3d at 1303 (explaining that the Eighth\\n\\nAmendment prohibits the use of “gratuitous force against a prisoner who has been\\n\\nalready subdued or . . . incapacitated”). Because Sears’ sworn testimony is that\\n\\nDexter, Roberts, and Hart witnessed the incident but did not attempt to intervene, a\\n\\ngenuine issue of material fact precluding summary judgment for them also exists.\\n\\nSee Skrtich, 280 F.3d at 1301 (“[A]n officer who is present at the scene and who\\n\\nfails to take reasonable steps to protect the victim of another officer’s use of\\n\\nexcessive force can be held liable for his nonfeasance.”).\\n\\n IV.\\n\\n We do not know what the true facts are, but we do know that a genuine\\n\\ndispute of material fact exists, and it precludes granting summary judgment to the\\n\\ncorrectional officers on Sears’ § 1983 excessive force and deliberate indifference\\n\\nby failure to intervene claims. For that reason, we vacate the district court’s grant\\n\\nof summary judgment and remand for further proceedings.\\n\\n VACATED and REMANDED.\\n\\n\\n\\n\\n 17\\n\\n Case: 15-15080 Date Filed: 04/24/2019 Page: 18 of 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1895,"cells":{"id":{"kind":"number","value":4614463,"string":"4,614,463"},"name":{"kind":"string","value":"Galawezh SHOWAN, Plaintiff-Appellant, v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees, Penske Truck Leasing Co., L.P., Defendant."},"name_abbreviation":{"kind":"string","value":"Galawezh Showan v. Patrick Pressdee"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"17-15547"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Branch, Anderson\", \"parties\": \"\", \"opinions\": [{\"author\": \"BRANCH, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-15547 Date Filed: 04/29/2019 Page: 1 of 35\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15547\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-00468-ODE\\n\\n\\n\\nGALAWEZH SHOWAN,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nPATRICK PRESSDEE,\\nKRISPY KREME DOUGHNUT CORPORATION,\\n\\n Defendants - Appellees,\\n\\nPENSKE TRUCK LEASING CO., L.P.,\\n\\n Defendant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (April 29, 2019)\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 2 of 35\\n\\n\\nBefore WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.\\n\\nBRANCH, Circuit Judge:\\n\\n Plaintiff Galawezh Showan appeals from her $330,000 jury verdict against\\n\\nDefendants Patrick Pressdee and Krispy Kreme Doughnut Corporation (“Krispy\\n\\nKreme”). For the reasons that follow, we affirm in part, vacate in part, and remand\\n\\nfor a new trial.\\n\\n I. GENERAL BACKGROUND\\n\\n A. Facts and Procedural History\\n\\n On April 27, 2015, Pressdee, an employee of Krispy Kreme, was driving in\\n\\nthe course of his employment when he rear-ended Showan while she was stopped\\n\\nat a red light. Pressdee was travelling at 35–40 mph when he collided with\\n\\nShowan, causing her vehicle to hit the vehicle in front of it. On May 5, 2015,\\n\\nKrispy Kreme issued Pressdee a corrective action report that acknowledged\\n\\nPressdee “was at fault” for the accident. Krispy Kreme’s insurance claim summary\\n\\nprepared on May 8, 2015, indicates Showan was “0%” negligent.\\n\\n Showan had serious injuries and was transported by EMS to the emergency\\n\\nroom. She sustained a whiplash-type injury to her cervical spine, wrist swelling,\\n\\nand facial bruising with a minor laceration. Showan also had previous back issues,\\n\\nwhich she contends the accident exacerbated. Her back issues were “noticeably\\n\\nimproved” following back surgery that preceded the accident. However, post-\\n\\n\\n 2\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 3 of 35\\n\\n\\naccident, Showan asserts she is “in pain twenty-four hours a day, not only in her\\n\\nback but in her head, neck, wrist, and legs.”\\n\\n Showan works as a cashier at Walmart, as she did before the accident. A\\n\\nWalmart cashier is required to stand and walk to assist customers, although sitting\\n\\non a stool is sometimes permitted. Showan now needs to use the stool more\\n\\nfrequently, which limits her to working only in the “express line” checkout lanes.\\n\\nCashiers working in the express lanes can sit more often than cashiers who work\\n\\nthe self-checkout stations, as the self-checkout cashiers must move around to assist\\n\\ncustomers as needed. Showan alleges she will be unable to work while recovering\\n\\nfrom potential future medical treatment.\\n\\n On October 19, 2015, Showan filed a personal injury action in the State\\n\\nCourt of Gwinnett County, Georgia. Defendants removed to the United States\\n\\nDistrict Court for the Northern District of Georgia.1\\n\\n When Defendants answered, they asserted that they breached no duty to\\n\\nShowan, that Showan was comparatively negligent, that Showan assumed the risk,\\n\\n\\n\\n 1\\n The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1). “[D]iversity\\njurisdiction is determined at the time of filing the complaint or, if the case has been removed, at\\nthe time of removal.” Thermoset Corp. v. Bldg. Materials Corp. of Am., 849 F.3d 1313, 1317\\n(11th Cir. 2017) (quoting PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1306 (11th Cir.\\n2016)). Showan was domiciled in Georgia at the time of removal. This Court allowed the\\nparties to supplement the record with an affidavit regarding Pressdee’s citizenship. Pressdee\\nsays he was domiciled and served in North Carolina when this lawsuit was filed, and he has since\\nmoved to Ohio. Krispy Kreme is incorporated in North Carolina, where it also has its principal\\nplace of business. Thus, there was complete diversity at the time of removal.\\n 3\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 4 of 35\\n\\n\\nand that Showan’s alleged injuries “were not foreseeable.” Pressdee’s response to\\n\\nShowan’s request for admissions, dated January 21, 2016, similarly refused to\\n\\nadmit that his actions caused or contributed to the collision or that Showan suffered\\n\\ninjuries. At his April 27, 2016, deposition, however, Pressdee stated that he was\\n\\ndriving at 40 mph when he collided with Showan, who was stopped at a red light\\n\\nand did nothing to contribute to the collision.\\n\\n It was not until shortly before trial that Defendants moved, on July 25, 2017,\\n\\nto amend their answers “to streamline the issues to be tried.” The district court\\n\\ngranted the motion, subject to conditions. The court stated that “Defendants’\\n\\namended answer will not preclude Plaintiff from seeking attorneys’ fees and costs\\n\\npursuant to state law should she prevail at trial.” The court explained that the\\n\\ncondition was “appropriate because this case is eighteen months old and only now,\\n\\non the eve of trial, are Defendants willing to admit significant liability of which\\n\\nthey have arguably been aware since the collision at issue.” Further, the original\\n\\nanswers were to remain admissible for impeachment purposes at trial. Defendants\\n\\nthen filed their amended answers on August 17, 2017.\\n\\n B. Issues on Appeal\\n\\n\\n\\n\\n 4\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 5 of 35\\n\\n\\n The case proceeded to a jury trial that resulted in a $330,000 verdict for\\n\\nShowan. But Showan appeals, arguing several of the district court’s rulings\\n\\nthroughout the proceedings were erroneous. 2 The issues are as follows:\\n\\n 1. Showan alleges that, during Defendants’ opening remarks at trial,\\n they improperly insinuated she was the reason the case did not\\n settle. She argues the district court erred in not giving a curative\\n instruction that she requested.\\n\\n 2. Defendants’ experts testified that Showan’s doctor charged too\\n much for one of the surgeries she had following the accident.\\n Showan contends this testimony violated the collateral source rule\\n and Rule 403 of the Federal Rules of Evidence.\\n\\n 3. Showan contends that Defendants misled the jury into believing\\n that Showan’s doctor was the only person present in the operating\\n room during the surgery, which may have in turn misled jurors into\\n believing the doctor overcharged for the surgery. Citing the rule of\\n completeness, Showan offered the entire record of treatment at the\\n surgical center where the procedure was performed. The district\\n court disallowed the evidence, which Showan argues was error.\\n\\n 4. During closing argument, Showan’s counsel invited the jury to\\n measure Showan’s damages on a per-hour basis. The district court\\n interjected, telling him not to make a unit-of-time damages\\n argument. Showan argues that such an argument is allowed and\\n that the district court’s admonishment was highly prejudicial.\\n\\n 5. Defendants successfully convinced the district court to grant\\n judgment as a matter of law on Showan’s lost future wages\\n damages claim, finding the evidence—to the extent any existed—\\n was too speculative to support the claim. Showan disagrees.\\n 2\\n “Ordinarily, only a party aggrieved by a judgment or order of a district court may\\nexercise the statutory right to appeal therefrom. A party who receives all that he has sought\\ngenerally is not aggrieved by the judgment affording the relief and cannot appeal from it.”\\nDeposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980). Showan is an\\naggrieved party because the district court did not submit her request for attorney’s fees and\\nexpenses to the jury.\\n 5\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 6 of 35\\n\\n\\n\\n\\n 6. Showan argues that the district court erred in denying, as a matter\\n of law, her motion to have the jury assess her attorney’s fees under\\n a Georgia statute. She contends the statute required the court to\\n hold a hearing on frivolity.\\n\\n The sixth issue presented is, as the saying goes, last but not least. As\\n\\nexplained below, a new trial is necessary because Georgia law required the district\\n\\ncourt to submit Showan’s motion for fees to the jury. The district court’s failure to\\n\\ndo so is dispositive and requires us to vacate and remand for a new trial. In the\\n\\ninterest of judicial economy, we consider Showan’s other arguments. For ease of\\n\\nreference, we address each issue separately, tracking the chronological course of\\n\\nthe proceedings in the district court, and include relevant corresponding facts as we\\n\\ndo so.\\n\\n II. REFERENCES TO SETTLEMENT\\n\\n A. Defendants’ Motion in Limine and Opening Statement\\n\\n Defendants moved in limine to exclude “evidence regarding the manner of\\n\\nlitigation up to the time of trial.” Specifically, they asked the district court to\\n\\n“exclude reference to disputes before trial, including disputes, motions, and court\\n\\norders on discovery or motions in limine.” Further, they moved in limine, under\\n\\nRule 609 of the Federal Rules of Evidence (presumably they meant Rule 408), 3 to\\n\\n\\n 3\\n Rule 609 concerns “attacking a witness’s character for truthfulness by evidence of a\\ncriminal conviction.” Rule 408 addresses the admissibility of evidence regarding compromise\\noffers and negotiations, and it is typically used to exclude evidence of settlement negotiations.\\n 6\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 7 of 35\\n\\n\\nexclude evidence of settlement negotiations or discussions. The district court\\n\\ngranted the motions.\\n\\n Yet at trial, Defendants began their opening statement by referring to\\n\\nsettlement:\\n\\n Most cases don’t make it this far. They don’t come to trial. The\\n parties work really hard to get their cases resolved before they get to\\n this point. We don’t want to waste the time of the jurors. We don’t\\n want to waste the time of the court.\\n ...\\n There are certain things we can agree on, and I’m going to go through\\n those with you quickly, and then the things that are sticking points\\n that we can’t agree on.\\n ...\\n Krispy Kreme Donut Corporation admitted responsibility for the\\n cause of the collision. We admit that Mr. Pressdee was working for\\n us at the time. So no issues regarding that. We also acknowledge that\\n Ms. Showan didn’t do anything to cause this collision, not a single\\n thing.\\n ...\\n We also agree . . . this was a serious impact.\\n\\nShowan objected immediately, and the district court overruled the objection. After\\n\\nDefendants concluded their opening, during a recess, Showan requested a curative\\n\\ninstruction. In essence, Showan argued that Defendants had insinuated that she\\n\\nwas to blame for the case not settling, in light of their stated willingness to admit\\n\\nliability. She urged the court to inform the jury that Defendants had not admitted\\n\\nliability until shortly before the trial. The district court refused to do so, finding\\n\\nthat Defendants’ statement was accurate at the time it was made and that an\\n\\ninstruction “would be too heavy-handed.”\\n 7\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 8 of 35\\n\\n\\n B. Whether the District Court Should Have Given a Curative Instruction\\n\\n Showan argues on appeal that the trial “proceed[ed] with an improperly\\n\\ninfluenced or tainted jury.”\\n\\n “We review a district court’s evidentiary rulings for abuse of discretion.”\\n\\nProctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349 n.7 (11th Cir. 2007). “Errors\\n\\nin evidentiary rulings are not grounds for reversal unless substantial prejudice\\n\\nresults.” Peterson v. Willie, 81 F.3d 1033, 1036 (11th Cir. 1996) (quoting King v.\\n\\nGulf Oil Co., 581 F.2d 1184, 1186 (5th Cir. 1978)). “Statements made in oral\\n\\narguments must be plainly unwarranted and clearly injurious to constitute\\n\\nreversible error.” Id.\\n\\n The district court did not abuse its discretion in not providing a curative\\n\\ninstruction. It is arguable that some of the opening statement was unwarranted—\\n\\nand somewhat disingenuous in light of Defendants’ motion in limine on the issue.\\n\\nBut the statement was not clearly injurious to Showan. Indeed, although the\\n\\ndistrict court did not give a curative instruction to the jury, it did allow Showan to\\n\\ncontradict any insinuation of Defendants’ previous graciousness during the\\n\\nlitigation. Showan requested, over Defendants’ objection, that she be allowed to\\n\\nuse Pressdee’s initial denial of liability. Notably, the district court granted this\\n\\nrequest. The ability to mount a direct attack on Defendants’ counsel’s opening\\n\\n\\n\\n\\n 8\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 9 of 35\\n\\n\\nremarks was sufficient to counteract any injury from Defendants’ indirect\\n\\nsuggestion in the opening statement.\\n\\n Nor did the comments in the opening statement violate Rule 408 of the\\n\\nFederal Rules of Evidence. That rule prohibits introducing evidence of actual\\n\\nsettlement offers or negotiations for certain prohibited purposes. Defendants’\\n\\ncounsel’s opening statement did not refer to evidence of any specific offers to\\n\\nsettle or compromise; it observed generally what happens in “[m]ost cases.”\\n\\n We therefore find no reversible error in the district court’s ruling on\\n\\nDefendants’ counsel’s opening statement. 4\\n\\n III. EVIDENCE OF MEDICAL RATES\\n\\n A. Defendants’ Medical-Rate Experts\\n\\n On February 9, 2016, as part of her treatment following the accident,\\n\\nShowan had a discectomy—back surgery that involves local anesthetic to remove\\n\\nlumbar disc material. Showan’s doctor charged $173,213 for the surgery. He also\\n\\ncharged a facility fee of $80,768.5\\n\\n Defendants believed those charges were excessive and sought to prove it\\n\\nthrough the testimony of medical billing experts, Lamar Blount and Jessica\\n\\n\\n\\n\\n 4\\n As we ultimately remand this case for a new trial, the district court can nonetheless\\nrevisit the issue as necessary.\\n 5\\n During closing argument, Showan said these bills were actually for higher amounts.\\nWe need not resolve this discrepancy in this appeal.\\n 9\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 10 of 35\\n\\n\\nSchmor. Showan was uninsured, and Blount and Schmor relied on average rates\\n\\nthat included those subsidized by the government or private insurers. Blount\\n\\ntestified that, based on databases for doctors in the same area, the 90th percentile\\n\\ncharge for the same procedure would be $20,688. The 80th percentile for a facility\\n\\nfee would be $27,144. Schmor testified that the doctor’s billing practices were\\n\\nhighly unusual and potentially unethical: “You do not see facility charges being\\n\\nbilled on an itemization from a physician’s practice. They’re completely separate\\n\\nentities, and they’re different bills. . . . [T]o see a facility charge on a physician\\n\\nbill is highly unlikely. . . . I’ve only seen it in two practices”—Showan’s doctor\\n\\nand that doctor’s previous partner. Schmor also expressed skepticism regarding\\n\\nsuch charges from an ambulatory surgery center like the one where Showan had\\n\\nher surgery.\\n\\n Showan moved in limine to exclude this testimony. Showan contended the\\n\\ntestimony violated the collateral source rule, which prohibits evidence of an\\n\\ninsurance company’s payments to a tort victim. Showan argues that Blount and\\n\\nSchmor were suggesting that her medical bills were “too high because Medicare,\\n\\nthe VA, or Acme Insurance Company thinks so, and/or they do not pay as much\\n\\nfor the treatment [she] had.” “In other words, Defendants [were] employing a\\n\\nback-door tactic that [sought] to indirectly accomplish what the Collateral Source\\n\\nRule would never permit them to do directly.” Showan further argued that the\\n\\n 10\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 11 of 35\\n\\n\\ntestimony violated Rule 403 of the Federal Rules of Evidence because it was\\n\\nirrelevant, prejudicial, and confusing in light of the fact that she did not receive any\\n\\nassistance from any government or other health insurer in paying her medical bills.\\n\\n The district court rejected Showan’s arguments, finding the testimony was\\n\\nnot offered to show what Showan would have received from an insurer. 6 The\\n\\ndistrict court explained that “there is a difference between presenting evidence of\\n\\ndiscounted rates a plaintiff could receive on [] medical costs based on the\\n\\nplaintiff’s specific access to certain advantages, and evidence of market rates as a\\n\\nwhole.” The court found the testimony in question was offered to show whether\\n\\nthe medical bills were reasonable and allowed it.\\n\\n B. Whether the District Court Properly Admitted the Testimony\\n\\n On appeal, Showan reiterates her motion-in-limine arguments. She contends\\n\\nthe district court should not have admitted the testimony. Again, we “review a\\n\\ndistrict court’s evidentiary rulings for abuse of discretion.” Proctor, 494 F.3d at\\n\\n1349 n.7.\\n\\n Under Georgia law, a tort victim is “entitled to recover medical expenses\\n\\narising from his injuries, including hospital charges, that [are] ‘reasonable and\\n\\nnecessary.’” MCG Health, Inc. v. Kight, 353, 750 S.E.2d 813, 817 (Ga. Ct. App.\\n\\n\\n\\n 6\\n The district court also acknowledged that, if the testimony had been offered for this\\nreason, it would have been improper under the collateral source rule.\\n 11\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 12 of 35\\n\\n\\n2013) (quoting Allen v. Spiker, 689 S.E.2d 326, 329 (Ga. Ct. App. 2009)).\\n\\n“Moreover, under the collateral source rule, [the victim is] entitled to seek full\\n\\nrecovery from the tortfeasor of reasonable and necessary hospital charges\\n\\nundiminished by [the victim’s] insurance payments or ‘write-offs.’” Id. In other\\n\\nwords, the “collateral source rule bars the defendant from presenting any evidence\\n\\nas to payments of expenses of a tortious injury paid for by a third party and taking\\n\\nany credit toward the defendant’s liability and damages for such payments.”\\n\\nHoeflick v. Bradley, 637 S.E.2d 832, 833 (Ga. Ct. App. 2006). “This is because a\\n\\ntortfeasor is not allowed to benefit by its wrongful conduct or to mitigate its\\n\\nliability by collateral sources provided by others.” Id.\\n\\n Blount’s and Schmor’s testimony did not violate the collateral source rule.\\n\\nTheir testimony addressed the reasonableness and necessity of what Showan had\\n\\npaid for her discectomy. Whether the expenses were “reasonable and necessary” is\\n\\na critical inquiry under Georgia law. Kight, 750 S.E.2d at 817.\\n\\n For that reason, Defendants were properly allowed to argue that medical\\n\\ncharges were unreasonably high. They did not try to get any “credit” from the jury\\n\\nbased on payments that Showan had received. See Hoeflick, 637 S.E.2d at 833.\\n\\nIndeed, Showan, who is uninsured, says she received no such payments. Showan’s\\n\\nargument thus fundamentally misinterprets the collateral source rule. She contends\\n\\nthat the district court should have excluded evidence not of what was paid but of\\n\\n 12\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 13 of 35\\n\\n\\nwhat might have been paid had she obtained insurance. Defendants were not\\n\\ntrying to introduce such evidence.\\n\\n Showan’s Rule 403 argument also fails. As noted above, Georgia law\\n\\npermits testimony regarding whether medical expenses are reasonable and\\n\\nnecessary. And to the extent Showan suggests that the testimony of Blount and\\n\\nSchmor was misleading, she could have offered her own expert testimony to\\n\\ndisagree with or supplement their testimony. If Showan believed the “volume\\n\\ndiscounts,” as she describes them, did not apply to her, she could have attempted to\\n\\nconvince the jury of that. But the district court did not err in allowing Defendants’\\n\\nexperts to give the jury a picture of what most doctors in the area charge for a\\n\\ndiscectomy.\\n\\n Accordingly, the district court did not abuse its discretion in admitting the\\n\\ntestimony of Blount and Schmor.\\n\\n IV. MEDICAL RECORDS\\n\\n Defendants also allegedly attacked another element of Showan’s\\n\\ndiscectomy. Showan asserts on appeal that “[d]uring trial, Defendants falsely\\n\\nargued that only one provider was present during the recorded procedure, which\\n\\nwould imply that the associated bill charged well-over what the services should\\n\\ncost.” Showan does not point us to where Defendants made this one-provider\\n\\nargument, and Defendants dispute having made it.\\n\\n 13\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 14 of 35\\n\\n\\n Showan did not designate the surgical records in her pretrial exhibits, and\\n\\nDefendants accordingly objected to her introducing those records. Showan\\n\\ncontends she should have been able to supplement the portion the Defendants\\n\\nintroduced, see Fed. R. Evid. 106, so that Defendants’ excerpt did not mislead the\\n\\njury.\\n\\n Because we remand for a new trial, and because that new trial will involve\\n\\nnew pretrial exhibit designations, we need not resolve this dispute or opine on this\\n\\nissue.\\n\\n V. ADMONISHMENT DURING CLOSING ARGUMENT\\n\\n A. Showan Argues for Damages Measured by the Hour\\n\\n Showan’s counsel had the following exchange with the district court during\\n\\nhis initial closing argument:\\n\\n [COUNSEL]: [W]hen you have pain like this in your neck, worse in\\n lower back, in your wrist, when you have the headaches, that’s an\\n everyday thing, and it’s certainly an every hour thing, and so we ask\\n you to take that into consideration for her future, and, again, all\\n caused by the Krispy Kreme truck collision. If it wasn’t, we wouldn’t\\n be here.\\n We ask for full justice and full compensation, and we want you to do\\n it in a way that makes sense. Because she suffers pain all the time,\\n what is the value of one hour? Well –\\n THE COURT: You cannot make a unit of time argument.\\n [COUNSEL]: Pardon me.\\n THE COURT: You may not make a unit of time argument. Let’s see,\\n what is the value of one hour –\\n [COUNSEL]: Yes.\\n THE COURT: – You can’t make an argument about what the value\\n of one hour’s worth of pain is. That is not permissible.\\n 14\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 15 of 35\\n\\n\\n [COUNSEL]: . . . May I argue this, your honor, to the jury, may I\\n ask them to take into consideration that she’s 52 years old, and under\\n the annuity mortality table she has 27.22 years to live?\\n THE COURT: Absolutely, that’s absolutely legitimate.\\n\\n During closing rebuttal argument, Showan’s counsel again argued that jurors\\n\\ncould “do the math” on Showan’s pain and suffering down to the hour:\\n\\n We say and the judge will tell you it is your decision to decide what to\\n do here. She’s got to live with this for the rest of her life. What\\n Krispy Kreme did to her, she’s got to live with it for the rest of her\\n life, and I do ask you not to pull some numbers out of a hat. I ask you\\n to do math. You are allowed to do math as jurors and say how many\\n days is it, how many hours is it. Try 525 dollars an hour,[7] see what\\n you get.\\n\\n Defendants’ counsel objected, and the district court reiterated its instruction\\n\\nnot to pursue that line of argument: “Yeah, you can’t argue that the projection is\\n\\nthat the plaintiff will suffer pain for every minute of every hour from now forward\\n\\nand do a multiplier based on that, that’s just not allowable under the law.”\\n\\n B. Whether Showan’s Closing Argument Was Improper\\n\\n Showan argues that Georgia law permits her to have made a “per diem\\n\\nargument” regarding damages and that the district court’s admonishment was\\n\\nprejudicial, reversible error.\\n\\n This circuit permits unit-of-time damages arguments. Baron Tube Co. v.\\n\\nTransp. Ins. Co., 365 F.2d 858, 864 (5th Cir. 1966) (en banc). The “idea or worth\\n\\n\\n 7\\n On appeal, Showan suggests this number was supposed to be $5.25 per hour. Perhaps it\\nwas a misstatement at trial or a typographical error in the transcript.\\n 15\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 16 of 35\\n\\n\\nof one year of pain may not be as understandable, real or persuasive to a juror as its\\n\\nequivalent, three hundred and sixty five days of pain and suffering.” Id. at 865.\\n\\n“Whether the unit be cast in years or months, or weeks or days is a mere matter of\\n\\ndegree, and there is little logic in prohibiting the discussion of large units of time in\\n\\nterms of their smaller mathematical equivalents.” Id. But precautions are in order:\\n\\nthe district “court must use care to the end that the argument will not inflame the\\n\\njury and result in an excessive verdict.” Id. at 864.8 Ultimately, “whether to allow\\n\\nsuch an argument and the protective features to be employed are matters vested, in\\n\\nthe end, in the sound discretion of the trial court.” Id. at 864–65 (emphasis added).\\n\\n Further, it is irrelevant that Georgia law allows unit-of-time arguments, see\\n\\nHardwick v. Price, 152 S.E.2d 905, 907–08 (Ga. Ct. App. 1966), because we are\\n\\nbound by the holding that “the propriety of the [unit-of-time] argument is a federal\\n\\nquestion. It is a matter of federal trial procedure.” Baron Tube Co., 365 F.2d at\\n\\n862. In sum, Baron Tube Co. leaves the question of whether to allow a unit-of-\\n\\ntime argument wholly to the discretion of the district court.\\n\\n The district court’s statement that Showan’s unit-of-time argument was “not\\n\\nallowable under the law” was incorrect, as the district court has complete\\n\\ndiscretion to disallow the argument or to allow it subject to safeguards. See id. at\\n\\n\\n 8\\n The court noted some potential safeguards, including notifying opposing counsel and\\nthe district court in advance; scrutinizing any charts used to avoid false impressions; and making\\nclear to the jury that the argument is not evidence. Baron Tube Co., 365 F.2d at 865.\\n 16\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 17 of 35\\n\\n\\n864–65. Because the district court erroneously concluded it had no discretion, it\\n\\nnecessarily abused that discretion. Cf. LSLJ P’ship v. Frito-Lay, Inc., 920 F.2d\\n\\n476, 479 (7th Cir. 1990) (A “trial court may abuse its discretion by failing to\\n\\nexercise its discretion.” (quoting FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7th\\n\\nCir. 1990)). At the new trial, the district court should, under Baron Tube Co.,\\n\\nexpressly exercise its discretion to allow or disallow any proffered unit-of-time\\n\\ndamages argument.\\n\\n VI. CLAIM FOR FUTURE LOST INCOME\\n\\n A. The Pre-Jury Deliberation Grant of Judgment as a Matter of Law\\n\\n At the close of evidence, Defendants moved for judgment as a matter of law\\n\\non Showan’s claim for future lost wages. Defendants did not contest the wages\\n\\nShowan lost while being treated by her physicians; rather, they argued that she\\n\\nfailed to demonstrate “reduction in ability to work” and thus is not entitled to\\n\\nfuture lost wages. Although Showan’s hours had been reduced, she was still\\n\\nworking full time. To explain the reduction in hours, Defendants noted that\\n\\nShowan (1) was aware that there was a nationwide reduction in hours (but with an\\n\\naccompanying increase in pay) at Walmart, and (2) “was never told by anyone that\\n\\nher reduction in hours was due to her accident or her injuries.” Showan’s\\n\\nsupervisor “was also unaware of any kind of medical restrictions” that prevented\\n\\nShowan from working full time.\\n\\n 17\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 18 of 35\\n\\n\\n Showan responded by emphasizing the permanence of her injury and\\n\\nreiterating her inability to work in the same manner as before the accident. She\\n\\nhad to sit more frequently on the stool, and she could no longer work the regular\\n\\ncheckout aisle. And again, although she conceded that she is working full time\\n\\nnow, she argued, “now is not future lost wages.” Further, because Showan will\\n\\nlikely need surgery in the future (though it was disputed whether she would have\\n\\nhad that surgery regardless of the accident), she will be out of work for that\\n\\nrecovery.\\n\\n The district court granted Defendants’ motion for judgment as a matter of\\n\\nlaw. It explained, “I do agree that the evidence, to the extent there is any,\\n\\nconcerning the plaintiff’s inability to work in the future is entirely speculative.”\\n\\n B. Whether the Future Lost Wages Claim Should Have Gone to the Jury\\n\\n Showan argues there was sufficient evidence to submit her future lost wages\\n\\nclaim to the jury.\\n\\n We review de novo the granting of a motion for judgment as a matter of law,\\n\\n“considering only the evidence that may properly be considered and the reasonable\\n\\ninferences drawn from it in the light most favorable to the nonmoving party.”\\n\\nRossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). “Where ‘no\\n\\nlegally sufficient evidentiary basis exists for a reasonable jury to find for that party\\n\\non that issue,’ judgment as a matter of law is proper.” Id. (quoting 12 Moore’s\\n\\n 18\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 19 of 35\\n\\n\\nFederal Practice § 59.50[5] (3d ed. 1998)); accord Fed. R. Civ. P. 50(a)(1) (A\\n\\ndistrict court may grant judgment as a matter of law on an issue if “a party has\\n\\nbeen fully heard on [the] issue during a jury trial and the court finds that a\\n\\nreasonable jury would not have a legally sufficient evidentiary basis to find for the\\n\\nparty on that issue.”).\\n\\n Under Georgia law, “[l]ost wages and earnings is recoverable where the\\n\\nevidence shows the amount of loss with reasonable certainty.” Olariu v. Marrero,\\n\\n549 S.E.2d 121, 124 (Ga. Ct. App. 2001). “Loss of future earnings is recoverable\\n\\nwhere evidence is presented on the permanency of plaintiff’s injury, the effect of\\n\\ninjury on earnings, and the monetary amount thereof.” Id.\\n\\n Even when viewed in the light most favorable to Showan, no reasonable jury\\n\\ncould have awarded her lost future wages under Georgia law. Even if her injury is\\n\\npermanent, there is no evidence that the injury affected her ability to earn the same\\n\\nincome as before she was injured. She is still able to work full time as a cashier at\\n\\nWalmart, even if her exact duties have changed. Moreover, Showan has failed to\\n\\nquantify the amount of her loss. It is true that “all future earnings or diminished\\n\\nfuture earnings are uncertain and difficult of ascertainment.” Michaels v. Kroger\\n\\nCo., 322 S.E.2d 903, 908 (Ga. Ct. App. 1984). But that does not absolve a plaintiff\\n\\nof the burden of putting forth some evidence of diminished earning capacity.\\n\\nShowan was required to provide “evidence to show [her] capacity to labor and earn\\n\\n 19\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 20 of 35\\n\\n\\nmoney has been permanently impaired.” Id.; see also Schriever v. Maddox, 578\\n\\nS.E.2d 210, 212 (Ga. Ct. App. 2003) (“We have repeatedly held that a court’s\\n\\ninstructing a jury on lost earnings as a category of recoverable damages is\\n\\nreversible error where the plaintiff has not presented evidence of the degree to\\n\\nwhich the injury reasonably affected the plaintiff’s past and future income.”). The\\n\\nrelevant evidence in this case shows that Showan worked full time as a cashier\\n\\nbefore the accident and that she worked full time as a cashier after the accident.\\n\\nAdmittedly, Showan must sit more frequently on a stool, but it is undisputed that\\n\\nshe gets paid the same amount when she must sit. To the extent she will need\\n\\nfuture medical care that will cause her to take time off work, she similarly fails to\\n\\ndemonstrate with reasonable certainty either the amount of time she will need to\\n\\ntake off or the loss she will suffer as a result.\\n\\n We find no Georgia case that would permit recovery of lost future wages\\n\\nunder such tenuous and speculative circumstances. We therefore affirm the district\\n\\ncourt’s grant of judgment as a matter of law regarding the claim for lost future\\n\\nwages.\\n\\n VII. CLAIM FOR ATTORNEY’S FEES UNDER GEORGIA LAW\\n\\n A. Defendants’ Allegedly Frivolous Defenses\\n\\n Showan argued to the district court that she was entitled to attorney’s fees\\n\\nunder Georgia law. She claimed that Defendants presented frivolous defenses and\\n\\n 20\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 21 of 35\\n\\n\\nacted in bad faith during the litigation. She maintains on appeal, for example, that\\n\\nDefendants raised the affirmative defenses of comparative negligence and\\n\\nassumption of risk—despite knowing Pressdee was completely at fault. Showan\\n\\npoints to the corrective action report that attributed fault to Pressdee and to Krispy\\n\\nKreme’s insurance claim that found Showan was “0%” negligent—both of which\\n\\nwere prepared within days of the accident. As Showan puts it, “It was not until the\\n\\neve of trial, and after Plaintiff was forced to conduct discovery and mediation\\n\\nunder Defendants’ false pretenses, that Defendants moved to amend their Answers\\n\\nto recant these frivolous claims and defenses.”\\n\\n Georgia has codified its disfavor of frivolous claims and defenses in tort\\n\\ncases. Under O.C.G.A. § 9-11-68(e): 9\\n\\n Upon motion by the prevailing party at the time that the verdict or\\n judgment is rendered, the moving party may request that the finder of\\n fact determine whether the opposing party presented a frivolous claim\\n or defense. In such event, the court shall hold a separate bifurcated\\n hearing at which the finder of fact shall make a determination of\\n whether such frivolous claims or defenses were asserted and to award\\n damages, if any, against the party presenting such frivolous claims or\\n defenses.\\n\\nThe statute also defines frivolous claims and defenses:\\n\\n Frivolous claims shall include, but are not limited to, the following:\\n\\n 9\\n Section 9-11-68 is known as Georgia’s “offer-of-settlement” statute. See Richardson v.\\nLocklyn, 793 S.E.2d 640, 641 (Ga. Ct. App. 2016). Subsection (e), at issue here, covers\\n“completely separate issues” from those in the rest of the section: “Subsections (a) through (d)\\ngovern offers of settlement, while subsection (e) governs damages for frivolous claims or\\ndefenses.” Id. at 644.\\n 21\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 22 of 35\\n\\n\\n (A) A claim, defense, or other position that lacks substantial\\n justification or that is not made in good faith or that is made\\n with malice or a wrongful purpose, as those terms are defined\\n in Code Section 51-7-80;\\n (B) A claim, defense, or other position with respect to which\\n there existed such a complete absence of any justiciable issue of\\n law or fact that it could not be reasonably believed that a court\\n would accept the asserted claim, defense, or other position; and\\n (C) A claim, defense, or other position that was interposed for\\n delay or harassment.\\n\\nId. § 9-11-68(e)(1). Finally, the statute provides, “Damages awarded may include\\n\\nreasonable and necessary attorney’s fees and expenses of litigation.” Id. § 9-11-\\n\\n68(e)(2).\\n\\n Showan argued that § 9-11-68(e) applied in her case and that she was\\n\\nentitled to a separate hearing upon a favorable jury verdict. Although the district\\n\\ncourt initially seemed to entertain the idea, it ultimately disagreed. While the jury\\n\\nwas deliberating, the court announced it would “dismiss” Showan’s claim for\\n\\nfees.10 The district court concluded that “the evidence shows as a matter of law\\n\\nthat the pleadings filed by the defendants were not frivolous” and that, in any\\n\\nevent, Showan was not prejudiced.\\n\\n B. Whether Federal Law or State Law Governs\\n\\n\\n\\n\\n 10\\n The district court was actually, in effect, preemptively denying the motion Showan\\nwould need to make under § 9-11-68(e). Following the jury verdict, Showan made that motion,\\npreserving it for appeal purposes.\\n 22\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 23 of 35\\n\\n\\n Showan argues she should have been able to submit to the jury, upon its\\n\\nfavorable verdict, her state-law claim for attorney’s fees. But Defendants contend\\n\\nfederal law—namely Rule 11 of the Federal Rules of Civil Procedure—conflicts\\n\\nwith and overrides her claim. They say Showan is not entitled to a bifurcated\\n\\nhearing because, in federal court, the judge—not the finder of fact—determines\\n\\nfrivolity.\\n\\n “We [] review de novo a district court’s determination and application of\\n\\nstate law in a diversity case.” Pendergast v. Sprint Nextel Corp., 592 F.3d 1119,\\n\\n1132 n.11 (11th Cir. 2010).\\n\\n When a state statute arguably conflicts with a Federal Rule of Civil\\n\\nProcedure, a federal court sitting in diversity jurisdiction will not apply the state\\n\\nstatute if the federal rule “answers the question in dispute.” Shady Grove\\n\\nOrthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority\\n\\nopinion). If a Federal Rule is “sufficiently broad to control the issue before the\\n\\nCourt,” Walker v. Armco Steel Corp., 446 U.S. 740, 749–50 (1980), “it governs . . .\\n\\nunless it exceeds statutory authorization” under the Rules Enabling Act or\\n\\n“Congress’s rulemaking power” under the Constitution. Shady Grove, 559 U.S. at\\n\\n398. “If no Federal Rule answers the question in dispute, we undertake an\\n\\n‘unguided Erie’11 inquiry to decide whether to apply the state statute or federal\\n\\n\\n 11\\n Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).\\n 23\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 24 of 35\\n\\n\\ncommon law.” Carbone v. Cable News Network, 910 F.3d 1345, 1349 (11th Cir.\\n\\n2018) (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). That choice-of-law\\n\\ninquiry requires us to “apply Erie and its progeny to determine ‘whether failure to\\n\\napply the state law would lead to different outcomes in state and federal court and\\n\\nresult in inequitable administration of the laws or forum shopping.’” Royalty\\n\\nNetwork, Inc. v. Harris, 756 F.3d 1351, 1358 (11th Cir. 2014) (quoting Burke v.\\n\\nSmith, 252 F.3d 1260, 1265 (11th Cir. 2001)).\\n\\n 1. The Scopes of O.G.C.A § 9-11-68(e) and Rule 11 of the Federal Rules of\\n\\n Civil Procedure\\n\\n Under the applicable framework, federal courts exercising diversity\\n\\njurisdiction must apply O.C.G.A. § 9-11-68(e). The question in dispute is whether\\n\\nShowan is entitled to compensatory damages, including attorney’s fees and\\n\\nlitigation expenses, for the injury she purportedly suffered as a result of\\n\\nDefendants’ alleged frivolous litigation conduct. Rule 11 does not answer this\\n\\nquestion.\\n\\n Rule 11(b) provides:\\n\\n By presenting to the court a pleading, written motion, or other paper\\n . . . an attorney or unrepresented party certifies that to the best of the\\n person’s knowledge, information, and belief, formed after an inquiry\\n reasonable under the circumstances:\\n (1) it is not being presented for any improper purpose, such as\\n to harass, cause unnecessary delay, or needlessly increase the\\n cost of litigation;\\n\\n 24\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 25 of 35\\n\\n\\n (2) the claims, defenses, and other legal contentions are\\n warranted by existing law or by a nonfrivolous argument for\\n extending, modifying, or reversing existing law or for\\n establishing new law;\\n (3) the factual contentions have evidentiary support or, if\\n specifically so identified, will likely have evidentiary support\\n after a reasonable opportunity for further investigation or\\n discovery; and\\n (4) the denials of factual contentions are warranted on the\\n evidence or, if specifically so identified, are reasonable based\\n on the belief or a lack of information.\\n\\n If an attorney or unrepresented party breaches its duty under Rule 11(b) by\\n\\nfiling a pleading that fails to comply with any of the substantive standards of that\\n\\nrule, Rule 11(c) kicks in. The applicable sections of Rule 11(c) provide:\\n\\n If, after notice and a reasonable opportunity to respond, the court\\n determines that Rule 11(b) has been violated, the court may impose an\\n appropriate sanction on any attorney, law firm, or party that violated\\n the rule or is responsible for the violation.\\n ***\\n A sanction imposed under this rule must be limited to what suffices to\\n deter repetition of the conduct or comparable conduct by others\\n similarly situated. The sanction may include nonmonetary directives;\\n an order to pay a penalty into court; or, if imposed on motion and\\n warranted for effective deterrence, an order directing payment to the\\n movant of part or all of the reasonable attorney’s fees and other\\n expenses directly resulting from the violation.\\n\\nFed. R. Civ. P. 11(c)(1), (4). Rule 11(c)(1) licenses the court to “impose an\\n\\nappropriate sanction” on an attorney or unrepresented party “after notice and a\\n\\nreasonable opportunity to respond.” “A sanction imposed under [Rule 11] must be\\n\\nlimited to what suffices to deter repetition of the conduct or comparable conduct by\\n\\nothers similarly situated.” Fed. R. Civ. P. 11(c)(4). If an opposing party moved\\n 25\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 26 of 35\\n\\n\\nfor sanctions, Rule 11(c)(4) permits a court to issue “an order directing payment to\\n\\nthe movant of part or all of the reasonable attorney’s fees and other expenses” as a\\n\\nsanction for a violation of Rule 11(b). Id. But the order must be “warranted for\\n\\neffective deterrence,” and the attorney’s fees and expenses must “directly result[]\\n\\nfrom the violation” of Rule 11(b). Id.\\n\\n Rule 11 does not speak to whether a prevailing party is entitled to\\n\\ncompensatory damages to remedy any injury inflicted on the prevailing party by\\n\\nthe opposing party’s frivolous or bad-faith claims and defenses. Instead, Rule 11\\n\\nanswers the question whether punitive sanctions should be imposed on an attorney\\n\\nor unrepresented party for filing a “pleading, written motion, or other paper” that\\n\\nviolates the certification standards of Rule 11(b). In contrast, § 9-11-68(e) confers\\n\\non a prevailing party a right to potential compensation for injuries sustained as a\\n\\nresult of an opposing party’s decision to raise “a frivolous claim or defense.”\\n\\nO.C.G.A. § 9-11-68(e). It follows that § 9-11-68(e) does not “address the same\\n\\nsubject” as Rule 11. Cf. Shady Grove, 559 U.S. at 402.\\n\\n The remedy created by § 9-11-68(e) is more akin to a state-law claim for\\n\\nattorney’s fees. We have said such claims are unequivocally substantive for Erie\\n\\npurposes. See Trans Coastal Roofing Co., Inc. v. David Boland, Inc., 309 F.3d\\n\\n758, 760 (11th Cir. 2002); McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001)\\n\\n(“It is clear that statutes allowing for recovery of attorney’s fees are substantive for\\n\\n 26\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 27 of 35\\n\\n\\nErie purposes.”). Yet, as we have noted, the statute does more than provide only\\n\\nfor attorney’s fees: it is designed to make whole, through “damages,” a party that\\n\\nhad to defend against a frivolous claim or overcome a frivolous defense. The\\n\\nfinder of fact determines whether a claim or defense was frivolous. Indeed, § 9-\\n\\n11-68(e) creates a special tort-like remedy, providing for a “separate bifurcated\\n\\nhearing at which the finder of fact shall make a determination of whether such\\n\\nfrivolous claims or defenses were asserted and to award damages, if any, against\\n\\nthe party presenting such frivolous claims or defenses.” Although a party may\\n\\nassert this “tort” only within an existing proceeding, the statute’s legal effect is still\\n\\nto create a substantive individual right under state law that does not purport to\\n\\nabrogate any procedural right conferred by the Federal Rules.\\n\\n Nor can it be said that “the purposes underlying” Rule 11 “are sufficiently\\n\\ncoextensive with the asserted purposes of the [Georgia] statute to indicate that the\\n\\nRule occupies the statute’s field of operation so as to preclude its application in\\n\\nfederal diversity actions.” Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7 (1987).\\n\\nShady Grove counsels against an “approach to determining whether state and\\n\\nfederal rules conflict based on the subjective intentions of the state legislature,”\\n\\n559 U.S. at 404, so we are concerned only with “the purpose” that can be “derived\\n\\nfrom the text” of Rule 11 and § 9-11-68(e) in conducting this inquiry. See Antonin\\n\\nScalia & Bryan A. Garner, Reading Law § 2, 56 (2012). Rule 11 imposes a duty\\n\\n 27\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 28 of 35\\n\\n\\non attorneys and unrepresented parties to certify that, to the best of their\\n\\nknowledge, their filings are or will be supported by the evidence and the law and\\n\\nare not made for any “improper purpose.” Fed. R. Civ. P. 11(b). The rule allows\\n\\ncourts to enforce this duty through appropriate sanctions, with the aim of deterring\\n\\nfuture misconduct. See Fed. R. Civ. P. 11(c)(4) (“A sanction imposed under this\\n\\nrule must be limited to what suffices to deter repetition of the conduct or\\n\\ncomparable conduct by others similarly situated” and any award of “attorney’s fees\\n\\nand other expenses” must be “warranted for effective deterrence.”). Sometimes\\n\\nRule 11 sanctions are nonmonetary, and frequently they are penalties paid to the\\n\\ncourt rather than to the other party. Id. (“The sanction may include nonmonetary\\n\\ndirectives.”); Fed. R. Civ. P. 11(b) and (c) advisory committee’s note to 1993\\n\\namendment (“Since the purpose of Rule 11 sanctions is to deter rather than to\\n\\ncompensate, the rule provides that, if a monetary sanction is imposed, it should\\n\\nordinarily be paid into court as a penalty.”). 12\\n\\n In contrast, § 9-11-68(e) compensates prevailing parties for litigation costs\\n\\nand other injuries endured because of an opposing party’s decision to present\\n\\nmeritless or bad-faith claims or defenses. That compensatory purpose is why the\\n\\n\\n\\n\\n 12\\n The text of a given rule is what is authoritative. Nevertheless, “[h]aving been prepared\\nby a body of experts, the Notes are assuredly persuasive scholarly commentaries—ordinarily the\\nmost persuasive—concerning the meaning of the Rules.” Tome v. United States, 513 U.S. 150,\\n167 (1995) (Scalia, J., concurring in part and concurring in the judgment).\\n 28\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 29 of 35\\n\\n\\nstatute says that a prevailing party that has been forced to defend against a\\n\\n“frivolous claim or defense” is entitled to “damages” that are not capped at what is\\n\\nrequired to deter comparable litigation conduct. See O.C.G.A. § 9-11-68(e).\\n\\n It follows that Rule 11 and § 9-11-68(e) have categorically distinct purposes.\\n\\nDeterrence is forward-looking and concerned with preventing future violations of a\\n\\nrule. Compensatory relief, in contrast, is backward-looking and aims “to place an\\n\\ninjured party in the same position as it would have been in had there been no\\n\\ninjury.” Action Marine, Inc. v. Continental Carbon, Inc., 481 F.3d 1302, 1316\\n\\n(11th Cir. 2007) (quoting Home Ins. Co. v. N. River Ins. Co., 385 S.E.2d 736, 742\\n\\n(Ga. 1989)). Rule 11 is not designed to make the movant whole for any and all\\n\\ninjuries sustained as a result of a frivolous filing, and any monetary sanctions one\\n\\nparty happens to receive from the other are incidental to the rule’s deterrent\\n\\npurpose.\\n\\n Defendants focus on Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th\\n\\nCir. 2014), where we examined the relationship between Rule 11 and another\\n\\nGeorgia statute, O.C.G.A. § 9-11-11.1(b) (1998). Section 9-11-11.1 is “Georgia’s\\n\\nanti-SLAPP [Strategic Lawsuits Against Public Participation] statute[, ] intended\\n\\nto protect its citizens from having their important First Amendment rights to free\\n\\nspeech and to petition the government chilled by the threat of being dragged into\\n\\nonerous judicial proceedings by improper or abusive tort claims.” Id. at 1357. At\\n\\n 29\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 30 of 35\\n\\n\\nthe time of Royalty Network,13 the statute required, for claims that could\\n\\nconceivably be related to a person’s free-speech rights, that “both a plaintiff and\\n\\nplaintiff’s counsel [] file a written verification certifying that the claim is well\\n\\ngrounded in fact, is warranted under existing law, and . . . is not made for an\\n\\nimproper purpose.” 756 F.3d at 1354. Rule 11 requires counsel to sign a\\n\\nrepresented party’s pleadings, but it does not require the represented party to do so.\\n\\nSee Fed. R. Civ. P. 11(a). We thus concluded that § 9-11-11.1(b)’s “requirements\\n\\nfor filing a complaint or pleading directly conflict with the procedure for filing a\\n\\npleading specified in the federal rule, and the two may not peacefully co-exist or\\n\\noperate in the same case.” 756 F.3d at 1359–60. Section 9-11-11.(b) governed the\\n\\nprocedure for signing a pleading. But § 9-11-68(e) concerns something very\\n\\ndifferent: a hearing on damages incurred as a result of litigating against frivolous\\n\\nclaims, defenses, or positions. Royalty Network shines no light on this case.\\n\\n Finally, Defendants point us to Rule 11’s 21-day safe-harbor provision.\\n\\nThat provision provides that a motion for sanctions under Rule 11 “must not be\\n\\nfiled or be presented to the court if the challenged paper, claim, defense,\\n\\ncontention, or denial is withdrawn or appropriately corrected within 21 days after\\n\\nservice [of the challenged document] or within another time the court sets.” Fed.\\n\\n\\n 13\\n The statute was amended substantially in 2016. After this appeal was docketed, we\\ndecided the revised statute also conflicted with portions of the Federal Rules of Civil Procedure.\\nSee generally Carbone v. Cable News Network, 910 F.3d 1345 (2018).\\n 30\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 31 of 35\\n\\n\\nR. Civ. P. 11(c)(2). But the existence of this provision is irrelevant to our inquiry.\\n\\nOnly if the federal rules “answer[] the question in dispute,” Shady Grove, 558 U.S.\\n\\nat 398, do we concern ourselves with the extent to which a state law imposes\\n\\nrequirements different from the federal rules. For the reasons we have articulated,\\n\\nRule 11 does not control the dispute at issue. We conclude that there is no conflict\\n\\nbetween Rule 11 and § 9-11-68(e).\\n\\n 2. Erie Concerns\\n\\n We now move to the second part of the Hanna test and examine Erie’s\\n\\nconcerns about the potential for inequitable administration of justice and forum\\n\\nshopping. See Burke, 252 F.3d at 1265. Those concerns are acutely present here.\\n\\nIf we failed to recognize the right to a bifurcated hearing under § 9-11-68(e), a\\n\\ndefendant who removed a Georgia diversity tort case would divest plaintiffs of\\n\\ntheir right under Georgia law to have the finder of fact examine alleged frivolity\\n\\nand to recover the damages to which the statute entitles them. Cf. Fed. R. Civ. P.\\n\\n11(d) advisory committee’s note to 1993 amendment (“Rule 11 is not the exclusive\\n\\nsource for control of improper presentations of claims, defenses, or contentions. It\\n\\ndoes not supplant statutes permitting awards of attorney’s fees to prevailing parties\\n\\nor alter the principles governing such awards.”); Alyeska Pipeline Serv. Co. v.\\n\\nWilderness Soc’y, 421 U.S. 240, 260 n.31 (1975) (“[T]his Court [has] held that a\\n\\nstate statute requiring an award of attorneys’ fees should be applied in a case\\n\\n 31\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 32 of 35\\n\\n\\nremoved from the state courts to the federal courts . . . . It would be at least\\n\\nanomalous if this policy could be thwarted and the right so plainly given destroyed\\n\\nby removal of the cause to the federal courts.” (quoting People of Sioux Cty. v.\\n\\nNat’l Sur. Co., 276 U.S. 238, 243 (1928)).\\n\\n ***\\n\\n Ultimately, we find no conflict between Rule 11 and § 9-11-68(e). They do\\n\\nnot “address the same subject.” Shady Grove, 559 U.S. at 402. Failure to allow\\n\\nfor § 9-11-68(e) hearings would induce forum shopping by defendants seeking to\\n\\navoid those hearings. We therefore hold that O.C.G.A. § 9-11-68(e) is substantive\\n\\nlaw that applies when federal courts exercise their diversity jurisdiction in tort\\n\\ncases governed by Georgia law. Because this case is such a case, the statute\\n\\napplies here.\\n\\n C. Whether the District Court Should Have Held a Bifurcated Hearing\\n\\n Having concluded that O.C.G.A. § 9-11-68(e) applies here, we next decide\\n\\nwhether Showan was entitled to the hearing she requested. We conclude she was\\n\\nso entitled.\\n\\n Section 9-11-68(e) provides, “Upon motion by the prevailing party at the\\n\\ntime that the verdict or judgment is rendered, the moving party may request that\\n\\nthe finder of fact determine whether the opposing party presented a frivolous claim\\n\\nor defense.” In other words, the prevailing party may move, at the time of the\\n\\n 32\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 33 of 35\\n\\n\\nverdict or entry of judgment, for the finder of fact determine the frivolity of the\\n\\nother side’s claim or defenses. “In such event, the court shall hold a separate\\n\\nbifurcated hearing at which the finder of fact shall make a determination of\\n\\nwhether such frivolous claims or defenses were asserted and to award damages, if\\n\\nany, against the party presenting such frivolous claims or defenses.” Id. (emphasis\\n\\nadded). The statute uses the permissive “may” when describing the prevailing\\n\\nparty’s ability to move for fees, but it uses the mandatory “shall” in describing the\\n\\ncourt’s obligation to hold the bifurcated hearing upon the party’s motion. “The\\n\\nword ‘shall’ is ordinarily ‘The language of command’. And when the same Rule\\n\\nuses both ‘may’ and ‘shall’, the normal inference is that each is used in its usual\\n\\nsense—the one act being permissive, the other mandatory.” Anderson v. Yungkau,\\n\\n329 U.S. 482, 485 (1947) (citation omitted); accord O’Donnell v. Durham, 573\\n\\nS.E.2d 23, 24 (Ga. 2002) (“‘Shall’ is generally construed as a word of mandatory\\n\\nimport.”). A district court has no discretion to decline the prevailing party’s\\n\\nrequest under § 9-11-68(e) if the party makes it. The district court thus erred in\\n\\ndenying Showan’s motion.\\n\\n Defendants contend any error was harmless, see Rule 61 of the Federal\\n\\nRules of Civil Procedure,14 because Showan failed to make any showing of\\n\\n\\n 14\\n “Unless justice requires otherwise, no error in admitting or excluding evidence—or any\\nother error by the court or a party—is ground for granting a new trial, for setting aside a verdict,\\nor for vacating, modifying, or otherwise disturbing a judgment or order.” Fed. R. Civ. P. 61.\\n 33\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 34 of 35\\n\\n\\nfrivolity. In light of the mandatory language of the statute, we decline to comment\\n\\non this contention. Showan had a statutory entitlement to the hearing, and denying\\n\\nher that hearing affected her substantial rights. Moreover, whether Showan\\n\\ndemonstrated that Defendants acted frivolously is a matter for the finder of fact\\n\\nunder Georgia law.\\n\\n Defendants further contend that there is no need for an entirely new trial.\\n\\nThey argue that “under Georgia law, attorney’s fees are a distinct and ancillary\\n\\naward, determination of which should not disrupt a judgment on the merits.” But\\n\\nDefendants’ argument proves too much. Any award under § 9-11-68(e) is\\n\\nancillary to the judgment precisely because it is based on the losing party’s conduct\\n\\nduring the course of the litigation that led to that judgment. A new factfinder\\n\\nwould be blind to that conduct. Because the statute requires the prevailing party to\\n\\nmove for a hearing “at the time the verdict or judgment is rendered,” it plainly\\n\\ncontemplates that arguments regarding frivolity belong before the same factfinder\\n\\nthat renders the underlying verdict or judgment.\\n\\n Nor are we persuaded by Defendants’ citation to Richardson v. Locklyn, 793\\n\\nS.E.2d 640 (Ga. Ct. App. 2016), where the court examined O.C.G.A. § 9-11-\\n\\n\\n\\n\\n“At every stage of the proceeding, the court must disregard all errors and defects that do not\\naffect any party’s substantial rights.” Id.\\n 34\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 35 of 35\\n\\n\\n68(d)15 and concluded it could remand for a hearing only on attorney’s fees rather\\n\\nthan a new trial. 793 S.E.2d at 644. Fees under § 9-11-68(d) are awarded by the\\n\\ncourt; fees under § 9-11-68(e) are awarded by the finder of fact. That the same\\n\\nstatute specifically differentiates between who awards fees in different\\n\\ncircumstances serves only to strengthen our conclusion.\\n\\n The district court erred in determining “as a matter of law” that the pleadings\\n\\nwere not frivolous. Georgia has made clear that such a determination is for the\\n\\nfinder of fact. It has also made clear that the prevailing party has a right to a\\n\\nhearing if it requests one. Because the statute requires the same factfinder at both\\n\\nthe trial on the merits and the hearing on frivolity, Showan is entitled to a new trial\\n\\nand the opportunity, if she prevails again, to move for a hearing under § 9-11-\\n\\n68(e).\\n\\n VIII. CONCLUSION\\n\\n We AFFIRM in part, VACATE in part, and REMAND for a new trial\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\n 15\\n We discuss the substantive differences between the statutory subsections further in note\\n9.\\n 35\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391716/\", \"author_raw\": \"BRANCH, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"BRANCH"},"judge3":{"kind":"string","value":"ANDERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614463/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Galawezh SHOWAN, Plaintiff-Appellant, v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees, Penske Truck Leasing Co., L.P., Defendant.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-15547 Date Filed: 04/29/2019 Page: 1 of 35\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-15547\n Non-Argument Calendar\n ________________________\n\n D.C. Docket No. 1:16-cv-00468-ODE\n\n\n\nGALAWEZH SHOWAN,\n\n Plaintiff - Appellant,\n\n versus\n\nPATRICK PRESSDEE,\nKRISPY KREME DOUGHNUT CORPORATION,\n\n Defendants - Appellees,\n\nPENSKE TRUCK LEASING CO., L.P.,\n\n Defendant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n ________________________\n\n (April 29, 2019)\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 2 of 35\n\n\nBefore WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.\n\nBRANCH, Circuit Judge:\n\n Plaintiff Galawezh Showan appeals from her $330,000 jury verdict against\n\nDefendants Patrick Pressdee and Krispy Kreme Doughnut Corporation (“Krispy\n\nKreme”). For the reasons that follow, we affirm in part, vacate in part, and remand\n\nfor a new trial.\n\n I. GENERAL BACKGROUND\n\n A. Facts and Procedural History\n\n On April 27, 2015, Pressdee, an employee of Krispy Kreme, was driving in\n\nthe course of his employment when he rear-ended Showan while she was stopped\n\nat a red light. Pressdee was travelling at 35–40 mph when he collided with\n\nShowan, causing her vehicle to hit the vehicle in front of it. On May 5, 2015,\n\nKrispy Kreme issued Pressdee a corrective action report that acknowledged\n\nPressdee “was at fault” for the accident. Krispy Kreme’s insurance claim summary\n\nprepared on May 8, 2015, indicates Showan was “0%” negligent.\n\n Showan had serious injuries and was transported by EMS to the emergency\n\nroom. She sustained a whiplash-type injury to her cervical spine, wrist swelling,\n\nand facial bruising with a minor laceration. Showan also had previous back issues,\n\nwhich she contends the accident exacerbated. Her back issues were “noticeably\n\nimproved” following back surgery that preceded the accident. However, post-\n\n\n 2\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 3 of 35\n\n\naccident, Showan asserts she is “in pain twenty-four hours a day, not only in her\n\nback but in her head, neck, wrist, and legs.”\n\n Showan works as a cashier at Walmart, as she did before the accident. A\n\nWalmart cashier is required to stand and walk to assist customers, although sitting\n\non a stool is sometimes permitted. Showan now needs to use the stool more\n\nfrequently, which limits her to working only in the “express line” checkout lanes.\n\nCashiers working in the express lanes can sit more often than cashiers who work\n\nthe self-checkout stations, as the self-checkout cashiers must move around to assist\n\ncustomers as needed. Showan alleges she will be unable to work while recovering\n\nfrom potential future medical treatment.\n\n On October 19, 2015, Showan filed a personal injury action in the State\n\nCourt of Gwinnett County, Georgia. Defendants removed to the United States\n\nDistrict Court for the Northern District of Georgia.1\n\n When Defendants answered, they asserted that they breached no duty to\n\nShowan, that Showan was comparatively negligent, that Showan assumed the risk,\n\n\n\n 1\n The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1). “[D]iversity\njurisdiction is determined at the time of filing the complaint or, if the case has been removed, at\nthe time of removal.” Thermoset Corp. v. Bldg. Materials Corp. of Am., 849 F.3d 1313, 1317\n(11th Cir. 2017) (quoting PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1306 (11th Cir.\n2016)). Showan was domiciled in Georgia at the time of removal. This Court allowed the\nparties to supplement the record with an affidavit regarding Pressdee’s citizenship. Pressdee\nsays he was domiciled and served in North Carolina when this lawsuit was filed, and he has since\nmoved to Ohio. Krispy Kreme is incorporated in North Carolina, where it also has its principal\nplace of business. Thus, there was complete diversity at the time of removal.\n 3\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 4 of 35\n\n\nand that Showan’s alleged injuries “were not foreseeable.” Pressdee’s response to\n\nShowan’s request for admissions, dated January 21, 2016, similarly refused to\n\nadmit that his actions caused or contributed to the collision or that Showan suffered\n\ninjuries. At his April 27, 2016, deposition, however, Pressdee stated that he was\n\ndriving at 40 mph when he collided with Showan, who was stopped at a red light\n\nand did nothing to contribute to the collision.\n\n It was not until shortly before trial that Defendants moved, on July 25, 2017,\n\nto amend their answers “to streamline the issues to be tried.” The district court\n\ngranted the motion, subject to conditions. The court stated that “Defendants’\n\namended answer will not preclude Plaintiff from seeking attorneys’ fees and costs\n\npursuant to state law should she prevail at trial.” The court explained that the\n\ncondition was “appropriate because this case is eighteen months old and only now,\n\non the eve of trial, are Defendants willing to admit significant liability of which\n\nthey have arguably been aware since the collision at issue.” Further, the original\n\nanswers were to remain admissible for impeachment purposes at trial. Defendants\n\nthen filed their amended answers on August 17, 2017.\n\n B. Issues on Appeal\n\n\n\n\n 4\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 5 of 35\n\n\n The case proceeded to a jury trial that resulted in a $330,000 verdict for\n\nShowan. But Showan appeals, arguing several of the district court’s rulings\n\nthroughout the proceedings were erroneous. 2 The issues are as follows:\n\n 1. Showan alleges that, during Defendants’ opening remarks at trial,\n they improperly insinuated she was the reason the case did not\n settle. She argues the district court erred in not giving a curative\n instruction that she requested.\n\n 2. Defendants’ experts testified that Showan’s doctor charged too\n much for one of the surgeries she had following the accident.\n Showan contends this testimony violated the collateral source rule\n and Rule 403 of the Federal Rules of Evidence.\n\n 3. Showan contends that Defendants misled the jury into believing\n that Showan’s doctor was the only person present in the operating\n room during the surgery, which may have in turn misled jurors into\n believing the doctor overcharged for the surgery. Citing the rule of\n completeness, Showan offered the entire record of treatment at the\n surgical center where the procedure was performed. The district\n court disallowed the evidence, which Showan argues was error.\n\n 4. During closing argument, Showan’s counsel invited the jury to\n measure Showan’s damages on a per-hour basis. The district court\n interjected, telling him not to make a unit-of-time damages\n argument. Showan argues that such an argument is allowed and\n that the district court’s admonishment was highly prejudicial.\n\n 5. Defendants successfully convinced the district court to grant\n judgment as a matter of law on Showan’s lost future wages\n damages claim, finding the evidence—to the extent any existed—\n was too speculative to support the claim. Showan disagrees.\n 2\n “Ordinarily, only a party aggrieved by a judgment or order of a district court may\nexercise the statutory right to appeal therefrom. A party who receives all that he has sought\ngenerally is not aggrieved by the judgment affording the relief and cannot appeal from it.”\nDeposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980). Showan is an\naggrieved party because the district court did not submit her request for attorney’s fees and\nexpenses to the jury.\n 5\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 6 of 35\n\n\n\n\n 6. Showan argues that the district court erred in denying, as a matter\n of law, her motion to have the jury assess her attorney’s fees under\n a Georgia statute. She contends the statute required the court to\n hold a hearing on frivolity.\n\n The sixth issue presented is, as the saying goes, last but not least. As\n\nexplained below, a new trial is necessary because Georgia law required the district\n\ncourt to submit Showan’s motion for fees to the jury. The district court’s failure to\n\ndo so is dispositive and requires us to vacate and remand for a new trial. In the\n\ninterest of judicial economy, we consider Showan’s other arguments. For ease of\n\nreference, we address each issue separately, tracking the chronological course of\n\nthe proceedings in the district court, and include relevant corresponding facts as we\n\ndo so.\n\n II. REFERENCES TO SETTLEMENT\n\n A. Defendants’ Motion in Limine and Opening Statement\n\n Defendants moved in limine to exclude “evidence regarding the manner of\n\nlitigation up to the time of trial.” Specifically, they asked the district court to\n\n“exclude reference to disputes before trial, including disputes, motions, and court\n\norders on discovery or motions in limine.” Further, they moved in limine, under\n\nRule 609 of the Federal Rules of Evidence (presumably they meant Rule 408), 3 to\n\n\n 3\n Rule 609 concerns “attacking a witness’s character for truthfulness by evidence of a\ncriminal conviction.” Rule 408 addresses the admissibility of evidence regarding compromise\noffers and negotiations, and it is typically used to exclude evidence of settlement negotiations.\n 6\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 7 of 35\n\n\nexclude evidence of settlement negotiations or discussions. The district court\n\ngranted the motions.\n\n Yet at trial, Defendants began their opening statement by referring to\n\nsettlement:\n\n Most cases don’t make it this far. They don’t come to trial. The\n parties work really hard to get their cases resolved before they get to\n this point. We don’t want to waste the time of the jurors. We don’t\n want to waste the time of the court.\n ...\n There are certain things we can agree on, and I’m going to go through\n those with you quickly, and then the things that are sticking points\n that we can’t agree on.\n ...\n Krispy Kreme Donut Corporation admitted responsibility for the\n cause of the collision. We admit that Mr. Pressdee was working for\n us at the time. So no issues regarding that. We also acknowledge that\n Ms. Showan didn’t do anything to cause this collision, not a single\n thing.\n ...\n We also agree . . . this was a serious impact.\n\nShowan objected immediately, and the district court overruled the objection. After\n\nDefendants concluded their opening, during a recess, Showan requested a curative\n\ninstruction. In essence, Showan argued that Defendants had insinuated that she\n\nwas to blame for the case not settling, in light of their stated willingness to admit\n\nliability. She urged the court to inform the jury that Defendants had not admitted\n\nliability until shortly before the trial. The district court refused to do so, finding\n\nthat Defendants’ statement was accurate at the time it was made and that an\n\ninstruction “would be too heavy-handed.”\n 7\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 8 of 35\n\n\n B. Whether the District Court Should Have Given a Curative Instruction\n\n Showan argues on appeal that the trial “proceed[ed] with an improperly\n\ninfluenced or tainted jury.”\n\n “We review a district court’s evidentiary rulings for abuse of discretion.”\n\nProctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349 n.7 (11th Cir. 2007). “Errors\n\nin evidentiary rulings are not grounds for reversal unless substantial prejudice\n\nresults.” Peterson v. Willie, 81 F.3d 1033, 1036 (11th Cir. 1996) (quoting King v.\n\nGulf Oil Co., 581 F.2d 1184, 1186 (5th Cir. 1978)). “Statements made in oral\n\narguments must be plainly unwarranted and clearly injurious to constitute\n\nreversible error.” Id.\n\n The district court did not abuse its discretion in not providing a curative\n\ninstruction. It is arguable that some of the opening statement was unwarranted—\n\nand somewhat disingenuous in light of Defendants’ motion in limine on the issue.\n\nBut the statement was not clearly injurious to Showan. Indeed, although the\n\ndistrict court did not give a curative instruction to the jury, it did allow Showan to\n\ncontradict any insinuation of Defendants’ previous graciousness during the\n\nlitigation. Showan requested, over Defendants’ objection, that she be allowed to\n\nuse Pressdee’s initial denial of liability. Notably, the district court granted this\n\nrequest. The ability to mount a direct attack on Defendants’ counsel’s opening\n\n\n\n\n 8\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 9 of 35\n\n\nremarks was sufficient to counteract any injury from Defendants’ indirect\n\nsuggestion in the opening statement.\n\n Nor did the comments in the opening statement violate Rule 408 of the\n\nFederal Rules of Evidence. That rule prohibits introducing evidence of actual\n\nsettlement offers or negotiations for certain prohibited purposes. Defendants’\n\ncounsel’s opening statement did not refer to evidence of any specific offers to\n\nsettle or compromise; it observed generally what happens in “[m]ost cases.”\n\n We therefore find no reversible error in the district court’s ruling on\n\nDefendants’ counsel’s opening statement. 4\n\n III. EVIDENCE OF MEDICAL RATES\n\n A. Defendants’ Medical-Rate Experts\n\n On February 9, 2016, as part of her treatment following the accident,\n\nShowan had a discectomy—back surgery that involves local anesthetic to remove\n\nlumbar disc material. Showan’s doctor charged $173,213 for the surgery. He also\n\ncharged a facility fee of $80,768.5\n\n Defendants believed those charges were excessive and sought to prove it\n\nthrough the testimony of medical billing experts, Lamar Blount and Jessica\n\n\n\n\n 4\n As we ultimately remand this case for a new trial, the district court can nonetheless\nrevisit the issue as necessary.\n 5\n During closing argument, Showan said these bills were actually for higher amounts.\nWe need not resolve this discrepancy in this appeal.\n 9\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 10 of 35\n\n\nSchmor. Showan was uninsured, and Blount and Schmor relied on average rates\n\nthat included those subsidized by the government or private insurers. Blount\n\ntestified that, based on databases for doctors in the same area, the 90th percentile\n\ncharge for the same procedure would be $20,688. The 80th percentile for a facility\n\nfee would be $27,144. Schmor testified that the doctor’s billing practices were\n\nhighly unusual and potentially unethical: “You do not see facility charges being\n\nbilled on an itemization from a physician’s practice. They’re completely separate\n\nentities, and they’re different bills. . . . [T]o see a facility charge on a physician\n\nbill is highly unlikely. . . . I’ve only seen it in two practices”—Showan’s doctor\n\nand that doctor’s previous partner. Schmor also expressed skepticism regarding\n\nsuch charges from an ambulatory surgery center like the one where Showan had\n\nher surgery.\n\n Showan moved in limine to exclude this testimony. Showan contended the\n\ntestimony violated the collateral source rule, which prohibits evidence of an\n\ninsurance company’s payments to a tort victim. Showan argues that Blount and\n\nSchmor were suggesting that her medical bills were “too high because Medicare,\n\nthe VA, or Acme Insurance Company thinks so, and/or they do not pay as much\n\nfor the treatment [she] had.” “In other words, Defendants [were] employing a\n\nback-door tactic that [sought] to indirectly accomplish what the Collateral Source\n\nRule would never permit them to do directly.” Showan further argued that the\n\n 10\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 11 of 35\n\n\ntestimony violated Rule 403 of the Federal Rules of Evidence because it was\n\nirrelevant, prejudicial, and confusing in light of the fact that she did not receive any\n\nassistance from any government or other health insurer in paying her medical bills.\n\n The district court rejected Showan’s arguments, finding the testimony was\n\nnot offered to show what Showan would have received from an insurer. 6 The\n\ndistrict court explained that “there is a difference between presenting evidence of\n\ndiscounted rates a plaintiff could receive on [] medical costs based on the\n\nplaintiff’s specific access to certain advantages, and evidence of market rates as a\n\nwhole.” The court found the testimony in question was offered to show whether\n\nthe medical bills were reasonable and allowed it.\n\n B. Whether the District Court Properly Admitted the Testimony\n\n On appeal, Showan reiterates her motion-in-limine arguments. She contends\n\nthe district court should not have admitted the testimony. Again, we “review a\n\ndistrict court’s evidentiary rulings for abuse of discretion.” Proctor, 494 F.3d at\n\n1349 n.7.\n\n Under Georgia law, a tort victim is “entitled to recover medical expenses\n\narising from his injuries, including hospital charges, that [are] ‘reasonable and\n\nnecessary.’” MCG Health, Inc. v. Kight, 353, 750 S.E.2d 813, 817 (Ga. Ct. App.\n\n\n\n 6\n The district court also acknowledged that, if the testimony had been offered for this\nreason, it would have been improper under the collateral source rule.\n 11\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 12 of 35\n\n\n2013) (quoting Allen v. Spiker, 689 S.E.2d 326, 329 (Ga. Ct. App. 2009)).\n\n“Moreover, under the collateral source rule, [the victim is] entitled to seek full\n\nrecovery from the tortfeasor of reasonable and necessary hospital charges\n\nundiminished by [the victim’s] insurance payments or ‘write-offs.’” Id. In other\n\nwords, the “collateral source rule bars the defendant from presenting any evidence\n\nas to payments of expenses of a tortious injury paid for by a third party and taking\n\nany credit toward the defendant’s liability and damages for such payments.”\n\nHoeflick v. Bradley, 637 S.E.2d 832, 833 (Ga. Ct. App. 2006). “This is because a\n\ntortfeasor is not allowed to benefit by its wrongful conduct or to mitigate its\n\nliability by collateral sources provided by others.” Id.\n\n Blount’s and Schmor’s testimony did not violate the collateral source rule.\n\nTheir testimony addressed the reasonableness and necessity of what Showan had\n\npaid for her discectomy. Whether the expenses were “reasonable and necessary” is\n\na critical inquiry under Georgia law. Kight, 750 S.E.2d at 817.\n\n For that reason, Defendants were properly allowed to argue that medical\n\ncharges were unreasonably high. They did not try to get any “credit” from the jury\n\nbased on payments that Showan had received. See Hoeflick, 637 S.E.2d at 833.\n\nIndeed, Showan, who is uninsured, says she received no such payments. Showan’s\n\nargument thus fundamentally misinterprets the collateral source rule. She contends\n\nthat the district court should have excluded evidence not of what was paid but of\n\n 12\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 13 of 35\n\n\nwhat might have been paid had she obtained insurance. Defendants were not\n\ntrying to introduce such evidence.\n\n Showan’s Rule 403 argument also fails. As noted above, Georgia law\n\npermits testimony regarding whether medical expenses are reasonable and\n\nnecessary. And to the extent Showan suggests that the testimony of Blount and\n\nSchmor was misleading, she could have offered her own expert testimony to\n\ndisagree with or supplement their testimony. If Showan believed the “volume\n\ndiscounts,” as she describes them, did not apply to her, she could have attempted to\n\nconvince the jury of that. But the district court did not err in allowing Defendants’\n\nexperts to give the jury a picture of what most doctors in the area charge for a\n\ndiscectomy.\n\n Accordingly, the district court did not abuse its discretion in admitting the\n\ntestimony of Blount and Schmor.\n\n IV. MEDICAL RECORDS\n\n Defendants also allegedly attacked another element of Showan’s\n\ndiscectomy. Showan asserts on appeal that “[d]uring trial, Defendants falsely\n\nargued that only one provider was present during the recorded procedure, which\n\nwould imply that the associated bill charged well-over what the services should\n\ncost.” Showan does not point us to where Defendants made this one-provider\n\nargument, and Defendants dispute having made it.\n\n 13\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 14 of 35\n\n\n Showan did not designate the surgical records in her pretrial exhibits, and\n\nDefendants accordingly objected to her introducing those records. Showan\n\ncontends she should have been able to supplement the portion the Defendants\n\nintroduced, see Fed. R. Evid. 106, so that Defendants’ excerpt did not mislead the\n\njury.\n\n Because we remand for a new trial, and because that new trial will involve\n\nnew pretrial exhibit designations, we need not resolve this dispute or opine on this\n\nissue.\n\n V. ADMONISHMENT DURING CLOSING ARGUMENT\n\n A. Showan Argues for Damages Measured by the Hour\n\n Showan’s counsel had the following exchange with the district court during\n\nhis initial closing argument:\n\n [COUNSEL]: [W]hen you have pain like this in your neck, worse in\n lower back, in your wrist, when you have the headaches, that’s an\n everyday thing, and it’s certainly an every hour thing, and so we ask\n you to take that into consideration for her future, and, again, all\n caused by the Krispy Kreme truck collision. If it wasn’t, we wouldn’t\n be here.\n We ask for full justice and full compensation, and we want you to do\n it in a way that makes sense. Because she suffers pain all the time,\n what is the value of one hour? Well –\n THE COURT: You cannot make a unit of time argument.\n [COUNSEL]: Pardon me.\n THE COURT: You may not make a unit of time argument. Let’s see,\n what is the value of one hour –\n [COUNSEL]: Yes.\n THE COURT: – You can’t make an argument about what the value\n of one hour’s worth of pain is. That is not permissible.\n 14\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 15 of 35\n\n\n [COUNSEL]: . . . May I argue this, your honor, to the jury, may I\n ask them to take into consideration that she’s 52 years old, and under\n the annuity mortality table she has 27.22 years to live?\n THE COURT: Absolutely, that’s absolutely legitimate.\n\n During closing rebuttal argument, Showan’s counsel again argued that jurors\n\ncould “do the math” on Showan’s pain and suffering down to the hour:\n\n We say and the judge will tell you it is your decision to decide what to\n do here. She’s got to live with this for the rest of her life. What\n Krispy Kreme did to her, she’s got to live with it for the rest of her\n life, and I do ask you not to pull some numbers out of a hat. I ask you\n to do math. You are allowed to do math as jurors and say how many\n days is it, how many hours is it. Try 525 dollars an hour,[7] see what\n you get.\n\n Defendants’ counsel objected, and the district court reiterated its instruction\n\nnot to pursue that line of argument: “Yeah, you can’t argue that the projection is\n\nthat the plaintiff will suffer pain for every minute of every hour from now forward\n\nand do a multiplier based on that, that’s just not allowable under the law.”\n\n B. Whether Showan’s Closing Argument Was Improper\n\n Showan argues that Georgia law permits her to have made a “per diem\n\nargument” regarding damages and that the district court’s admonishment was\n\nprejudicial, reversible error.\n\n This circuit permits unit-of-time damages arguments. Baron Tube Co. v.\n\nTransp. Ins. Co., 365 F.2d 858, 864 (5th Cir. 1966) (en banc). The “idea or worth\n\n\n 7\n On appeal, Showan suggests this number was supposed to be $5.25 per hour. Perhaps it\nwas a misstatement at trial or a typographical error in the transcript.\n 15\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 16 of 35\n\n\nof one year of pain may not be as understandable, real or persuasive to a juror as its\n\nequivalent, three hundred and sixty five days of pain and suffering.” Id. at 865.\n\n“Whether the unit be cast in years or months, or weeks or days is a mere matter of\n\ndegree, and there is little logic in prohibiting the discussion of large units of time in\n\nterms of their smaller mathematical equivalents.” Id. But precautions are in order:\n\nthe district “court must use care to the end that the argument will not inflame the\n\njury and result in an excessive verdict.” Id. at 864.8 Ultimately, “whether to allow\n\nsuch an argument and the protective features to be employed are matters vested, in\n\nthe end, in the sound discretion of the trial court.” Id. at 864–65 (emphasis added).\n\n Further, it is irrelevant that Georgia law allows unit-of-time arguments, see\n\nHardwick v. Price, 152 S.E.2d 905, 907–08 (Ga. Ct. App. 1966), because we are\n\nbound by the holding that “the propriety of the [unit-of-time] argument is a federal\n\nquestion. It is a matter of federal trial procedure.” Baron Tube Co., 365 F.2d at\n\n862. In sum, Baron Tube Co. leaves the question of whether to allow a unit-of-\n\ntime argument wholly to the discretion of the district court.\n\n The district court’s statement that Showan’s unit-of-time argument was “not\n\nallowable under the law” was incorrect, as the district court has complete\n\ndiscretion to disallow the argument or to allow it subject to safeguards. See id. at\n\n\n 8\n The court noted some potential safeguards, including notifying opposing counsel and\nthe district court in advance; scrutinizing any charts used to avoid false impressions; and making\nclear to the jury that the argument is not evidence. Baron Tube Co., 365 F.2d at 865.\n 16\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 17 of 35\n\n\n864–65. Because the district court erroneously concluded it had no discretion, it\n\nnecessarily abused that discretion. Cf. LSLJ P’ship v. Frito-Lay, Inc., 920 F.2d\n\n476, 479 (7th Cir. 1990) (A “trial court may abuse its discretion by failing to\n\nexercise its discretion.” (quoting FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7th\n\nCir. 1990)). At the new trial, the district court should, under Baron Tube Co.,\n\nexpressly exercise its discretion to allow or disallow any proffered unit-of-time\n\ndamages argument.\n\n VI. CLAIM FOR FUTURE LOST INCOME\n\n A. The Pre-Jury Deliberation Grant of Judgment as a Matter of Law\n\n At the close of evidence, Defendants moved for judgment as a matter of law\n\non Showan’s claim for future lost wages. Defendants did not contest the wages\n\nShowan lost while being treated by her physicians; rather, they argued that she\n\nfailed to demonstrate “reduction in ability to work” and thus is not entitled to\n\nfuture lost wages. Although Showan’s hours had been reduced, she was still\n\nworking full time. To explain the reduction in hours, Defendants noted that\n\nShowan (1) was aware that there was a nationwide reduction in hours (but with an\n\naccompanying increase in pay) at Walmart, and (2) “was never told by anyone that\n\nher reduction in hours was due to her accident or her injuries.” Showan’s\n\nsupervisor “was also unaware of any kind of medical restrictions” that prevented\n\nShowan from working full time.\n\n 17\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 18 of 35\n\n\n Showan responded by emphasizing the permanence of her injury and\n\nreiterating her inability to work in the same manner as before the accident. She\n\nhad to sit more frequently on the stool, and she could no longer work the regular\n\ncheckout aisle. And again, although she conceded that she is working full time\n\nnow, she argued, “now is not future lost wages.” Further, because Showan will\n\nlikely need surgery in the future (though it was disputed whether she would have\n\nhad that surgery regardless of the accident), she will be out of work for that\n\nrecovery.\n\n The district court granted Defendants’ motion for judgment as a matter of\n\nlaw. It explained, “I do agree that the evidence, to the extent there is any,\n\nconcerning the plaintiff’s inability to work in the future is entirely speculative.”\n\n B. Whether the Future Lost Wages Claim Should Have Gone to the Jury\n\n Showan argues there was sufficient evidence to submit her future lost wages\n\nclaim to the jury.\n\n We review de novo the granting of a motion for judgment as a matter of law,\n\n“considering only the evidence that may properly be considered and the reasonable\n\ninferences drawn from it in the light most favorable to the nonmoving party.”\n\nRossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). “Where ‘no\n\nlegally sufficient evidentiary basis exists for a reasonable jury to find for that party\n\non that issue,’ judgment as a matter of law is proper.” Id. (quoting 12 Moore’s\n\n 18\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 19 of 35\n\n\nFederal Practice § 59.50[5] (3d ed. 1998)); accord Fed. R. Civ. P. 50(a)(1) (A\n\ndistrict court may grant judgment as a matter of law on an issue if “a party has\n\nbeen fully heard on [the] issue during a jury trial and the court finds that a\n\nreasonable jury would not have a legally sufficient evidentiary basis to find for the\n\nparty on that issue.”).\n\n Under Georgia law, “[l]ost wages and earnings is recoverable where the\n\nevidence shows the amount of loss with reasonable certainty.” Olariu v. Marrero,\n\n549 S.E.2d 121, 124 (Ga. Ct. App. 2001). “Loss of future earnings is recoverable\n\nwhere evidence is presented on the permanency of plaintiff’s injury, the effect of\n\ninjury on earnings, and the monetary amount thereof.” Id.\n\n Even when viewed in the light most favorable to Showan, no reasonable jury\n\ncould have awarded her lost future wages under Georgia law. Even if her injury is\n\npermanent, there is no evidence that the injury affected her ability to earn the same\n\nincome as before she was injured. She is still able to work full time as a cashier at\n\nWalmart, even if her exact duties have changed. Moreover, Showan has failed to\n\nquantify the amount of her loss. It is true that “all future earnings or diminished\n\nfuture earnings are uncertain and difficult of ascertainment.” Michaels v. Kroger\n\nCo., 322 S.E.2d 903, 908 (Ga. Ct. App. 1984). But that does not absolve a plaintiff\n\nof the burden of putting forth some evidence of diminished earning capacity.\n\nShowan was required to provide “evidence to show [her] capacity to labor and earn\n\n 19\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 20 of 35\n\n\nmoney has been permanently impaired.” Id.; see also Schriever v. Maddox, 578\n\nS.E.2d 210, 212 (Ga. Ct. App. 2003) (“We have repeatedly held that a court’s\n\ninstructing a jury on lost earnings as a category of recoverable damages is\n\nreversible error where the plaintiff has not presented evidence of the degree to\n\nwhich the injury reasonably affected the plaintiff’s past and future income.”). The\n\nrelevant evidence in this case shows that Showan worked full time as a cashier\n\nbefore the accident and that she worked full time as a cashier after the accident.\n\nAdmittedly, Showan must sit more frequently on a stool, but it is undisputed that\n\nshe gets paid the same amount when she must sit. To the extent she will need\n\nfuture medical care that will cause her to take time off work, she similarly fails to\n\ndemonstrate with reasonable certainty either the amount of time she will need to\n\ntake off or the loss she will suffer as a result.\n\n We find no Georgia case that would permit recovery of lost future wages\n\nunder such tenuous and speculative circumstances. We therefore affirm the district\n\ncourt’s grant of judgment as a matter of law regarding the claim for lost future\n\nwages.\n\n VII. CLAIM FOR ATTORNEY’S FEES UNDER GEORGIA LAW\n\n A. Defendants’ Allegedly Frivolous Defenses\n\n Showan argued to the district court that she was entitled to attorney’s fees\n\nunder Georgia law. She claimed that Defendants presented frivolous defenses and\n\n 20\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 21 of 35\n\n\nacted in bad faith during the litigation. She maintains on appeal, for example, that\n\nDefendants raised the affirmative defenses of comparative negligence and\n\nassumption of risk—despite knowing Pressdee was completely at fault. Showan\n\npoints to the corrective action report that attributed fault to Pressdee and to Krispy\n\nKreme’s insurance claim that found Showan was “0%” negligent—both of which\n\nwere prepared within days of the accident. As Showan puts it, “It was not until the\n\neve of trial, and after Plaintiff was forced to conduct discovery and mediation\n\nunder Defendants’ false pretenses, that Defendants moved to amend their Answers\n\nto recant these frivolous claims and defenses.”\n\n Georgia has codified its disfavor of frivolous claims and defenses in tort\n\ncases. Under O.C.G.A. § 9-11-68(e): 9\n\n Upon motion by the prevailing party at the time that the verdict or\n judgment is rendered, the moving party may request that the finder of\n fact determine whether the opposing party presented a frivolous claim\n or defense. In such event, the court shall hold a separate bifurcated\n hearing at which the finder of fact shall make a determination of\n whether such frivolous claims or defenses were asserted and to award\n damages, if any, against the party presenting such frivolous claims or\n defenses.\n\nThe statute also defines frivolous claims and defenses:\n\n Frivolous claims shall include, but are not limited to, the following:\n\n 9\n Section 9-11-68 is known as Georgia’s “offer-of-settlement” statute. See Richardson v.\nLocklyn, 793 S.E.2d 640, 641 (Ga. Ct. App. 2016). Subsection (e), at issue here, covers\n“completely separate issues” from those in the rest of the section: “Subsections (a) through (d)\ngovern offers of settlement, while subsection (e) governs damages for frivolous claims or\ndefenses.” Id. at 644.\n 21\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 22 of 35\n\n\n (A) A claim, defense, or other position that lacks substantial\n justification or that is not made in good faith or that is made\n with malice or a wrongful purpose, as those terms are defined\n in Code Section 51-7-80;\n (B) A claim, defense, or other position with respect to which\n there existed such a complete absence of any justiciable issue of\n law or fact that it could not be reasonably believed that a court\n would accept the asserted claim, defense, or other position; and\n (C) A claim, defense, or other position that was interposed for\n delay or harassment.\n\nId. § 9-11-68(e)(1). Finally, the statute provides, “Damages awarded may include\n\nreasonable and necessary attorney’s fees and expenses of litigation.” Id. § 9-11-\n\n68(e)(2).\n\n Showan argued that § 9-11-68(e) applied in her case and that she was\n\nentitled to a separate hearing upon a favorable jury verdict. Although the district\n\ncourt initially seemed to entertain the idea, it ultimately disagreed. While the jury\n\nwas deliberating, the court announced it would “dismiss” Showan’s claim for\n\nfees.10 The district court concluded that “the evidence shows as a matter of law\n\nthat the pleadings filed by the defendants were not frivolous” and that, in any\n\nevent, Showan was not prejudiced.\n\n B. Whether Federal Law or State Law Governs\n\n\n\n\n 10\n The district court was actually, in effect, preemptively denying the motion Showan\nwould need to make under § 9-11-68(e). Following the jury verdict, Showan made that motion,\npreserving it for appeal purposes.\n 22\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 23 of 35\n\n\n Showan argues she should have been able to submit to the jury, upon its\n\nfavorable verdict, her state-law claim for attorney’s fees. But Defendants contend\n\nfederal law—namely Rule 11 of the Federal Rules of Civil Procedure—conflicts\n\nwith and overrides her claim. They say Showan is not entitled to a bifurcated\n\nhearing because, in federal court, the judge—not the finder of fact—determines\n\nfrivolity.\n\n “We [] review de novo a district court’s determination and application of\n\nstate law in a diversity case.” Pendergast v. Sprint Nextel Corp., 592 F.3d 1119,\n\n1132 n.11 (11th Cir. 2010).\n\n When a state statute arguably conflicts with a Federal Rule of Civil\n\nProcedure, a federal court sitting in diversity jurisdiction will not apply the state\n\nstatute if the federal rule “answers the question in dispute.” Shady Grove\n\nOrthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority\n\nopinion). If a Federal Rule is “sufficiently broad to control the issue before the\n\nCourt,” Walker v. Armco Steel Corp., 446 U.S. 740, 749–50 (1980), “it governs . . .\n\nunless it exceeds statutory authorization” under the Rules Enabling Act or\n\n“Congress’s rulemaking power” under the Constitution. Shady Grove, 559 U.S. at\n\n398. “If no Federal Rule answers the question in dispute, we undertake an\n\n‘unguided Erie’11 inquiry to decide whether to apply the state statute or federal\n\n\n 11\n Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).\n 23\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 24 of 35\n\n\ncommon law.” Carbone v. Cable News Network, 910 F.3d 1345, 1349 (11th Cir.\n\n2018) (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). That choice-of-law\n\ninquiry requires us to “apply Erie and its progeny to determine ‘whether failure to\n\napply the state law would lead to different outcomes in state and federal court and\n\nresult in inequitable administration of the laws or forum shopping.’” Royalty\n\nNetwork, Inc. v. Harris, 756 F.3d 1351, 1358 (11th Cir. 2014) (quoting Burke v.\n\nSmith, 252 F.3d 1260, 1265 (11th Cir. 2001)).\n\n 1. The Scopes of O.G.C.A § 9-11-68(e) and Rule 11 of the Federal Rules of\n\n Civil Procedure\n\n Under the applicable framework, federal courts exercising diversity\n\njurisdiction must apply O.C.G.A. § 9-11-68(e). The question in dispute is whether\n\nShowan is entitled to compensatory damages, including attorney’s fees and\n\nlitigation expenses, for the injury she purportedly suffered as a result of\n\nDefendants’ alleged frivolous litigation conduct. Rule 11 does not answer this\n\nquestion.\n\n Rule 11(b) provides:\n\n By presenting to the court a pleading, written motion, or other paper\n . . . an attorney or unrepresented party certifies that to the best of the\n person’s knowledge, information, and belief, formed after an inquiry\n reasonable under the circumstances:\n (1) it is not being presented for any improper purpose, such as\n to harass, cause unnecessary delay, or needlessly increase the\n cost of litigation;\n\n 24\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 25 of 35\n\n\n (2) the claims, defenses, and other legal contentions are\n warranted by existing law or by a nonfrivolous argument for\n extending, modifying, or reversing existing law or for\n establishing new law;\n (3) the factual contentions have evidentiary support or, if\n specifically so identified, will likely have evidentiary support\n after a reasonable opportunity for further investigation or\n discovery; and\n (4) the denials of factual contentions are warranted on the\n evidence or, if specifically so identified, are reasonable based\n on the belief or a lack of information.\n\n If an attorney or unrepresented party breaches its duty under Rule 11(b) by\n\nfiling a pleading that fails to comply with any of the substantive standards of that\n\nrule, Rule 11(c) kicks in. The applicable sections of Rule 11(c) provide:\n\n If, after notice and a reasonable opportunity to respond, the court\n determines that Rule 11(b) has been violated, the court may impose an\n appropriate sanction on any attorney, law firm, or party that violated\n the rule or is responsible for the violation.\n ***\n A sanction imposed under this rule must be limited to what suffices to\n deter repetition of the conduct or comparable conduct by others\n similarly situated. The sanction may include nonmonetary directives;\n an order to pay a penalty into court; or, if imposed on motion and\n warranted for effective deterrence, an order directing payment to the\n movant of part or all of the reasonable attorney’s fees and other\n expenses directly resulting from the violation.\n\nFed. R. Civ. P. 11(c)(1), (4). Rule 11(c)(1) licenses the court to “impose an\n\nappropriate sanction” on an attorney or unrepresented party “after notice and a\n\nreasonable opportunity to respond.” “A sanction imposed under [Rule 11] must be\n\nlimited to what suffices to deter repetition of the conduct or comparable conduct by\n\nothers similarly situated.” Fed. R. Civ. P. 11(c)(4). If an opposing party moved\n 25\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 26 of 35\n\n\nfor sanctions, Rule 11(c)(4) permits a court to issue “an order directing payment to\n\nthe movant of part or all of the reasonable attorney’s fees and other expenses” as a\n\nsanction for a violation of Rule 11(b). Id. But the order must be “warranted for\n\neffective deterrence,” and the attorney’s fees and expenses must “directly result[]\n\nfrom the violation” of Rule 11(b). Id.\n\n Rule 11 does not speak to whether a prevailing party is entitled to\n\ncompensatory damages to remedy any injury inflicted on the prevailing party by\n\nthe opposing party’s frivolous or bad-faith claims and defenses. Instead, Rule 11\n\nanswers the question whether punitive sanctions should be imposed on an attorney\n\nor unrepresented party for filing a “pleading, written motion, or other paper” that\n\nviolates the certification standards of Rule 11(b). In contrast, § 9-11-68(e) confers\n\non a prevailing party a right to potential compensation for injuries sustained as a\n\nresult of an opposing party’s decision to raise “a frivolous claim or defense.”\n\nO.C.G.A. § 9-11-68(e). It follows that § 9-11-68(e) does not “address the same\n\nsubject” as Rule 11. Cf. Shady Grove, 559 U.S. at 402.\n\n The remedy created by § 9-11-68(e) is more akin to a state-law claim for\n\nattorney’s fees. We have said such claims are unequivocally substantive for Erie\n\npurposes. See Trans Coastal Roofing Co., Inc. v. David Boland, Inc., 309 F.3d\n\n758, 760 (11th Cir. 2002); McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001)\n\n(“It is clear that statutes allowing for recovery of attorney’s fees are substantive for\n\n 26\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 27 of 35\n\n\nErie purposes.”). Yet, as we have noted, the statute does more than provide only\n\nfor attorney’s fees: it is designed to make whole, through “damages,” a party that\n\nhad to defend against a frivolous claim or overcome a frivolous defense. The\n\nfinder of fact determines whether a claim or defense was frivolous. Indeed, § 9-\n\n11-68(e) creates a special tort-like remedy, providing for a “separate bifurcated\n\nhearing at which the finder of fact shall make a determination of whether such\n\nfrivolous claims or defenses were asserted and to award damages, if any, against\n\nthe party presenting such frivolous claims or defenses.” Although a party may\n\nassert this “tort” only within an existing proceeding, the statute’s legal effect is still\n\nto create a substantive individual right under state law that does not purport to\n\nabrogate any procedural right conferred by the Federal Rules.\n\n Nor can it be said that “the purposes underlying” Rule 11 “are sufficiently\n\ncoextensive with the asserted purposes of the [Georgia] statute to indicate that the\n\nRule occupies the statute’s field of operation so as to preclude its application in\n\nfederal diversity actions.” Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7 (1987).\n\nShady Grove counsels against an “approach to determining whether state and\n\nfederal rules conflict based on the subjective intentions of the state legislature,”\n\n559 U.S. at 404, so we are concerned only with “the purpose” that can be “derived\n\nfrom the text” of Rule 11 and § 9-11-68(e) in conducting this inquiry. See Antonin\n\nScalia & Bryan A. Garner, Reading Law § 2, 56 (2012). Rule 11 imposes a duty\n\n 27\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 28 of 35\n\n\non attorneys and unrepresented parties to certify that, to the best of their\n\nknowledge, their filings are or will be supported by the evidence and the law and\n\nare not made for any “improper purpose.” Fed. R. Civ. P. 11(b). The rule allows\n\ncourts to enforce this duty through appropriate sanctions, with the aim of deterring\n\nfuture misconduct. See Fed. R. Civ. P. 11(c)(4) (“A sanction imposed under this\n\nrule must be limited to what suffices to deter repetition of the conduct or\n\ncomparable conduct by others similarly situated” and any award of “attorney’s fees\n\nand other expenses” must be “warranted for effective deterrence.”). Sometimes\n\nRule 11 sanctions are nonmonetary, and frequently they are penalties paid to the\n\ncourt rather than to the other party. Id. (“The sanction may include nonmonetary\n\ndirectives.”); Fed. R. Civ. P. 11(b) and (c) advisory committee’s note to 1993\n\namendment (“Since the purpose of Rule 11 sanctions is to deter rather than to\n\ncompensate, the rule provides that, if a monetary sanction is imposed, it should\n\nordinarily be paid into court as a penalty.”). 12\n\n In contrast, § 9-11-68(e) compensates prevailing parties for litigation costs\n\nand other injuries endured because of an opposing party’s decision to present\n\nmeritless or bad-faith claims or defenses. That compensatory purpose is why the\n\n\n\n\n 12\n The text of a given rule is what is authoritative. Nevertheless, “[h]aving been prepared\nby a body of experts, the Notes are assuredly persuasive scholarly commentaries—ordinarily the\nmost persuasive—concerning the meaning of the Rules.” Tome v. United States, 513 U.S. 150,\n167 (1995) (Scalia, J., concurring in part and concurring in the judgment).\n 28\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 29 of 35\n\n\nstatute says that a prevailing party that has been forced to defend against a\n\n“frivolous claim or defense” is entitled to “damages” that are not capped at what is\n\nrequired to deter comparable litigation conduct. See O.C.G.A. § 9-11-68(e).\n\n It follows that Rule 11 and § 9-11-68(e) have categorically distinct purposes.\n\nDeterrence is forward-looking and concerned with preventing future violations of a\n\nrule. Compensatory relief, in contrast, is backward-looking and aims “to place an\n\ninjured party in the same position as it would have been in had there been no\n\ninjury.” Action Marine, Inc. v. Continental Carbon, Inc., 481 F.3d 1302, 1316\n\n(11th Cir. 2007) (quoting Home Ins. Co. v. N. River Ins. Co., 385 S.E.2d 736, 742\n\n(Ga. 1989)). Rule 11 is not designed to make the movant whole for any and all\n\ninjuries sustained as a result of a frivolous filing, and any monetary sanctions one\n\nparty happens to receive from the other are incidental to the rule’s deterrent\n\npurpose.\n\n Defendants focus on Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th\n\nCir. 2014), where we examined the relationship between Rule 11 and another\n\nGeorgia statute, O.C.G.A. § 9-11-11.1(b) (1998). Section 9-11-11.1 is “Georgia’s\n\nanti-SLAPP [Strategic Lawsuits Against Public Participation] statute[, ] intended\n\nto protect its citizens from having their important First Amendment rights to free\n\nspeech and to petition the government chilled by the threat of being dragged into\n\nonerous judicial proceedings by improper or abusive tort claims.” Id. at 1357. At\n\n 29\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 30 of 35\n\n\nthe time of Royalty Network,13 the statute required, for claims that could\n\nconceivably be related to a person’s free-speech rights, that “both a plaintiff and\n\nplaintiff’s counsel [] file a written verification certifying that the claim is well\n\ngrounded in fact, is warranted under existing law, and . . . is not made for an\n\nimproper purpose.” 756 F.3d at 1354. Rule 11 requires counsel to sign a\n\nrepresented party’s pleadings, but it does not require the represented party to do so.\n\nSee Fed. R. Civ. P. 11(a). We thus concluded that § 9-11-11.1(b)’s “requirements\n\nfor filing a complaint or pleading directly conflict with the procedure for filing a\n\npleading specified in the federal rule, and the two may not peacefully co-exist or\n\noperate in the same case.” 756 F.3d at 1359–60. Section 9-11-11.(b) governed the\n\nprocedure for signing a pleading. But § 9-11-68(e) concerns something very\n\ndifferent: a hearing on damages incurred as a result of litigating against frivolous\n\nclaims, defenses, or positions. Royalty Network shines no light on this case.\n\n Finally, Defendants point us to Rule 11’s 21-day safe-harbor provision.\n\nThat provision provides that a motion for sanctions under Rule 11 “must not be\n\nfiled or be presented to the court if the challenged paper, claim, defense,\n\ncontention, or denial is withdrawn or appropriately corrected within 21 days after\n\nservice [of the challenged document] or within another time the court sets.” Fed.\n\n\n 13\n The statute was amended substantially in 2016. After this appeal was docketed, we\ndecided the revised statute also conflicted with portions of the Federal Rules of Civil Procedure.\nSee generally Carbone v. Cable News Network, 910 F.3d 1345 (2018).\n 30\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 31 of 35\n\n\nR. Civ. P. 11(c)(2). But the existence of this provision is irrelevant to our inquiry.\n\nOnly if the federal rules “answer[] the question in dispute,” Shady Grove, 558 U.S.\n\nat 398, do we concern ourselves with the extent to which a state law imposes\n\nrequirements different from the federal rules. For the reasons we have articulated,\n\nRule 11 does not control the dispute at issue. We conclude that there is no conflict\n\nbetween Rule 11 and § 9-11-68(e).\n\n 2. Erie Concerns\n\n We now move to the second part of the Hanna test and examine Erie’s\n\nconcerns about the potential for inequitable administration of justice and forum\n\nshopping. See Burke, 252 F.3d at 1265. Those concerns are acutely present here.\n\nIf we failed to recognize the right to a bifurcated hearing under § 9-11-68(e), a\n\ndefendant who removed a Georgia diversity tort case would divest plaintiffs of\n\ntheir right under Georgia law to have the finder of fact examine alleged frivolity\n\nand to recover the damages to which the statute entitles them. Cf. Fed. R. Civ. P.\n\n11(d) advisory committee’s note to 1993 amendment (“Rule 11 is not the exclusive\n\nsource for control of improper presentations of claims, defenses, or contentions. It\n\ndoes not supplant statutes permitting awards of attorney’s fees to prevailing parties\n\nor alter the principles governing such awards.”); Alyeska Pipeline Serv. Co. v.\n\nWilderness Soc’y, 421 U.S. 240, 260 n.31 (1975) (“[T]his Court [has] held that a\n\nstate statute requiring an award of attorneys’ fees should be applied in a case\n\n 31\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 32 of 35\n\n\nremoved from the state courts to the federal courts . . . . It would be at least\n\nanomalous if this policy could be thwarted and the right so plainly given destroyed\n\nby removal of the cause to the federal courts.” (quoting People of Sioux Cty. v.\n\nNat’l Sur. Co., 276 U.S. 238, 243 (1928)).\n\n ***\n\n Ultimately, we find no conflict between Rule 11 and § 9-11-68(e). They do\n\nnot “address the same subject.” Shady Grove, 559 U.S. at 402. Failure to allow\n\nfor § 9-11-68(e) hearings would induce forum shopping by defendants seeking to\n\navoid those hearings. We therefore hold that O.C.G.A. § 9-11-68(e) is substantive\n\nlaw that applies when federal courts exercise their diversity jurisdiction in tort\n\ncases governed by Georgia law. Because this case is such a case, the statute\n\napplies here.\n\n C. Whether the District Court Should Have Held a Bifurcated Hearing\n\n Having concluded that O.C.G.A. § 9-11-68(e) applies here, we next decide\n\nwhether Showan was entitled to the hearing she requested. We conclude she was\n\nso entitled.\n\n Section 9-11-68(e) provides, “Upon motion by the prevailing party at the\n\ntime that the verdict or judgment is rendered, the moving party may request that\n\nthe finder of fact determine whether the opposing party presented a frivolous claim\n\nor defense.” In other words, the prevailing party may move, at the time of the\n\n 32\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 33 of 35\n\n\nverdict or entry of judgment, for the finder of fact determine the frivolity of the\n\nother side’s claim or defenses. “In such event, the court shall hold a separate\n\nbifurcated hearing at which the finder of fact shall make a determination of\n\nwhether such frivolous claims or defenses were asserted and to award damages, if\n\nany, against the party presenting such frivolous claims or defenses.” Id. (emphasis\n\nadded). The statute uses the permissive “may” when describing the prevailing\n\nparty’s ability to move for fees, but it uses the mandatory “shall” in describing the\n\ncourt’s obligation to hold the bifurcated hearing upon the party’s motion. “The\n\nword ‘shall’ is ordinarily ‘The language of command’. And when the same Rule\n\nuses both ‘may’ and ‘shall’, the normal inference is that each is used in its usual\n\nsense—the one act being permissive, the other mandatory.” Anderson v. Yungkau,\n\n329 U.S. 482, 485 (1947) (citation omitted); accord O’Donnell v. Durham, 573\n\nS.E.2d 23, 24 (Ga. 2002) (“‘Shall’ is generally construed as a word of mandatory\n\nimport.”). A district court has no discretion to decline the prevailing party’s\n\nrequest under § 9-11-68(e) if the party makes it. The district court thus erred in\n\ndenying Showan’s motion.\n\n Defendants contend any error was harmless, see Rule 61 of the Federal\n\nRules of Civil Procedure,14 because Showan failed to make any showing of\n\n\n 14\n “Unless justice requires otherwise, no error in admitting or excluding evidence—or any\nother error by the court or a party—is ground for granting a new trial, for setting aside a verdict,\nor for vacating, modifying, or otherwise disturbing a judgment or order.” Fed. R. Civ. P. 61.\n 33\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 34 of 35\n\n\nfrivolity. In light of the mandatory language of the statute, we decline to comment\n\non this contention. Showan had a statutory entitlement to the hearing, and denying\n\nher that hearing affected her substantial rights. Moreover, whether Showan\n\ndemonstrated that Defendants acted frivolously is a matter for the finder of fact\n\nunder Georgia law.\n\n Defendants further contend that there is no need for an entirely new trial.\n\nThey argue that “under Georgia law, attorney’s fees are a distinct and ancillary\n\naward, determination of which should not disrupt a judgment on the merits.” But\n\nDefendants’ argument proves too much. Any award under § 9-11-68(e) is\n\nancillary to the judgment precisely because it is based on the losing party’s conduct\n\nduring the course of the litigation that led to that judgment. A new factfinder\n\nwould be blind to that conduct. Because the statute requires the prevailing party to\n\nmove for a hearing “at the time the verdict or judgment is rendered,” it plainly\n\ncontemplates that arguments regarding frivolity belong before the same factfinder\n\nthat renders the underlying verdict or judgment.\n\n Nor are we persuaded by Defendants’ citation to Richardson v. Locklyn, 793\n\nS.E.2d 640 (Ga. Ct. App. 2016), where the court examined O.C.G.A. § 9-11-\n\n\n\n\n“At every stage of the proceeding, the court must disregard all errors and defects that do not\naffect any party’s substantial rights.” Id.\n 34\n\f Case: 17-15547 Date Filed: 04/29/2019 Page: 35 of 35\n\n\n68(d)15 and concluded it could remand for a hearing only on attorney’s fees rather\n\nthan a new trial. 793 S.E.2d at 644. Fees under § 9-11-68(d) are awarded by the\n\ncourt; fees under § 9-11-68(e) are awarded by the finder of fact. That the same\n\nstatute specifically differentiates between who awards fees in different\n\ncircumstances serves only to strengthen our conclusion.\n\n The district court erred in determining “as a matter of law” that the pleadings\n\nwere not frivolous. Georgia has made clear that such a determination is for the\n\nfinder of fact. It has also made clear that the prevailing party has a right to a\n\nhearing if it requests one. Because the statute requires the same factfinder at both\n\nthe trial on the merits and the hearing on frivolity, Showan is entitled to a new trial\n\nand the opportunity, if she prevails again, to move for a hearing under § 9-11-\n\n68(e).\n\n VIII. CONCLUSION\n\n We AFFIRM in part, VACATE in part, and REMAND for a new trial\n\nconsistent with this opinion.\n\n\n\n\n 15\n We discuss the substantive differences between the statutory subsections further in note\n9.\n 35\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Galawezh SHOWAN, Plaintiff-Appellant, v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees, Penske Truck Leasing Co., L.P., Defendant.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-15547 Date Filed: 04/29/2019 Page: 1 of 35\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-15547\\n Non-Argument Calendar\\n ________________________\\n\\n D.C. Docket No. 1:16-cv-00468-ODE\\n\\n\\n\\nGALAWEZH SHOWAN,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nPATRICK PRESSDEE,\\nKRISPY KREME DOUGHNUT CORPORATION,\\n\\n Defendants - Appellees,\\n\\nPENSKE TRUCK LEASING CO., L.P.,\\n\\n Defendant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (April 29, 2019)\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 2 of 35\\n\\n\\nBefore WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.\\n\\nBRANCH, Circuit Judge:\\n\\n Plaintiff Galawezh Showan appeals from her $330,000 jury verdict against\\n\\nDefendants Patrick Pressdee and Krispy Kreme Doughnut Corporation (“Krispy\\n\\nKreme”). For the reasons that follow, we affirm in part, vacate in part, and remand\\n\\nfor a new trial.\\n\\n I. GENERAL BACKGROUND\\n\\n A. Facts and Procedural History\\n\\n On April 27, 2015, Pressdee, an employee of Krispy Kreme, was driving in\\n\\nthe course of his employment when he rear-ended Showan while she was stopped\\n\\nat a red light. Pressdee was travelling at 35–40 mph when he collided with\\n\\nShowan, causing her vehicle to hit the vehicle in front of it. On May 5, 2015,\\n\\nKrispy Kreme issued Pressdee a corrective action report that acknowledged\\n\\nPressdee “was at fault” for the accident. Krispy Kreme’s insurance claim summary\\n\\nprepared on May 8, 2015, indicates Showan was “0%” negligent.\\n\\n Showan had serious injuries and was transported by EMS to the emergency\\n\\nroom. She sustained a whiplash-type injury to her cervical spine, wrist swelling,\\n\\nand facial bruising with a minor laceration. Showan also had previous back issues,\\n\\nwhich she contends the accident exacerbated. Her back issues were “noticeably\\n\\nimproved” following back surgery that preceded the accident. However, post-\\n\\n\\n 2\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 3 of 35\\n\\n\\naccident, Showan asserts she is “in pain twenty-four hours a day, not only in her\\n\\nback but in her head, neck, wrist, and legs.”\\n\\n Showan works as a cashier at Walmart, as she did before the accident. A\\n\\nWalmart cashier is required to stand and walk to assist customers, although sitting\\n\\non a stool is sometimes permitted. Showan now needs to use the stool more\\n\\nfrequently, which limits her to working only in the “express line” checkout lanes.\\n\\nCashiers working in the express lanes can sit more often than cashiers who work\\n\\nthe self-checkout stations, as the self-checkout cashiers must move around to assist\\n\\ncustomers as needed. Showan alleges she will be unable to work while recovering\\n\\nfrom potential future medical treatment.\\n\\n On October 19, 2015, Showan filed a personal injury action in the State\\n\\nCourt of Gwinnett County, Georgia. Defendants removed to the United States\\n\\nDistrict Court for the Northern District of Georgia.1\\n\\n When Defendants answered, they asserted that they breached no duty to\\n\\nShowan, that Showan was comparatively negligent, that Showan assumed the risk,\\n\\n\\n\\n 1\\n The district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1). “[D]iversity\\njurisdiction is determined at the time of filing the complaint or, if the case has been removed, at\\nthe time of removal.” Thermoset Corp. v. Bldg. Materials Corp. of Am., 849 F.3d 1313, 1317\\n(11th Cir. 2017) (quoting PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1306 (11th Cir.\\n2016)). Showan was domiciled in Georgia at the time of removal. This Court allowed the\\nparties to supplement the record with an affidavit regarding Pressdee’s citizenship. Pressdee\\nsays he was domiciled and served in North Carolina when this lawsuit was filed, and he has since\\nmoved to Ohio. Krispy Kreme is incorporated in North Carolina, where it also has its principal\\nplace of business. Thus, there was complete diversity at the time of removal.\\n 3\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 4 of 35\\n\\n\\nand that Showan’s alleged injuries “were not foreseeable.” Pressdee’s response to\\n\\nShowan’s request for admissions, dated January 21, 2016, similarly refused to\\n\\nadmit that his actions caused or contributed to the collision or that Showan suffered\\n\\ninjuries. At his April 27, 2016, deposition, however, Pressdee stated that he was\\n\\ndriving at 40 mph when he collided with Showan, who was stopped at a red light\\n\\nand did nothing to contribute to the collision.\\n\\n It was not until shortly before trial that Defendants moved, on July 25, 2017,\\n\\nto amend their answers “to streamline the issues to be tried.” The district court\\n\\ngranted the motion, subject to conditions. The court stated that “Defendants’\\n\\namended answer will not preclude Plaintiff from seeking attorneys’ fees and costs\\n\\npursuant to state law should she prevail at trial.” The court explained that the\\n\\ncondition was “appropriate because this case is eighteen months old and only now,\\n\\non the eve of trial, are Defendants willing to admit significant liability of which\\n\\nthey have arguably been aware since the collision at issue.” Further, the original\\n\\nanswers were to remain admissible for impeachment purposes at trial. Defendants\\n\\nthen filed their amended answers on August 17, 2017.\\n\\n B. Issues on Appeal\\n\\n\\n\\n\\n 4\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 5 of 35\\n\\n\\n The case proceeded to a jury trial that resulted in a $330,000 verdict for\\n\\nShowan. But Showan appeals, arguing several of the district court’s rulings\\n\\nthroughout the proceedings were erroneous. 2 The issues are as follows:\\n\\n 1. Showan alleges that, during Defendants’ opening remarks at trial,\\n they improperly insinuated she was the reason the case did not\\n settle. She argues the district court erred in not giving a curative\\n instruction that she requested.\\n\\n 2. Defendants’ experts testified that Showan’s doctor charged too\\n much for one of the surgeries she had following the accident.\\n Showan contends this testimony violated the collateral source rule\\n and Rule 403 of the Federal Rules of Evidence.\\n\\n 3. Showan contends that Defendants misled the jury into believing\\n that Showan’s doctor was the only person present in the operating\\n room during the surgery, which may have in turn misled jurors into\\n believing the doctor overcharged for the surgery. Citing the rule of\\n completeness, Showan offered the entire record of treatment at the\\n surgical center where the procedure was performed. The district\\n court disallowed the evidence, which Showan argues was error.\\n\\n 4. During closing argument, Showan’s counsel invited the jury to\\n measure Showan’s damages on a per-hour basis. The district court\\n interjected, telling him not to make a unit-of-time damages\\n argument. Showan argues that such an argument is allowed and\\n that the district court’s admonishment was highly prejudicial.\\n\\n 5. Defendants successfully convinced the district court to grant\\n judgment as a matter of law on Showan’s lost future wages\\n damages claim, finding the evidence—to the extent any existed—\\n was too speculative to support the claim. Showan disagrees.\\n 2\\n “Ordinarily, only a party aggrieved by a judgment or order of a district court may\\nexercise the statutory right to appeal therefrom. A party who receives all that he has sought\\ngenerally is not aggrieved by the judgment affording the relief and cannot appeal from it.”\\nDeposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980). Showan is an\\naggrieved party because the district court did not submit her request for attorney’s fees and\\nexpenses to the jury.\\n 5\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 6 of 35\\n\\n\\n\\n\\n 6. Showan argues that the district court erred in denying, as a matter\\n of law, her motion to have the jury assess her attorney’s fees under\\n a Georgia statute. She contends the statute required the court to\\n hold a hearing on frivolity.\\n\\n The sixth issue presented is, as the saying goes, last but not least. As\\n\\nexplained below, a new trial is necessary because Georgia law required the district\\n\\ncourt to submit Showan’s motion for fees to the jury. The district court’s failure to\\n\\ndo so is dispositive and requires us to vacate and remand for a new trial. In the\\n\\ninterest of judicial economy, we consider Showan’s other arguments. For ease of\\n\\nreference, we address each issue separately, tracking the chronological course of\\n\\nthe proceedings in the district court, and include relevant corresponding facts as we\\n\\ndo so.\\n\\n II. REFERENCES TO SETTLEMENT\\n\\n A. Defendants’ Motion in Limine and Opening Statement\\n\\n Defendants moved in limine to exclude “evidence regarding the manner of\\n\\nlitigation up to the time of trial.” Specifically, they asked the district court to\\n\\n“exclude reference to disputes before trial, including disputes, motions, and court\\n\\norders on discovery or motions in limine.” Further, they moved in limine, under\\n\\nRule 609 of the Federal Rules of Evidence (presumably they meant Rule 408), 3 to\\n\\n\\n 3\\n Rule 609 concerns “attacking a witness’s character for truthfulness by evidence of a\\ncriminal conviction.” Rule 408 addresses the admissibility of evidence regarding compromise\\noffers and negotiations, and it is typically used to exclude evidence of settlement negotiations.\\n 6\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 7 of 35\\n\\n\\nexclude evidence of settlement negotiations or discussions. The district court\\n\\ngranted the motions.\\n\\n Yet at trial, Defendants began their opening statement by referring to\\n\\nsettlement:\\n\\n Most cases don’t make it this far. They don’t come to trial. The\\n parties work really hard to get their cases resolved before they get to\\n this point. We don’t want to waste the time of the jurors. We don’t\\n want to waste the time of the court.\\n ...\\n There are certain things we can agree on, and I’m going to go through\\n those with you quickly, and then the things that are sticking points\\n that we can’t agree on.\\n ...\\n Krispy Kreme Donut Corporation admitted responsibility for the\\n cause of the collision. We admit that Mr. Pressdee was working for\\n us at the time. So no issues regarding that. We also acknowledge that\\n Ms. Showan didn’t do anything to cause this collision, not a single\\n thing.\\n ...\\n We also agree . . . this was a serious impact.\\n\\nShowan objected immediately, and the district court overruled the objection. After\\n\\nDefendants concluded their opening, during a recess, Showan requested a curative\\n\\ninstruction. In essence, Showan argued that Defendants had insinuated that she\\n\\nwas to blame for the case not settling, in light of their stated willingness to admit\\n\\nliability. She urged the court to inform the jury that Defendants had not admitted\\n\\nliability until shortly before the trial. The district court refused to do so, finding\\n\\nthat Defendants’ statement was accurate at the time it was made and that an\\n\\ninstruction “would be too heavy-handed.”\\n 7\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 8 of 35\\n\\n\\n B. Whether the District Court Should Have Given a Curative Instruction\\n\\n Showan argues on appeal that the trial “proceed[ed] with an improperly\\n\\ninfluenced or tainted jury.”\\n\\n “We review a district court’s evidentiary rulings for abuse of discretion.”\\n\\nProctor v. Fluor Enters., Inc., 494 F.3d 1337, 1349 n.7 (11th Cir. 2007). “Errors\\n\\nin evidentiary rulings are not grounds for reversal unless substantial prejudice\\n\\nresults.” Peterson v. Willie, 81 F.3d 1033, 1036 (11th Cir. 1996) (quoting King v.\\n\\nGulf Oil Co., 581 F.2d 1184, 1186 (5th Cir. 1978)). “Statements made in oral\\n\\narguments must be plainly unwarranted and clearly injurious to constitute\\n\\nreversible error.” Id.\\n\\n The district court did not abuse its discretion in not providing a curative\\n\\ninstruction. It is arguable that some of the opening statement was unwarranted—\\n\\nand somewhat disingenuous in light of Defendants’ motion in limine on the issue.\\n\\nBut the statement was not clearly injurious to Showan. Indeed, although the\\n\\ndistrict court did not give a curative instruction to the jury, it did allow Showan to\\n\\ncontradict any insinuation of Defendants’ previous graciousness during the\\n\\nlitigation. Showan requested, over Defendants’ objection, that she be allowed to\\n\\nuse Pressdee’s initial denial of liability. Notably, the district court granted this\\n\\nrequest. The ability to mount a direct attack on Defendants’ counsel’s opening\\n\\n\\n\\n\\n 8\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 9 of 35\\n\\n\\nremarks was sufficient to counteract any injury from Defendants’ indirect\\n\\nsuggestion in the opening statement.\\n\\n Nor did the comments in the opening statement violate Rule 408 of the\\n\\nFederal Rules of Evidence. That rule prohibits introducing evidence of actual\\n\\nsettlement offers or negotiations for certain prohibited purposes. Defendants’\\n\\ncounsel’s opening statement did not refer to evidence of any specific offers to\\n\\nsettle or compromise; it observed generally what happens in “[m]ost cases.”\\n\\n We therefore find no reversible error in the district court’s ruling on\\n\\nDefendants’ counsel’s opening statement. 4\\n\\n III. EVIDENCE OF MEDICAL RATES\\n\\n A. Defendants’ Medical-Rate Experts\\n\\n On February 9, 2016, as part of her treatment following the accident,\\n\\nShowan had a discectomy—back surgery that involves local anesthetic to remove\\n\\nlumbar disc material. Showan’s doctor charged $173,213 for the surgery. He also\\n\\ncharged a facility fee of $80,768.5\\n\\n Defendants believed those charges were excessive and sought to prove it\\n\\nthrough the testimony of medical billing experts, Lamar Blount and Jessica\\n\\n\\n\\n\\n 4\\n As we ultimately remand this case for a new trial, the district court can nonetheless\\nrevisit the issue as necessary.\\n 5\\n During closing argument, Showan said these bills were actually for higher amounts.\\nWe need not resolve this discrepancy in this appeal.\\n 9\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 10 of 35\\n\\n\\nSchmor. Showan was uninsured, and Blount and Schmor relied on average rates\\n\\nthat included those subsidized by the government or private insurers. Blount\\n\\ntestified that, based on databases for doctors in the same area, the 90th percentile\\n\\ncharge for the same procedure would be $20,688. The 80th percentile for a facility\\n\\nfee would be $27,144. Schmor testified that the doctor’s billing practices were\\n\\nhighly unusual and potentially unethical: “You do not see facility charges being\\n\\nbilled on an itemization from a physician’s practice. They’re completely separate\\n\\nentities, and they’re different bills. . . . [T]o see a facility charge on a physician\\n\\nbill is highly unlikely. . . . I’ve only seen it in two practices”—Showan’s doctor\\n\\nand that doctor’s previous partner. Schmor also expressed skepticism regarding\\n\\nsuch charges from an ambulatory surgery center like the one where Showan had\\n\\nher surgery.\\n\\n Showan moved in limine to exclude this testimony. Showan contended the\\n\\ntestimony violated the collateral source rule, which prohibits evidence of an\\n\\ninsurance company’s payments to a tort victim. Showan argues that Blount and\\n\\nSchmor were suggesting that her medical bills were “too high because Medicare,\\n\\nthe VA, or Acme Insurance Company thinks so, and/or they do not pay as much\\n\\nfor the treatment [she] had.” “In other words, Defendants [were] employing a\\n\\nback-door tactic that [sought] to indirectly accomplish what the Collateral Source\\n\\nRule would never permit them to do directly.” Showan further argued that the\\n\\n 10\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 11 of 35\\n\\n\\ntestimony violated Rule 403 of the Federal Rules of Evidence because it was\\n\\nirrelevant, prejudicial, and confusing in light of the fact that she did not receive any\\n\\nassistance from any government or other health insurer in paying her medical bills.\\n\\n The district court rejected Showan’s arguments, finding the testimony was\\n\\nnot offered to show what Showan would have received from an insurer. 6 The\\n\\ndistrict court explained that “there is a difference between presenting evidence of\\n\\ndiscounted rates a plaintiff could receive on [] medical costs based on the\\n\\nplaintiff’s specific access to certain advantages, and evidence of market rates as a\\n\\nwhole.” The court found the testimony in question was offered to show whether\\n\\nthe medical bills were reasonable and allowed it.\\n\\n B. Whether the District Court Properly Admitted the Testimony\\n\\n On appeal, Showan reiterates her motion-in-limine arguments. She contends\\n\\nthe district court should not have admitted the testimony. Again, we “review a\\n\\ndistrict court’s evidentiary rulings for abuse of discretion.” Proctor, 494 F.3d at\\n\\n1349 n.7.\\n\\n Under Georgia law, a tort victim is “entitled to recover medical expenses\\n\\narising from his injuries, including hospital charges, that [are] ‘reasonable and\\n\\nnecessary.’” MCG Health, Inc. v. Kight, 353, 750 S.E.2d 813, 817 (Ga. Ct. App.\\n\\n\\n\\n 6\\n The district court also acknowledged that, if the testimony had been offered for this\\nreason, it would have been improper under the collateral source rule.\\n 11\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 12 of 35\\n\\n\\n2013) (quoting Allen v. Spiker, 689 S.E.2d 326, 329 (Ga. Ct. App. 2009)).\\n\\n“Moreover, under the collateral source rule, [the victim is] entitled to seek full\\n\\nrecovery from the tortfeasor of reasonable and necessary hospital charges\\n\\nundiminished by [the victim’s] insurance payments or ‘write-offs.’” Id. In other\\n\\nwords, the “collateral source rule bars the defendant from presenting any evidence\\n\\nas to payments of expenses of a tortious injury paid for by a third party and taking\\n\\nany credit toward the defendant’s liability and damages for such payments.”\\n\\nHoeflick v. Bradley, 637 S.E.2d 832, 833 (Ga. Ct. App. 2006). “This is because a\\n\\ntortfeasor is not allowed to benefit by its wrongful conduct or to mitigate its\\n\\nliability by collateral sources provided by others.” Id.\\n\\n Blount’s and Schmor’s testimony did not violate the collateral source rule.\\n\\nTheir testimony addressed the reasonableness and necessity of what Showan had\\n\\npaid for her discectomy. Whether the expenses were “reasonable and necessary” is\\n\\na critical inquiry under Georgia law. Kight, 750 S.E.2d at 817.\\n\\n For that reason, Defendants were properly allowed to argue that medical\\n\\ncharges were unreasonably high. They did not try to get any “credit” from the jury\\n\\nbased on payments that Showan had received. See Hoeflick, 637 S.E.2d at 833.\\n\\nIndeed, Showan, who is uninsured, says she received no such payments. Showan’s\\n\\nargument thus fundamentally misinterprets the collateral source rule. She contends\\n\\nthat the district court should have excluded evidence not of what was paid but of\\n\\n 12\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 13 of 35\\n\\n\\nwhat might have been paid had she obtained insurance. Defendants were not\\n\\ntrying to introduce such evidence.\\n\\n Showan’s Rule 403 argument also fails. As noted above, Georgia law\\n\\npermits testimony regarding whether medical expenses are reasonable and\\n\\nnecessary. And to the extent Showan suggests that the testimony of Blount and\\n\\nSchmor was misleading, she could have offered her own expert testimony to\\n\\ndisagree with or supplement their testimony. If Showan believed the “volume\\n\\ndiscounts,” as she describes them, did not apply to her, she could have attempted to\\n\\nconvince the jury of that. But the district court did not err in allowing Defendants’\\n\\nexperts to give the jury a picture of what most doctors in the area charge for a\\n\\ndiscectomy.\\n\\n Accordingly, the district court did not abuse its discretion in admitting the\\n\\ntestimony of Blount and Schmor.\\n\\n IV. MEDICAL RECORDS\\n\\n Defendants also allegedly attacked another element of Showan’s\\n\\ndiscectomy. Showan asserts on appeal that “[d]uring trial, Defendants falsely\\n\\nargued that only one provider was present during the recorded procedure, which\\n\\nwould imply that the associated bill charged well-over what the services should\\n\\ncost.” Showan does not point us to where Defendants made this one-provider\\n\\nargument, and Defendants dispute having made it.\\n\\n 13\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 14 of 35\\n\\n\\n Showan did not designate the surgical records in her pretrial exhibits, and\\n\\nDefendants accordingly objected to her introducing those records. Showan\\n\\ncontends she should have been able to supplement the portion the Defendants\\n\\nintroduced, see Fed. R. Evid. 106, so that Defendants’ excerpt did not mislead the\\n\\njury.\\n\\n Because we remand for a new trial, and because that new trial will involve\\n\\nnew pretrial exhibit designations, we need not resolve this dispute or opine on this\\n\\nissue.\\n\\n V. ADMONISHMENT DURING CLOSING ARGUMENT\\n\\n A. Showan Argues for Damages Measured by the Hour\\n\\n Showan’s counsel had the following exchange with the district court during\\n\\nhis initial closing argument:\\n\\n [COUNSEL]: [W]hen you have pain like this in your neck, worse in\\n lower back, in your wrist, when you have the headaches, that’s an\\n everyday thing, and it’s certainly an every hour thing, and so we ask\\n you to take that into consideration for her future, and, again, all\\n caused by the Krispy Kreme truck collision. If it wasn’t, we wouldn’t\\n be here.\\n We ask for full justice and full compensation, and we want you to do\\n it in a way that makes sense. Because she suffers pain all the time,\\n what is the value of one hour? Well –\\n THE COURT: You cannot make a unit of time argument.\\n [COUNSEL]: Pardon me.\\n THE COURT: You may not make a unit of time argument. Let’s see,\\n what is the value of one hour –\\n [COUNSEL]: Yes.\\n THE COURT: – You can’t make an argument about what the value\\n of one hour’s worth of pain is. That is not permissible.\\n 14\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 15 of 35\\n\\n\\n [COUNSEL]: . . . May I argue this, your honor, to the jury, may I\\n ask them to take into consideration that she’s 52 years old, and under\\n the annuity mortality table she has 27.22 years to live?\\n THE COURT: Absolutely, that’s absolutely legitimate.\\n\\n During closing rebuttal argument, Showan’s counsel again argued that jurors\\n\\ncould “do the math” on Showan’s pain and suffering down to the hour:\\n\\n We say and the judge will tell you it is your decision to decide what to\\n do here. She’s got to live with this for the rest of her life. What\\n Krispy Kreme did to her, she’s got to live with it for the rest of her\\n life, and I do ask you not to pull some numbers out of a hat. I ask you\\n to do math. You are allowed to do math as jurors and say how many\\n days is it, how many hours is it. Try 525 dollars an hour,[7] see what\\n you get.\\n\\n Defendants’ counsel objected, and the district court reiterated its instruction\\n\\nnot to pursue that line of argument: “Yeah, you can’t argue that the projection is\\n\\nthat the plaintiff will suffer pain for every minute of every hour from now forward\\n\\nand do a multiplier based on that, that’s just not allowable under the law.”\\n\\n B. Whether Showan’s Closing Argument Was Improper\\n\\n Showan argues that Georgia law permits her to have made a “per diem\\n\\nargument” regarding damages and that the district court’s admonishment was\\n\\nprejudicial, reversible error.\\n\\n This circuit permits unit-of-time damages arguments. Baron Tube Co. v.\\n\\nTransp. Ins. Co., 365 F.2d 858, 864 (5th Cir. 1966) (en banc). The “idea or worth\\n\\n\\n 7\\n On appeal, Showan suggests this number was supposed to be $5.25 per hour. Perhaps it\\nwas a misstatement at trial or a typographical error in the transcript.\\n 15\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 16 of 35\\n\\n\\nof one year of pain may not be as understandable, real or persuasive to a juror as its\\n\\nequivalent, three hundred and sixty five days of pain and suffering.” Id. at 865.\\n\\n“Whether the unit be cast in years or months, or weeks or days is a mere matter of\\n\\ndegree, and there is little logic in prohibiting the discussion of large units of time in\\n\\nterms of their smaller mathematical equivalents.” Id. But precautions are in order:\\n\\nthe district “court must use care to the end that the argument will not inflame the\\n\\njury and result in an excessive verdict.” Id. at 864.8 Ultimately, “whether to allow\\n\\nsuch an argument and the protective features to be employed are matters vested, in\\n\\nthe end, in the sound discretion of the trial court.” Id. at 864–65 (emphasis added).\\n\\n Further, it is irrelevant that Georgia law allows unit-of-time arguments, see\\n\\nHardwick v. Price, 152 S.E.2d 905, 907–08 (Ga. Ct. App. 1966), because we are\\n\\nbound by the holding that “the propriety of the [unit-of-time] argument is a federal\\n\\nquestion. It is a matter of federal trial procedure.” Baron Tube Co., 365 F.2d at\\n\\n862. In sum, Baron Tube Co. leaves the question of whether to allow a unit-of-\\n\\ntime argument wholly to the discretion of the district court.\\n\\n The district court’s statement that Showan’s unit-of-time argument was “not\\n\\nallowable under the law” was incorrect, as the district court has complete\\n\\ndiscretion to disallow the argument or to allow it subject to safeguards. See id. at\\n\\n\\n 8\\n The court noted some potential safeguards, including notifying opposing counsel and\\nthe district court in advance; scrutinizing any charts used to avoid false impressions; and making\\nclear to the jury that the argument is not evidence. Baron Tube Co., 365 F.2d at 865.\\n 16\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 17 of 35\\n\\n\\n864–65. Because the district court erroneously concluded it had no discretion, it\\n\\nnecessarily abused that discretion. Cf. LSLJ P’ship v. Frito-Lay, Inc., 920 F.2d\\n\\n476, 479 (7th Cir. 1990) (A “trial court may abuse its discretion by failing to\\n\\nexercise its discretion.” (quoting FMC Corp. v. Varonos, 892 F.2d 1308, 1316 (7th\\n\\nCir. 1990)). At the new trial, the district court should, under Baron Tube Co.,\\n\\nexpressly exercise its discretion to allow or disallow any proffered unit-of-time\\n\\ndamages argument.\\n\\n VI. CLAIM FOR FUTURE LOST INCOME\\n\\n A. The Pre-Jury Deliberation Grant of Judgment as a Matter of Law\\n\\n At the close of evidence, Defendants moved for judgment as a matter of law\\n\\non Showan’s claim for future lost wages. Defendants did not contest the wages\\n\\nShowan lost while being treated by her physicians; rather, they argued that she\\n\\nfailed to demonstrate “reduction in ability to work” and thus is not entitled to\\n\\nfuture lost wages. Although Showan’s hours had been reduced, she was still\\n\\nworking full time. To explain the reduction in hours, Defendants noted that\\n\\nShowan (1) was aware that there was a nationwide reduction in hours (but with an\\n\\naccompanying increase in pay) at Walmart, and (2) “was never told by anyone that\\n\\nher reduction in hours was due to her accident or her injuries.” Showan’s\\n\\nsupervisor “was also unaware of any kind of medical restrictions” that prevented\\n\\nShowan from working full time.\\n\\n 17\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 18 of 35\\n\\n\\n Showan responded by emphasizing the permanence of her injury and\\n\\nreiterating her inability to work in the same manner as before the accident. She\\n\\nhad to sit more frequently on the stool, and she could no longer work the regular\\n\\ncheckout aisle. And again, although she conceded that she is working full time\\n\\nnow, she argued, “now is not future lost wages.” Further, because Showan will\\n\\nlikely need surgery in the future (though it was disputed whether she would have\\n\\nhad that surgery regardless of the accident), she will be out of work for that\\n\\nrecovery.\\n\\n The district court granted Defendants’ motion for judgment as a matter of\\n\\nlaw. It explained, “I do agree that the evidence, to the extent there is any,\\n\\nconcerning the plaintiff’s inability to work in the future is entirely speculative.”\\n\\n B. Whether the Future Lost Wages Claim Should Have Gone to the Jury\\n\\n Showan argues there was sufficient evidence to submit her future lost wages\\n\\nclaim to the jury.\\n\\n We review de novo the granting of a motion for judgment as a matter of law,\\n\\n“considering only the evidence that may properly be considered and the reasonable\\n\\ninferences drawn from it in the light most favorable to the nonmoving party.”\\n\\nRossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 2004). “Where ‘no\\n\\nlegally sufficient evidentiary basis exists for a reasonable jury to find for that party\\n\\non that issue,’ judgment as a matter of law is proper.” Id. (quoting 12 Moore’s\\n\\n 18\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 19 of 35\\n\\n\\nFederal Practice § 59.50[5] (3d ed. 1998)); accord Fed. R. Civ. P. 50(a)(1) (A\\n\\ndistrict court may grant judgment as a matter of law on an issue if “a party has\\n\\nbeen fully heard on [the] issue during a jury trial and the court finds that a\\n\\nreasonable jury would not have a legally sufficient evidentiary basis to find for the\\n\\nparty on that issue.”).\\n\\n Under Georgia law, “[l]ost wages and earnings is recoverable where the\\n\\nevidence shows the amount of loss with reasonable certainty.” Olariu v. Marrero,\\n\\n549 S.E.2d 121, 124 (Ga. Ct. App. 2001). “Loss of future earnings is recoverable\\n\\nwhere evidence is presented on the permanency of plaintiff’s injury, the effect of\\n\\ninjury on earnings, and the monetary amount thereof.” Id.\\n\\n Even when viewed in the light most favorable to Showan, no reasonable jury\\n\\ncould have awarded her lost future wages under Georgia law. Even if her injury is\\n\\npermanent, there is no evidence that the injury affected her ability to earn the same\\n\\nincome as before she was injured. She is still able to work full time as a cashier at\\n\\nWalmart, even if her exact duties have changed. Moreover, Showan has failed to\\n\\nquantify the amount of her loss. It is true that “all future earnings or diminished\\n\\nfuture earnings are uncertain and difficult of ascertainment.” Michaels v. Kroger\\n\\nCo., 322 S.E.2d 903, 908 (Ga. Ct. App. 1984). But that does not absolve a plaintiff\\n\\nof the burden of putting forth some evidence of diminished earning capacity.\\n\\nShowan was required to provide “evidence to show [her] capacity to labor and earn\\n\\n 19\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 20 of 35\\n\\n\\nmoney has been permanently impaired.” Id.; see also Schriever v. Maddox, 578\\n\\nS.E.2d 210, 212 (Ga. Ct. App. 2003) (“We have repeatedly held that a court’s\\n\\ninstructing a jury on lost earnings as a category of recoverable damages is\\n\\nreversible error where the plaintiff has not presented evidence of the degree to\\n\\nwhich the injury reasonably affected the plaintiff’s past and future income.”). The\\n\\nrelevant evidence in this case shows that Showan worked full time as a cashier\\n\\nbefore the accident and that she worked full time as a cashier after the accident.\\n\\nAdmittedly, Showan must sit more frequently on a stool, but it is undisputed that\\n\\nshe gets paid the same amount when she must sit. To the extent she will need\\n\\nfuture medical care that will cause her to take time off work, she similarly fails to\\n\\ndemonstrate with reasonable certainty either the amount of time she will need to\\n\\ntake off or the loss she will suffer as a result.\\n\\n We find no Georgia case that would permit recovery of lost future wages\\n\\nunder such tenuous and speculative circumstances. We therefore affirm the district\\n\\ncourt’s grant of judgment as a matter of law regarding the claim for lost future\\n\\nwages.\\n\\n VII. CLAIM FOR ATTORNEY’S FEES UNDER GEORGIA LAW\\n\\n A. Defendants’ Allegedly Frivolous Defenses\\n\\n Showan argued to the district court that she was entitled to attorney’s fees\\n\\nunder Georgia law. She claimed that Defendants presented frivolous defenses and\\n\\n 20\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 21 of 35\\n\\n\\nacted in bad faith during the litigation. She maintains on appeal, for example, that\\n\\nDefendants raised the affirmative defenses of comparative negligence and\\n\\nassumption of risk—despite knowing Pressdee was completely at fault. Showan\\n\\npoints to the corrective action report that attributed fault to Pressdee and to Krispy\\n\\nKreme’s insurance claim that found Showan was “0%” negligent—both of which\\n\\nwere prepared within days of the accident. As Showan puts it, “It was not until the\\n\\neve of trial, and after Plaintiff was forced to conduct discovery and mediation\\n\\nunder Defendants’ false pretenses, that Defendants moved to amend their Answers\\n\\nto recant these frivolous claims and defenses.”\\n\\n Georgia has codified its disfavor of frivolous claims and defenses in tort\\n\\ncases. Under O.C.G.A. § 9-11-68(e): 9\\n\\n Upon motion by the prevailing party at the time that the verdict or\\n judgment is rendered, the moving party may request that the finder of\\n fact determine whether the opposing party presented a frivolous claim\\n or defense. In such event, the court shall hold a separate bifurcated\\n hearing at which the finder of fact shall make a determination of\\n whether such frivolous claims or defenses were asserted and to award\\n damages, if any, against the party presenting such frivolous claims or\\n defenses.\\n\\nThe statute also defines frivolous claims and defenses:\\n\\n Frivolous claims shall include, but are not limited to, the following:\\n\\n 9\\n Section 9-11-68 is known as Georgia’s “offer-of-settlement” statute. See Richardson v.\\nLocklyn, 793 S.E.2d 640, 641 (Ga. Ct. App. 2016). Subsection (e), at issue here, covers\\n“completely separate issues” from those in the rest of the section: “Subsections (a) through (d)\\ngovern offers of settlement, while subsection (e) governs damages for frivolous claims or\\ndefenses.” Id. at 644.\\n 21\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 22 of 35\\n\\n\\n (A) A claim, defense, or other position that lacks substantial\\n justification or that is not made in good faith or that is made\\n with malice or a wrongful purpose, as those terms are defined\\n in Code Section 51-7-80;\\n (B) A claim, defense, or other position with respect to which\\n there existed such a complete absence of any justiciable issue of\\n law or fact that it could not be reasonably believed that a court\\n would accept the asserted claim, defense, or other position; and\\n (C) A claim, defense, or other position that was interposed for\\n delay or harassment.\\n\\nId. § 9-11-68(e)(1). Finally, the statute provides, “Damages awarded may include\\n\\nreasonable and necessary attorney’s fees and expenses of litigation.” Id. § 9-11-\\n\\n68(e)(2).\\n\\n Showan argued that § 9-11-68(e) applied in her case and that she was\\n\\nentitled to a separate hearing upon a favorable jury verdict. Although the district\\n\\ncourt initially seemed to entertain the idea, it ultimately disagreed. While the jury\\n\\nwas deliberating, the court announced it would “dismiss” Showan’s claim for\\n\\nfees.10 The district court concluded that “the evidence shows as a matter of law\\n\\nthat the pleadings filed by the defendants were not frivolous” and that, in any\\n\\nevent, Showan was not prejudiced.\\n\\n B. Whether Federal Law or State Law Governs\\n\\n\\n\\n\\n 10\\n The district court was actually, in effect, preemptively denying the motion Showan\\nwould need to make under § 9-11-68(e). Following the jury verdict, Showan made that motion,\\npreserving it for appeal purposes.\\n 22\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 23 of 35\\n\\n\\n Showan argues she should have been able to submit to the jury, upon its\\n\\nfavorable verdict, her state-law claim for attorney’s fees. But Defendants contend\\n\\nfederal law—namely Rule 11 of the Federal Rules of Civil Procedure—conflicts\\n\\nwith and overrides her claim. They say Showan is not entitled to a bifurcated\\n\\nhearing because, in federal court, the judge—not the finder of fact—determines\\n\\nfrivolity.\\n\\n “We [] review de novo a district court’s determination and application of\\n\\nstate law in a diversity case.” Pendergast v. Sprint Nextel Corp., 592 F.3d 1119,\\n\\n1132 n.11 (11th Cir. 2010).\\n\\n When a state statute arguably conflicts with a Federal Rule of Civil\\n\\nProcedure, a federal court sitting in diversity jurisdiction will not apply the state\\n\\nstatute if the federal rule “answers the question in dispute.” Shady Grove\\n\\nOrthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority\\n\\nopinion). If a Federal Rule is “sufficiently broad to control the issue before the\\n\\nCourt,” Walker v. Armco Steel Corp., 446 U.S. 740, 749–50 (1980), “it governs . . .\\n\\nunless it exceeds statutory authorization” under the Rules Enabling Act or\\n\\n“Congress’s rulemaking power” under the Constitution. Shady Grove, 559 U.S. at\\n\\n398. “If no Federal Rule answers the question in dispute, we undertake an\\n\\n‘unguided Erie’11 inquiry to decide whether to apply the state statute or federal\\n\\n\\n 11\\n Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).\\n 23\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 24 of 35\\n\\n\\ncommon law.” Carbone v. Cable News Network, 910 F.3d 1345, 1349 (11th Cir.\\n\\n2018) (quoting Hanna v. Plumer, 380 U.S. 460, 471 (1965)). That choice-of-law\\n\\ninquiry requires us to “apply Erie and its progeny to determine ‘whether failure to\\n\\napply the state law would lead to different outcomes in state and federal court and\\n\\nresult in inequitable administration of the laws or forum shopping.’” Royalty\\n\\nNetwork, Inc. v. Harris, 756 F.3d 1351, 1358 (11th Cir. 2014) (quoting Burke v.\\n\\nSmith, 252 F.3d 1260, 1265 (11th Cir. 2001)).\\n\\n 1. The Scopes of O.G.C.A § 9-11-68(e) and Rule 11 of the Federal Rules of\\n\\n Civil Procedure\\n\\n Under the applicable framework, federal courts exercising diversity\\n\\njurisdiction must apply O.C.G.A. § 9-11-68(e). The question in dispute is whether\\n\\nShowan is entitled to compensatory damages, including attorney’s fees and\\n\\nlitigation expenses, for the injury she purportedly suffered as a result of\\n\\nDefendants’ alleged frivolous litigation conduct. Rule 11 does not answer this\\n\\nquestion.\\n\\n Rule 11(b) provides:\\n\\n By presenting to the court a pleading, written motion, or other paper\\n . . . an attorney or unrepresented party certifies that to the best of the\\n person’s knowledge, information, and belief, formed after an inquiry\\n reasonable under the circumstances:\\n (1) it is not being presented for any improper purpose, such as\\n to harass, cause unnecessary delay, or needlessly increase the\\n cost of litigation;\\n\\n 24\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 25 of 35\\n\\n\\n (2) the claims, defenses, and other legal contentions are\\n warranted by existing law or by a nonfrivolous argument for\\n extending, modifying, or reversing existing law or for\\n establishing new law;\\n (3) the factual contentions have evidentiary support or, if\\n specifically so identified, will likely have evidentiary support\\n after a reasonable opportunity for further investigation or\\n discovery; and\\n (4) the denials of factual contentions are warranted on the\\n evidence or, if specifically so identified, are reasonable based\\n on the belief or a lack of information.\\n\\n If an attorney or unrepresented party breaches its duty under Rule 11(b) by\\n\\nfiling a pleading that fails to comply with any of the substantive standards of that\\n\\nrule, Rule 11(c) kicks in. The applicable sections of Rule 11(c) provide:\\n\\n If, after notice and a reasonable opportunity to respond, the court\\n determines that Rule 11(b) has been violated, the court may impose an\\n appropriate sanction on any attorney, law firm, or party that violated\\n the rule or is responsible for the violation.\\n ***\\n A sanction imposed under this rule must be limited to what suffices to\\n deter repetition of the conduct or comparable conduct by others\\n similarly situated. The sanction may include nonmonetary directives;\\n an order to pay a penalty into court; or, if imposed on motion and\\n warranted for effective deterrence, an order directing payment to the\\n movant of part or all of the reasonable attorney’s fees and other\\n expenses directly resulting from the violation.\\n\\nFed. R. Civ. P. 11(c)(1), (4). Rule 11(c)(1) licenses the court to “impose an\\n\\nappropriate sanction” on an attorney or unrepresented party “after notice and a\\n\\nreasonable opportunity to respond.” “A sanction imposed under [Rule 11] must be\\n\\nlimited to what suffices to deter repetition of the conduct or comparable conduct by\\n\\nothers similarly situated.” Fed. R. Civ. P. 11(c)(4). If an opposing party moved\\n 25\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 26 of 35\\n\\n\\nfor sanctions, Rule 11(c)(4) permits a court to issue “an order directing payment to\\n\\nthe movant of part or all of the reasonable attorney’s fees and other expenses” as a\\n\\nsanction for a violation of Rule 11(b). Id. But the order must be “warranted for\\n\\neffective deterrence,” and the attorney’s fees and expenses must “directly result[]\\n\\nfrom the violation” of Rule 11(b). Id.\\n\\n Rule 11 does not speak to whether a prevailing party is entitled to\\n\\ncompensatory damages to remedy any injury inflicted on the prevailing party by\\n\\nthe opposing party’s frivolous or bad-faith claims and defenses. Instead, Rule 11\\n\\nanswers the question whether punitive sanctions should be imposed on an attorney\\n\\nor unrepresented party for filing a “pleading, written motion, or other paper” that\\n\\nviolates the certification standards of Rule 11(b). In contrast, § 9-11-68(e) confers\\n\\non a prevailing party a right to potential compensation for injuries sustained as a\\n\\nresult of an opposing party’s decision to raise “a frivolous claim or defense.”\\n\\nO.C.G.A. § 9-11-68(e). It follows that § 9-11-68(e) does not “address the same\\n\\nsubject” as Rule 11. Cf. Shady Grove, 559 U.S. at 402.\\n\\n The remedy created by § 9-11-68(e) is more akin to a state-law claim for\\n\\nattorney’s fees. We have said such claims are unequivocally substantive for Erie\\n\\npurposes. See Trans Coastal Roofing Co., Inc. v. David Boland, Inc., 309 F.3d\\n\\n758, 760 (11th Cir. 2002); McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001)\\n\\n(“It is clear that statutes allowing for recovery of attorney’s fees are substantive for\\n\\n 26\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 27 of 35\\n\\n\\nErie purposes.”). Yet, as we have noted, the statute does more than provide only\\n\\nfor attorney’s fees: it is designed to make whole, through “damages,” a party that\\n\\nhad to defend against a frivolous claim or overcome a frivolous defense. The\\n\\nfinder of fact determines whether a claim or defense was frivolous. Indeed, § 9-\\n\\n11-68(e) creates a special tort-like remedy, providing for a “separate bifurcated\\n\\nhearing at which the finder of fact shall make a determination of whether such\\n\\nfrivolous claims or defenses were asserted and to award damages, if any, against\\n\\nthe party presenting such frivolous claims or defenses.” Although a party may\\n\\nassert this “tort” only within an existing proceeding, the statute’s legal effect is still\\n\\nto create a substantive individual right under state law that does not purport to\\n\\nabrogate any procedural right conferred by the Federal Rules.\\n\\n Nor can it be said that “the purposes underlying” Rule 11 “are sufficiently\\n\\ncoextensive with the asserted purposes of the [Georgia] statute to indicate that the\\n\\nRule occupies the statute’s field of operation so as to preclude its application in\\n\\nfederal diversity actions.” Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7 (1987).\\n\\nShady Grove counsels against an “approach to determining whether state and\\n\\nfederal rules conflict based on the subjective intentions of the state legislature,”\\n\\n559 U.S. at 404, so we are concerned only with “the purpose” that can be “derived\\n\\nfrom the text” of Rule 11 and § 9-11-68(e) in conducting this inquiry. See Antonin\\n\\nScalia & Bryan A. Garner, Reading Law § 2, 56 (2012). Rule 11 imposes a duty\\n\\n 27\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 28 of 35\\n\\n\\non attorneys and unrepresented parties to certify that, to the best of their\\n\\nknowledge, their filings are or will be supported by the evidence and the law and\\n\\nare not made for any “improper purpose.” Fed. R. Civ. P. 11(b). The rule allows\\n\\ncourts to enforce this duty through appropriate sanctions, with the aim of deterring\\n\\nfuture misconduct. See Fed. R. Civ. P. 11(c)(4) (“A sanction imposed under this\\n\\nrule must be limited to what suffices to deter repetition of the conduct or\\n\\ncomparable conduct by others similarly situated” and any award of “attorney’s fees\\n\\nand other expenses” must be “warranted for effective deterrence.”). Sometimes\\n\\nRule 11 sanctions are nonmonetary, and frequently they are penalties paid to the\\n\\ncourt rather than to the other party. Id. (“The sanction may include nonmonetary\\n\\ndirectives.”); Fed. R. Civ. P. 11(b) and (c) advisory committee’s note to 1993\\n\\namendment (“Since the purpose of Rule 11 sanctions is to deter rather than to\\n\\ncompensate, the rule provides that, if a monetary sanction is imposed, it should\\n\\nordinarily be paid into court as a penalty.”). 12\\n\\n In contrast, § 9-11-68(e) compensates prevailing parties for litigation costs\\n\\nand other injuries endured because of an opposing party’s decision to present\\n\\nmeritless or bad-faith claims or defenses. That compensatory purpose is why the\\n\\n\\n\\n\\n 12\\n The text of a given rule is what is authoritative. Nevertheless, “[h]aving been prepared\\nby a body of experts, the Notes are assuredly persuasive scholarly commentaries—ordinarily the\\nmost persuasive—concerning the meaning of the Rules.” Tome v. United States, 513 U.S. 150,\\n167 (1995) (Scalia, J., concurring in part and concurring in the judgment).\\n 28\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 29 of 35\\n\\n\\nstatute says that a prevailing party that has been forced to defend against a\\n\\n“frivolous claim or defense” is entitled to “damages” that are not capped at what is\\n\\nrequired to deter comparable litigation conduct. See O.C.G.A. § 9-11-68(e).\\n\\n It follows that Rule 11 and § 9-11-68(e) have categorically distinct purposes.\\n\\nDeterrence is forward-looking and concerned with preventing future violations of a\\n\\nrule. Compensatory relief, in contrast, is backward-looking and aims “to place an\\n\\ninjured party in the same position as it would have been in had there been no\\n\\ninjury.” Action Marine, Inc. v. Continental Carbon, Inc., 481 F.3d 1302, 1316\\n\\n(11th Cir. 2007) (quoting Home Ins. Co. v. N. River Ins. Co., 385 S.E.2d 736, 742\\n\\n(Ga. 1989)). Rule 11 is not designed to make the movant whole for any and all\\n\\ninjuries sustained as a result of a frivolous filing, and any monetary sanctions one\\n\\nparty happens to receive from the other are incidental to the rule’s deterrent\\n\\npurpose.\\n\\n Defendants focus on Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th\\n\\nCir. 2014), where we examined the relationship between Rule 11 and another\\n\\nGeorgia statute, O.C.G.A. § 9-11-11.1(b) (1998). Section 9-11-11.1 is “Georgia’s\\n\\nanti-SLAPP [Strategic Lawsuits Against Public Participation] statute[, ] intended\\n\\nto protect its citizens from having their important First Amendment rights to free\\n\\nspeech and to petition the government chilled by the threat of being dragged into\\n\\nonerous judicial proceedings by improper or abusive tort claims.” Id. at 1357. At\\n\\n 29\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 30 of 35\\n\\n\\nthe time of Royalty Network,13 the statute required, for claims that could\\n\\nconceivably be related to a person’s free-speech rights, that “both a plaintiff and\\n\\nplaintiff’s counsel [] file a written verification certifying that the claim is well\\n\\ngrounded in fact, is warranted under existing law, and . . . is not made for an\\n\\nimproper purpose.” 756 F.3d at 1354. Rule 11 requires counsel to sign a\\n\\nrepresented party’s pleadings, but it does not require the represented party to do so.\\n\\nSee Fed. R. Civ. P. 11(a). We thus concluded that § 9-11-11.1(b)’s “requirements\\n\\nfor filing a complaint or pleading directly conflict with the procedure for filing a\\n\\npleading specified in the federal rule, and the two may not peacefully co-exist or\\n\\noperate in the same case.” 756 F.3d at 1359–60. Section 9-11-11.(b) governed the\\n\\nprocedure for signing a pleading. But § 9-11-68(e) concerns something very\\n\\ndifferent: a hearing on damages incurred as a result of litigating against frivolous\\n\\nclaims, defenses, or positions. Royalty Network shines no light on this case.\\n\\n Finally, Defendants point us to Rule 11’s 21-day safe-harbor provision.\\n\\nThat provision provides that a motion for sanctions under Rule 11 “must not be\\n\\nfiled or be presented to the court if the challenged paper, claim, defense,\\n\\ncontention, or denial is withdrawn or appropriately corrected within 21 days after\\n\\nservice [of the challenged document] or within another time the court sets.” Fed.\\n\\n\\n 13\\n The statute was amended substantially in 2016. After this appeal was docketed, we\\ndecided the revised statute also conflicted with portions of the Federal Rules of Civil Procedure.\\nSee generally Carbone v. Cable News Network, 910 F.3d 1345 (2018).\\n 30\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 31 of 35\\n\\n\\nR. Civ. P. 11(c)(2). But the existence of this provision is irrelevant to our inquiry.\\n\\nOnly if the federal rules “answer[] the question in dispute,” Shady Grove, 558 U.S.\\n\\nat 398, do we concern ourselves with the extent to which a state law imposes\\n\\nrequirements different from the federal rules. For the reasons we have articulated,\\n\\nRule 11 does not control the dispute at issue. We conclude that there is no conflict\\n\\nbetween Rule 11 and § 9-11-68(e).\\n\\n 2. Erie Concerns\\n\\n We now move to the second part of the Hanna test and examine Erie’s\\n\\nconcerns about the potential for inequitable administration of justice and forum\\n\\nshopping. See Burke, 252 F.3d at 1265. Those concerns are acutely present here.\\n\\nIf we failed to recognize the right to a bifurcated hearing under § 9-11-68(e), a\\n\\ndefendant who removed a Georgia diversity tort case would divest plaintiffs of\\n\\ntheir right under Georgia law to have the finder of fact examine alleged frivolity\\n\\nand to recover the damages to which the statute entitles them. Cf. Fed. R. Civ. P.\\n\\n11(d) advisory committee’s note to 1993 amendment (“Rule 11 is not the exclusive\\n\\nsource for control of improper presentations of claims, defenses, or contentions. It\\n\\ndoes not supplant statutes permitting awards of attorney’s fees to prevailing parties\\n\\nor alter the principles governing such awards.”); Alyeska Pipeline Serv. Co. v.\\n\\nWilderness Soc’y, 421 U.S. 240, 260 n.31 (1975) (“[T]his Court [has] held that a\\n\\nstate statute requiring an award of attorneys’ fees should be applied in a case\\n\\n 31\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 32 of 35\\n\\n\\nremoved from the state courts to the federal courts . . . . It would be at least\\n\\nanomalous if this policy could be thwarted and the right so plainly given destroyed\\n\\nby removal of the cause to the federal courts.” (quoting People of Sioux Cty. v.\\n\\nNat’l Sur. Co., 276 U.S. 238, 243 (1928)).\\n\\n ***\\n\\n Ultimately, we find no conflict between Rule 11 and § 9-11-68(e). They do\\n\\nnot “address the same subject.” Shady Grove, 559 U.S. at 402. Failure to allow\\n\\nfor § 9-11-68(e) hearings would induce forum shopping by defendants seeking to\\n\\navoid those hearings. We therefore hold that O.C.G.A. § 9-11-68(e) is substantive\\n\\nlaw that applies when federal courts exercise their diversity jurisdiction in tort\\n\\ncases governed by Georgia law. Because this case is such a case, the statute\\n\\napplies here.\\n\\n C. Whether the District Court Should Have Held a Bifurcated Hearing\\n\\n Having concluded that O.C.G.A. § 9-11-68(e) applies here, we next decide\\n\\nwhether Showan was entitled to the hearing she requested. We conclude she was\\n\\nso entitled.\\n\\n Section 9-11-68(e) provides, “Upon motion by the prevailing party at the\\n\\ntime that the verdict or judgment is rendered, the moving party may request that\\n\\nthe finder of fact determine whether the opposing party presented a frivolous claim\\n\\nor defense.” In other words, the prevailing party may move, at the time of the\\n\\n 32\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 33 of 35\\n\\n\\nverdict or entry of judgment, for the finder of fact determine the frivolity of the\\n\\nother side’s claim or defenses. “In such event, the court shall hold a separate\\n\\nbifurcated hearing at which the finder of fact shall make a determination of\\n\\nwhether such frivolous claims or defenses were asserted and to award damages, if\\n\\nany, against the party presenting such frivolous claims or defenses.” Id. (emphasis\\n\\nadded). The statute uses the permissive “may” when describing the prevailing\\n\\nparty’s ability to move for fees, but it uses the mandatory “shall” in describing the\\n\\ncourt’s obligation to hold the bifurcated hearing upon the party’s motion. “The\\n\\nword ‘shall’ is ordinarily ‘The language of command’. And when the same Rule\\n\\nuses both ‘may’ and ‘shall’, the normal inference is that each is used in its usual\\n\\nsense—the one act being permissive, the other mandatory.” Anderson v. Yungkau,\\n\\n329 U.S. 482, 485 (1947) (citation omitted); accord O’Donnell v. Durham, 573\\n\\nS.E.2d 23, 24 (Ga. 2002) (“‘Shall’ is generally construed as a word of mandatory\\n\\nimport.”). A district court has no discretion to decline the prevailing party’s\\n\\nrequest under § 9-11-68(e) if the party makes it. The district court thus erred in\\n\\ndenying Showan’s motion.\\n\\n Defendants contend any error was harmless, see Rule 61 of the Federal\\n\\nRules of Civil Procedure,14 because Showan failed to make any showing of\\n\\n\\n 14\\n “Unless justice requires otherwise, no error in admitting or excluding evidence—or any\\nother error by the court or a party—is ground for granting a new trial, for setting aside a verdict,\\nor for vacating, modifying, or otherwise disturbing a judgment or order.” Fed. R. Civ. P. 61.\\n 33\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 34 of 35\\n\\n\\nfrivolity. In light of the mandatory language of the statute, we decline to comment\\n\\non this contention. Showan had a statutory entitlement to the hearing, and denying\\n\\nher that hearing affected her substantial rights. Moreover, whether Showan\\n\\ndemonstrated that Defendants acted frivolously is a matter for the finder of fact\\n\\nunder Georgia law.\\n\\n Defendants further contend that there is no need for an entirely new trial.\\n\\nThey argue that “under Georgia law, attorney’s fees are a distinct and ancillary\\n\\naward, determination of which should not disrupt a judgment on the merits.” But\\n\\nDefendants’ argument proves too much. Any award under § 9-11-68(e) is\\n\\nancillary to the judgment precisely because it is based on the losing party’s conduct\\n\\nduring the course of the litigation that led to that judgment. A new factfinder\\n\\nwould be blind to that conduct. Because the statute requires the prevailing party to\\n\\nmove for a hearing “at the time the verdict or judgment is rendered,” it plainly\\n\\ncontemplates that arguments regarding frivolity belong before the same factfinder\\n\\nthat renders the underlying verdict or judgment.\\n\\n Nor are we persuaded by Defendants’ citation to Richardson v. Locklyn, 793\\n\\nS.E.2d 640 (Ga. Ct. App. 2016), where the court examined O.C.G.A. § 9-11-\\n\\n\\n\\n\\n“At every stage of the proceeding, the court must disregard all errors and defects that do not\\naffect any party’s substantial rights.” Id.\\n 34\\n\\f Case: 17-15547 Date Filed: 04/29/2019 Page: 35 of 35\\n\\n\\n68(d)15 and concluded it could remand for a hearing only on attorney’s fees rather\\n\\nthan a new trial. 793 S.E.2d at 644. Fees under § 9-11-68(d) are awarded by the\\n\\ncourt; fees under § 9-11-68(e) are awarded by the finder of fact. That the same\\n\\nstatute specifically differentiates between who awards fees in different\\n\\ncircumstances serves only to strengthen our conclusion.\\n\\n The district court erred in determining “as a matter of law” that the pleadings\\n\\nwere not frivolous. Georgia has made clear that such a determination is for the\\n\\nfinder of fact. It has also made clear that the prevailing party has a right to a\\n\\nhearing if it requests one. Because the statute requires the same factfinder at both\\n\\nthe trial on the merits and the hearing on frivolity, Showan is entitled to a new trial\\n\\nand the opportunity, if she prevails again, to move for a hearing under § 9-11-\\n\\n68(e).\\n\\n VIII. CONCLUSION\\n\\n We AFFIRM in part, VACATE in part, and REMAND for a new trial\\n\\nconsistent with this opinion.\\n\\n\\n\\n\\n 15\\n We discuss the substantive differences between the statutory subsections further in note\\n9.\\n 35\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1896,"cells":{"id":{"kind":"number","value":4614592,"string":"4,614,592"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Bechir DELVA, Dan Kenny Delva, Defendants-Appellants."},"name_abbreviation":{"kind":"string","value":"United States v. Bechir Delva"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"16-12947"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Marcus, Grant, Hull\", \"parties\": \"\", \"opinions\": [{\"author\": \"HULL, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-12947 Date Filed: 04/29/2019 Page: 1 of 55\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-12947\\n ________________________\\n\\n D.C. Docket No. 0:15-cr-60209-WPD-2\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nBECHIR DELVA,\\nDAN KENNY DELVA,\\n\\n Defendants-Appellants.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 29, 2019)\\n\\nBefore MARCUS, GRANT and HULL, Circuit Judges.\\n\\nHULL, Circuit Judge:\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 2 of 55\\n\\n\\n Defendants Bechir Delva and Dan “Kenny” Delva are brothers who were\\n\\nconvicted of seven crimes arising out of their identity theft and tax fraud\\n\\noperations. After a joint jury trial, the Delvas appeal their convictions and\\n\\nsentences for conspiracy to possess 15 or more unauthorized access devices, in\\n\\nviolation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access\\n\\ndevices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in\\n\\nviolation of 18 U.S.C. § 1028A(a)(1).\\n\\n On appeal, Bechir and Kenny raise separate and joint challenges to their\\n\\nconvictions and sentences. First, Bechir attacks his convictions on the ground that\\n\\nthe district court erred in denying his motion to suppress the evidence found during\\n\\na warrantless search of his vehicle. Second, Kenny challenges the sufficiency of\\n\\nthe evidence supporting each of his convictions. Together, Bechir and Kenny\\n\\nargue that: (1) the district court erred by admitting at trial the government’s expert\\n\\ntestimony as to the terminology and jargon used in identity theft and tax fraud\\n\\ncrimes; and (2) the district court’s errors singularly and cumulatively violated their\\n\\nconstitutional rights to a fair trial and due process of law.\\n\\n As to their sentences, Bechir and Kenny argue that the district court erred in\\n\\napplying an enhancement for possession of a firearm in connection with their\\n\\noffenses. Lastly, Kenny contends that his total 84-month sentence is substantively\\n\\nunreasonable.\\n\\n\\n 2\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 3 of 55\\n\\n\\n After careful review of the record and the parties’ briefs, and with the\\n\\nbenefit of oral argument, we affirm both Delvas’ convictions and sentences.\\n\\n I. FACTUAL BACKGROUND\\n\\n We describe the government’s June 9, 2014, undercover investigation into\\n\\nthe Delvas’ fraud operations, including the federal agents’ search of Bechir’s\\n\\nvehicle and the townhouse where the fraud was conducted. This investigation and\\n\\nthe evidence seized from the car and townhouse formed the basis of the federal\\n\\nprosecution of this case. Our description is based on the evidence presented at\\n\\ntrial, as well as testimony during a pre-trial suppression hearing.\\n\\nA. Undercover Operation\\n\\n A cooperating source, McKenzie Francois, told federal agents that Bechir\\n\\nand Kenny Delva were conducting identity theft and tax fraud operations out of a\\n\\ntownhouse located within a gated community complex in Miramar, Florida.\\n\\nActing on this information, the Agents set up an undercover operation with\\n\\nFrancois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin\\n\\nDeslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security\\n\\nInvestigations and Special Agent Brad Cohen from the Internal Revenue Service\\n\\n(“IRS”) met with Francois at a staging location. The Agents equipped Francois\\n\\nwith a video and audio recording device in a backpack and followed him to the\\n\\ntownhouse in question. One Agent parked his car with a view of the townhouse’s\\n\\n\\n 3\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 4 of 55\\n\\n\\nfront door, while other Agents parked where they could observe the building’s\\n\\nrear.\\n\\n At approximately 12:05 p.m., Francois entered the townhouse and stayed for\\n\\nabout an hour. Bechir, Kenny, and others were present in the townhouse at that\\n\\ntime. While inside, Francois took several pictures with his cell phone and texted\\n\\nthem to the Agents. The pictures showed: (1) individuals sitting on a couch using\\n\\nlaptops; (2) a money counter; (3) a white shoebox lid flipped upside down with\\n\\nnumerous debit cards and papers containing personal identifying information\\n\\ninside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall.\\n\\nGenerally, the personal identifying information included individuals’ names, dates\\n\\nof birth, and Social Security numbers, which we collectively refer to as “PII.”\\n\\n Consistent with these photographs, the video recording covertly captured by\\n\\nFrancois depicted papers listing PII and debit cards visible on the ottoman and a\\n\\nrifle leaning against a wall. Kenny and Bechir could be heard speaking on the\\n\\nrecording. Bechir was sitting on a couch facing the ottoman where the debit cards\\n\\nand papers were located. At one point on the video, Kenny is holding papers and a\\n\\nlaptop power cord. The video also showed that, soon after Francois arrived, the\\n\\nindividuals discovered a government Agent surveilling the townhouse. This\\n\\nprompted a discussion about whether the Agent could “pick up” on who was\\n\\n“sending things” over the internet. They also talked about packing up, “cleaning\\n\\n\\n 4\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 5 of 55\\n\\n\\nup” the townhouse, and leaving to “work” at a hotel. Kenny, in particular, talked\\n\\nabout leaving the townhouse and going to a hotel where it would be safer to work.\\n\\nAround this time, someone else accused Kenny of looking scared, and Bechir\\n\\nreferenced someone going to jail.\\n\\nB. Agents Debrief Francois\\n\\n After leaving the townhouse, Francois met with the Agents again and\\n\\nconfirmed that individuals in the townhouse were conducting fraud activities.\\n\\nFrancois also told the Agents that the individuals noticed a law enforcement officer\\n\\noutside the townhouse and were worried that they were being surveilled. As such,\\n\\nthey talked about “cleaning” the townhouse and getting rid of any illicit materials\\n\\nas soon as possible. The Agents then did the following: Agent Eustice returned to\\n\\nthe gated community to watch the townhouse; Agent Deslauriers took the video\\n\\nequipment back to his office for review; and Agent Goodwin went to secure a\\n\\nfederal search warrant.\\n\\nC. Agents Initially Search the Mercedes\\n\\n At about 2:00 p.m., Agent Eustice returned to the townhouse and saw\\n\\nseveral vehicles lined up in front of the residence. Agent Eustice first saw an\\n\\nunidentified male put a bag into the back of a white Camry and drive away from\\n\\nthe townhouse. Agent Eustice tried to follow the car, but lost it at the front gate.\\n\\nAgent Eustice then saw another male, later identified as Bechir, walk down a\\n\\n\\n 5\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 6 of 55\\n\\n\\nhallway to the townhouse door. Bechir left the townhouse carrying three white\\n\\nshoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle.\\n\\nBechir then departed the townhouse (Unit 105, Building 2492) and drove along the\\n\\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\\n\\nthat main drag and turned into one of the other apartment communities within the\\n\\ncomplex. Bechir parked and began walking away from the car.\\n\\n By this time, two other Agents had joined Agent Eustice at the scene, and\\n\\nthey approached Bechir together. When asked, Bechir denied owning the\\n\\nMercedes and refused to provide the officers with any identification. The Agents\\n\\nthen handcuffed Bechir and eventually placed him in the back of a police car.\\n\\nLooking in the windows of the parked Mercedes, Agent Eustice saw the three\\n\\nshoeboxes that Bechir had loaded into the car. He noticed that one box was ajar\\n\\nand appeared to have credit cards inside.\\n\\n At approximately 4:15 p.m., Agent Deslauriers returned to the scene after\\n\\nwatching the undercover video. Although part of the recorded conversation was in\\n\\nHaitian Creole, which Agent Deslauriers did not understand, he noticed a\\n\\n“heightened sense of urgency at the end” of the video, which corroborated what\\n\\nFrancois had told them.\\n\\n When Agent Deslauriers arrived, Agent Eustice fully briefed him on what\\n\\nhad transpired with Bechir. Agent Deslauriers recognized Bechir from the\\n\\n\\n 6\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 7 of 55\\n\\n\\nundercover video. When he looked in the back of the Mercedes, he also saw the\\n\\nboxes. The boxes looked similar to the box lid Agent Deslauriers saw in\\n\\nFrancois’s pictures and on the undercover video. Additionally, one of the boxes\\n\\nwas slightly ajar, and Agent Deslauriers could see what looked like credit cards\\n\\ninside.\\n\\n Based on the video, the pictures, and the information provided by Francois,\\n\\nAgent Deslauriers believed there was PII and fraudulent credit cards in the box.\\n\\nAgent Deslauriers then opened the Mercedes door, did a cursory search of the\\n\\nboxes, and found stacks of credit cards and papers listing PII. He took a few\\n\\nphotographs and then replaced everything.\\n\\nD. Agents Search the Mercedes and Townhouse\\n\\n Meanwhile, Agent Goodwin secured a search warrant and returned to the\\n\\ntownhouse around 8:30 p.m. The Agents then conducted a thorough search of the\\n\\nMercedes and the townhouse. Within the three boxes in the Mercedes, the Agents\\n\\nfound (1) hundreds of prepaid debit cards, (2) Bechir’s T-Mobile bill, (3) a bill\\n\\naddressed to Kenny, and (4) scores of documents containing PII, including\\n\\nnotebooks, handwritten lists, and Excel spreadsheets. The documents with the PII\\n\\nlisted the names, birthdates, and Social Security numbers of hundreds of\\n\\nindividuals. In the black backpack, the Agents found a laptop computer, as well as\\n\\nadditional papers with PII.\\n\\n\\n 7\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 8 of 55\\n\\n\\n In the townhouse, the Agents discovered a safe with $29,000 inside, two\\n\\nmoney counters, and even more credit cards and more documents listing PII. The\\n\\nAgents also found (1) tax guidelines from Republic Bank and Trust Company,\\n\\n(2) documents listing an electronic filing identification number (“EFIN”) for\\n\\nGustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a\\n\\nPlayhouse Gentleman’s Club VIP card in Bechir’s name, and (5) a letter to Kenny\\n\\nfrom the IRS. The Agents also found two rifles and a handgun, with multiple\\n\\ncorresponding magazines and rounds of ammunition, and receipts showing that\\n\\nKenny had purchased the firearms.\\n\\n In the townhouse garage, Agents found Bechir’s Haitian passport, Kenny’s\\n\\nAudi service contract, Kenny’s insurance records, documents related to Gustavo\\n\\nCruz, a record showing a parcel was shipped to the IRS, and instructions for\\n\\nobtaining an EFIN.\\n\\nE. Bechir’s Interview and Written Statement\\n\\n After searching the townhouse, the Agents apprised Bechir of his Miranda\\n\\nrights1 and interviewed him. Bechir told the Agents that all of the personal\\n\\nidentifying information (the PII) was his. Bechir had obtained the information (the\\n\\nPII), which he called “fos” and “infos,” from an online database, using a login and\\n\\n\\n\\n 1\\n Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).\\n\\n\\n 8\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 9 of 55\\n\\n\\npassword. Bechir told the Agents that he used the personal identifying information\\n\\n(the PII) to file fraudulent tax returns online using an EFIN that he bought on the\\n\\nstreet for $5,000. Bechir would receive the tax refunds on debit cards, which he\\n\\nused at ATMs to withdraw cash. Bechir admitted that the money the Agents found\\n\\nin the townhouse was from tax fraud. He also said the Mercedes belonged to him\\n\\nand Kenny had an Audi in the garage. When asked about the firearms, Bechir told\\n\\nthe Agents that the guns belonged to Kenny. Bechir explained that the firearms\\n\\nwere in the townhouse for protection.\\n\\n In his signed written statement, Bechir also admitted to conducting fraud\\n\\nactivities and keeping firearms at the townhouse for protection from getting\\n\\nrobbed:\\n\\n I’m Bechir Delva, [and] freely and willing admit that the money I store\\n in the safe and all the fraud activities here at 2492 Centergate Drive,\\n Miramar, Florida, Unit 105, are mine. The money in the safe is from\\n fraud and [I] have conducted fraud here. I had legal guns here, rifles\\n and handguns. I kept them here for protection from getting robbed.\\n\\nThe Agents did not arrest or question Kenny on June 9, 2014, as he had left the\\n\\ntownhouse by the time they searched it.\\n\\n II. PRE-TRIAL PROCEEDINGS\\n\\nA. Indictment and Not Guilty Pleas\\n\\n In August 2015, a federal grand jury charged both Bechir and Kenny with:\\n\\n(1) one count of conspiracy to possess 15 or more unauthorized access devices, i.e.,\\n\\n\\n 9\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 10 of 55\\n\\n\\nSocial Security numbers and debit cards issued to other people, in violation of 18\\n\\nU.S.C. § 1029(b)(2) (“Count 1”); (2) one count of possession of 15 or more\\n\\nunauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (“Count 2”);\\n\\nand (3) five counts of aggravated identity theft, in violation of 18 U.S.C.\\n\\n§ 1028A(a)(1) (“Counts 3-7”). The aggravated identity theft counts were tied to\\n\\nspecific real individuals whose PII was recovered from the spreadsheets in the\\n\\nMercedes, namely, L.C. (Count 3), J.F. (Count 4), C.L. (Count 5), D.S. (Count 6),\\n\\nand G.S. (Count 7). The Delvas pleaded not guilty, and the case proceeded to a\\n\\njoint trial.\\n\\nB. Bechir’s Suppression Motion\\n\\n Before trial, Bechir filed a motion to suppress the physical evidence seized\\n\\nfrom his Mercedes.2 Bechir’s motion claimed that he was illegally detained on\\n\\nJune 9 and that the initial warrantless search of his vehicle was illegal. The district\\n\\ncourt conducted an evidentiary hearing, during which Agents Deslauriers and\\n\\nEustice testified for the government. They described the June 9, 2014, events as\\n\\ndetailed above. Bechir did not testify at the hearing.\\n\\n At the end of the hearing, the district court denied Bechir’s suppression\\n\\nmotion. In its written order, the district court first found that one of the boxes in\\n\\n\\n 2\\n Bechir did not challenge the search of the townhouse or move to suppress the\\npost-Miranda statements he made to the federal agents. Kenny did not file a suppression motion\\nat all.\\n 10\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 11 of 55\\n\\n\\nthe Mercedes was ajar, revealing credit cards inside. Next, the court determined\\n\\nthat the fact that the boxes and credit cards were in plain view, combined with\\n\\ninformation Francois provided to the Agents, created sufficient probable cause to\\n\\njustify searching the vehicle. Therefore, based on the automobile exception\\n\\nannounced in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925), the\\n\\ndistrict court determined that the Agents had authorization to search the Mercedes\\n\\nand the boxes at the time when they first detained Bechir. The district court\\n\\nstressed that they did not search the vehicle until after Agent Deslauriers had\\n\\nwatched the undercover video, which the court said clearly depicted fraud.\\n\\nAlternatively, the district court concluded that the inevitable discovery doctrine\\n\\njustified the search because the Agents secured a search warrant later that day.\\n\\n III. THE JOINT TRIAL\\n\\n In February 2016, the case proceeded to a joint trial, which lasted five days.\\n\\nAs Kenny challenges his convictions based on the sufficiency of the evidence, and\\n\\nboth Delvas argue that the introduction of certain expert testimony was improper,\\n\\nwe will review more of the evidence presented at trial.\\n\\nA. The Government’s Evidence\\n\\n During the trial, the government presented testimony from 18 witnesses,\\n\\nincluding Agents Deslauriers, Eustice, Goodwin, and Cohen. The Agents\\n\\ndescribed the events on June 9, 2014, as we have recounted them above, including\\n\\n\\n 11\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 12 of 55\\n\\n\\ntestifying as to Bechir’s post-Miranda interview statements and written confession.\\n\\nThe government also introduced the physical evidence the Agents obtained on June\\n\\n9, that is, Francois’s undercover video and pictures, as well as the evidence Agents\\n\\nseized from Bechir’s Mercedes and the townhouse. In particular, the government\\n\\nintroduced two Excel spreadsheets that were found in Bechir’s car, which listed the\\n\\nnames, birthdates, and Social Security numbers of the five victims specifically\\n\\nnamed in Counts 3-7 of the indictment. Agent Deslauriers also explained\\n\\nsubsequent steps the Agents took to investigate the Delvas’ fraud scheme, such as\\n\\nsending some of the seized evidence to a forensic lab for fingerprint analysis.\\n\\n Fingerprint specialist Genius Johnson then testified that he compared\\n\\nBechir’s and Kenny’s fingerprints to those he recovered from two documents\\n\\ncontaining PII that were seized in the case. On one document, Johnson found one\\n\\nlatent fingerprint left by Bechir, and on another spreadsheet, Johnson found four\\n\\nlatent fingerprints left by Kenny. Johnson testified that it was impossible that\\n\\nsomeone other than Bechir and Kenny left those fingerprints on the papers.\\n\\n The government also called Detective Kenneth Sealy as an expert witness in\\n\\nidentity theft and tax fraud and the terminology and jargon used in this type of\\n\\ncrime. Sealy is a Detective with the Aventura Police Department who had been\\n\\nassigned to the IRS Identity Theft Task Force for four years. Detective Sealy had\\n\\nreceived training on identity theft crimes from several different institutions,\\n\\n\\n 12\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 13 of 55\\n\\n\\nincluding from the IRS, U.S. Secret Service, Citibank, Homeland Security,\\n\\nDiscover Card, Broward Community College, and the Broward College Police\\n\\nAcademy. Detective Sealy’s training with the IRS was specifically focused on the\\n\\nways in which fraudulent tax returns are filed with stolen identities to obtain\\n\\nrefunds and how to investigate those types of crimes. Sealy explained that the term\\n\\n“stolen identity refund fraud” referred to the use of stolen identities—individuals’\\n\\nnames, dates of birth, and Social Security numbers—to file fraudulent income tax\\n\\nreturns with the IRS to obtain a refund.\\n\\n As to experience, Detective Sealy had conducted more than 75 fraud\\n\\ninvestigations, including in 50 tax fraud cases. Detective Sealy had also listened in\\n\\non over 30 jail calls placed by defendants charged with “stolen identity refund\\n\\nfraud” and debriefed over 20 such cooperating defendants. From the phone calls\\n\\nand debriefs, Detective Sealy learned the methods by which “stolen identity refund\\n\\nfraud” is conducted and the terminology used in that type of fraud. Detective\\n\\nSealy explained that, in the majority of the tax fraud cases he investigated, the\\n\\ncriminals used coded terminology. As part of his investigations, Detective Sealy\\n\\nalso had worked undercover to purchase, or arrange for the purchase of, PII from\\n\\nindividuals engaged in fraud. Sealy explained that PII usually refers to people’s\\n\\nnames, dates of birth, and Social Security numbers. Based on his expertise,\\n\\nDetective Sealy had taught fraud classes to other police departments and colleges\\n\\n\\n 13\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 14 of 55\\n\\n\\nand had previously testified in a case in federal court as an expert in fraud\\n\\ninvestigations and terminology.\\n\\n Detective Sealy testified that criminals committing “stolen identity refund\\n\\nfraud” obtain PII from multiple sources, including online or from people who work\\n\\nat schools, banks, hospitals, or at other places where they have access to such\\n\\ninformation. In reviewing the documents seized in this case, Detective Sealy\\n\\nconfirmed that they appeared to be medical billing sheets, Excel spreadsheets\\n\\nlisting PII, and hospital patient printouts, which were consistent with the type of\\n\\nrecords he had found in other “stolen identity refund fraud” cases. On the Excel\\n\\nspreadsheets, Detective Sealy noted that someone had handwritten checkmarks,\\n\\nXs, and debit card account numbers alongside the specific PII entries. He\\n\\nexplained that the handwritten notations indicated whether the participant had been\\n\\nsuccessful or not in using the listed individual’s PII in the fraud scheme.\\n\\n Next, Detective Sealy generally described how “stolen identity refund fraud”\\n\\nworks. He explained that once the fraudsters obtain the PII, they input that\\n\\ninformation into an online tax preparation website and then report fictitious\\n\\nearnings, as if they were preparing real tax returns. When filing the fraudulent tax\\n\\nreturns, the criminals elect to have the tax refund deposited onto prepaid debit\\n\\ncards, which are linked to online checking accounts. These fraudulent tax returns\\n\\n\\n\\n\\n 14\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 15 of 55\\n\\n\\nare typically filed in volume to increase the likelihood of successfully obtaining\\n\\nrefunds.\\n\\n As to terminology, Detective Sealy testified that “fos” is a common slang\\n\\nterm that identity fraudsters use in South Florida, and it means “info” or\\n\\n“information,” like an individual’s name, date of birth, and Social Security\\n\\nnumber. The government then played portions of the undercover video and asked\\n\\nDetective Sealy follow-up questions. For instance, after reviewing when an\\n\\nindividual in the townhouse said, “[w]hen you work over and over, and you send\\n\\neverything at once, and you’re done, that’s better,” Detective Sealy testified that\\n\\n“work” in this context typically means either opening credit card accounts or filing\\n\\nfraudulent tax returns. And when individuals in the townhouse mentioned “PD,”\\n\\nsuch as “My PDs always go,” Detective Sealy testified that PD typically refers to\\n\\npersonal drops—that is, the actual deposit of tax refunds from the U.S. Treasury to\\n\\nthe account associated with a debit card.\\n\\n Detective Sealy also explained that when an individual said, “I never check\\n\\nthe confirmation,” the term “confirmation” usually refers to checking the status of\\n\\na tax refund on the IRS website. More still, after another individual said on the\\n\\nvideo, “I’m going to have these chicks buy me some plastic,” Detective Sealy\\n\\ntestified that “plastic” refers to debit cards or credit cards. He said that criminals\\n\\n\\n\\n\\n 15\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 16 of 55\\n\\n\\ninvolved in this type of fraud commonly have third parties purchase the debit cards\\n\\nfor them in order for the fraudsters themselves to avoid store surveillance cameras.\\n\\n The government then played a video clip where the individuals were\\n\\ndiscussing leaving the townhouse and going to a hotel because they were\\n\\nconcerned that law enforcement was monitoring them. Detective Sealy confirmed\\n\\nthat, in his experience, individuals committing “stolen identity refund fraud” often\\n\\nwork out of hotels because using a hotel’s wi-fi internet makes it more difficult for\\n\\nlaw enforcement to track the fraud.\\n\\n Next, Yamile Colt, a witness from the Social Security Administration,\\n\\ntestified. Colt had examined a list of approximately 1,696 Social Security\\n\\nnumbers, which were all found within the documentary evidence seized from the\\n\\nMercedes and townhouse. Colt determined that all but 16 of the 1,696 numbers\\n\\nwere legitimate Social Security numbers that belonged to real people.\\n\\n Included in that list were the names and Social Security numbers for the five\\n\\nindividuals named in Counts 3 through 7 of the indictment. Three of the named\\n\\nindividuals came to trial and testified that their PII appeared on documents seized\\n\\nfrom the Mercedes, but that they had never given the Delvas permission to use\\n\\ntheir PII and did not recognize either Bechir or Kenny.\\n\\n Joanna Steisel, an IRS Analyst, then testified. Steisel explained that, when\\n\\nsomeone electronically files a federal tax return, the IRS conducts what is called a\\n\\n\\n 16\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 17 of 55\\n\\n\\n24-hour check, where it verifies the accuracy of certain PII against its system.\\n\\nSteisel also explained that the IRS assigns EFINs to tax preparation businesses so\\n\\nthat they can submit a large number of tax returns online on behalf of other people.\\n\\nThere is no limit to the number of returns you can file with an EFIN.\\n\\n As to the Delvas’ fraud specifically, Steisel testified that she had reviewed\\n\\nsix pages of PII that the Agents recovered from Bechir’s Mercedes. The IRS\\n\\nAnalyst looked at whether the handwritten debit account numbers on those pages\\n\\nof PII were associated with filed tax returns. She discovered that the accounts\\n\\nwere linked to 21 fraudulent tax returns that had been filed in March and April of\\n\\n2014. These fraudulent tax returns had requested a total of $186,697 in tax\\n\\nrefunds. Of the requested refunds, the IRS directly deposited $51,441 in tax\\n\\nrefunds to the listed accounts. The fraudulent tax returns were all filed using\\n\\nGustavo Cruz’s EFIN.\\n\\n After the government rested, the Delvas moved under Rule 29 of the Federal\\n\\nRules of Criminal Procedure for a judgment of acquittal. The district court denied\\n\\nthe Rule 29 motions.\\n\\nB. Bechir Testifies\\n\\n Bechir then testified on his own behalf. Bechir explained that, on June 9,\\n\\n2014, he was living at his parents’ house, but went over to the townhouse to spend\\n\\ntime with friends. Bechir said that the townhouse belonged to a relative who was\\n\\n\\n 17\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 18 of 55\\n\\n\\nout of the country, but that Francois was living there at that time with his cousins.\\n\\nBechir had known Francois since they were children, as their parents were\\n\\nneighbors.\\n\\n Sometime after Bechir arrived, Francois and Kenny came over to the\\n\\ntownhouse too. According to Bechir, Francois warned him that the police were\\n\\nwatching and asked him to move some boxes out of the townhouse. Bechir\\n\\ncomplied, carried Francois’s boxes to the Mercedes, and then moved his car to\\n\\nanother parking space. This is when the Special Agents confronted him. Bechir\\n\\ntestified that, after the Agents handcuffed him, they eventually took him back to\\n\\nthe townhouse, but he denied making any statements to the Agents that day. When\\n\\nconfronted with his written post-Miranda statement, Bechir explained that he was\\n\\nscared and wrote exactly what an Agent told him to write.\\n\\n On cross-examination, Bechir testified that he would go to the townhouse\\n\\nonce in a while to play videogames and basketball, but he was rarely there. Bechir\\n\\nconfirmed that he did not stay at the townhouse; rather, he stayed at his mother’s\\n\\nhouse. When Bechir arrived on June 9, Francois’s cousins were on their\\n\\ncomputers, and the guns, papers, and debit cards were in the townhouse. Bechir\\n\\nadmitted to seeing papers everywhere, but denied seeing any PII. Instead, he\\n\\nthought the personal information was fake. Bechir testified that the papers, PII,\\n\\n\\n\\n\\n 18\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 19 of 55\\n\\n\\nand debit cards all belonged to Francois and his cousins. None of it belonged to\\n\\nhim or to Kenny.\\n\\n The government then confronted Bechir with portions of the undercover\\n\\nvideo. After viewing the clip where individuals were talking about the police\\n\\nwatching the townhouse, Bechir testified that he was not concerned about the\\n\\npolice presence because he was just at the townhouse to hang out. When the\\n\\ngovernment asked why Bechir was talking about jail on the recording, Bechir said\\n\\nhe was making a joke. Bechir admitted to seeing Kenny on the video recording,\\n\\nbut denied that Kenny was using a computer. Bechir also testified that he did not\\n\\nknow why Kenny was talking about going to a hotel or why it would be safer at a\\n\\nhotel, explaining too that Kenny never told him anything about filing taxes at a\\n\\nhotel. Bechir acknowledged that, after people on the video discussed the police,\\n\\nsomeone told Kenny that he looked scared, but Bechir said that Kenny was “not\\n\\nscared at all.” Bechir also agreed that, moments later, Kenny was holding papers,\\n\\nbut Bechir denied that it looked like Kenny was “packing up.”\\n\\n Bechir did confirm that it was Kenny who said on the recording, “You know\\n\\nwhen you work over and over, and you send everything at once, and you’re done,\\n\\nthat’s better.” Bechir, however, did not know what “work” meant in that statement\\n\\nbecause Kenny was speaking in “code” or “street language.” Bechir also did not\\n\\nknow what Kenny meant when he said: “I’m going to have these chicks buy me\\n\\n\\n 19\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 20 of 55\\n\\n\\nsome plastic.” Bechir maintained that he had no knowledge that Kenny was\\n\\ninvolved in filing fraudulent tax returns.\\n\\n While Bechir testified that Kenny bought the firearms found in the\\n\\ntownhouse, Bechir said that they were there for recreational use at a gun range—\\n\\nnot to protect the stolen identities or tax fraud proceeds. Though Bechir admitted\\n\\nto moving the boxes to his car, he denied opening the boxes himself. Bechir\\n\\nclaimed that everything in the boxes belonged to Francois and his cousins. When\\n\\nthe government showed Bechir that his phone bill was found in one of those boxes,\\n\\nBechir could not explain how it got there, but suggested the Agents had planted it\\n\\nto frame him. Bechir also did not know how his passport ended up in the\\n\\ntownhouse’s garage.\\n\\n Kenny did not testify and the defense rested.\\n\\nC. The Verdict and Sentences\\n\\n The Delvas then renewed their Rule 29 motions. Noting that “the\\n\\ngovernment’s case got stronger with the cross-examination of Bechir,” the district\\n\\ncourt denied the motions. After deliberating, the jury found Bechir and Kenny\\n\\nguilty on all counts. The district court sentenced Bechir to 102 months’\\n\\nimprisonment and Kenny to 84 months’ imprisonment. This is the Delvas’ appeal.\\n\\n IV. BECHIR’S SUPPRESSION MOTION\\n\\n On appeal, Bechir argues that the district court erred in denying his pre-trial\\n\\n\\n 20\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 21 of 55\\n\\n\\nsuppression motion and then admitting into evidence the physical items seized\\n\\nfrom his Mercedes.3 Bechir contends that no probable cause existed for the Agents\\n\\nto search his car before obtaining a warrant. 4\\n\\nA. Automobile Exception\\n\\n The Fourth Amendment guarantees “[t]he right of the people to be secure in\\n\\ntheir persons, houses, papers, and effects, against unreasonable searches and\\n\\nseizures.” U.S. Const. amend. IV. To guarantee this right, the Fourth Amendment\\n\\ngenerally requires law enforcement officials to obtain a warrant before conducting\\n\\na search. United States v. Watts, 329 F.3d 1282, 1284 (11th Cir. 2003). There are,\\n\\nhowever, exceptions. Id.\\n\\n Under the automobile exception to the warrant requirement, “[t]he police\\n\\nmay search an automobile and the containers within it where they have probable\\n\\ncause to believe contraband or evidence is contained.” California v. Acevedo, 500\\n\\n\\n\\n 3\\n “A denial of a motion to suppress involves mixed questions of fact and law. We review\\nfactual findings for clear error, and view the evidence in the light most favorable to the\\nprevailing party. We review de novo the application of the law to the facts.” United States v.\\nBarber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).\\n 4\\n On appeal, Bechir does not challenge the admission of the physical evidence seized from\\nthe townhouse or his oral and written confessions. In his brief, however, Bechir mentions in an\\nargument summary and heading that the district court erred in failing to suppress his “arrest” and\\nthat no probable cause existed for the Agents to stop him as he walked away from his Mercedes.\\nBut other than simply stating this issue, Bechir does not explain or discuss it any further.\\n Because Bechir has not sufficiently raised this detention issue on appeal, he has\\nabandoned it. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n\\nappellant’s simply stating that an issue exists, without further argument or discussion, constitutes\\nabandonment of that issue and precludes our considering the issue on appeal.”).\\n 21\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 22 of 55\\n\\n\\nU.S. 565, 580, 111 S. Ct. 1982, 1991 (1991); United States v. Magluta, 418 F.3d\\n\\n1166, 1182 (11th Cir. 2005). For a warrantless search of an automobile to be\\n\\nconstitutional, “(1) the automobile must be readily mobile, and (2) there must be\\n\\nprobable cause to believe that it contains contraband or evidence of a crime.”\\n\\nUnited States v. Lanzon, 639 F.3d 1293, 1299–300 (11th Cir. 2011).\\n\\n Probable cause exists to conduct a warrantless search when “there is a fair\\n\\nprobability that contraband or evidence of a crime will be found in the vehicle”\\n\\nunder the totality of the circumstances. United States v. Tamari, 454 F.3d 1259,\\n\\n1261–62 (11th Cir. 2006) (quotations omitted). Facts provided by a confidential\\n\\ninformant and then independently corroborated by the government can support\\n\\nprobable cause to believe that a vehicle contains contraband. United States v.\\n\\nTalley, 108 F.3d 277, 281–82 (11th Cir. 1997).\\n\\n There is no dispute in this case that the Mercedes was operational. Our\\n\\ninquiry is limited to determining whether probable cause existed to allow the\\n\\nwarrantless search of the vehicle. Upon review of the record, we readily conclude\\n\\nthat Agent Deslauriers had probable cause to conduct the initial search of the\\n\\nMercedes because there was a fair probability that the car contained evidence of a\\n\\ncrime.\\n\\n To begin with, Francois told the Agents that Bechir and Kenny were\\n\\nconducting identity theft and tax fraud operations out of the townhouse. To\\n\\n\\n 22\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 23 of 55\\n\\n\\ninvestigate this tip, the Agents equipped Francois with a recording device and sent\\n\\nhim to the townhouse on June 9, 2014. While inside, Francois took pictures and\\n\\nsent them to the Agents, which showed a white shoebox lid flipped upside down\\n\\ncontaining numerous debit cards and documents listing PII, multiple people using\\n\\nlaptops, a money counter, and a firearm. Francois’s covert video recording further\\n\\ncorroborated his account of Bechir’s and Kenny’s fraud operations.\\n\\n After leaving the townhouse, Francois told the Agents that the individuals\\n\\nknew law enforcement was surveilling the townhouse and planned to relocate their\\n\\noperations and remove the fraud-related materials from the townhouse as soon as\\n\\npossible. Consistent with Francois’s account, when Agent Eustice returned to the\\n\\ntownhouse, he saw Bechir removing three white shoeboxes and a backpack from\\n\\nthe townhouse and loading them in his Mercedes. The Agents had seen a white\\n\\nshoebox lid containing debit cards and papers with PII in both the pictures from\\n\\nFrancois and in the undercover video.\\n\\n And when Agents Eustice and Deslauriers looked through the windows of\\n\\nthe parked Mercedes, they could see the boxes in the car. One box lid was ajar,\\n\\nand the Agents saw what appeared to be credit or debit cards inside. Given the\\n\\ntotality of these circumstances, at that point, a reasonable Agent could deduce with\\n\\na fair probability that the Mercedes contained evidence of a crime. See Tamari,\\n\\n\\n\\n\\n 23\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 24 of 55\\n\\n\\n454 F.3d at 1261–62. Thus, the Agents were entitled to search the Mercedes under\\n\\nthe automobile exception to the warrant requirement.\\n\\n We recognize that Bechir argues, in a conclusory fashion, that no probable\\n\\ncause existed to search the car because the Agents could not see evidence of fraud\\n\\nin plain view in the Mercedes. 5 Based on the uncontroverted testimony of Agents\\n\\nDeslauriers and Eustice, however, the district court found as fact that the boxes and\\n\\ncredit cards were in plain view in the Mercedes. To the extent that Bechir is\\n\\nchallenging this factual finding, he has not shown that it was clearly erroneous.\\n\\n Before concluding, we address one final suppression issue. During the trial,\\n\\nBechir disavowed any connection to the activities inside the townhouse, or to the\\n\\ntownhouse itself at that time. Bechir maintained that he did not live at the\\n\\ntownhouse or otherwise stay there. In fact, Bechir said that he was rarely at the\\n\\ntownhouse and only visited once in a while. During the district court proceedings\\n\\nand in the suppression motion, in particular, Bechir never claimed that his\\n\\nMercedes was parked in front of the townhouse or within its curtilage when the\\n\\nAgents initially searched it without a warrant.\\n\\n\\n 5\\n For the first time on appeal, Bechir contends that the district court incorrectly found that\\nthe search of his Mercedes was permissible as a vehicle search incident to arrest under Arizona\\nv. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). This, however, was not the basis for the district\\ncourt’s denial of Bechir’s motion to suppress. As we set forth earlier, the district court found\\nthat the search of the Mercedes was valid under the automobile exception and, alternatively,\\nunder the inevitable discovery doctrine. Because we conclude that the search was valid under\\nthe automobile exception and, alternatively, the inevitable discovery doctrine, we need not\\nexamine the search-incident-to-arrest exception.\\n 24\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 25 of 55\\n\\n\\n Yet, before oral argument, Bechir filed a Federal Rule of Appellate\\n\\nProcedure 28(j) letter citing Collins v. Virginia, 584 U.S. __, 138 S. Ct. 1663\\n\\n(2018), which addresses searching a vehicle within the curtilage of a home. To the\\n\\nextent that Bechir seeks to raise a home-curtilage issue as to his vehicle, Bechir’s\\n\\nreliance on Collins is misplaced. The facts in Collins involved a warrantless\\n\\nsearch of a motorcycle that was parked at the top of a driveway that “abut[ted] the\\n\\nhouse” of the defendant’s girlfriend. Id. at __, 138 S. Ct. at 1671. The Supreme\\n\\nCourt determined that the part of the driveway where the defendant’s motorcycle\\n\\nwas parked and subsequently searched constituted curtilage of the home. Id. The\\n\\nquestion posed was “whether the automobile exception justifies the invasion of the\\n\\ncurtilage” of a home. Id. The Supreme Court then considered the relationship\\n\\nbetween the Fourth Amendment protections provided to the curtilage of a home\\n\\nand the automobile exception. Id. at __, 138 S. Ct. at 1675. Ultimately, the\\n\\nSupreme Court held that “the automobile exception does not permit an officer\\n\\nwithout a warrant to enter a home or its curtilage in order to search a vehicle\\n\\ntherein.” Id. (emphasis added).\\n\\n In contrast to Collins, Bechir’s Mercedes, at the time of the search, was no\\n\\nlonger at the townhouse or parked in a driveway abutting the townhouse. Rather,\\n\\nBechir departed the townhouse (Unit 105, Building 2492) and drove along the\\n\\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\\n\\n\\n 25\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 26 of 55\\n\\n\\nthat main drag and turned into one of the other apartment communities within the\\n\\ncomplex and parked. That parking area was not within the curtilage of the\\n\\ntownhouse where the Delvas conducted their fraud activities. See Florida v.\\n\\nJardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414 (2013) (instructing that the area\\n\\n“immediately surrounding and associated with the home”—the curtilage—is “part\\n\\nof the home itself for Fourth Amendment purposes”); United States v. Taylor, 458\\n\\nF.3d 1201, 1206 (11th Cir. 2006) (A home’s curtilage is “[t]he private property\\n\\nimmediately adjacent to a home.”); Collins, 584 U.S. at __, 138 S. Ct. at 1671\\n\\n(explaining that the driveway abutting the house is “an area adjacent to the home\\n\\nand to which the activity of home life extends, and so is properly considered\\n\\ncurtilage” (quotations omitted)). Therefore, Collins does not help Bechir.\\n\\nB. Inevitable Discovery Doctrine\\n\\n As an independent and alternative ground, we also conclude that the\\n\\nevidence obtained from the warrantless search of the Mercedes was admissible\\n\\nunder the inevitable discovery doctrine. “Under the exception for ‘inevitable\\n\\ndiscovery,’ the government may introduce evidence that was obtained by an illegal\\n\\nsearch if the government can establish a reasonable probability that the evidence in\\n\\nquestion would have been discovered by lawful means.” United States v. Johnson,\\n\\n777 F.3d 1270, 1274 (11th Cir. 2015) (quotations omitted). The government must\\n\\n\\n\\n\\n 26\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 27 of 55\\n\\n\\nshow that “the lawful means which made discovery inevitable were being actively\\n\\npursued prior to the occurrence of the illegal conduct.” Id. (quotations omitted).\\n\\n Here, in addition to obtaining a warrant to search the Mercedes later that\\n\\nsame day, the Agents were actively pursuing that warrant before they initially\\n\\nsearched the Mercedes. Agent Goodwin went to secure a federal search warrant\\n\\nimmediately after debriefing Francois. While the warrant affidavit included Agent\\n\\nEustice’s observation of Bechir’s loading the boxes into his Mercedes, it did not\\n\\ninclude information learned by Agent Deslauriers’ initial search of the vehicle.\\n\\nThe evidence in the Mercedes therefore would have been inevitably discovered\\n\\nwhen the Agents later searched the vehicle pursuant to the search warrant.\\n\\n For these reasons, the district court did not err in denying Bechir’s\\n\\nsuppression motion.\\n\\n V. KENNY’S SUFFICIENCY OF THE EVIDENCE ISSUES\\n\\n On appeal, Kenny argues that his seven convictions should be vacated\\n\\nbecause there was insufficient evidence that he knowingly took part in the criminal\\n\\nactivities of identity theft and tax fraud. 6 We address each conviction in turn.\\n\\n\\n\\n 6\\n “We review de novo challenges to the sufficiency of the evidence to support a\\nconviction, viewing the evidence and all reasonable inferences derived therefrom in the light\\nmost favorable to the government.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir.\\n2014). To sustain a verdict of guilt, the evidence “need not exclude every reasonable hypothesis\\nof innocence” or be “wholly inconsistent with every conclusion except that of guilt,” as long as a\\n“reasonable factfinder” choosing from among reasonable constructions of the evidence “could\\nfind that the evidence establishes guilt beyond a reasonable doubt.” United States v. Kelly, 888\\n 27\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 28 of 55\\n\\n\\n\\n\\nA. Conspiracy to Possess Unauthorized Access Devices\\n\\n As to Count 1, Kenny argues that the evidence was insufficient to convict\\n\\nhim of conspiracy to possess 15 or more unauthorized access devices because there\\n\\nwas no evidence that he took part in any criminal activity or knew about any of the\\n\\nprocesses by which he could obtain fraudulent tax refunds.\\n\\n Section 1029(a)(3) makes it a crime for anyone to “knowingly and with\\n\\nintent to defraud possess[] fifteen or more devices which are counterfeit or\\n\\nunauthorized access devices.” 18 U.S.C. § 1029(a)(3). Section 1029(b)(2), in turn,\\n\\nprovides criminal liability for “[w]hoever is a party to a conspiracy of two or more\\n\\npersons to commit an offense under subsection (a) of this section, if any of the\\n\\nparties engages in any conduct in furtherance of such offense.” Id. § 1029(b)(2).\\n\\nSocial Security numbers and debit cards are “access devices.” See Baldwin, 774\\n\\nF.3d at 722; see also 18 U.S.C. § 1029(e)(1) (defining “access devices” to include\\n\\n“any card . . . [or] personal identification number . . . that can be used . . . to obtain\\n\\nmoney, goods, services, or any other thing of value, or that can be used to initiate a\\n\\ntransfer of funds”).\\n\\n\\n\\n\\nF.2d 732, 740 (11th Cir. 1989). “This standard of review applies to both direct and\\ncircumstantial evidence.” United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997).\\n\\n\\n 28\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 29 of 55\\n\\n\\n To obtain a conviction for conspiracy, the government must prove “beyond a\\n\\nreasonable doubt, even if only by circumstantial evidence, that a conspiracy existed\\n\\nand that the defendant knowingly and voluntarily joined the conspiracy.” United\\n\\nStates v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotations omitted).\\n\\n“Although mere presence at the scene of a crime is insufficient to support a\\n\\nconspiracy conviction, presence nonetheless is a probative factor which the jury\\n\\nmay consider in determining whether a defendant was a knowing and intentional\\n\\nparticipant in a criminal scheme.” Id. (quotations omitted). “A conspiracy\\n\\nconviction will be upheld when the circumstances surrounding a person’s presence\\n\\nat the scene of conspiratorial activity are so obvious that knowledge of its character\\n\\ncan fairly be attributed to him.” United States v. Garcia, 447 F.3d 1327, 1338\\n\\n(11th Cir. 2006) (quotation and alteration omitted); see also United States v.\\n\\nBrantley, 68 F.3d 1283, 1288 (11th Cir. 1995) (noting that the personal\\n\\nrelationship and close proximity between a defendant and co-conspirator during\\n\\nthe commission of an offense made it more likely that the defendant was aware of\\n\\nthe illicit plan).\\n\\n Construed in the light most favorable to the government, the trial evidence\\n\\nhere permitted a reasonable jury to find Kenny guilty of the conspiracy charge\\n\\nbeyond a reasonable doubt. For starters, the June 9, 2014, undercover\\n\\ninvestigation placed Kenny at the townhouse, along with Bechir and Francois.\\n\\n\\n 29\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 30 of 55\\n\\n\\nBoth the Agents and Bechir identified Kenny on the undercover video that\\n\\nFrancois recorded. Notably, that video depicted Kenny right alongside laptops,\\n\\ndocuments listing PII, debit cards, a money counter, and a rifle—all out in the\\n\\nopen. At one point, Kenny was holding a laptop power cord and papers. As\\n\\nobserved earlier, the fraudulent tax returns were filed using computers and the\\n\\npapers containing PII had hundreds of names of real people with their dates of\\n\\nbirth and Social Security numbers.\\n\\n Moreover, Kenny’s own statements on the undercover video demonstrated\\n\\nthat he knew that the PII and debit cards were being used in the identity theft and\\n\\ntax fraud scheme. As Bechir confirmed at trial, it was Kenny who said: “[w]hen\\n\\nyou work over and over, and you send everything at once, and you’re done, that’s\\n\\nbetter.” Detective Sealy testified that, in this type of fraud, the term “work” meant\\n\\nusing stolen PII to file a fraudulent tax return or to open a credit card account. On\\n\\nthe video, Kenny also said that “I’m going to have these chicks buy me some\\n\\nplastic,” and Detective Sealy testified that “plastic” in this context referred to debit\\n\\nor credit cards.\\n\\n Also, after learning that the Agents were surveilling the townhouse, Kenny\\n\\nsaid he was leaving and going to a hotel where it would be safer to “work.”\\n\\nAccording to Detective Sealy, criminals involved in “stolen identity refund fraud”\\n\\noften work out of hotels so that they can use the hotel’s wi-fi, which makes it\\n\\n\\n 30\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 31 of 55\\n\\n\\nharder for law enforcement to track their online activities. Around this time,\\n\\nsomeone also told Kenny that he looked scared, and Bechir mentioned that\\n\\nsomeone might go to jail. Moments later, Kenny was holding the laptop power\\n\\ncord and papers, and then he left the townhouse.\\n\\n Not only was Kenny present in the townhouse on June 9, his personal\\n\\nbelongings were found amidst the extensive evidence of fraud. In the townhouse,\\n\\nthe Agents found an IRS letter addressed to Kenny and receipts showing that\\n\\nKenny had purchased the three firearms. These items of Kenny’s were found\\n\\nalong with various documents containing PII, other documents listing Gustavo\\n\\nCruz’s EFIN, a boxful of prepaid debit cards, $29,000 in a safe, and money\\n\\ncounters. Then, in the garage, along with Kenny’s Audi service contract and\\n\\ninsurance records, Agents found other documents related to Gustavo Cruz, a record\\n\\nshowing that a parcel was shipped to the IRS, and instructions for obtaining an\\n\\nEFIN.\\n\\n In the three boxes Bechir moved from the townhouse to his Mercedes, the\\n\\nAgents found one of Kenny’s bills comingled with several other documents listing\\n\\nPII and even more prepaid debit cards. Importantly too, Kenny’s fingerprints were\\n\\nfound on one of the documents containing PII that was recovered from the\\n\\nMercedes. That document was a printed Excel spreadsheet that listed the names,\\n\\ndates of birth, and Social Security numbers of 32 different people. And on that\\n\\n\\n 31\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 32 of 55\\n\\n\\nspecific spreadsheet, there were debit account numbers written next to certain\\n\\nindividuals’ PII, which indicated that their personal information was used to file\\n\\nfraudulent tax returns.\\n\\n Furthermore, the IRS Analyst reviewed just six pages of these same type of\\n\\nExcel spreadsheets and determined that the debit account numbers written next to\\n\\nthe PII entries were linked to 21 fraudulent tax returns that had been filed. Those\\n\\nfraudulent tax returns had requested a total of $186,697 in tax refunds. Of the\\n\\nrequested refunds, the IRS directly deposited $51,441 in tax refunds to the listed\\n\\ndebit accounts. In addition, those fraudulent tax returns were all filed in the two\\n\\nmonths preceding the June 9 investigation with Gustavo Cruz’s EFIN—the same\\n\\nEFIN that the Agents found in the townhouse.\\n\\n In sum, there was more than sufficient evidence for a reasonable jury to\\n\\nconvict Kenny of the conspiracy charge in Count 1.\\n\\nB. Possession of Unauthorized Access Devices\\n\\n As to his Count 2 conviction, Kenny argues that the evidence was\\n\\ninsufficient for the jury to find that he knowingly possessed 15 or more access\\n\\ndevices. As stated above, § 1029(a)(3) makes it a crime for anyone to “knowingly\\n\\nand with intent to defraud possess[] fifteen or more devices which are counterfeit\\n\\nor unauthorized access devices.” 18 U.S.C. § 1029(a)(3). “A person\\n\\nconstructively possesses an item when he has knowledge of the thing possessed\\n\\n\\n 32\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 33 of 55\\n\\n\\ncoupled with the ability to maintain control over it or reduce it to his physical\\n\\npossession, even though he does not have actual personal dominion.” Baldwin,\\n\\n774 F.3d at 722 (quotations omitted). “Constructive possession also occurs when a\\n\\nperson exercises ownership, dominion, or control over the contraband itself or\\n\\ndominion or control over the premises or the vehicle in which the contraband [is]\\n\\nconcealed.” Id. (quotations omitted).\\n\\n The same evidence supporting the conspiracy to possess unauthorized access\\n\\ndevices amply shows that Kenny was aware of and had the ability to control the PII\\n\\nand debit cards that were being used in the identity theft and tax fraud scheme. For\\n\\ninstance, the video recording placed Kenny in the townhouse surrounded by the\\n\\nidentity theft and tax fraud evidence and showed him talking about purchasing\\n\\n“plastic,” among other things. Additionally, Kenny’s personal items were mixed\\n\\nwith the loose documents listing the PII, as well as the stacks of debit cards, in\\n\\nboth the townhouse and Mercedes, and his fingerprints were found on a document\\n\\ncontaining PII. That page alone contained 32 individuals’ names, dates of birth,\\n\\nand Social Security numbers and notations indicating that the personal information\\n\\nwas used to file fraudulent tax returns. This evidence was sufficient for the jury to\\n\\nconclude that Kenny knowingly possessed the Social Security numbers and debit\\n\\ncards used in the identity theft and tax fraud scheme.\\n\\nC. Aggravated Identity Theft\\n\\n\\n 33\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 34 of 55\\n\\n\\n As to Counts 3-7, Kenny contends that his aggravated identity theft\\n\\nconvictions, under 18 U.S.C. § 1028A(a)(1), should be vacated because there was\\n\\ninsufficient evidence that he knew that the means of personal identification he\\n\\npossessed belonged to real people.7\\n\\n Section 1028A(a)(1) provides for an additional two-year sentence for\\n\\nwhoever “during and in relation to” certain felonies, including possession of 15 or\\n\\nmore unauthorized access devices, “knowingly transfers, possesses, or uses,\\n\\nwithout lawful authority, a means of identification of another person.” 18 U.S.C.\\n\\n§ 1028A(a)(1) (emphasis added). The “means of identification” element refers to\\n\\n“a name, social security number, date of birth, or driver’s license number, among\\n\\nother things.” United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011).\\n\\n For aggravated identity theft convictions under § 1028A(a)(1), the\\n\\ngovernment must prove “that the defendant knew that the means of identification\\n\\nat issue belonged to another person.” Flores-Figueroa v. United States, 556 U.S.\\n\\n646, 657, 129 S. Ct. 1886, 1894 (2009). That is, the defendant must know that he\\n\\npossessed “for example, a real ID belonging to another person rather than, say, a\\n\\nfake ID (i.e., a group of numbers that does not correspond to any real Social\\n\\n\\n\\n 7\\n To the extent that Kenny argues that his aggravated identity theft convictions were not\\nsupported by sufficient evidence that he had knowledge of the PII or identity theft in general, the\\nsame evidence supporting the knowledge element for his conspiracy to possess unauthorized\\naccess devices and possession of unauthorized access devices convictions establishes his\\nknowledge of the PII for the aggravated identity theft convictions as well.\\n 34\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 35 of 55\\n\\n\\nSecurity number).” Id. at 648, 129 S. Ct. at 1889. Therefore, to convict Kenny of\\n\\nthe five aggravated identity theft counts, the government was required to show that\\n\\nKenny knew the means of identification for L.C. (Count 3), J.F. (Count 4), C.L.\\n\\n(Count 5), D.S. (Count 6), and G.S. (Count 7), belonged to real people. See\\n\\nBaldwin, 774 F.3d at 723.\\n\\n In United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010), this Court\\n\\nestablished that the government can rely on circumstantial evidence about an\\n\\noffender’s misuse of a victim’s identity to prove the offender knew the identity\\n\\nbelonged to a real person to support aggravated identity theft convictions under\\n\\n§ 1028A(a)(1). We held that a reasonable jury could have found that the\\n\\ngovernment had proved that the defendant knew that a Social Security card and\\n\\nbirth certificate belonged to a real person when she used them to apply for a\\n\\ndriver’s license. Id. We explained that, because the defendant obtained a line of\\n\\ncredit and successfully used the Social Security card and birth certificate to obtain\\n\\na passport and two identification cards before she used the victim’s identity in the\\n\\ncharged offense, a reasonable trier of fact could have found the defendant knew the\\n\\nidentity belonged to a real person. Id. We reasoned further that a reasonable jury\\n\\ncould have found that “[the defendant] would not have sought credit using [the\\n\\nvictim’s] personal information if [the defendant] were not confident that [the\\n\\nvictim] likely had an actual credit history.” Id. Thus, “a defendant’s repeated and\\n\\n\\n 35\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 36 of 55\\n\\n\\nsuccessful testing of the authenticity of a victim’s identifying information prior to\\n\\nthe crime at issue is powerful circumstantial evidence that the defendant knew the\\n\\nidentifying information belonged to a real person as opposed to a fictitious one.”\\n\\nDoe, 661 F.3d at 562-63.\\n\\n This Court reaffirmed that principle in United States v. Gomez-Castro, 605\\n\\nF.3d 1245, 1248–49 (11th Cir. 2010), holding that the defendant’s purchase of the\\n\\nvictim’s birth certificate and Social Security card for $2,500 and repeated testing of\\n\\nthe authenticity of both by successfully obtaining a driver’s license, two credit\\n\\ncards, and a bank account, was sufficient to show that the defendant knew the birth\\n\\ncertificate and Social Security card belonged to a real person for his aggravated\\n\\nidentity theft conviction under § 1028A(a)(1). We explained that “[b]oth the\\n\\ncircumstances in which an offender obtained a victim’s identity and the offender’s\\n\\nlater misuse of that identity can shed light on the offender’s knowledge about that\\n\\nidentity.” Id. at 1248.\\n\\n In Baldwin, an identity theft and tax fraud case like this one, this Court held\\n\\nthat a reasonable jury could consider that a victim’s information was “used as part\\n\\nof a scheme to obtain a refund from the IRS, which verifies the name and Social\\n\\nSecurity number of the person requesting the refund, in considering whether [the\\n\\ndefendant] knew that [the victim] was a real person” for the aggravated identity\\n\\ntheft convictions under § 1028A(a)(1). Baldwin, 774 F.3d at 723–26. We also\\n\\n\\n 36\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 37 of 55\\n\\n\\nsaid that a jury could consider the origin of the personal information being used.\\n\\nId. at 723. There, the information was found on a document from the Florida\\n\\nAgency for Persons with Disabilities, and the jury could infer that the state agency\\n\\ndid not keep records that did not relate to real people. Id.\\n\\n Under this precedent, a reasonable jury could have found, beyond a\\n\\nreasonable doubt, that Kenny knew the five victims’ personal information\\n\\nbelonged to real people because the Delvas were using the information “as part of\\n\\n[their] scheme to obtain a refund from the IRS, which verifies the name and Social\\n\\nSecurity number of the person requesting the refund.” Id. at 723–26. And the\\n\\nDelvas’ identity theft and tax fraud scheme was working.\\n\\n Indeed, the five victims’ names, dates of birth, and Social Security numbers\\n\\nwere found listed on spreadsheets in one of the boxes that Bechir moved from the\\n\\ntownhouse to his car. Kenny’s fingerprints were on one of the spreadsheet\\n\\ndocuments, along with notations indicating that the personal information was used\\n\\nto file fraudulent tax returns. The evidence indicated that the Delvas either already\\n\\nhad used or planned to use the names, dates of birth, and Social Security numbers\\n\\ncontained in these same spreadsheets to request fraudulent tax refunds from the\\n\\nIRS. In six pages worth of spreadsheets alone, the Delvas already had used 21\\n\\nidentities to file fraudulent tax returns. The fraud scheme clearly worked because\\n\\nthe IRS paid out $51,441 in refunds in connection with those fraudulent tax\\n\\n\\n 37\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 38 of 55\\n\\n\\nreturns. To be sure, “[u]sing stolen identities was the central feature of the\\n\\nscheme.” See United States v. Sammour, 816 F.3d 1328, 1337 (11th Cir. 2016)\\n\\n(holding that evidence was sufficient to find identifications belonged to real people\\n\\nto support convictions of aggravated identity theft where, inter alia, a defendant\\n\\nhad sophisticated knowledge of stolen identity refund scheme and was sure that\\n\\nchecks from the IRS were valid). A reasonable jury could have found that Kenny\\n\\nwould not have sought a refund from the IRS with the personal information he\\n\\npossessed, including the five victims’ information, unless he thought that the\\n\\nvictims were real people with real Social Security numbers. See Holmes, 595 F.3d\\n\\nat 1258.\\n\\n Further, from the sheer volume of PII listed on the documents seized in this\\n\\ncase, the jury could infer that the Delvas expected their ongoing tax-fraud scheme\\n\\nto continue working for some time. The Delvas possessed nearly 1,700 names\\n\\nwith Social Security numbers, and all but 16 of those belonged to real people.\\n\\nEven after learning that law enforcement was surveilling them, Kenny planned to\\n\\nrelocate the operations and continue “working” out of a hotel. Viewing this\\n\\nevidence in the light most favorable to the government, the jury could infer that the\\n\\nidentity theft and tax fraud scheme was working and that Kenny knew that all of\\n\\n\\n\\n\\n 38\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 39 of 55\\n\\n\\nthe names, dates of birth, and Social Security numbers listed in those spreadsheets,\\n\\nincluding those of the five named victims, belonged to real people. 8\\n\\n VI. THE EXPERT OPINION ISSUE\\n\\n Together, the Delvas next argue that the district court abused its discretion in\\n\\npermitting Detective Sealy to testify as an expert in identity theft and tax fraud and\\n\\nthe terminology and jargon used in this type of crime. Specifically, their\\n\\nobjections relate to Sealy’s opinion interpreting what he saw on the undercover\\n\\nvideo and to his testimony on terminology. 9\\n\\nA. Detective Sealy’s Expert Testimony\\n\\n In determining the admissibility of expert testimony under Federal Rule of\\n\\nEvidence 702, a district court must consider whether: “(1) the expert is qualified to\\n\\ntestify competently regarding the matters he intends to address; (2) the\\n\\nmethodology by which the expert reaches his conclusions is sufficiently reliable as\\n\\n\\n\\n\\n 8\\n In this particular Section V(C), we have focused on Counts 3 through 7. But as to\\nCounts 1 and 2, to the extent Kenny also argues the government failed to prove he knew the PII\\nbelonged to real people, that claim fails because knowledge that the PII belonged to real people\\nis not a requirement of his convictions under § 1029(b)(2) in Count 1 and § 1029(a)(3) in Count\\n2. 18 U.S.C. § 1029(a)(3), (b)(2). In any event, the evidence in this case was sufficient to show\\nKenny knew the PII belonged to real people with regard to Counts 1 and 2 as well.\\n 9\\n We note that, while Kenny objected at trial to the admission of Detective Sealy’s expert\\ntestimony, Bechir did not and thus our review is for plain error. However, because we conclude\\nthat the Delvas have not shown any error, much less plain error, we need not undertake a\\nseparate plain error analysis here.\\n\\n\\n 39\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 40 of 55\\n\\n\\ndetermined by the sort of inquiry mandated in Daubert; 10 and (3) the testimony\\n\\nassists the trier of fact, through the application of scientific, technical, or\\n\\nspecialized expertise, to understand the evidence or to determine a fact in issue.”\\n\\nUnited States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015). 11\\n\\n It is well-settled that experienced and qualified law enforcement agents can\\n\\ntestify as experts to decode criminal conversations and operations that jurors might\\n\\nnot otherwise understand. See, e.g., Holt, 777 F.3d at 1265 (holding the district\\n\\ncourt did not err in permitting an agent to “testify as to the meanings of coded\\n\\nlanguage used by the defendants in intercepted communications” relating to their\\n\\nnarcotics charges because of agent’s extensive involvement in this investigation\\n\\nand her training and experience in previous wiretaps); United States v. Emmanuel,\\n\\n565 F.3d 1324, 1335 (11th Cir. 2009) (“The operations of narcotics dealers,\\n\\nincluding drug codes and jargon, are proper subjects of expert testimony”); Garcia,\\n\\n447 F.3d at 1335 (recognizing well-established rule that an experienced narcotics\\n\\nagent may testify as an expert to interpret drug codes and terminology to help a\\n\\njury understand the significance of operations unique to the drug distribution\\n\\n\\n 10\\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\\n 11\\n We review a district court’s decision to admit expert testimony for an abuse of\\ndiscretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not\\nreverse a district court’s evidentiary ruling in the absence of manifest error. Holt, 777 F.3d at\\n1264. As we have explained, “a district court enjoys considerable leeway” in making its\\nevidentiary rulings. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).\\n\\n 40\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 41 of 55\\n\\n\\nbusiness); United States v. Cross, 928 F.2d 1030, 1051 n.65 (11th Cir. 1991)\\n\\n(noting that it was proper for an FBI agent to testify that, in communicating with\\n\\none another, pedophiles use certain code words to refer to photographs of\\n\\nchildren); United States v. Brown, 872 F.2d 385, 392 (11th Cir. 1989) (determining\\n\\nthat the district court did not err in allowing FBI agent to testify as to drug code\\n\\nwords); United States v. Masson, 582 F.2d 961, 963–64 (5th Cir. 1978) (finding no\\n\\nerror where FBI agent with extensive experience and knowledge of bookmaking\\n\\noperations and terminology gave expert testimony interpreting gambling jargon to\\n\\naid the jury’s understanding of recorded conversations); United States v. Alfonso,\\n\\n552 F.2d 605, 618 (5th Cir. 1977) (upholding use of expert testimony to supply\\n\\nmeaning to the “cryptic nature of [some] recorded conversations, often framed in\\n\\njargon peculiar to the gambling trade” because “it was appropriate to present\\n\\nexpert testimony to supply meaning to the conversations and explain the roles of\\n\\nthe appellants”).\\n\\n “[F]ederal courts have ordinarily allowed law enforcement officials to testify\\n\\nas experts . . . to establish the modus operandi of particular crimes, in order to\\n\\nexplain the actions of the defendants.” Cross, 928 F.2d at 1050 (quotations\\n\\nomitted); see also United States v. Burchfield, 719 F.2d 356, 358 (11th Cir. 1983)\\n\\n(concluding that an agent’s testimony regarding counterfeit-bill-passing techniques\\n\\nhelped to elucidate the actions of the defendants).\\n\\n\\n 41\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 42 of 55\\n\\n\\n Here, the district court did not abuse its discretion in allowing Detective\\n\\nSealy to testify as an expert witness as to the meanings of the terminology used in\\n\\nstolen identity refund fraud generally or by the individuals recorded on the\\n\\nundercover video specifically. First, Detective Sealy was qualified to testify\\n\\ncompetently regarding the terminology used in this type of fraud based on his\\n\\ntraining and experience. Detective Sealy received extensive training on identity\\n\\ntheft crimes from the IRS, U.S. Secret Service, Citibank, Homeland Security,\\n\\nDiscover Card, Broward Community College, and the Broward College Police\\n\\nAcademy. His IRS training specifically focused on the ways in which stolen\\n\\nidentities are used to fraudulently request tax refunds and how to investigate those\\n\\ncrimes.\\n\\n As to his experience, Detective Sealy had personally participated in more\\n\\nthan 75 fraud-related investigations, sometimes in an undercover capacity, with 50\\n\\nof those investigations involving tax fraud. He had listened in on over 30 jail calls\\n\\nplaced by defendants charged with stolen identity refund fraud and debriefed over\\n\\n20 such cooperating defendants. Detective Sealy had even taught classes on fraud-\\n\\nrelated topics, as well as previously testified in a case in federal court as an expert\\n\\nin fraud investigations and terminology. Detective Sealy clearly was an\\n\\nexperienced agent with specific and substantial exposure to “stolen identity refund\\n\\nfraud.” See Garcia, 447 F.3d at 1334–35 (finding agent to be properly qualified as\\n\\n\\n 42\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 43 of 55\\n\\n\\nan expert because he “had been a DEA agent for several years and had received\\n\\ntraining regarding the operation and structure of drug trafficking organizations and\\n\\nhow those organizations transport and distribute drugs,” as well as personally\\n\\nparticipating in at least 50 drug investigations and numerous wiretap\\n\\ninvestigations, which made him familiar with the coded language that some drug\\n\\ntrafficking organizations use); Holt, 777 F.3d at 1265 (“Agent Sargent was\\n\\nqualified based on, most notably, her extensive involvement in this particular\\n\\ninvestigation, including review of more than 99 percent of the intercepted\\n\\ncommunications in this case, as well as her training, experience in previous\\n\\nwiretaps, and general investigative experience during her six years as a DEA\\n\\nAgent.”).\\n\\n Second, Detective Sealy’s methodology was reliable because his opinions\\n\\nwere based on his extensive experience working on stolen identity refund fraud\\n\\ncases, including investigating them, working undercover, listening in on numerous\\n\\njail calls, and debriefing defendants charged with this crime. Based on these\\n\\ninvestigations, Detective Sealy was familiar with the methods by which stolen\\n\\nidentity refund fraud is conducted and the terminology used in this type of fraud.\\n\\nOf the 50 tax fraud cases Detective Sealy investigated, the majority involved\\n\\ncriminals using coded terminology.\\n\\n\\n\\n\\n 43\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 44 of 55\\n\\n\\n Third, Detective Sealy’s testimony assisted the jury in understanding how\\n\\nthe slang terms used by Bechir and Kenny related to the terminology used in this\\n\\nstolen identity refund fraud. For example, in his post-Miranda interview, Bechir\\n\\nadmitted to finding the “fos” online and using it to file fraudulent tax returns.\\n\\nDetective Sealy competently testified that, in South Florida, “fos” is a common\\n\\nslang term used in “stolen identity refund fraud” and means personal identifying\\n\\ninformation or PII, such as an individual’s name, date of birth, and Social Security\\n\\nnumber. On the undercover video recording, when Kenny said that he was going\\n\\nto “have these chicks buy me some plastic,” Detective Sealy explained to the jury\\n\\nthat “plastic” refers to debit cards or credit cards. This scheme involved having the\\n\\ntax refunds deposited in debit card accounts that were opened using the same PII\\n\\nthat was used to file corresponding fraudulent tax returns. While a lay person\\n\\nmight be able to guess the meanings of the code words or terminology used by\\n\\nBechir and Kenny, Detective Sealy “could—based on [his] training and\\n\\nexperience—interpret the meaning of the words more accurately than a lay person\\n\\nor the prosecutor.” See Holt, 777 F.3d at 1266.\\n\\n To the extent that the Delvas contend that allowing Detective Sealy to testify\\n\\nas an expert permitted him to invade the province of the jury and give his opinion\\n\\non their ultimate guilt, we find no support for that contention in the record.\\n\\nDetective Sealy’s testimony was focused on describing stolen identity tax refund\\n\\n\\n 44\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 45 of 55\\n\\n\\nfraud generally and explaining the meanings of particular words used on the video\\n\\nrecording. The record does not show that Detective Sealy offered overall opinions\\n\\nas to Bechir’s or Kenny’s guilt. The district court did not err, much less manifestly\\n\\nerr, in admitting Detective Sealy’s testimony.\\n\\n VII. CUMULATIVE ERROR\\n\\n The Delvas’ last argument concerning their convictions is that cumulative\\n\\nerror by the district court requires reversal. Bechir and Kenny have not established\\n\\na single error, let alone the aggregation of “many errors” that may require a\\n\\nreversal where the individual errors do not. See United States v. Baker, 432 F.3d\\n\\n1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington,\\n\\n547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). The Delvas’ cumulative error\\n\\nclaim therefore lacks merit.\\n\\n VIII. SENTENCING ISSUES\\n\\n Both Delvas raise sentencing issues. After the guilty verdicts, a probation\\n\\nofficer prepared presentence investigation reports (“PSI”) for the Delvas.\\n\\nA. Bechir’s Sentencing\\n\\n Bechir’s PSI applied a base offense level of 6 under U.S.S.G. § 2B1.1(a)(2)\\n\\nbecause he was convicted of a fraud crime with less than a 20-year statutory\\n\\nmaximum term of imprisonment. The PSI increased Bechir’s offense level to 26\\n\\nbased on: (1) a 14-level increase under § 2B1.1(b)(1)(H) because the loss amount\\n\\n\\n 45\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 46 of 55\\n\\n\\nwas $1,014,697; (2) a 2-level increase under § 2B1.1(b)(2)(A)(i) because the\\n\\noffense involved more than 10 victims; (3) a 2-level increase under § 3C1.1\\n\\nbecause Bechir willfully obstructed justice by falsely testifying at trial; and (4) a 2-\\n\\nlevel increase under § 2B1.1(b)(15)(B) because the offense involved possession of\\n\\na firearm in connection with the offense.\\n\\n Bechir’s total offense level of 26 and criminal history category of I yielded\\n\\nan advisory guidelines range of 63 to 78 months’ imprisonment for Counts 1 and 2.\\n\\nAs to Counts 3-7, Bechir was subject to a mandatory 24-month prison term, which\\n\\nwas required to be served consecutive to any other sentence imposed for Counts 1\\n\\nand 2, but that could be imposed concurrently with each other. See 18 U.S.C.\\n\\n§ 1028A(a)(1), (b)(2), and (b)(4).\\n\\n Bechir’s only objection to his guidelines range calculation was to the\\n\\napplication of the firearm enhancement. At the sentencing hearing, Bechir argued\\n\\nthat, although he had admitted that the firearms were in the townhouse for\\n\\nprotection against getting robbed, the firearm enhancement was improper because\\n\\nthe weapons were not used in any way.\\n\\n The district court overruled this objection to the firearm enhancement,\\n\\nfinding that “[t]he gun was clearly there as a means of enforcement or protection to\\n\\nprotect the fraud factory that was going on there.” The district court found further\\n\\n\\n\\n\\n 46\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 47 of 55\\n\\n\\nthat possessing the gun was “inherent to the fraud crime that was going on and a\\n\\npart of it.”\\n\\n The district court stated that it had considered the Sentencing Guidelines, the\\n\\n18 U.S.C. § 3553(a) factors, and Bechir’s personal characteristics, among other\\n\\nthings. Highlighting the need for deterrence, the district court found it appropriate\\n\\nto impose a sentence that could prevent others who would be “tempted to make a\\n\\nquick, easy buck and swindle the government out of thousands, if not hundreds of\\n\\nthousands of dollars.”\\n\\n The district court sentenced Bechir to imprisonment of: (1) 60 months on\\n\\nCount 1 (the conspiracy); (2) 78 months on Count 2 (the possession of\\n\\nunauthorized access devices) to run concurrent with Count 1; and (3) 24 months on\\n\\neach of Counts 3-7 (the aggravated identity thefts) to run concurrent with each\\n\\nother, but consecutive to Counts 1 and 2.\\n\\nB. Kenny’s Sentencing\\n\\n The PSI’s calculation of Kenny’s advisory guidelines range was largely\\n\\nidentical to Bechir’s, except that Kenny did not receive the 2-level obstruction of\\n\\njustice increase under § 3C1.1. Kenny’s total offense level of 24 and criminal\\n\\nhistory category of I yielded an advisory guidelines imprisonment range of 51 to\\n\\n63 months’ imprisonment for Counts 1 and 2. As to Counts 3-7, Kenny was\\n\\nsubject to a mandatory 24-month prison term, which was required to be served\\n\\n\\n 47\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 48 of 55\\n\\n\\nconsecutive to any other sentence imposed for Counts 1 and 2, but that could be\\n\\nimposed concurrently with each other. See 18 U.S.C. § 1028A(a)(1), (b)(2), and\\n\\n(b)(4).\\n\\n As with Bechir, Kenny objected to the firearm enhancement. Kenny argued\\n\\nthat, even though Bechir said that Kenny bought the firearms and Bechir kept them\\n\\n“for protection from robbery,” there was no evidence that Kenny: (1) was aware\\n\\nthat Bechir was using the firearms for protection; (2) had possession or control of\\n\\nthe firearms after giving them to Bechir; or (3) had any intent or plan to use the\\n\\nfirearms for protection. At the sentencing hearing, Kenny acknowledged the\\n\\nstrength of Bechir’s admissions that the firearms were used for protection in the\\n\\nfraud scheme, but argued nevertheless that there was no evidence linking Kenny to\\n\\nthe use of those firearms other than the fact that he bought them for his brother\\n\\nBechir.\\n\\n The district court overruled this objection, finding that “the rifle was there in\\n\\nopen view for easy access, so that the people who were involved in the fraud\\n\\nfactory could grab it real quick and defend themselves . . . if someone was going to\\n\\ntry to rip them off.” The district court found further that everyone who was in the\\n\\nroom with the rifle and participating in the fraudulent tax return scheme was in\\n\\nconstructive possession of the firearm, and it was reasonably foreseeable to all of\\n\\nthem that the gun was there to protect “the fraud factory.”\\n\\n\\n 48\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 49 of 55\\n\\n\\n After considering the Sentencing Guidelines and the § 3553(a) factors, the\\n\\ndistrict court sentenced Kenny to imprisonment of: (1) 60 months on each of\\n\\nCounts 1 and 2 to run concurrent to each other; and (2) 24 months on Counts 3-7,\\n\\nto run concurrent with each other, but consecutive to Counts 1 and 2.\\n\\nC. Firearm Enhancement\\n\\n On appeal, both Bechir and Kenny argue that, in calculating their advisory\\n\\nguidelines ranges for Counts 1 and 2, the district court erred in applying the 2-level\\n\\nenhancement under § 2B1.1(b)(15)(B) for possession of a firearm in connection\\n\\nwith their offenses. Individually, Bechir contends that the district court erred in\\n\\napplying the enhancement because his post-Miranda written statement was\\n\\ninsufficient to trigger the firearm enhancement, and there was no other evidence\\n\\nthat he intended to use the firearm for protection. Kenny argues that the district\\n\\ncourt erred when it found he was in constructive possession of the firearm found in\\n\\nthe townhouse because there was no evidence that he possessed the firearm, knew\\n\\nthat Bechir was using the firearm for protection, or was aware of the money in the\\n\\nsafe.\\n\\n In reviewing the procedural reasonableness of a sentence, we must “ensure\\n\\nthat the district court committed no significant procedural error, such as failing to\\n\\ncalculate (or improperly calculating) the Guidelines range, treating the Guidelines\\n\\nas mandatory, failing to consider the § 3553(a) factors, selecting a sentence based\\n\\n\\n 49\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 50 of 55\\n\\n\\non clearly erroneous facts, or failing to adequately explain the chosen sentence.”\\n\\nUnited States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (quotations\\n\\nomitted). When a defendant challenges the application of a sentencing\\n\\nenhancement, we review a district court’s factual findings on the disputed\\n\\nsentencing enhancement only for clear error and its application of the Sentencing\\n\\nGuidelines to those facts de novo. United States v. Matos-Rodriguez, 188 F.3d\\n\\n1300, 1309 (11th Cir. 1999). Under clear error review, we will not disturb the\\n\\ndistrict court’s findings unless we are left with a definite and firm conviction that a\\n\\nmistake was made. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017).\\n\\n The Sentencing Guidelines provide for a two-level offense increase if a\\n\\ndefendant possessed a dangerous weapon, such as a firearm, in connection with his\\n\\nfraud offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B) (2016). The mere\\n\\npossession of a firearm during the commission of an offense can, in certain\\n\\ncircumstances, be sufficient to apply a sentencing enhancement. United States v.\\n\\nJackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (holding that a firearm sentencing\\n\\nenhancement for mere possession is proper “where it is reasonable to assume that a\\n\\ndefendant possesses a firearm, even without using it, to prevent the theft of\\n\\ncounterfeit currency in his possession”). We look at the circumstances\\n\\nsurrounding the offense and firearm possession to determine whether it is\\n\\nreasonable to infer that the firearm might be used during an offense. See United\\n\\n\\n 50\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 51 of 55\\n\\n\\nStates v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001). A co-conspirator’s\\n\\npossession of a firearm may be attributed to the defendant if the co-conspirator’s\\n\\npossession of the firearm was reasonably foreseeable by the defendant, occurred\\n\\nwhile the defendant was a member of the conspiracy, and was in furtherance of the\\n\\nconspiracy. United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir. 2010).\\n\\n In this case, the district court did not err in applying the firearm\\n\\nenhancement or clearly err in finding that Bechir and Kenny had possessed a\\n\\nfirearm in connection with their offenses. Bechir and Kenny were conducting\\n\\nsubstantial identity theft and tax fraud operations out of the townhouse. Not only\\n\\ndid they have scores of PII and debit cards there, they also kept the proceeds from\\n\\ntheir fraud in the townhouse—$29,000 in a safe. Amidst all the fraud-related\\n\\nmaterials and money, the Delvas had a rifle that Kenny had purchased leaning up\\n\\nagainst the wall in the exact same room and at the exact same time as they were\\n\\nconducting their various fraudulent activities.\\n\\n More still, Bechir expressly admitted in his post-Miranda statement that the\\n\\nfirearms were kept in the townhouse to protect them from being robbed. Although\\n\\nBechir testified at trial that the Agents coerced his statement and the firearms were\\n\\nactually kept for recreational purposes, the district court was free to reject that\\n\\ntestimony and conclude instead that the gun was in the townhouse to protect the\\n\\nfraud operations.\\n\\n\\n 51\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 52 of 55\\n\\n\\n And while Kenny now disclaims any knowledge of the purpose of the\\n\\nfirearm or the money in the safe, the trial evidence indicated otherwise. Kenny\\n\\nwas the registered owner of the firearms found in the townhouse and a knowing\\n\\nparticipant in the identity theft and tax fraud scheme. Even though Bechir said that\\n\\nhe kept the guns for protection, possession of the firearms could be properly\\n\\nattributed to Kenny too because it was reasonably foreseeable that Bechir would\\n\\npossess a firearm in furtherance of the fraud in any event. See Villarreal, 613 F.3d\\n\\nat 1359. Indeed, Kenny purchased the firearms for Bechir.\\n\\n Based on this record, the district court did not clearly err in finding that the\\n\\nrifle was in the townhouse as a means of protection against potential robberies and,\\n\\nthus, both Delvas possessed the firearm in connection with their offenses. See\\n\\nMatos-Rodriguez, 188 F.3d at 1309 (holding that a defendant who “possessed [a]\\n\\npistol to prevent theft [of counterfeit money] during a close, face-to-face,\\n\\nhand-to-hand encounter with a person he apparently did not know well” possessed\\n\\na firearm “in connection with” the offense). Therefore, the 2-level increase\\n\\npursuant to § 2B1.1(b)(15)(B) was properly applied to Bechir’s and Kenny’s\\n\\nsentences.\\n\\nD. Substantive Reasonableness\\n\\n Kenny asserts that his total 84-month sentence was substantively\\n\\nunreasonable because the nature and circumstances of his offenses, the need to\\n\\n\\n 52\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 53 of 55\\n\\n\\nreflect the serious of the offenses, and the need to protect the public, all support a\\n\\nlesser sentence.\\n\\n We review the reasonableness of a sentence under the deferential\\n\\nabuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.\\n\\n586, 597 (2007). “The party challenging the sentence bears the burden to show\\n\\nthat the sentence imposed is unreasonable in light of the record and the 18 U.S.C.\\n\\n§ 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).\\n\\n The district court must impose a sentence sufficient, but not greater than\\n\\nnecessary, to comply with the purposes listed in 18 U.S.C. § 3553(a)(2), including\\n\\nthe need to reflect the seriousness of the offense, promote respect for the law,\\n\\nprovide just punishment for the offense, deter criminal conduct, and protect the\\n\\npublic. See 18 U.S.C. § 3553(a)(2). The district court must also consider, among\\n\\nother things, the nature and circumstances of the offense, the history and\\n\\ncharacteristics of the defendant, the kinds of sentences available, the applicable\\n\\nadvisory guidelines range, the pertinent policy statements of the Sentencing\\n\\nCommission, and the need to provide restitution to victims. 18 U.S.C.\\n\\n§ 3553(a)(1), (3)-(7).\\n\\n We have made clear, though, that the weight given to any specific § 3553(a)\\n\\nfactor is committed to the sound discretion of the district court. United States v.\\n\\nCroteau, 819 F.3d 1293, 1310 (11th Cir. 2016). We will not remand for\\n\\n\\n 53\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 54 of 55\\n\\n\\nresentencing unless we are “left with the definite and firm conviction that the\\n\\ndistrict court committed a clear error of judgment in weighing the § 3553(a) factors\\n\\nby arriving at a sentence that lies outside the range of reasonable sentences dictated\\n\\nby the facts of the case.” Id. (citing United States v. Irey, 612 F.3d 1160, 1190\\n\\n(11th Cir. 2010) (en banc)). And while we do not presume that a sentence falling\\n\\nwithin the guidelines range is reasonable, we ordinarily expect it to be so. United\\n\\nStates v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “A sentence imposed well\\n\\nbelow the statutory maximum penalty is another indicator of reasonableness.”\\n\\nCroteau, 819 F.3d at 1310.”\\n\\n Kenny has not demonstrated that his 84-month sentence was substantively\\n\\nunreasonable. In fashioning Kenny’s sentence, the district court considered the\\n\\nSentencing Guidelines and the § 3553(a) factors and imposed a total\\n\\nwithin-guidelines sentence of 60 months’ imprisonment followed by the mandatory\\n\\nconsecutive 24-month sentence for his five aggravated identity theft convictions.\\n\\nWe normally expect a sentence falling within the guidelines range to be\\n\\nreasonable. See Hunt, 526 F.3d at 746. The district court also ordered that\\n\\nKenny’s five mandatory 24-month aggravated identity theft sentences run\\n\\nconcurrently with each other, not consecutively to each other, which resulted in a\\n\\nsignificantly shorter total sentence. Although the district court emphasized the\\n\\nneed to deter others from engaging in this type of fraud when it imposed Kenny’s\\n\\n\\n 54\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 55 of 55\\n\\n\\nsentence, the district court did not abuse its discretion in doing so. Finally,\\n\\nKenny’s total 84-month sentence was well below the 25-year statutory maximum\\n\\nfor all of the charged crimes combined, another indicator of reasonableness. See\\n\\nCroteau, 819 F.3d at 1310.\\n\\n IX. CONCLUSION\\n\\n For the reasons stated above, we affirm Bechir Delva’s and Kenny Delva’s\\n\\nconvictions and sentences.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 55\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391845/\", \"author_raw\": \"HULL, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARCUS"},"judge2":{"kind":"string","value":"GRANT"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614592/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bechir DELVA, Dan Kenny Delva, Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-12947 Date Filed: 04/29/2019 Page: 1 of 55\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-12947\n ________________________\n\n D.C. Docket No. 0:15-cr-60209-WPD-2\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nBECHIR DELVA,\nDAN KENNY DELVA,\n\n Defendants-Appellants.\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (April 29, 2019)\n\nBefore MARCUS, GRANT and HULL, Circuit Judges.\n\nHULL, Circuit Judge:\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 2 of 55\n\n\n Defendants Bechir Delva and Dan “Kenny” Delva are brothers who were\n\nconvicted of seven crimes arising out of their identity theft and tax fraud\n\noperations. After a joint jury trial, the Delvas appeal their convictions and\n\nsentences for conspiracy to possess 15 or more unauthorized access devices, in\n\nviolation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access\n\ndevices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in\n\nviolation of 18 U.S.C. § 1028A(a)(1).\n\n On appeal, Bechir and Kenny raise separate and joint challenges to their\n\nconvictions and sentences. First, Bechir attacks his convictions on the ground that\n\nthe district court erred in denying his motion to suppress the evidence found during\n\na warrantless search of his vehicle. Second, Kenny challenges the sufficiency of\n\nthe evidence supporting each of his convictions. Together, Bechir and Kenny\n\nargue that: (1) the district court erred by admitting at trial the government’s expert\n\ntestimony as to the terminology and jargon used in identity theft and tax fraud\n\ncrimes; and (2) the district court’s errors singularly and cumulatively violated their\n\nconstitutional rights to a fair trial and due process of law.\n\n As to their sentences, Bechir and Kenny argue that the district court erred in\n\napplying an enhancement for possession of a firearm in connection with their\n\noffenses. Lastly, Kenny contends that his total 84-month sentence is substantively\n\nunreasonable.\n\n\n 2\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 3 of 55\n\n\n After careful review of the record and the parties’ briefs, and with the\n\nbenefit of oral argument, we affirm both Delvas’ convictions and sentences.\n\n I. FACTUAL BACKGROUND\n\n We describe the government’s June 9, 2014, undercover investigation into\n\nthe Delvas’ fraud operations, including the federal agents’ search of Bechir’s\n\nvehicle and the townhouse where the fraud was conducted. This investigation and\n\nthe evidence seized from the car and townhouse formed the basis of the federal\n\nprosecution of this case. Our description is based on the evidence presented at\n\ntrial, as well as testimony during a pre-trial suppression hearing.\n\nA. Undercover Operation\n\n A cooperating source, McKenzie Francois, told federal agents that Bechir\n\nand Kenny Delva were conducting identity theft and tax fraud operations out of a\n\ntownhouse located within a gated community complex in Miramar, Florida.\n\nActing on this information, the Agents set up an undercover operation with\n\nFrancois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin\n\nDeslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security\n\nInvestigations and Special Agent Brad Cohen from the Internal Revenue Service\n\n(“IRS”) met with Francois at a staging location. The Agents equipped Francois\n\nwith a video and audio recording device in a backpack and followed him to the\n\ntownhouse in question. One Agent parked his car with a view of the townhouse’s\n\n\n 3\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 4 of 55\n\n\nfront door, while other Agents parked where they could observe the building’s\n\nrear.\n\n At approximately 12:05 p.m., Francois entered the townhouse and stayed for\n\nabout an hour. Bechir, Kenny, and others were present in the townhouse at that\n\ntime. While inside, Francois took several pictures with his cell phone and texted\n\nthem to the Agents. The pictures showed: (1) individuals sitting on a couch using\n\nlaptops; (2) a money counter; (3) a white shoebox lid flipped upside down with\n\nnumerous debit cards and papers containing personal identifying information\n\ninside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall.\n\nGenerally, the personal identifying information included individuals’ names, dates\n\nof birth, and Social Security numbers, which we collectively refer to as “PII.”\n\n Consistent with these photographs, the video recording covertly captured by\n\nFrancois depicted papers listing PII and debit cards visible on the ottoman and a\n\nrifle leaning against a wall. Kenny and Bechir could be heard speaking on the\n\nrecording. Bechir was sitting on a couch facing the ottoman where the debit cards\n\nand papers were located. At one point on the video, Kenny is holding papers and a\n\nlaptop power cord. The video also showed that, soon after Francois arrived, the\n\nindividuals discovered a government Agent surveilling the townhouse. This\n\nprompted a discussion about whether the Agent could “pick up” on who was\n\n“sending things” over the internet. They also talked about packing up, “cleaning\n\n\n 4\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 5 of 55\n\n\nup” the townhouse, and leaving to “work” at a hotel. Kenny, in particular, talked\n\nabout leaving the townhouse and going to a hotel where it would be safer to work.\n\nAround this time, someone else accused Kenny of looking scared, and Bechir\n\nreferenced someone going to jail.\n\nB. Agents Debrief Francois\n\n After leaving the townhouse, Francois met with the Agents again and\n\nconfirmed that individuals in the townhouse were conducting fraud activities.\n\nFrancois also told the Agents that the individuals noticed a law enforcement officer\n\noutside the townhouse and were worried that they were being surveilled. As such,\n\nthey talked about “cleaning” the townhouse and getting rid of any illicit materials\n\nas soon as possible. The Agents then did the following: Agent Eustice returned to\n\nthe gated community to watch the townhouse; Agent Deslauriers took the video\n\nequipment back to his office for review; and Agent Goodwin went to secure a\n\nfederal search warrant.\n\nC. Agents Initially Search the Mercedes\n\n At about 2:00 p.m., Agent Eustice returned to the townhouse and saw\n\nseveral vehicles lined up in front of the residence. Agent Eustice first saw an\n\nunidentified male put a bag into the back of a white Camry and drive away from\n\nthe townhouse. Agent Eustice tried to follow the car, but lost it at the front gate.\n\nAgent Eustice then saw another male, later identified as Bechir, walk down a\n\n\n 5\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 6 of 55\n\n\nhallway to the townhouse door. Bechir left the townhouse carrying three white\n\nshoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle.\n\nBechir then departed the townhouse (Unit 105, Building 2492) and drove along the\n\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\n\nthat main drag and turned into one of the other apartment communities within the\n\ncomplex. Bechir parked and began walking away from the car.\n\n By this time, two other Agents had joined Agent Eustice at the scene, and\n\nthey approached Bechir together. When asked, Bechir denied owning the\n\nMercedes and refused to provide the officers with any identification. The Agents\n\nthen handcuffed Bechir and eventually placed him in the back of a police car.\n\nLooking in the windows of the parked Mercedes, Agent Eustice saw the three\n\nshoeboxes that Bechir had loaded into the car. He noticed that one box was ajar\n\nand appeared to have credit cards inside.\n\n At approximately 4:15 p.m., Agent Deslauriers returned to the scene after\n\nwatching the undercover video. Although part of the recorded conversation was in\n\nHaitian Creole, which Agent Deslauriers did not understand, he noticed a\n\n“heightened sense of urgency at the end” of the video, which corroborated what\n\nFrancois had told them.\n\n When Agent Deslauriers arrived, Agent Eustice fully briefed him on what\n\nhad transpired with Bechir. Agent Deslauriers recognized Bechir from the\n\n\n 6\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 7 of 55\n\n\nundercover video. When he looked in the back of the Mercedes, he also saw the\n\nboxes. The boxes looked similar to the box lid Agent Deslauriers saw in\n\nFrancois’s pictures and on the undercover video. Additionally, one of the boxes\n\nwas slightly ajar, and Agent Deslauriers could see what looked like credit cards\n\ninside.\n\n Based on the video, the pictures, and the information provided by Francois,\n\nAgent Deslauriers believed there was PII and fraudulent credit cards in the box.\n\nAgent Deslauriers then opened the Mercedes door, did a cursory search of the\n\nboxes, and found stacks of credit cards and papers listing PII. He took a few\n\nphotographs and then replaced everything.\n\nD. Agents Search the Mercedes and Townhouse\n\n Meanwhile, Agent Goodwin secured a search warrant and returned to the\n\ntownhouse around 8:30 p.m. The Agents then conducted a thorough search of the\n\nMercedes and the townhouse. Within the three boxes in the Mercedes, the Agents\n\nfound (1) hundreds of prepaid debit cards, (2) Bechir’s T-Mobile bill, (3) a bill\n\naddressed to Kenny, and (4) scores of documents containing PII, including\n\nnotebooks, handwritten lists, and Excel spreadsheets. The documents with the PII\n\nlisted the names, birthdates, and Social Security numbers of hundreds of\n\nindividuals. In the black backpack, the Agents found a laptop computer, as well as\n\nadditional papers with PII.\n\n\n 7\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 8 of 55\n\n\n In the townhouse, the Agents discovered a safe with $29,000 inside, two\n\nmoney counters, and even more credit cards and more documents listing PII. The\n\nAgents also found (1) tax guidelines from Republic Bank and Trust Company,\n\n(2) documents listing an electronic filing identification number (“EFIN”) for\n\nGustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a\n\nPlayhouse Gentleman’s Club VIP card in Bechir’s name, and (5) a letter to Kenny\n\nfrom the IRS. The Agents also found two rifles and a handgun, with multiple\n\ncorresponding magazines and rounds of ammunition, and receipts showing that\n\nKenny had purchased the firearms.\n\n In the townhouse garage, Agents found Bechir’s Haitian passport, Kenny’s\n\nAudi service contract, Kenny’s insurance records, documents related to Gustavo\n\nCruz, a record showing a parcel was shipped to the IRS, and instructions for\n\nobtaining an EFIN.\n\nE. Bechir’s Interview and Written Statement\n\n After searching the townhouse, the Agents apprised Bechir of his Miranda\n\nrights1 and interviewed him. Bechir told the Agents that all of the personal\n\nidentifying information (the PII) was his. Bechir had obtained the information (the\n\nPII), which he called “fos” and “infos,” from an online database, using a login and\n\n\n\n 1\n Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).\n\n\n 8\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 9 of 55\n\n\npassword. Bechir told the Agents that he used the personal identifying information\n\n(the PII) to file fraudulent tax returns online using an EFIN that he bought on the\n\nstreet for $5,000. Bechir would receive the tax refunds on debit cards, which he\n\nused at ATMs to withdraw cash. Bechir admitted that the money the Agents found\n\nin the townhouse was from tax fraud. He also said the Mercedes belonged to him\n\nand Kenny had an Audi in the garage. When asked about the firearms, Bechir told\n\nthe Agents that the guns belonged to Kenny. Bechir explained that the firearms\n\nwere in the townhouse for protection.\n\n In his signed written statement, Bechir also admitted to conducting fraud\n\nactivities and keeping firearms at the townhouse for protection from getting\n\nrobbed:\n\n I’m Bechir Delva, [and] freely and willing admit that the money I store\n in the safe and all the fraud activities here at 2492 Centergate Drive,\n Miramar, Florida, Unit 105, are mine. The money in the safe is from\n fraud and [I] have conducted fraud here. I had legal guns here, rifles\n and handguns. I kept them here for protection from getting robbed.\n\nThe Agents did not arrest or question Kenny on June 9, 2014, as he had left the\n\ntownhouse by the time they searched it.\n\n II. PRE-TRIAL PROCEEDINGS\n\nA. Indictment and Not Guilty Pleas\n\n In August 2015, a federal grand jury charged both Bechir and Kenny with:\n\n(1) one count of conspiracy to possess 15 or more unauthorized access devices, i.e.,\n\n\n 9\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 10 of 55\n\n\nSocial Security numbers and debit cards issued to other people, in violation of 18\n\nU.S.C. § 1029(b)(2) (“Count 1”); (2) one count of possession of 15 or more\n\nunauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (“Count 2”);\n\nand (3) five counts of aggravated identity theft, in violation of 18 U.S.C.\n\n§ 1028A(a)(1) (“Counts 3-7”). The aggravated identity theft counts were tied to\n\nspecific real individuals whose PII was recovered from the spreadsheets in the\n\nMercedes, namely, L.C. (Count 3), J.F. (Count 4), C.L. (Count 5), D.S. (Count 6),\n\nand G.S. (Count 7). The Delvas pleaded not guilty, and the case proceeded to a\n\njoint trial.\n\nB. Bechir’s Suppression Motion\n\n Before trial, Bechir filed a motion to suppress the physical evidence seized\n\nfrom his Mercedes.2 Bechir’s motion claimed that he was illegally detained on\n\nJune 9 and that the initial warrantless search of his vehicle was illegal. The district\n\ncourt conducted an evidentiary hearing, during which Agents Deslauriers and\n\nEustice testified for the government. They described the June 9, 2014, events as\n\ndetailed above. Bechir did not testify at the hearing.\n\n At the end of the hearing, the district court denied Bechir’s suppression\n\nmotion. In its written order, the district court first found that one of the boxes in\n\n\n 2\n Bechir did not challenge the search of the townhouse or move to suppress the\npost-Miranda statements he made to the federal agents. Kenny did not file a suppression motion\nat all.\n 10\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 11 of 55\n\n\nthe Mercedes was ajar, revealing credit cards inside. Next, the court determined\n\nthat the fact that the boxes and credit cards were in plain view, combined with\n\ninformation Francois provided to the Agents, created sufficient probable cause to\n\njustify searching the vehicle. Therefore, based on the automobile exception\n\nannounced in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925), the\n\ndistrict court determined that the Agents had authorization to search the Mercedes\n\nand the boxes at the time when they first detained Bechir. The district court\n\nstressed that they did not search the vehicle until after Agent Deslauriers had\n\nwatched the undercover video, which the court said clearly depicted fraud.\n\nAlternatively, the district court concluded that the inevitable discovery doctrine\n\njustified the search because the Agents secured a search warrant later that day.\n\n III. THE JOINT TRIAL\n\n In February 2016, the case proceeded to a joint trial, which lasted five days.\n\nAs Kenny challenges his convictions based on the sufficiency of the evidence, and\n\nboth Delvas argue that the introduction of certain expert testimony was improper,\n\nwe will review more of the evidence presented at trial.\n\nA. The Government’s Evidence\n\n During the trial, the government presented testimony from 18 witnesses,\n\nincluding Agents Deslauriers, Eustice, Goodwin, and Cohen. The Agents\n\ndescribed the events on June 9, 2014, as we have recounted them above, including\n\n\n 11\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 12 of 55\n\n\ntestifying as to Bechir’s post-Miranda interview statements and written confession.\n\nThe government also introduced the physical evidence the Agents obtained on June\n\n9, that is, Francois’s undercover video and pictures, as well as the evidence Agents\n\nseized from Bechir’s Mercedes and the townhouse. In particular, the government\n\nintroduced two Excel spreadsheets that were found in Bechir’s car, which listed the\n\nnames, birthdates, and Social Security numbers of the five victims specifically\n\nnamed in Counts 3-7 of the indictment. Agent Deslauriers also explained\n\nsubsequent steps the Agents took to investigate the Delvas’ fraud scheme, such as\n\nsending some of the seized evidence to a forensic lab for fingerprint analysis.\n\n Fingerprint specialist Genius Johnson then testified that he compared\n\nBechir’s and Kenny’s fingerprints to those he recovered from two documents\n\ncontaining PII that were seized in the case. On one document, Johnson found one\n\nlatent fingerprint left by Bechir, and on another spreadsheet, Johnson found four\n\nlatent fingerprints left by Kenny. Johnson testified that it was impossible that\n\nsomeone other than Bechir and Kenny left those fingerprints on the papers.\n\n The government also called Detective Kenneth Sealy as an expert witness in\n\nidentity theft and tax fraud and the terminology and jargon used in this type of\n\ncrime. Sealy is a Detective with the Aventura Police Department who had been\n\nassigned to the IRS Identity Theft Task Force for four years. Detective Sealy had\n\nreceived training on identity theft crimes from several different institutions,\n\n\n 12\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 13 of 55\n\n\nincluding from the IRS, U.S. Secret Service, Citibank, Homeland Security,\n\nDiscover Card, Broward Community College, and the Broward College Police\n\nAcademy. Detective Sealy’s training with the IRS was specifically focused on the\n\nways in which fraudulent tax returns are filed with stolen identities to obtain\n\nrefunds and how to investigate those types of crimes. Sealy explained that the term\n\n“stolen identity refund fraud” referred to the use of stolen identities—individuals’\n\nnames, dates of birth, and Social Security numbers—to file fraudulent income tax\n\nreturns with the IRS to obtain a refund.\n\n As to experience, Detective Sealy had conducted more than 75 fraud\n\ninvestigations, including in 50 tax fraud cases. Detective Sealy had also listened in\n\non over 30 jail calls placed by defendants charged with “stolen identity refund\n\nfraud” and debriefed over 20 such cooperating defendants. From the phone calls\n\nand debriefs, Detective Sealy learned the methods by which “stolen identity refund\n\nfraud” is conducted and the terminology used in that type of fraud. Detective\n\nSealy explained that, in the majority of the tax fraud cases he investigated, the\n\ncriminals used coded terminology. As part of his investigations, Detective Sealy\n\nalso had worked undercover to purchase, or arrange for the purchase of, PII from\n\nindividuals engaged in fraud. Sealy explained that PII usually refers to people’s\n\nnames, dates of birth, and Social Security numbers. Based on his expertise,\n\nDetective Sealy had taught fraud classes to other police departments and colleges\n\n\n 13\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 14 of 55\n\n\nand had previously testified in a case in federal court as an expert in fraud\n\ninvestigations and terminology.\n\n Detective Sealy testified that criminals committing “stolen identity refund\n\nfraud” obtain PII from multiple sources, including online or from people who work\n\nat schools, banks, hospitals, or at other places where they have access to such\n\ninformation. In reviewing the documents seized in this case, Detective Sealy\n\nconfirmed that they appeared to be medical billing sheets, Excel spreadsheets\n\nlisting PII, and hospital patient printouts, which were consistent with the type of\n\nrecords he had found in other “stolen identity refund fraud” cases. On the Excel\n\nspreadsheets, Detective Sealy noted that someone had handwritten checkmarks,\n\nXs, and debit card account numbers alongside the specific PII entries. He\n\nexplained that the handwritten notations indicated whether the participant had been\n\nsuccessful or not in using the listed individual’s PII in the fraud scheme.\n\n Next, Detective Sealy generally described how “stolen identity refund fraud”\n\nworks. He explained that once the fraudsters obtain the PII, they input that\n\ninformation into an online tax preparation website and then report fictitious\n\nearnings, as if they were preparing real tax returns. When filing the fraudulent tax\n\nreturns, the criminals elect to have the tax refund deposited onto prepaid debit\n\ncards, which are linked to online checking accounts. These fraudulent tax returns\n\n\n\n\n 14\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 15 of 55\n\n\nare typically filed in volume to increase the likelihood of successfully obtaining\n\nrefunds.\n\n As to terminology, Detective Sealy testified that “fos” is a common slang\n\nterm that identity fraudsters use in South Florida, and it means “info” or\n\n“information,” like an individual’s name, date of birth, and Social Security\n\nnumber. The government then played portions of the undercover video and asked\n\nDetective Sealy follow-up questions. For instance, after reviewing when an\n\nindividual in the townhouse said, “[w]hen you work over and over, and you send\n\neverything at once, and you’re done, that’s better,” Detective Sealy testified that\n\n“work” in this context typically means either opening credit card accounts or filing\n\nfraudulent tax returns. And when individuals in the townhouse mentioned “PD,”\n\nsuch as “My PDs always go,” Detective Sealy testified that PD typically refers to\n\npersonal drops—that is, the actual deposit of tax refunds from the U.S. Treasury to\n\nthe account associated with a debit card.\n\n Detective Sealy also explained that when an individual said, “I never check\n\nthe confirmation,” the term “confirmation” usually refers to checking the status of\n\na tax refund on the IRS website. More still, after another individual said on the\n\nvideo, “I’m going to have these chicks buy me some plastic,” Detective Sealy\n\ntestified that “plastic” refers to debit cards or credit cards. He said that criminals\n\n\n\n\n 15\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 16 of 55\n\n\ninvolved in this type of fraud commonly have third parties purchase the debit cards\n\nfor them in order for the fraudsters themselves to avoid store surveillance cameras.\n\n The government then played a video clip where the individuals were\n\ndiscussing leaving the townhouse and going to a hotel because they were\n\nconcerned that law enforcement was monitoring them. Detective Sealy confirmed\n\nthat, in his experience, individuals committing “stolen identity refund fraud” often\n\nwork out of hotels because using a hotel’s wi-fi internet makes it more difficult for\n\nlaw enforcement to track the fraud.\n\n Next, Yamile Colt, a witness from the Social Security Administration,\n\ntestified. Colt had examined a list of approximately 1,696 Social Security\n\nnumbers, which were all found within the documentary evidence seized from the\n\nMercedes and townhouse. Colt determined that all but 16 of the 1,696 numbers\n\nwere legitimate Social Security numbers that belonged to real people.\n\n Included in that list were the names and Social Security numbers for the five\n\nindividuals named in Counts 3 through 7 of the indictment. Three of the named\n\nindividuals came to trial and testified that their PII appeared on documents seized\n\nfrom the Mercedes, but that they had never given the Delvas permission to use\n\ntheir PII and did not recognize either Bechir or Kenny.\n\n Joanna Steisel, an IRS Analyst, then testified. Steisel explained that, when\n\nsomeone electronically files a federal tax return, the IRS conducts what is called a\n\n\n 16\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 17 of 55\n\n\n24-hour check, where it verifies the accuracy of certain PII against its system.\n\nSteisel also explained that the IRS assigns EFINs to tax preparation businesses so\n\nthat they can submit a large number of tax returns online on behalf of other people.\n\nThere is no limit to the number of returns you can file with an EFIN.\n\n As to the Delvas’ fraud specifically, Steisel testified that she had reviewed\n\nsix pages of PII that the Agents recovered from Bechir’s Mercedes. The IRS\n\nAnalyst looked at whether the handwritten debit account numbers on those pages\n\nof PII were associated with filed tax returns. She discovered that the accounts\n\nwere linked to 21 fraudulent tax returns that had been filed in March and April of\n\n2014. These fraudulent tax returns had requested a total of $186,697 in tax\n\nrefunds. Of the requested refunds, the IRS directly deposited $51,441 in tax\n\nrefunds to the listed accounts. The fraudulent tax returns were all filed using\n\nGustavo Cruz’s EFIN.\n\n After the government rested, the Delvas moved under Rule 29 of the Federal\n\nRules of Criminal Procedure for a judgment of acquittal. The district court denied\n\nthe Rule 29 motions.\n\nB. Bechir Testifies\n\n Bechir then testified on his own behalf. Bechir explained that, on June 9,\n\n2014, he was living at his parents’ house, but went over to the townhouse to spend\n\ntime with friends. Bechir said that the townhouse belonged to a relative who was\n\n\n 17\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 18 of 55\n\n\nout of the country, but that Francois was living there at that time with his cousins.\n\nBechir had known Francois since they were children, as their parents were\n\nneighbors.\n\n Sometime after Bechir arrived, Francois and Kenny came over to the\n\ntownhouse too. According to Bechir, Francois warned him that the police were\n\nwatching and asked him to move some boxes out of the townhouse. Bechir\n\ncomplied, carried Francois’s boxes to the Mercedes, and then moved his car to\n\nanother parking space. This is when the Special Agents confronted him. Bechir\n\ntestified that, after the Agents handcuffed him, they eventually took him back to\n\nthe townhouse, but he denied making any statements to the Agents that day. When\n\nconfronted with his written post-Miranda statement, Bechir explained that he was\n\nscared and wrote exactly what an Agent told him to write.\n\n On cross-examination, Bechir testified that he would go to the townhouse\n\nonce in a while to play videogames and basketball, but he was rarely there. Bechir\n\nconfirmed that he did not stay at the townhouse; rather, he stayed at his mother’s\n\nhouse. When Bechir arrived on June 9, Francois’s cousins were on their\n\ncomputers, and the guns, papers, and debit cards were in the townhouse. Bechir\n\nadmitted to seeing papers everywhere, but denied seeing any PII. Instead, he\n\nthought the personal information was fake. Bechir testified that the papers, PII,\n\n\n\n\n 18\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 19 of 55\n\n\nand debit cards all belonged to Francois and his cousins. None of it belonged to\n\nhim or to Kenny.\n\n The government then confronted Bechir with portions of the undercover\n\nvideo. After viewing the clip where individuals were talking about the police\n\nwatching the townhouse, Bechir testified that he was not concerned about the\n\npolice presence because he was just at the townhouse to hang out. When the\n\ngovernment asked why Bechir was talking about jail on the recording, Bechir said\n\nhe was making a joke. Bechir admitted to seeing Kenny on the video recording,\n\nbut denied that Kenny was using a computer. Bechir also testified that he did not\n\nknow why Kenny was talking about going to a hotel or why it would be safer at a\n\nhotel, explaining too that Kenny never told him anything about filing taxes at a\n\nhotel. Bechir acknowledged that, after people on the video discussed the police,\n\nsomeone told Kenny that he looked scared, but Bechir said that Kenny was “not\n\nscared at all.” Bechir also agreed that, moments later, Kenny was holding papers,\n\nbut Bechir denied that it looked like Kenny was “packing up.”\n\n Bechir did confirm that it was Kenny who said on the recording, “You know\n\nwhen you work over and over, and you send everything at once, and you’re done,\n\nthat’s better.” Bechir, however, did not know what “work” meant in that statement\n\nbecause Kenny was speaking in “code” or “street language.” Bechir also did not\n\nknow what Kenny meant when he said: “I’m going to have these chicks buy me\n\n\n 19\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 20 of 55\n\n\nsome plastic.” Bechir maintained that he had no knowledge that Kenny was\n\ninvolved in filing fraudulent tax returns.\n\n While Bechir testified that Kenny bought the firearms found in the\n\ntownhouse, Bechir said that they were there for recreational use at a gun range—\n\nnot to protect the stolen identities or tax fraud proceeds. Though Bechir admitted\n\nto moving the boxes to his car, he denied opening the boxes himself. Bechir\n\nclaimed that everything in the boxes belonged to Francois and his cousins. When\n\nthe government showed Bechir that his phone bill was found in one of those boxes,\n\nBechir could not explain how it got there, but suggested the Agents had planted it\n\nto frame him. Bechir also did not know how his passport ended up in the\n\ntownhouse’s garage.\n\n Kenny did not testify and the defense rested.\n\nC. The Verdict and Sentences\n\n The Delvas then renewed their Rule 29 motions. Noting that “the\n\ngovernment’s case got stronger with the cross-examination of Bechir,” the district\n\ncourt denied the motions. After deliberating, the jury found Bechir and Kenny\n\nguilty on all counts. The district court sentenced Bechir to 102 months’\n\nimprisonment and Kenny to 84 months’ imprisonment. This is the Delvas’ appeal.\n\n IV. BECHIR’S SUPPRESSION MOTION\n\n On appeal, Bechir argues that the district court erred in denying his pre-trial\n\n\n 20\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 21 of 55\n\n\nsuppression motion and then admitting into evidence the physical items seized\n\nfrom his Mercedes.3 Bechir contends that no probable cause existed for the Agents\n\nto search his car before obtaining a warrant. 4\n\nA. Automobile Exception\n\n The Fourth Amendment guarantees “[t]he right of the people to be secure in\n\ntheir persons, houses, papers, and effects, against unreasonable searches and\n\nseizures.” U.S. Const. amend. IV. To guarantee this right, the Fourth Amendment\n\ngenerally requires law enforcement officials to obtain a warrant before conducting\n\na search. United States v. Watts, 329 F.3d 1282, 1284 (11th Cir. 2003). There are,\n\nhowever, exceptions. Id.\n\n Under the automobile exception to the warrant requirement, “[t]he police\n\nmay search an automobile and the containers within it where they have probable\n\ncause to believe contraband or evidence is contained.” California v. Acevedo, 500\n\n\n\n 3\n “A denial of a motion to suppress involves mixed questions of fact and law. We review\nfactual findings for clear error, and view the evidence in the light most favorable to the\nprevailing party. We review de novo the application of the law to the facts.” United States v.\nBarber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).\n 4\n On appeal, Bechir does not challenge the admission of the physical evidence seized from\nthe townhouse or his oral and written confessions. In his brief, however, Bechir mentions in an\nargument summary and heading that the district court erred in failing to suppress his “arrest” and\nthat no probable cause existed for the Agents to stop him as he walked away from his Mercedes.\nBut other than simply stating this issue, Bechir does not explain or discuss it any further.\n Because Bechir has not sufficiently raised this detention issue on appeal, he has\nabandoned it. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n\nappellant’s simply stating that an issue exists, without further argument or discussion, constitutes\nabandonment of that issue and precludes our considering the issue on appeal.”).\n 21\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 22 of 55\n\n\nU.S. 565, 580, 111 S. Ct. 1982, 1991 (1991); United States v. Magluta, 418 F.3d\n\n1166, 1182 (11th Cir. 2005). For a warrantless search of an automobile to be\n\nconstitutional, “(1) the automobile must be readily mobile, and (2) there must be\n\nprobable cause to believe that it contains contraband or evidence of a crime.”\n\nUnited States v. Lanzon, 639 F.3d 1293, 1299–300 (11th Cir. 2011).\n\n Probable cause exists to conduct a warrantless search when “there is a fair\n\nprobability that contraband or evidence of a crime will be found in the vehicle”\n\nunder the totality of the circumstances. United States v. Tamari, 454 F.3d 1259,\n\n1261–62 (11th Cir. 2006) (quotations omitted). Facts provided by a confidential\n\ninformant and then independently corroborated by the government can support\n\nprobable cause to believe that a vehicle contains contraband. United States v.\n\nTalley, 108 F.3d 277, 281–82 (11th Cir. 1997).\n\n There is no dispute in this case that the Mercedes was operational. Our\n\ninquiry is limited to determining whether probable cause existed to allow the\n\nwarrantless search of the vehicle. Upon review of the record, we readily conclude\n\nthat Agent Deslauriers had probable cause to conduct the initial search of the\n\nMercedes because there was a fair probability that the car contained evidence of a\n\ncrime.\n\n To begin with, Francois told the Agents that Bechir and Kenny were\n\nconducting identity theft and tax fraud operations out of the townhouse. To\n\n\n 22\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 23 of 55\n\n\ninvestigate this tip, the Agents equipped Francois with a recording device and sent\n\nhim to the townhouse on June 9, 2014. While inside, Francois took pictures and\n\nsent them to the Agents, which showed a white shoebox lid flipped upside down\n\ncontaining numerous debit cards and documents listing PII, multiple people using\n\nlaptops, a money counter, and a firearm. Francois’s covert video recording further\n\ncorroborated his account of Bechir’s and Kenny’s fraud operations.\n\n After leaving the townhouse, Francois told the Agents that the individuals\n\nknew law enforcement was surveilling the townhouse and planned to relocate their\n\noperations and remove the fraud-related materials from the townhouse as soon as\n\npossible. Consistent with Francois’s account, when Agent Eustice returned to the\n\ntownhouse, he saw Bechir removing three white shoeboxes and a backpack from\n\nthe townhouse and loading them in his Mercedes. The Agents had seen a white\n\nshoebox lid containing debit cards and papers with PII in both the pictures from\n\nFrancois and in the undercover video.\n\n And when Agents Eustice and Deslauriers looked through the windows of\n\nthe parked Mercedes, they could see the boxes in the car. One box lid was ajar,\n\nand the Agents saw what appeared to be credit or debit cards inside. Given the\n\ntotality of these circumstances, at that point, a reasonable Agent could deduce with\n\na fair probability that the Mercedes contained evidence of a crime. See Tamari,\n\n\n\n\n 23\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 24 of 55\n\n\n454 F.3d at 1261–62. Thus, the Agents were entitled to search the Mercedes under\n\nthe automobile exception to the warrant requirement.\n\n We recognize that Bechir argues, in a conclusory fashion, that no probable\n\ncause existed to search the car because the Agents could not see evidence of fraud\n\nin plain view in the Mercedes. 5 Based on the uncontroverted testimony of Agents\n\nDeslauriers and Eustice, however, the district court found as fact that the boxes and\n\ncredit cards were in plain view in the Mercedes. To the extent that Bechir is\n\nchallenging this factual finding, he has not shown that it was clearly erroneous.\n\n Before concluding, we address one final suppression issue. During the trial,\n\nBechir disavowed any connection to the activities inside the townhouse, or to the\n\ntownhouse itself at that time. Bechir maintained that he did not live at the\n\ntownhouse or otherwise stay there. In fact, Bechir said that he was rarely at the\n\ntownhouse and only visited once in a while. During the district court proceedings\n\nand in the suppression motion, in particular, Bechir never claimed that his\n\nMercedes was parked in front of the townhouse or within its curtilage when the\n\nAgents initially searched it without a warrant.\n\n\n 5\n For the first time on appeal, Bechir contends that the district court incorrectly found that\nthe search of his Mercedes was permissible as a vehicle search incident to arrest under Arizona\nv. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). This, however, was not the basis for the district\ncourt’s denial of Bechir’s motion to suppress. As we set forth earlier, the district court found\nthat the search of the Mercedes was valid under the automobile exception and, alternatively,\nunder the inevitable discovery doctrine. Because we conclude that the search was valid under\nthe automobile exception and, alternatively, the inevitable discovery doctrine, we need not\nexamine the search-incident-to-arrest exception.\n 24\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 25 of 55\n\n\n Yet, before oral argument, Bechir filed a Federal Rule of Appellate\n\nProcedure 28(j) letter citing Collins v. Virginia, 584 U.S. __, 138 S. Ct. 1663\n\n(2018), which addresses searching a vehicle within the curtilage of a home. To the\n\nextent that Bechir seeks to raise a home-curtilage issue as to his vehicle, Bechir’s\n\nreliance on Collins is misplaced. The facts in Collins involved a warrantless\n\nsearch of a motorcycle that was parked at the top of a driveway that “abut[ted] the\n\nhouse” of the defendant’s girlfriend. Id. at __, 138 S. Ct. at 1671. The Supreme\n\nCourt determined that the part of the driveway where the defendant’s motorcycle\n\nwas parked and subsequently searched constituted curtilage of the home. Id. The\n\nquestion posed was “whether the automobile exception justifies the invasion of the\n\ncurtilage” of a home. Id. The Supreme Court then considered the relationship\n\nbetween the Fourth Amendment protections provided to the curtilage of a home\n\nand the automobile exception. Id. at __, 138 S. Ct. at 1675. Ultimately, the\n\nSupreme Court held that “the automobile exception does not permit an officer\n\nwithout a warrant to enter a home or its curtilage in order to search a vehicle\n\ntherein.” Id. (emphasis added).\n\n In contrast to Collins, Bechir’s Mercedes, at the time of the search, was no\n\nlonger at the townhouse or parked in a driveway abutting the townhouse. Rather,\n\nBechir departed the townhouse (Unit 105, Building 2492) and drove along the\n\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\n\n\n 25\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 26 of 55\n\n\nthat main drag and turned into one of the other apartment communities within the\n\ncomplex and parked. That parking area was not within the curtilage of the\n\ntownhouse where the Delvas conducted their fraud activities. See Florida v.\n\nJardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414 (2013) (instructing that the area\n\n“immediately surrounding and associated with the home”—the curtilage—is “part\n\nof the home itself for Fourth Amendment purposes”); United States v. Taylor, 458\n\nF.3d 1201, 1206 (11th Cir. 2006) (A home’s curtilage is “[t]he private property\n\nimmediately adjacent to a home.”); Collins, 584 U.S. at __, 138 S. Ct. at 1671\n\n(explaining that the driveway abutting the house is “an area adjacent to the home\n\nand to which the activity of home life extends, and so is properly considered\n\ncurtilage” (quotations omitted)). Therefore, Collins does not help Bechir.\n\nB. Inevitable Discovery Doctrine\n\n As an independent and alternative ground, we also conclude that the\n\nevidence obtained from the warrantless search of the Mercedes was admissible\n\nunder the inevitable discovery doctrine. “Under the exception for ‘inevitable\n\ndiscovery,’ the government may introduce evidence that was obtained by an illegal\n\nsearch if the government can establish a reasonable probability that the evidence in\n\nquestion would have been discovered by lawful means.” United States v. Johnson,\n\n777 F.3d 1270, 1274 (11th Cir. 2015) (quotations omitted). The government must\n\n\n\n\n 26\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 27 of 55\n\n\nshow that “the lawful means which made discovery inevitable were being actively\n\npursued prior to the occurrence of the illegal conduct.” Id. (quotations omitted).\n\n Here, in addition to obtaining a warrant to search the Mercedes later that\n\nsame day, the Agents were actively pursuing that warrant before they initially\n\nsearched the Mercedes. Agent Goodwin went to secure a federal search warrant\n\nimmediately after debriefing Francois. While the warrant affidavit included Agent\n\nEustice’s observation of Bechir’s loading the boxes into his Mercedes, it did not\n\ninclude information learned by Agent Deslauriers’ initial search of the vehicle.\n\nThe evidence in the Mercedes therefore would have been inevitably discovered\n\nwhen the Agents later searched the vehicle pursuant to the search warrant.\n\n For these reasons, the district court did not err in denying Bechir’s\n\nsuppression motion.\n\n V. KENNY’S SUFFICIENCY OF THE EVIDENCE ISSUES\n\n On appeal, Kenny argues that his seven convictions should be vacated\n\nbecause there was insufficient evidence that he knowingly took part in the criminal\n\nactivities of identity theft and tax fraud. 6 We address each conviction in turn.\n\n\n\n 6\n “We review de novo challenges to the sufficiency of the evidence to support a\nconviction, viewing the evidence and all reasonable inferences derived therefrom in the light\nmost favorable to the government.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir.\n2014). To sustain a verdict of guilt, the evidence “need not exclude every reasonable hypothesis\nof innocence” or be “wholly inconsistent with every conclusion except that of guilt,” as long as a\n“reasonable factfinder” choosing from among reasonable constructions of the evidence “could\nfind that the evidence establishes guilt beyond a reasonable doubt.” United States v. Kelly, 888\n 27\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 28 of 55\n\n\n\n\nA. Conspiracy to Possess Unauthorized Access Devices\n\n As to Count 1, Kenny argues that the evidence was insufficient to convict\n\nhim of conspiracy to possess 15 or more unauthorized access devices because there\n\nwas no evidence that he took part in any criminal activity or knew about any of the\n\nprocesses by which he could obtain fraudulent tax refunds.\n\n Section 1029(a)(3) makes it a crime for anyone to “knowingly and with\n\nintent to defraud possess[] fifteen or more devices which are counterfeit or\n\nunauthorized access devices.” 18 U.S.C. § 1029(a)(3). Section 1029(b)(2), in turn,\n\nprovides criminal liability for “[w]hoever is a party to a conspiracy of two or more\n\npersons to commit an offense under subsection (a) of this section, if any of the\n\nparties engages in any conduct in furtherance of such offense.” Id. § 1029(b)(2).\n\nSocial Security numbers and debit cards are “access devices.” See Baldwin, 774\n\nF.3d at 722; see also 18 U.S.C. § 1029(e)(1) (defining “access devices” to include\n\n“any card . . . [or] personal identification number . . . that can be used . . . to obtain\n\nmoney, goods, services, or any other thing of value, or that can be used to initiate a\n\ntransfer of funds”).\n\n\n\n\nF.2d 732, 740 (11th Cir. 1989). “This standard of review applies to both direct and\ncircumstantial evidence.” United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997).\n\n\n 28\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 29 of 55\n\n\n To obtain a conviction for conspiracy, the government must prove “beyond a\n\nreasonable doubt, even if only by circumstantial evidence, that a conspiracy existed\n\nand that the defendant knowingly and voluntarily joined the conspiracy.” United\n\nStates v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotations omitted).\n\n“Although mere presence at the scene of a crime is insufficient to support a\n\nconspiracy conviction, presence nonetheless is a probative factor which the jury\n\nmay consider in determining whether a defendant was a knowing and intentional\n\nparticipant in a criminal scheme.” Id. (quotations omitted). “A conspiracy\n\nconviction will be upheld when the circumstances surrounding a person’s presence\n\nat the scene of conspiratorial activity are so obvious that knowledge of its character\n\ncan fairly be attributed to him.” United States v. Garcia, 447 F.3d 1327, 1338\n\n(11th Cir. 2006) (quotation and alteration omitted); see also United States v.\n\nBrantley, 68 F.3d 1283, 1288 (11th Cir. 1995) (noting that the personal\n\nrelationship and close proximity between a defendant and co-conspirator during\n\nthe commission of an offense made it more likely that the defendant was aware of\n\nthe illicit plan).\n\n Construed in the light most favorable to the government, the trial evidence\n\nhere permitted a reasonable jury to find Kenny guilty of the conspiracy charge\n\nbeyond a reasonable doubt. For starters, the June 9, 2014, undercover\n\ninvestigation placed Kenny at the townhouse, along with Bechir and Francois.\n\n\n 29\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 30 of 55\n\n\nBoth the Agents and Bechir identified Kenny on the undercover video that\n\nFrancois recorded. Notably, that video depicted Kenny right alongside laptops,\n\ndocuments listing PII, debit cards, a money counter, and a rifle—all out in the\n\nopen. At one point, Kenny was holding a laptop power cord and papers. As\n\nobserved earlier, the fraudulent tax returns were filed using computers and the\n\npapers containing PII had hundreds of names of real people with their dates of\n\nbirth and Social Security numbers.\n\n Moreover, Kenny’s own statements on the undercover video demonstrated\n\nthat he knew that the PII and debit cards were being used in the identity theft and\n\ntax fraud scheme. As Bechir confirmed at trial, it was Kenny who said: “[w]hen\n\nyou work over and over, and you send everything at once, and you’re done, that’s\n\nbetter.” Detective Sealy testified that, in this type of fraud, the term “work” meant\n\nusing stolen PII to file a fraudulent tax return or to open a credit card account. On\n\nthe video, Kenny also said that “I’m going to have these chicks buy me some\n\nplastic,” and Detective Sealy testified that “plastic” in this context referred to debit\n\nor credit cards.\n\n Also, after learning that the Agents were surveilling the townhouse, Kenny\n\nsaid he was leaving and going to a hotel where it would be safer to “work.”\n\nAccording to Detective Sealy, criminals involved in “stolen identity refund fraud”\n\noften work out of hotels so that they can use the hotel’s wi-fi, which makes it\n\n\n 30\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 31 of 55\n\n\nharder for law enforcement to track their online activities. Around this time,\n\nsomeone also told Kenny that he looked scared, and Bechir mentioned that\n\nsomeone might go to jail. Moments later, Kenny was holding the laptop power\n\ncord and papers, and then he left the townhouse.\n\n Not only was Kenny present in the townhouse on June 9, his personal\n\nbelongings were found amidst the extensive evidence of fraud. In the townhouse,\n\nthe Agents found an IRS letter addressed to Kenny and receipts showing that\n\nKenny had purchased the three firearms. These items of Kenny’s were found\n\nalong with various documents containing PII, other documents listing Gustavo\n\nCruz’s EFIN, a boxful of prepaid debit cards, $29,000 in a safe, and money\n\ncounters. Then, in the garage, along with Kenny’s Audi service contract and\n\ninsurance records, Agents found other documents related to Gustavo Cruz, a record\n\nshowing that a parcel was shipped to the IRS, and instructions for obtaining an\n\nEFIN.\n\n In the three boxes Bechir moved from the townhouse to his Mercedes, the\n\nAgents found one of Kenny’s bills comingled with several other documents listing\n\nPII and even more prepaid debit cards. Importantly too, Kenny’s fingerprints were\n\nfound on one of the documents containing PII that was recovered from the\n\nMercedes. That document was a printed Excel spreadsheet that listed the names,\n\ndates of birth, and Social Security numbers of 32 different people. And on that\n\n\n 31\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 32 of 55\n\n\nspecific spreadsheet, there were debit account numbers written next to certain\n\nindividuals’ PII, which indicated that their personal information was used to file\n\nfraudulent tax returns.\n\n Furthermore, the IRS Analyst reviewed just six pages of these same type of\n\nExcel spreadsheets and determined that the debit account numbers written next to\n\nthe PII entries were linked to 21 fraudulent tax returns that had been filed. Those\n\nfraudulent tax returns had requested a total of $186,697 in tax refunds. Of the\n\nrequested refunds, the IRS directly deposited $51,441 in tax refunds to the listed\n\ndebit accounts. In addition, those fraudulent tax returns were all filed in the two\n\nmonths preceding the June 9 investigation with Gustavo Cruz’s EFIN—the same\n\nEFIN that the Agents found in the townhouse.\n\n In sum, there was more than sufficient evidence for a reasonable jury to\n\nconvict Kenny of the conspiracy charge in Count 1.\n\nB. Possession of Unauthorized Access Devices\n\n As to his Count 2 conviction, Kenny argues that the evidence was\n\ninsufficient for the jury to find that he knowingly possessed 15 or more access\n\ndevices. As stated above, § 1029(a)(3) makes it a crime for anyone to “knowingly\n\nand with intent to defraud possess[] fifteen or more devices which are counterfeit\n\nor unauthorized access devices.” 18 U.S.C. § 1029(a)(3). “A person\n\nconstructively possesses an item when he has knowledge of the thing possessed\n\n\n 32\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 33 of 55\n\n\ncoupled with the ability to maintain control over it or reduce it to his physical\n\npossession, even though he does not have actual personal dominion.” Baldwin,\n\n774 F.3d at 722 (quotations omitted). “Constructive possession also occurs when a\n\nperson exercises ownership, dominion, or control over the contraband itself or\n\ndominion or control over the premises or the vehicle in which the contraband [is]\n\nconcealed.” Id. (quotations omitted).\n\n The same evidence supporting the conspiracy to possess unauthorized access\n\ndevices amply shows that Kenny was aware of and had the ability to control the PII\n\nand debit cards that were being used in the identity theft and tax fraud scheme. For\n\ninstance, the video recording placed Kenny in the townhouse surrounded by the\n\nidentity theft and tax fraud evidence and showed him talking about purchasing\n\n“plastic,” among other things. Additionally, Kenny’s personal items were mixed\n\nwith the loose documents listing the PII, as well as the stacks of debit cards, in\n\nboth the townhouse and Mercedes, and his fingerprints were found on a document\n\ncontaining PII. That page alone contained 32 individuals’ names, dates of birth,\n\nand Social Security numbers and notations indicating that the personal information\n\nwas used to file fraudulent tax returns. This evidence was sufficient for the jury to\n\nconclude that Kenny knowingly possessed the Social Security numbers and debit\n\ncards used in the identity theft and tax fraud scheme.\n\nC. Aggravated Identity Theft\n\n\n 33\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 34 of 55\n\n\n As to Counts 3-7, Kenny contends that his aggravated identity theft\n\nconvictions, under 18 U.S.C. § 1028A(a)(1), should be vacated because there was\n\ninsufficient evidence that he knew that the means of personal identification he\n\npossessed belonged to real people.7\n\n Section 1028A(a)(1) provides for an additional two-year sentence for\n\nwhoever “during and in relation to” certain felonies, including possession of 15 or\n\nmore unauthorized access devices, “knowingly transfers, possesses, or uses,\n\nwithout lawful authority, a means of identification of another person.” 18 U.S.C.\n\n§ 1028A(a)(1) (emphasis added). The “means of identification” element refers to\n\n“a name, social security number, date of birth, or driver’s license number, among\n\nother things.” United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011).\n\n For aggravated identity theft convictions under § 1028A(a)(1), the\n\ngovernment must prove “that the defendant knew that the means of identification\n\nat issue belonged to another person.” Flores-Figueroa v. United States, 556 U.S.\n\n646, 657, 129 S. Ct. 1886, 1894 (2009). That is, the defendant must know that he\n\npossessed “for example, a real ID belonging to another person rather than, say, a\n\nfake ID (i.e., a group of numbers that does not correspond to any real Social\n\n\n\n 7\n To the extent that Kenny argues that his aggravated identity theft convictions were not\nsupported by sufficient evidence that he had knowledge of the PII or identity theft in general, the\nsame evidence supporting the knowledge element for his conspiracy to possess unauthorized\naccess devices and possession of unauthorized access devices convictions establishes his\nknowledge of the PII for the aggravated identity theft convictions as well.\n 34\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 35 of 55\n\n\nSecurity number).” Id. at 648, 129 S. Ct. at 1889. Therefore, to convict Kenny of\n\nthe five aggravated identity theft counts, the government was required to show that\n\nKenny knew the means of identification for L.C. (Count 3), J.F. (Count 4), C.L.\n\n(Count 5), D.S. (Count 6), and G.S. (Count 7), belonged to real people. See\n\nBaldwin, 774 F.3d at 723.\n\n In United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010), this Court\n\nestablished that the government can rely on circumstantial evidence about an\n\noffender’s misuse of a victim’s identity to prove the offender knew the identity\n\nbelonged to a real person to support aggravated identity theft convictions under\n\n§ 1028A(a)(1). We held that a reasonable jury could have found that the\n\ngovernment had proved that the defendant knew that a Social Security card and\n\nbirth certificate belonged to a real person when she used them to apply for a\n\ndriver’s license. Id. We explained that, because the defendant obtained a line of\n\ncredit and successfully used the Social Security card and birth certificate to obtain\n\na passport and two identification cards before she used the victim’s identity in the\n\ncharged offense, a reasonable trier of fact could have found the defendant knew the\n\nidentity belonged to a real person. Id. We reasoned further that a reasonable jury\n\ncould have found that “[the defendant] would not have sought credit using [the\n\nvictim’s] personal information if [the defendant] were not confident that [the\n\nvictim] likely had an actual credit history.” Id. Thus, “a defendant’s repeated and\n\n\n 35\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 36 of 55\n\n\nsuccessful testing of the authenticity of a victim’s identifying information prior to\n\nthe crime at issue is powerful circumstantial evidence that the defendant knew the\n\nidentifying information belonged to a real person as opposed to a fictitious one.”\n\nDoe, 661 F.3d at 562-63.\n\n This Court reaffirmed that principle in United States v. Gomez-Castro, 605\n\nF.3d 1245, 1248–49 (11th Cir. 2010), holding that the defendant’s purchase of the\n\nvictim’s birth certificate and Social Security card for $2,500 and repeated testing of\n\nthe authenticity of both by successfully obtaining a driver’s license, two credit\n\ncards, and a bank account, was sufficient to show that the defendant knew the birth\n\ncertificate and Social Security card belonged to a real person for his aggravated\n\nidentity theft conviction under § 1028A(a)(1). We explained that “[b]oth the\n\ncircumstances in which an offender obtained a victim’s identity and the offender’s\n\nlater misuse of that identity can shed light on the offender’s knowledge about that\n\nidentity.” Id. at 1248.\n\n In Baldwin, an identity theft and tax fraud case like this one, this Court held\n\nthat a reasonable jury could consider that a victim’s information was “used as part\n\nof a scheme to obtain a refund from the IRS, which verifies the name and Social\n\nSecurity number of the person requesting the refund, in considering whether [the\n\ndefendant] knew that [the victim] was a real person” for the aggravated identity\n\ntheft convictions under § 1028A(a)(1). Baldwin, 774 F.3d at 723–26. We also\n\n\n 36\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 37 of 55\n\n\nsaid that a jury could consider the origin of the personal information being used.\n\nId. at 723. There, the information was found on a document from the Florida\n\nAgency for Persons with Disabilities, and the jury could infer that the state agency\n\ndid not keep records that did not relate to real people. Id.\n\n Under this precedent, a reasonable jury could have found, beyond a\n\nreasonable doubt, that Kenny knew the five victims’ personal information\n\nbelonged to real people because the Delvas were using the information “as part of\n\n[their] scheme to obtain a refund from the IRS, which verifies the name and Social\n\nSecurity number of the person requesting the refund.” Id. at 723–26. And the\n\nDelvas’ identity theft and tax fraud scheme was working.\n\n Indeed, the five victims’ names, dates of birth, and Social Security numbers\n\nwere found listed on spreadsheets in one of the boxes that Bechir moved from the\n\ntownhouse to his car. Kenny’s fingerprints were on one of the spreadsheet\n\ndocuments, along with notations indicating that the personal information was used\n\nto file fraudulent tax returns. The evidence indicated that the Delvas either already\n\nhad used or planned to use the names, dates of birth, and Social Security numbers\n\ncontained in these same spreadsheets to request fraudulent tax refunds from the\n\nIRS. In six pages worth of spreadsheets alone, the Delvas already had used 21\n\nidentities to file fraudulent tax returns. The fraud scheme clearly worked because\n\nthe IRS paid out $51,441 in refunds in connection with those fraudulent tax\n\n\n 37\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 38 of 55\n\n\nreturns. To be sure, “[u]sing stolen identities was the central feature of the\n\nscheme.” See United States v. Sammour, 816 F.3d 1328, 1337 (11th Cir. 2016)\n\n(holding that evidence was sufficient to find identifications belonged to real people\n\nto support convictions of aggravated identity theft where, inter alia, a defendant\n\nhad sophisticated knowledge of stolen identity refund scheme and was sure that\n\nchecks from the IRS were valid). A reasonable jury could have found that Kenny\n\nwould not have sought a refund from the IRS with the personal information he\n\npossessed, including the five victims’ information, unless he thought that the\n\nvictims were real people with real Social Security numbers. See Holmes, 595 F.3d\n\nat 1258.\n\n Further, from the sheer volume of PII listed on the documents seized in this\n\ncase, the jury could infer that the Delvas expected their ongoing tax-fraud scheme\n\nto continue working for some time. The Delvas possessed nearly 1,700 names\n\nwith Social Security numbers, and all but 16 of those belonged to real people.\n\nEven after learning that law enforcement was surveilling them, Kenny planned to\n\nrelocate the operations and continue “working” out of a hotel. Viewing this\n\nevidence in the light most favorable to the government, the jury could infer that the\n\nidentity theft and tax fraud scheme was working and that Kenny knew that all of\n\n\n\n\n 38\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 39 of 55\n\n\nthe names, dates of birth, and Social Security numbers listed in those spreadsheets,\n\nincluding those of the five named victims, belonged to real people. 8\n\n VI. THE EXPERT OPINION ISSUE\n\n Together, the Delvas next argue that the district court abused its discretion in\n\npermitting Detective Sealy to testify as an expert in identity theft and tax fraud and\n\nthe terminology and jargon used in this type of crime. Specifically, their\n\nobjections relate to Sealy’s opinion interpreting what he saw on the undercover\n\nvideo and to his testimony on terminology. 9\n\nA. Detective Sealy’s Expert Testimony\n\n In determining the admissibility of expert testimony under Federal Rule of\n\nEvidence 702, a district court must consider whether: “(1) the expert is qualified to\n\ntestify competently regarding the matters he intends to address; (2) the\n\nmethodology by which the expert reaches his conclusions is sufficiently reliable as\n\n\n\n\n 8\n In this particular Section V(C), we have focused on Counts 3 through 7. But as to\nCounts 1 and 2, to the extent Kenny also argues the government failed to prove he knew the PII\nbelonged to real people, that claim fails because knowledge that the PII belonged to real people\nis not a requirement of his convictions under § 1029(b)(2) in Count 1 and § 1029(a)(3) in Count\n2. 18 U.S.C. § 1029(a)(3), (b)(2). In any event, the evidence in this case was sufficient to show\nKenny knew the PII belonged to real people with regard to Counts 1 and 2 as well.\n 9\n We note that, while Kenny objected at trial to the admission of Detective Sealy’s expert\ntestimony, Bechir did not and thus our review is for plain error. However, because we conclude\nthat the Delvas have not shown any error, much less plain error, we need not undertake a\nseparate plain error analysis here.\n\n\n 39\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 40 of 55\n\n\ndetermined by the sort of inquiry mandated in Daubert; 10 and (3) the testimony\n\nassists the trier of fact, through the application of scientific, technical, or\n\nspecialized expertise, to understand the evidence or to determine a fact in issue.”\n\nUnited States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015). 11\n\n It is well-settled that experienced and qualified law enforcement agents can\n\ntestify as experts to decode criminal conversations and operations that jurors might\n\nnot otherwise understand. See, e.g., Holt, 777 F.3d at 1265 (holding the district\n\ncourt did not err in permitting an agent to “testify as to the meanings of coded\n\nlanguage used by the defendants in intercepted communications” relating to their\n\nnarcotics charges because of agent’s extensive involvement in this investigation\n\nand her training and experience in previous wiretaps); United States v. Emmanuel,\n\n565 F.3d 1324, 1335 (11th Cir. 2009) (“The operations of narcotics dealers,\n\nincluding drug codes and jargon, are proper subjects of expert testimony”); Garcia,\n\n447 F.3d at 1335 (recognizing well-established rule that an experienced narcotics\n\nagent may testify as an expert to interpret drug codes and terminology to help a\n\njury understand the significance of operations unique to the drug distribution\n\n\n 10\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\n 11\n We review a district court’s decision to admit expert testimony for an abuse of\ndiscretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not\nreverse a district court’s evidentiary ruling in the absence of manifest error. Holt, 777 F.3d at\n1264. As we have explained, “a district court enjoys considerable leeway” in making its\nevidentiary rulings. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).\n\n 40\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 41 of 55\n\n\nbusiness); United States v. Cross, 928 F.2d 1030, 1051 n.65 (11th Cir. 1991)\n\n(noting that it was proper for an FBI agent to testify that, in communicating with\n\none another, pedophiles use certain code words to refer to photographs of\n\nchildren); United States v. Brown, 872 F.2d 385, 392 (11th Cir. 1989) (determining\n\nthat the district court did not err in allowing FBI agent to testify as to drug code\n\nwords); United States v. Masson, 582 F.2d 961, 963–64 (5th Cir. 1978) (finding no\n\nerror where FBI agent with extensive experience and knowledge of bookmaking\n\noperations and terminology gave expert testimony interpreting gambling jargon to\n\naid the jury’s understanding of recorded conversations); United States v. Alfonso,\n\n552 F.2d 605, 618 (5th Cir. 1977) (upholding use of expert testimony to supply\n\nmeaning to the “cryptic nature of [some] recorded conversations, often framed in\n\njargon peculiar to the gambling trade” because “it was appropriate to present\n\nexpert testimony to supply meaning to the conversations and explain the roles of\n\nthe appellants”).\n\n “[F]ederal courts have ordinarily allowed law enforcement officials to testify\n\nas experts . . . to establish the modus operandi of particular crimes, in order to\n\nexplain the actions of the defendants.” Cross, 928 F.2d at 1050 (quotations\n\nomitted); see also United States v. Burchfield, 719 F.2d 356, 358 (11th Cir. 1983)\n\n(concluding that an agent’s testimony regarding counterfeit-bill-passing techniques\n\nhelped to elucidate the actions of the defendants).\n\n\n 41\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 42 of 55\n\n\n Here, the district court did not abuse its discretion in allowing Detective\n\nSealy to testify as an expert witness as to the meanings of the terminology used in\n\nstolen identity refund fraud generally or by the individuals recorded on the\n\nundercover video specifically. First, Detective Sealy was qualified to testify\n\ncompetently regarding the terminology used in this type of fraud based on his\n\ntraining and experience. Detective Sealy received extensive training on identity\n\ntheft crimes from the IRS, U.S. Secret Service, Citibank, Homeland Security,\n\nDiscover Card, Broward Community College, and the Broward College Police\n\nAcademy. His IRS training specifically focused on the ways in which stolen\n\nidentities are used to fraudulently request tax refunds and how to investigate those\n\ncrimes.\n\n As to his experience, Detective Sealy had personally participated in more\n\nthan 75 fraud-related investigations, sometimes in an undercover capacity, with 50\n\nof those investigations involving tax fraud. He had listened in on over 30 jail calls\n\nplaced by defendants charged with stolen identity refund fraud and debriefed over\n\n20 such cooperating defendants. Detective Sealy had even taught classes on fraud-\n\nrelated topics, as well as previously testified in a case in federal court as an expert\n\nin fraud investigations and terminology. Detective Sealy clearly was an\n\nexperienced agent with specific and substantial exposure to “stolen identity refund\n\nfraud.” See Garcia, 447 F.3d at 1334–35 (finding agent to be properly qualified as\n\n\n 42\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 43 of 55\n\n\nan expert because he “had been a DEA agent for several years and had received\n\ntraining regarding the operation and structure of drug trafficking organizations and\n\nhow those organizations transport and distribute drugs,” as well as personally\n\nparticipating in at least 50 drug investigations and numerous wiretap\n\ninvestigations, which made him familiar with the coded language that some drug\n\ntrafficking organizations use); Holt, 777 F.3d at 1265 (“Agent Sargent was\n\nqualified based on, most notably, her extensive involvement in this particular\n\ninvestigation, including review of more than 99 percent of the intercepted\n\ncommunications in this case, as well as her training, experience in previous\n\nwiretaps, and general investigative experience during her six years as a DEA\n\nAgent.”).\n\n Second, Detective Sealy’s methodology was reliable because his opinions\n\nwere based on his extensive experience working on stolen identity refund fraud\n\ncases, including investigating them, working undercover, listening in on numerous\n\njail calls, and debriefing defendants charged with this crime. Based on these\n\ninvestigations, Detective Sealy was familiar with the methods by which stolen\n\nidentity refund fraud is conducted and the terminology used in this type of fraud.\n\nOf the 50 tax fraud cases Detective Sealy investigated, the majority involved\n\ncriminals using coded terminology.\n\n\n\n\n 43\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 44 of 55\n\n\n Third, Detective Sealy’s testimony assisted the jury in understanding how\n\nthe slang terms used by Bechir and Kenny related to the terminology used in this\n\nstolen identity refund fraud. For example, in his post-Miranda interview, Bechir\n\nadmitted to finding the “fos” online and using it to file fraudulent tax returns.\n\nDetective Sealy competently testified that, in South Florida, “fos” is a common\n\nslang term used in “stolen identity refund fraud” and means personal identifying\n\ninformation or PII, such as an individual’s name, date of birth, and Social Security\n\nnumber. On the undercover video recording, when Kenny said that he was going\n\nto “have these chicks buy me some plastic,” Detective Sealy explained to the jury\n\nthat “plastic” refers to debit cards or credit cards. This scheme involved having the\n\ntax refunds deposited in debit card accounts that were opened using the same PII\n\nthat was used to file corresponding fraudulent tax returns. While a lay person\n\nmight be able to guess the meanings of the code words or terminology used by\n\nBechir and Kenny, Detective Sealy “could—based on [his] training and\n\nexperience—interpret the meaning of the words more accurately than a lay person\n\nor the prosecutor.” See Holt, 777 F.3d at 1266.\n\n To the extent that the Delvas contend that allowing Detective Sealy to testify\n\nas an expert permitted him to invade the province of the jury and give his opinion\n\non their ultimate guilt, we find no support for that contention in the record.\n\nDetective Sealy’s testimony was focused on describing stolen identity tax refund\n\n\n 44\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 45 of 55\n\n\nfraud generally and explaining the meanings of particular words used on the video\n\nrecording. The record does not show that Detective Sealy offered overall opinions\n\nas to Bechir’s or Kenny’s guilt. The district court did not err, much less manifestly\n\nerr, in admitting Detective Sealy’s testimony.\n\n VII. CUMULATIVE ERROR\n\n The Delvas’ last argument concerning their convictions is that cumulative\n\nerror by the district court requires reversal. Bechir and Kenny have not established\n\na single error, let alone the aggregation of “many errors” that may require a\n\nreversal where the individual errors do not. See United States v. Baker, 432 F.3d\n\n1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington,\n\n547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). The Delvas’ cumulative error\n\nclaim therefore lacks merit.\n\n VIII. SENTENCING ISSUES\n\n Both Delvas raise sentencing issues. After the guilty verdicts, a probation\n\nofficer prepared presentence investigation reports (“PSI”) for the Delvas.\n\nA. Bechir’s Sentencing\n\n Bechir’s PSI applied a base offense level of 6 under U.S.S.G. § 2B1.1(a)(2)\n\nbecause he was convicted of a fraud crime with less than a 20-year statutory\n\nmaximum term of imprisonment. The PSI increased Bechir’s offense level to 26\n\nbased on: (1) a 14-level increase under § 2B1.1(b)(1)(H) because the loss amount\n\n\n 45\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 46 of 55\n\n\nwas $1,014,697; (2) a 2-level increase under § 2B1.1(b)(2)(A)(i) because the\n\noffense involved more than 10 victims; (3) a 2-level increase under § 3C1.1\n\nbecause Bechir willfully obstructed justice by falsely testifying at trial; and (4) a 2-\n\nlevel increase under § 2B1.1(b)(15)(B) because the offense involved possession of\n\na firearm in connection with the offense.\n\n Bechir’s total offense level of 26 and criminal history category of I yielded\n\nan advisory guidelines range of 63 to 78 months’ imprisonment for Counts 1 and 2.\n\nAs to Counts 3-7, Bechir was subject to a mandatory 24-month prison term, which\n\nwas required to be served consecutive to any other sentence imposed for Counts 1\n\nand 2, but that could be imposed concurrently with each other. See 18 U.S.C.\n\n§ 1028A(a)(1), (b)(2), and (b)(4).\n\n Bechir’s only objection to his guidelines range calculation was to the\n\napplication of the firearm enhancement. At the sentencing hearing, Bechir argued\n\nthat, although he had admitted that the firearms were in the townhouse for\n\nprotection against getting robbed, the firearm enhancement was improper because\n\nthe weapons were not used in any way.\n\n The district court overruled this objection to the firearm enhancement,\n\nfinding that “[t]he gun was clearly there as a means of enforcement or protection to\n\nprotect the fraud factory that was going on there.” The district court found further\n\n\n\n\n 46\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 47 of 55\n\n\nthat possessing the gun was “inherent to the fraud crime that was going on and a\n\npart of it.”\n\n The district court stated that it had considered the Sentencing Guidelines, the\n\n18 U.S.C. § 3553(a) factors, and Bechir’s personal characteristics, among other\n\nthings. Highlighting the need for deterrence, the district court found it appropriate\n\nto impose a sentence that could prevent others who would be “tempted to make a\n\nquick, easy buck and swindle the government out of thousands, if not hundreds of\n\nthousands of dollars.”\n\n The district court sentenced Bechir to imprisonment of: (1) 60 months on\n\nCount 1 (the conspiracy); (2) 78 months on Count 2 (the possession of\n\nunauthorized access devices) to run concurrent with Count 1; and (3) 24 months on\n\neach of Counts 3-7 (the aggravated identity thefts) to run concurrent with each\n\nother, but consecutive to Counts 1 and 2.\n\nB. Kenny’s Sentencing\n\n The PSI’s calculation of Kenny’s advisory guidelines range was largely\n\nidentical to Bechir’s, except that Kenny did not receive the 2-level obstruction of\n\njustice increase under § 3C1.1. Kenny’s total offense level of 24 and criminal\n\nhistory category of I yielded an advisory guidelines imprisonment range of 51 to\n\n63 months’ imprisonment for Counts 1 and 2. As to Counts 3-7, Kenny was\n\nsubject to a mandatory 24-month prison term, which was required to be served\n\n\n 47\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 48 of 55\n\n\nconsecutive to any other sentence imposed for Counts 1 and 2, but that could be\n\nimposed concurrently with each other. See 18 U.S.C. § 1028A(a)(1), (b)(2), and\n\n(b)(4).\n\n As with Bechir, Kenny objected to the firearm enhancement. Kenny argued\n\nthat, even though Bechir said that Kenny bought the firearms and Bechir kept them\n\n“for protection from robbery,” there was no evidence that Kenny: (1) was aware\n\nthat Bechir was using the firearms for protection; (2) had possession or control of\n\nthe firearms after giving them to Bechir; or (3) had any intent or plan to use the\n\nfirearms for protection. At the sentencing hearing, Kenny acknowledged the\n\nstrength of Bechir’s admissions that the firearms were used for protection in the\n\nfraud scheme, but argued nevertheless that there was no evidence linking Kenny to\n\nthe use of those firearms other than the fact that he bought them for his brother\n\nBechir.\n\n The district court overruled this objection, finding that “the rifle was there in\n\nopen view for easy access, so that the people who were involved in the fraud\n\nfactory could grab it real quick and defend themselves . . . if someone was going to\n\ntry to rip them off.” The district court found further that everyone who was in the\n\nroom with the rifle and participating in the fraudulent tax return scheme was in\n\nconstructive possession of the firearm, and it was reasonably foreseeable to all of\n\nthem that the gun was there to protect “the fraud factory.”\n\n\n 48\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 49 of 55\n\n\n After considering the Sentencing Guidelines and the § 3553(a) factors, the\n\ndistrict court sentenced Kenny to imprisonment of: (1) 60 months on each of\n\nCounts 1 and 2 to run concurrent to each other; and (2) 24 months on Counts 3-7,\n\nto run concurrent with each other, but consecutive to Counts 1 and 2.\n\nC. Firearm Enhancement\n\n On appeal, both Bechir and Kenny argue that, in calculating their advisory\n\nguidelines ranges for Counts 1 and 2, the district court erred in applying the 2-level\n\nenhancement under § 2B1.1(b)(15)(B) for possession of a firearm in connection\n\nwith their offenses. Individually, Bechir contends that the district court erred in\n\napplying the enhancement because his post-Miranda written statement was\n\ninsufficient to trigger the firearm enhancement, and there was no other evidence\n\nthat he intended to use the firearm for protection. Kenny argues that the district\n\ncourt erred when it found he was in constructive possession of the firearm found in\n\nthe townhouse because there was no evidence that he possessed the firearm, knew\n\nthat Bechir was using the firearm for protection, or was aware of the money in the\n\nsafe.\n\n In reviewing the procedural reasonableness of a sentence, we must “ensure\n\nthat the district court committed no significant procedural error, such as failing to\n\ncalculate (or improperly calculating) the Guidelines range, treating the Guidelines\n\nas mandatory, failing to consider the § 3553(a) factors, selecting a sentence based\n\n\n 49\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 50 of 55\n\n\non clearly erroneous facts, or failing to adequately explain the chosen sentence.”\n\nUnited States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (quotations\n\nomitted). When a defendant challenges the application of a sentencing\n\nenhancement, we review a district court’s factual findings on the disputed\n\nsentencing enhancement only for clear error and its application of the Sentencing\n\nGuidelines to those facts de novo. United States v. Matos-Rodriguez, 188 F.3d\n\n1300, 1309 (11th Cir. 1999). Under clear error review, we will not disturb the\n\ndistrict court’s findings unless we are left with a definite and firm conviction that a\n\nmistake was made. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017).\n\n The Sentencing Guidelines provide for a two-level offense increase if a\n\ndefendant possessed a dangerous weapon, such as a firearm, in connection with his\n\nfraud offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B) (2016). The mere\n\npossession of a firearm during the commission of an offense can, in certain\n\ncircumstances, be sufficient to apply a sentencing enhancement. United States v.\n\nJackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (holding that a firearm sentencing\n\nenhancement for mere possession is proper “where it is reasonable to assume that a\n\ndefendant possesses a firearm, even without using it, to prevent the theft of\n\ncounterfeit currency in his possession”). We look at the circumstances\n\nsurrounding the offense and firearm possession to determine whether it is\n\nreasonable to infer that the firearm might be used during an offense. See United\n\n\n 50\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 51 of 55\n\n\nStates v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001). A co-conspirator’s\n\npossession of a firearm may be attributed to the defendant if the co-conspirator’s\n\npossession of the firearm was reasonably foreseeable by the defendant, occurred\n\nwhile the defendant was a member of the conspiracy, and was in furtherance of the\n\nconspiracy. United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir. 2010).\n\n In this case, the district court did not err in applying the firearm\n\nenhancement or clearly err in finding that Bechir and Kenny had possessed a\n\nfirearm in connection with their offenses. Bechir and Kenny were conducting\n\nsubstantial identity theft and tax fraud operations out of the townhouse. Not only\n\ndid they have scores of PII and debit cards there, they also kept the proceeds from\n\ntheir fraud in the townhouse—$29,000 in a safe. Amidst all the fraud-related\n\nmaterials and money, the Delvas had a rifle that Kenny had purchased leaning up\n\nagainst the wall in the exact same room and at the exact same time as they were\n\nconducting their various fraudulent activities.\n\n More still, Bechir expressly admitted in his post-Miranda statement that the\n\nfirearms were kept in the townhouse to protect them from being robbed. Although\n\nBechir testified at trial that the Agents coerced his statement and the firearms were\n\nactually kept for recreational purposes, the district court was free to reject that\n\ntestimony and conclude instead that the gun was in the townhouse to protect the\n\nfraud operations.\n\n\n 51\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 52 of 55\n\n\n And while Kenny now disclaims any knowledge of the purpose of the\n\nfirearm or the money in the safe, the trial evidence indicated otherwise. Kenny\n\nwas the registered owner of the firearms found in the townhouse and a knowing\n\nparticipant in the identity theft and tax fraud scheme. Even though Bechir said that\n\nhe kept the guns for protection, possession of the firearms could be properly\n\nattributed to Kenny too because it was reasonably foreseeable that Bechir would\n\npossess a firearm in furtherance of the fraud in any event. See Villarreal, 613 F.3d\n\nat 1359. Indeed, Kenny purchased the firearms for Bechir.\n\n Based on this record, the district court did not clearly err in finding that the\n\nrifle was in the townhouse as a means of protection against potential robberies and,\n\nthus, both Delvas possessed the firearm in connection with their offenses. See\n\nMatos-Rodriguez, 188 F.3d at 1309 (holding that a defendant who “possessed [a]\n\npistol to prevent theft [of counterfeit money] during a close, face-to-face,\n\nhand-to-hand encounter with a person he apparently did not know well” possessed\n\na firearm “in connection with” the offense). Therefore, the 2-level increase\n\npursuant to § 2B1.1(b)(15)(B) was properly applied to Bechir’s and Kenny’s\n\nsentences.\n\nD. Substantive Reasonableness\n\n Kenny asserts that his total 84-month sentence was substantively\n\nunreasonable because the nature and circumstances of his offenses, the need to\n\n\n 52\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 53 of 55\n\n\nreflect the serious of the offenses, and the need to protect the public, all support a\n\nlesser sentence.\n\n We review the reasonableness of a sentence under the deferential\n\nabuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.\n\n586, 597 (2007). “The party challenging the sentence bears the burden to show\n\nthat the sentence imposed is unreasonable in light of the record and the 18 U.S.C.\n\n§ 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).\n\n The district court must impose a sentence sufficient, but not greater than\n\nnecessary, to comply with the purposes listed in 18 U.S.C. § 3553(a)(2), including\n\nthe need to reflect the seriousness of the offense, promote respect for the law,\n\nprovide just punishment for the offense, deter criminal conduct, and protect the\n\npublic. See 18 U.S.C. § 3553(a)(2). The district court must also consider, among\n\nother things, the nature and circumstances of the offense, the history and\n\ncharacteristics of the defendant, the kinds of sentences available, the applicable\n\nadvisory guidelines range, the pertinent policy statements of the Sentencing\n\nCommission, and the need to provide restitution to victims. 18 U.S.C.\n\n§ 3553(a)(1), (3)-(7).\n\n We have made clear, though, that the weight given to any specific § 3553(a)\n\nfactor is committed to the sound discretion of the district court. United States v.\n\nCroteau, 819 F.3d 1293, 1310 (11th Cir. 2016). We will not remand for\n\n\n 53\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 54 of 55\n\n\nresentencing unless we are “left with the definite and firm conviction that the\n\ndistrict court committed a clear error of judgment in weighing the § 3553(a) factors\n\nby arriving at a sentence that lies outside the range of reasonable sentences dictated\n\nby the facts of the case.” Id. (citing United States v. Irey, 612 F.3d 1160, 1190\n\n(11th Cir. 2010) (en banc)). And while we do not presume that a sentence falling\n\nwithin the guidelines range is reasonable, we ordinarily expect it to be so. United\n\nStates v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “A sentence imposed well\n\nbelow the statutory maximum penalty is another indicator of reasonableness.”\n\nCroteau, 819 F.3d at 1310.”\n\n Kenny has not demonstrated that his 84-month sentence was substantively\n\nunreasonable. In fashioning Kenny’s sentence, the district court considered the\n\nSentencing Guidelines and the § 3553(a) factors and imposed a total\n\nwithin-guidelines sentence of 60 months’ imprisonment followed by the mandatory\n\nconsecutive 24-month sentence for his five aggravated identity theft convictions.\n\nWe normally expect a sentence falling within the guidelines range to be\n\nreasonable. See Hunt, 526 F.3d at 746. The district court also ordered that\n\nKenny’s five mandatory 24-month aggravated identity theft sentences run\n\nconcurrently with each other, not consecutively to each other, which resulted in a\n\nsignificantly shorter total sentence. Although the district court emphasized the\n\nneed to deter others from engaging in this type of fraud when it imposed Kenny’s\n\n\n 54\n\f Case: 16-12947 Date Filed: 04/29/2019 Page: 55 of 55\n\n\nsentence, the district court did not abuse its discretion in doing so. Finally,\n\nKenny’s total 84-month sentence was well below the 25-year statutory maximum\n\nfor all of the charged crimes combined, another indicator of reasonableness. See\n\nCroteau, 819 F.3d at 1310.\n\n IX. CONCLUSION\n\n For the reasons stated above, we affirm Bechir Delva’s and Kenny Delva’s\n\nconvictions and sentences.\n\n AFFIRMED.\n\n\n\n\n 55\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Bechir DELVA, Dan Kenny Delva, Defendants-Appellants.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-12947 Date Filed: 04/29/2019 Page: 1 of 55\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-12947\\n ________________________\\n\\n D.C. Docket No. 0:15-cr-60209-WPD-2\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nBECHIR DELVA,\\nDAN KENNY DELVA,\\n\\n Defendants-Appellants.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (April 29, 2019)\\n\\nBefore MARCUS, GRANT and HULL, Circuit Judges.\\n\\nHULL, Circuit Judge:\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 2 of 55\\n\\n\\n Defendants Bechir Delva and Dan “Kenny” Delva are brothers who were\\n\\nconvicted of seven crimes arising out of their identity theft and tax fraud\\n\\noperations. After a joint jury trial, the Delvas appeal their convictions and\\n\\nsentences for conspiracy to possess 15 or more unauthorized access devices, in\\n\\nviolation of 18 U.S.C. § 1029(b)(2), possession of 15 or more unauthorized access\\n\\ndevices, in violation of 18 U.S.C. § 1029(a)(3), and aggravated identity theft, in\\n\\nviolation of 18 U.S.C. § 1028A(a)(1).\\n\\n On appeal, Bechir and Kenny raise separate and joint challenges to their\\n\\nconvictions and sentences. First, Bechir attacks his convictions on the ground that\\n\\nthe district court erred in denying his motion to suppress the evidence found during\\n\\na warrantless search of his vehicle. Second, Kenny challenges the sufficiency of\\n\\nthe evidence supporting each of his convictions. Together, Bechir and Kenny\\n\\nargue that: (1) the district court erred by admitting at trial the government’s expert\\n\\ntestimony as to the terminology and jargon used in identity theft and tax fraud\\n\\ncrimes; and (2) the district court’s errors singularly and cumulatively violated their\\n\\nconstitutional rights to a fair trial and due process of law.\\n\\n As to their sentences, Bechir and Kenny argue that the district court erred in\\n\\napplying an enhancement for possession of a firearm in connection with their\\n\\noffenses. Lastly, Kenny contends that his total 84-month sentence is substantively\\n\\nunreasonable.\\n\\n\\n 2\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 3 of 55\\n\\n\\n After careful review of the record and the parties’ briefs, and with the\\n\\nbenefit of oral argument, we affirm both Delvas’ convictions and sentences.\\n\\n I. FACTUAL BACKGROUND\\n\\n We describe the government’s June 9, 2014, undercover investigation into\\n\\nthe Delvas’ fraud operations, including the federal agents’ search of Bechir’s\\n\\nvehicle and the townhouse where the fraud was conducted. This investigation and\\n\\nthe evidence seized from the car and townhouse formed the basis of the federal\\n\\nprosecution of this case. Our description is based on the evidence presented at\\n\\ntrial, as well as testimony during a pre-trial suppression hearing.\\n\\nA. Undercover Operation\\n\\n A cooperating source, McKenzie Francois, told federal agents that Bechir\\n\\nand Kenny Delva were conducting identity theft and tax fraud operations out of a\\n\\ntownhouse located within a gated community complex in Miramar, Florida.\\n\\nActing on this information, the Agents set up an undercover operation with\\n\\nFrancois, which targeted the townhouse. On June 9, 2014, Special Agents Kevin\\n\\nDeslauriers, Brian Eustice, and Geoffrey Goodwin from Homeland Security\\n\\nInvestigations and Special Agent Brad Cohen from the Internal Revenue Service\\n\\n(“IRS”) met with Francois at a staging location. The Agents equipped Francois\\n\\nwith a video and audio recording device in a backpack and followed him to the\\n\\ntownhouse in question. One Agent parked his car with a view of the townhouse’s\\n\\n\\n 3\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 4 of 55\\n\\n\\nfront door, while other Agents parked where they could observe the building’s\\n\\nrear.\\n\\n At approximately 12:05 p.m., Francois entered the townhouse and stayed for\\n\\nabout an hour. Bechir, Kenny, and others were present in the townhouse at that\\n\\ntime. While inside, Francois took several pictures with his cell phone and texted\\n\\nthem to the Agents. The pictures showed: (1) individuals sitting on a couch using\\n\\nlaptops; (2) a money counter; (3) a white shoebox lid flipped upside down with\\n\\nnumerous debit cards and papers containing personal identifying information\\n\\ninside setting on top of an ottoman; and (4) an AR-15 rifle leaning against a wall.\\n\\nGenerally, the personal identifying information included individuals’ names, dates\\n\\nof birth, and Social Security numbers, which we collectively refer to as “PII.”\\n\\n Consistent with these photographs, the video recording covertly captured by\\n\\nFrancois depicted papers listing PII and debit cards visible on the ottoman and a\\n\\nrifle leaning against a wall. Kenny and Bechir could be heard speaking on the\\n\\nrecording. Bechir was sitting on a couch facing the ottoman where the debit cards\\n\\nand papers were located. At one point on the video, Kenny is holding papers and a\\n\\nlaptop power cord. The video also showed that, soon after Francois arrived, the\\n\\nindividuals discovered a government Agent surveilling the townhouse. This\\n\\nprompted a discussion about whether the Agent could “pick up” on who was\\n\\n“sending things” over the internet. They also talked about packing up, “cleaning\\n\\n\\n 4\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 5 of 55\\n\\n\\nup” the townhouse, and leaving to “work” at a hotel. Kenny, in particular, talked\\n\\nabout leaving the townhouse and going to a hotel where it would be safer to work.\\n\\nAround this time, someone else accused Kenny of looking scared, and Bechir\\n\\nreferenced someone going to jail.\\n\\nB. Agents Debrief Francois\\n\\n After leaving the townhouse, Francois met with the Agents again and\\n\\nconfirmed that individuals in the townhouse were conducting fraud activities.\\n\\nFrancois also told the Agents that the individuals noticed a law enforcement officer\\n\\noutside the townhouse and were worried that they were being surveilled. As such,\\n\\nthey talked about “cleaning” the townhouse and getting rid of any illicit materials\\n\\nas soon as possible. The Agents then did the following: Agent Eustice returned to\\n\\nthe gated community to watch the townhouse; Agent Deslauriers took the video\\n\\nequipment back to his office for review; and Agent Goodwin went to secure a\\n\\nfederal search warrant.\\n\\nC. Agents Initially Search the Mercedes\\n\\n At about 2:00 p.m., Agent Eustice returned to the townhouse and saw\\n\\nseveral vehicles lined up in front of the residence. Agent Eustice first saw an\\n\\nunidentified male put a bag into the back of a white Camry and drive away from\\n\\nthe townhouse. Agent Eustice tried to follow the car, but lost it at the front gate.\\n\\nAgent Eustice then saw another male, later identified as Bechir, walk down a\\n\\n\\n 5\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 6 of 55\\n\\n\\nhallway to the townhouse door. Bechir left the townhouse carrying three white\\n\\nshoeboxes and a black backpack, which he loaded into a Mercedes-Benz vehicle.\\n\\nBechir then departed the townhouse (Unit 105, Building 2492) and drove along the\\n\\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\\n\\nthat main drag and turned into one of the other apartment communities within the\\n\\ncomplex. Bechir parked and began walking away from the car.\\n\\n By this time, two other Agents had joined Agent Eustice at the scene, and\\n\\nthey approached Bechir together. When asked, Bechir denied owning the\\n\\nMercedes and refused to provide the officers with any identification. The Agents\\n\\nthen handcuffed Bechir and eventually placed him in the back of a police car.\\n\\nLooking in the windows of the parked Mercedes, Agent Eustice saw the three\\n\\nshoeboxes that Bechir had loaded into the car. He noticed that one box was ajar\\n\\nand appeared to have credit cards inside.\\n\\n At approximately 4:15 p.m., Agent Deslauriers returned to the scene after\\n\\nwatching the undercover video. Although part of the recorded conversation was in\\n\\nHaitian Creole, which Agent Deslauriers did not understand, he noticed a\\n\\n“heightened sense of urgency at the end” of the video, which corroborated what\\n\\nFrancois had told them.\\n\\n When Agent Deslauriers arrived, Agent Eustice fully briefed him on what\\n\\nhad transpired with Bechir. Agent Deslauriers recognized Bechir from the\\n\\n\\n 6\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 7 of 55\\n\\n\\nundercover video. When he looked in the back of the Mercedes, he also saw the\\n\\nboxes. The boxes looked similar to the box lid Agent Deslauriers saw in\\n\\nFrancois’s pictures and on the undercover video. Additionally, one of the boxes\\n\\nwas slightly ajar, and Agent Deslauriers could see what looked like credit cards\\n\\ninside.\\n\\n Based on the video, the pictures, and the information provided by Francois,\\n\\nAgent Deslauriers believed there was PII and fraudulent credit cards in the box.\\n\\nAgent Deslauriers then opened the Mercedes door, did a cursory search of the\\n\\nboxes, and found stacks of credit cards and papers listing PII. He took a few\\n\\nphotographs and then replaced everything.\\n\\nD. Agents Search the Mercedes and Townhouse\\n\\n Meanwhile, Agent Goodwin secured a search warrant and returned to the\\n\\ntownhouse around 8:30 p.m. The Agents then conducted a thorough search of the\\n\\nMercedes and the townhouse. Within the three boxes in the Mercedes, the Agents\\n\\nfound (1) hundreds of prepaid debit cards, (2) Bechir’s T-Mobile bill, (3) a bill\\n\\naddressed to Kenny, and (4) scores of documents containing PII, including\\n\\nnotebooks, handwritten lists, and Excel spreadsheets. The documents with the PII\\n\\nlisted the names, birthdates, and Social Security numbers of hundreds of\\n\\nindividuals. In the black backpack, the Agents found a laptop computer, as well as\\n\\nadditional papers with PII.\\n\\n\\n 7\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 8 of 55\\n\\n\\n In the townhouse, the Agents discovered a safe with $29,000 inside, two\\n\\nmoney counters, and even more credit cards and more documents listing PII. The\\n\\nAgents also found (1) tax guidelines from Republic Bank and Trust Company,\\n\\n(2) documents listing an electronic filing identification number (“EFIN”) for\\n\\nGustavo Cruz of Cruz Tax Services, (3) a boxful of prepaid debit cards, (4) a\\n\\nPlayhouse Gentleman’s Club VIP card in Bechir’s name, and (5) a letter to Kenny\\n\\nfrom the IRS. The Agents also found two rifles and a handgun, with multiple\\n\\ncorresponding magazines and rounds of ammunition, and receipts showing that\\n\\nKenny had purchased the firearms.\\n\\n In the townhouse garage, Agents found Bechir’s Haitian passport, Kenny’s\\n\\nAudi service contract, Kenny’s insurance records, documents related to Gustavo\\n\\nCruz, a record showing a parcel was shipped to the IRS, and instructions for\\n\\nobtaining an EFIN.\\n\\nE. Bechir’s Interview and Written Statement\\n\\n After searching the townhouse, the Agents apprised Bechir of his Miranda\\n\\nrights1 and interviewed him. Bechir told the Agents that all of the personal\\n\\nidentifying information (the PII) was his. Bechir had obtained the information (the\\n\\nPII), which he called “fos” and “infos,” from an online database, using a login and\\n\\n\\n\\n 1\\n Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).\\n\\n\\n 8\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 9 of 55\\n\\n\\npassword. Bechir told the Agents that he used the personal identifying information\\n\\n(the PII) to file fraudulent tax returns online using an EFIN that he bought on the\\n\\nstreet for $5,000. Bechir would receive the tax refunds on debit cards, which he\\n\\nused at ATMs to withdraw cash. Bechir admitted that the money the Agents found\\n\\nin the townhouse was from tax fraud. He also said the Mercedes belonged to him\\n\\nand Kenny had an Audi in the garage. When asked about the firearms, Bechir told\\n\\nthe Agents that the guns belonged to Kenny. Bechir explained that the firearms\\n\\nwere in the townhouse for protection.\\n\\n In his signed written statement, Bechir also admitted to conducting fraud\\n\\nactivities and keeping firearms at the townhouse for protection from getting\\n\\nrobbed:\\n\\n I’m Bechir Delva, [and] freely and willing admit that the money I store\\n in the safe and all the fraud activities here at 2492 Centergate Drive,\\n Miramar, Florida, Unit 105, are mine. The money in the safe is from\\n fraud and [I] have conducted fraud here. I had legal guns here, rifles\\n and handguns. I kept them here for protection from getting robbed.\\n\\nThe Agents did not arrest or question Kenny on June 9, 2014, as he had left the\\n\\ntownhouse by the time they searched it.\\n\\n II. PRE-TRIAL PROCEEDINGS\\n\\nA. Indictment and Not Guilty Pleas\\n\\n In August 2015, a federal grand jury charged both Bechir and Kenny with:\\n\\n(1) one count of conspiracy to possess 15 or more unauthorized access devices, i.e.,\\n\\n\\n 9\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 10 of 55\\n\\n\\nSocial Security numbers and debit cards issued to other people, in violation of 18\\n\\nU.S.C. § 1029(b)(2) (“Count 1”); (2) one count of possession of 15 or more\\n\\nunauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3) (“Count 2”);\\n\\nand (3) five counts of aggravated identity theft, in violation of 18 U.S.C.\\n\\n§ 1028A(a)(1) (“Counts 3-7”). The aggravated identity theft counts were tied to\\n\\nspecific real individuals whose PII was recovered from the spreadsheets in the\\n\\nMercedes, namely, L.C. (Count 3), J.F. (Count 4), C.L. (Count 5), D.S. (Count 6),\\n\\nand G.S. (Count 7). The Delvas pleaded not guilty, and the case proceeded to a\\n\\njoint trial.\\n\\nB. Bechir’s Suppression Motion\\n\\n Before trial, Bechir filed a motion to suppress the physical evidence seized\\n\\nfrom his Mercedes.2 Bechir’s motion claimed that he was illegally detained on\\n\\nJune 9 and that the initial warrantless search of his vehicle was illegal. The district\\n\\ncourt conducted an evidentiary hearing, during which Agents Deslauriers and\\n\\nEustice testified for the government. They described the June 9, 2014, events as\\n\\ndetailed above. Bechir did not testify at the hearing.\\n\\n At the end of the hearing, the district court denied Bechir’s suppression\\n\\nmotion. In its written order, the district court first found that one of the boxes in\\n\\n\\n 2\\n Bechir did not challenge the search of the townhouse or move to suppress the\\npost-Miranda statements he made to the federal agents. Kenny did not file a suppression motion\\nat all.\\n 10\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 11 of 55\\n\\n\\nthe Mercedes was ajar, revealing credit cards inside. Next, the court determined\\n\\nthat the fact that the boxes and credit cards were in plain view, combined with\\n\\ninformation Francois provided to the Agents, created sufficient probable cause to\\n\\njustify searching the vehicle. Therefore, based on the automobile exception\\n\\nannounced in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280 (1925), the\\n\\ndistrict court determined that the Agents had authorization to search the Mercedes\\n\\nand the boxes at the time when they first detained Bechir. The district court\\n\\nstressed that they did not search the vehicle until after Agent Deslauriers had\\n\\nwatched the undercover video, which the court said clearly depicted fraud.\\n\\nAlternatively, the district court concluded that the inevitable discovery doctrine\\n\\njustified the search because the Agents secured a search warrant later that day.\\n\\n III. THE JOINT TRIAL\\n\\n In February 2016, the case proceeded to a joint trial, which lasted five days.\\n\\nAs Kenny challenges his convictions based on the sufficiency of the evidence, and\\n\\nboth Delvas argue that the introduction of certain expert testimony was improper,\\n\\nwe will review more of the evidence presented at trial.\\n\\nA. The Government’s Evidence\\n\\n During the trial, the government presented testimony from 18 witnesses,\\n\\nincluding Agents Deslauriers, Eustice, Goodwin, and Cohen. The Agents\\n\\ndescribed the events on June 9, 2014, as we have recounted them above, including\\n\\n\\n 11\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 12 of 55\\n\\n\\ntestifying as to Bechir’s post-Miranda interview statements and written confession.\\n\\nThe government also introduced the physical evidence the Agents obtained on June\\n\\n9, that is, Francois’s undercover video and pictures, as well as the evidence Agents\\n\\nseized from Bechir’s Mercedes and the townhouse. In particular, the government\\n\\nintroduced two Excel spreadsheets that were found in Bechir’s car, which listed the\\n\\nnames, birthdates, and Social Security numbers of the five victims specifically\\n\\nnamed in Counts 3-7 of the indictment. Agent Deslauriers also explained\\n\\nsubsequent steps the Agents took to investigate the Delvas’ fraud scheme, such as\\n\\nsending some of the seized evidence to a forensic lab for fingerprint analysis.\\n\\n Fingerprint specialist Genius Johnson then testified that he compared\\n\\nBechir’s and Kenny’s fingerprints to those he recovered from two documents\\n\\ncontaining PII that were seized in the case. On one document, Johnson found one\\n\\nlatent fingerprint left by Bechir, and on another spreadsheet, Johnson found four\\n\\nlatent fingerprints left by Kenny. Johnson testified that it was impossible that\\n\\nsomeone other than Bechir and Kenny left those fingerprints on the papers.\\n\\n The government also called Detective Kenneth Sealy as an expert witness in\\n\\nidentity theft and tax fraud and the terminology and jargon used in this type of\\n\\ncrime. Sealy is a Detective with the Aventura Police Department who had been\\n\\nassigned to the IRS Identity Theft Task Force for four years. Detective Sealy had\\n\\nreceived training on identity theft crimes from several different institutions,\\n\\n\\n 12\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 13 of 55\\n\\n\\nincluding from the IRS, U.S. Secret Service, Citibank, Homeland Security,\\n\\nDiscover Card, Broward Community College, and the Broward College Police\\n\\nAcademy. Detective Sealy’s training with the IRS was specifically focused on the\\n\\nways in which fraudulent tax returns are filed with stolen identities to obtain\\n\\nrefunds and how to investigate those types of crimes. Sealy explained that the term\\n\\n“stolen identity refund fraud” referred to the use of stolen identities—individuals’\\n\\nnames, dates of birth, and Social Security numbers—to file fraudulent income tax\\n\\nreturns with the IRS to obtain a refund.\\n\\n As to experience, Detective Sealy had conducted more than 75 fraud\\n\\ninvestigations, including in 50 tax fraud cases. Detective Sealy had also listened in\\n\\non over 30 jail calls placed by defendants charged with “stolen identity refund\\n\\nfraud” and debriefed over 20 such cooperating defendants. From the phone calls\\n\\nand debriefs, Detective Sealy learned the methods by which “stolen identity refund\\n\\nfraud” is conducted and the terminology used in that type of fraud. Detective\\n\\nSealy explained that, in the majority of the tax fraud cases he investigated, the\\n\\ncriminals used coded terminology. As part of his investigations, Detective Sealy\\n\\nalso had worked undercover to purchase, or arrange for the purchase of, PII from\\n\\nindividuals engaged in fraud. Sealy explained that PII usually refers to people’s\\n\\nnames, dates of birth, and Social Security numbers. Based on his expertise,\\n\\nDetective Sealy had taught fraud classes to other police departments and colleges\\n\\n\\n 13\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 14 of 55\\n\\n\\nand had previously testified in a case in federal court as an expert in fraud\\n\\ninvestigations and terminology.\\n\\n Detective Sealy testified that criminals committing “stolen identity refund\\n\\nfraud” obtain PII from multiple sources, including online or from people who work\\n\\nat schools, banks, hospitals, or at other places where they have access to such\\n\\ninformation. In reviewing the documents seized in this case, Detective Sealy\\n\\nconfirmed that they appeared to be medical billing sheets, Excel spreadsheets\\n\\nlisting PII, and hospital patient printouts, which were consistent with the type of\\n\\nrecords he had found in other “stolen identity refund fraud” cases. On the Excel\\n\\nspreadsheets, Detective Sealy noted that someone had handwritten checkmarks,\\n\\nXs, and debit card account numbers alongside the specific PII entries. He\\n\\nexplained that the handwritten notations indicated whether the participant had been\\n\\nsuccessful or not in using the listed individual’s PII in the fraud scheme.\\n\\n Next, Detective Sealy generally described how “stolen identity refund fraud”\\n\\nworks. He explained that once the fraudsters obtain the PII, they input that\\n\\ninformation into an online tax preparation website and then report fictitious\\n\\nearnings, as if they were preparing real tax returns. When filing the fraudulent tax\\n\\nreturns, the criminals elect to have the tax refund deposited onto prepaid debit\\n\\ncards, which are linked to online checking accounts. These fraudulent tax returns\\n\\n\\n\\n\\n 14\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 15 of 55\\n\\n\\nare typically filed in volume to increase the likelihood of successfully obtaining\\n\\nrefunds.\\n\\n As to terminology, Detective Sealy testified that “fos” is a common slang\\n\\nterm that identity fraudsters use in South Florida, and it means “info” or\\n\\n“information,” like an individual’s name, date of birth, and Social Security\\n\\nnumber. The government then played portions of the undercover video and asked\\n\\nDetective Sealy follow-up questions. For instance, after reviewing when an\\n\\nindividual in the townhouse said, “[w]hen you work over and over, and you send\\n\\neverything at once, and you’re done, that’s better,” Detective Sealy testified that\\n\\n“work” in this context typically means either opening credit card accounts or filing\\n\\nfraudulent tax returns. And when individuals in the townhouse mentioned “PD,”\\n\\nsuch as “My PDs always go,” Detective Sealy testified that PD typically refers to\\n\\npersonal drops—that is, the actual deposit of tax refunds from the U.S. Treasury to\\n\\nthe account associated with a debit card.\\n\\n Detective Sealy also explained that when an individual said, “I never check\\n\\nthe confirmation,” the term “confirmation” usually refers to checking the status of\\n\\na tax refund on the IRS website. More still, after another individual said on the\\n\\nvideo, “I’m going to have these chicks buy me some plastic,” Detective Sealy\\n\\ntestified that “plastic” refers to debit cards or credit cards. He said that criminals\\n\\n\\n\\n\\n 15\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 16 of 55\\n\\n\\ninvolved in this type of fraud commonly have third parties purchase the debit cards\\n\\nfor them in order for the fraudsters themselves to avoid store surveillance cameras.\\n\\n The government then played a video clip where the individuals were\\n\\ndiscussing leaving the townhouse and going to a hotel because they were\\n\\nconcerned that law enforcement was monitoring them. Detective Sealy confirmed\\n\\nthat, in his experience, individuals committing “stolen identity refund fraud” often\\n\\nwork out of hotels because using a hotel’s wi-fi internet makes it more difficult for\\n\\nlaw enforcement to track the fraud.\\n\\n Next, Yamile Colt, a witness from the Social Security Administration,\\n\\ntestified. Colt had examined a list of approximately 1,696 Social Security\\n\\nnumbers, which were all found within the documentary evidence seized from the\\n\\nMercedes and townhouse. Colt determined that all but 16 of the 1,696 numbers\\n\\nwere legitimate Social Security numbers that belonged to real people.\\n\\n Included in that list were the names and Social Security numbers for the five\\n\\nindividuals named in Counts 3 through 7 of the indictment. Three of the named\\n\\nindividuals came to trial and testified that their PII appeared on documents seized\\n\\nfrom the Mercedes, but that they had never given the Delvas permission to use\\n\\ntheir PII and did not recognize either Bechir or Kenny.\\n\\n Joanna Steisel, an IRS Analyst, then testified. Steisel explained that, when\\n\\nsomeone electronically files a federal tax return, the IRS conducts what is called a\\n\\n\\n 16\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 17 of 55\\n\\n\\n24-hour check, where it verifies the accuracy of certain PII against its system.\\n\\nSteisel also explained that the IRS assigns EFINs to tax preparation businesses so\\n\\nthat they can submit a large number of tax returns online on behalf of other people.\\n\\nThere is no limit to the number of returns you can file with an EFIN.\\n\\n As to the Delvas’ fraud specifically, Steisel testified that she had reviewed\\n\\nsix pages of PII that the Agents recovered from Bechir’s Mercedes. The IRS\\n\\nAnalyst looked at whether the handwritten debit account numbers on those pages\\n\\nof PII were associated with filed tax returns. She discovered that the accounts\\n\\nwere linked to 21 fraudulent tax returns that had been filed in March and April of\\n\\n2014. These fraudulent tax returns had requested a total of $186,697 in tax\\n\\nrefunds. Of the requested refunds, the IRS directly deposited $51,441 in tax\\n\\nrefunds to the listed accounts. The fraudulent tax returns were all filed using\\n\\nGustavo Cruz’s EFIN.\\n\\n After the government rested, the Delvas moved under Rule 29 of the Federal\\n\\nRules of Criminal Procedure for a judgment of acquittal. The district court denied\\n\\nthe Rule 29 motions.\\n\\nB. Bechir Testifies\\n\\n Bechir then testified on his own behalf. Bechir explained that, on June 9,\\n\\n2014, he was living at his parents’ house, but went over to the townhouse to spend\\n\\ntime with friends. Bechir said that the townhouse belonged to a relative who was\\n\\n\\n 17\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 18 of 55\\n\\n\\nout of the country, but that Francois was living there at that time with his cousins.\\n\\nBechir had known Francois since they were children, as their parents were\\n\\nneighbors.\\n\\n Sometime after Bechir arrived, Francois and Kenny came over to the\\n\\ntownhouse too. According to Bechir, Francois warned him that the police were\\n\\nwatching and asked him to move some boxes out of the townhouse. Bechir\\n\\ncomplied, carried Francois’s boxes to the Mercedes, and then moved his car to\\n\\nanother parking space. This is when the Special Agents confronted him. Bechir\\n\\ntestified that, after the Agents handcuffed him, they eventually took him back to\\n\\nthe townhouse, but he denied making any statements to the Agents that day. When\\n\\nconfronted with his written post-Miranda statement, Bechir explained that he was\\n\\nscared and wrote exactly what an Agent told him to write.\\n\\n On cross-examination, Bechir testified that he would go to the townhouse\\n\\nonce in a while to play videogames and basketball, but he was rarely there. Bechir\\n\\nconfirmed that he did not stay at the townhouse; rather, he stayed at his mother’s\\n\\nhouse. When Bechir arrived on June 9, Francois’s cousins were on their\\n\\ncomputers, and the guns, papers, and debit cards were in the townhouse. Bechir\\n\\nadmitted to seeing papers everywhere, but denied seeing any PII. Instead, he\\n\\nthought the personal information was fake. Bechir testified that the papers, PII,\\n\\n\\n\\n\\n 18\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 19 of 55\\n\\n\\nand debit cards all belonged to Francois and his cousins. None of it belonged to\\n\\nhim or to Kenny.\\n\\n The government then confronted Bechir with portions of the undercover\\n\\nvideo. After viewing the clip where individuals were talking about the police\\n\\nwatching the townhouse, Bechir testified that he was not concerned about the\\n\\npolice presence because he was just at the townhouse to hang out. When the\\n\\ngovernment asked why Bechir was talking about jail on the recording, Bechir said\\n\\nhe was making a joke. Bechir admitted to seeing Kenny on the video recording,\\n\\nbut denied that Kenny was using a computer. Bechir also testified that he did not\\n\\nknow why Kenny was talking about going to a hotel or why it would be safer at a\\n\\nhotel, explaining too that Kenny never told him anything about filing taxes at a\\n\\nhotel. Bechir acknowledged that, after people on the video discussed the police,\\n\\nsomeone told Kenny that he looked scared, but Bechir said that Kenny was “not\\n\\nscared at all.” Bechir also agreed that, moments later, Kenny was holding papers,\\n\\nbut Bechir denied that it looked like Kenny was “packing up.”\\n\\n Bechir did confirm that it was Kenny who said on the recording, “You know\\n\\nwhen you work over and over, and you send everything at once, and you’re done,\\n\\nthat’s better.” Bechir, however, did not know what “work” meant in that statement\\n\\nbecause Kenny was speaking in “code” or “street language.” Bechir also did not\\n\\nknow what Kenny meant when he said: “I’m going to have these chicks buy me\\n\\n\\n 19\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 20 of 55\\n\\n\\nsome plastic.” Bechir maintained that he had no knowledge that Kenny was\\n\\ninvolved in filing fraudulent tax returns.\\n\\n While Bechir testified that Kenny bought the firearms found in the\\n\\ntownhouse, Bechir said that they were there for recreational use at a gun range—\\n\\nnot to protect the stolen identities or tax fraud proceeds. Though Bechir admitted\\n\\nto moving the boxes to his car, he denied opening the boxes himself. Bechir\\n\\nclaimed that everything in the boxes belonged to Francois and his cousins. When\\n\\nthe government showed Bechir that his phone bill was found in one of those boxes,\\n\\nBechir could not explain how it got there, but suggested the Agents had planted it\\n\\nto frame him. Bechir also did not know how his passport ended up in the\\n\\ntownhouse’s garage.\\n\\n Kenny did not testify and the defense rested.\\n\\nC. The Verdict and Sentences\\n\\n The Delvas then renewed their Rule 29 motions. Noting that “the\\n\\ngovernment’s case got stronger with the cross-examination of Bechir,” the district\\n\\ncourt denied the motions. After deliberating, the jury found Bechir and Kenny\\n\\nguilty on all counts. The district court sentenced Bechir to 102 months’\\n\\nimprisonment and Kenny to 84 months’ imprisonment. This is the Delvas’ appeal.\\n\\n IV. BECHIR’S SUPPRESSION MOTION\\n\\n On appeal, Bechir argues that the district court erred in denying his pre-trial\\n\\n\\n 20\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 21 of 55\\n\\n\\nsuppression motion and then admitting into evidence the physical items seized\\n\\nfrom his Mercedes.3 Bechir contends that no probable cause existed for the Agents\\n\\nto search his car before obtaining a warrant. 4\\n\\nA. Automobile Exception\\n\\n The Fourth Amendment guarantees “[t]he right of the people to be secure in\\n\\ntheir persons, houses, papers, and effects, against unreasonable searches and\\n\\nseizures.” U.S. Const. amend. IV. To guarantee this right, the Fourth Amendment\\n\\ngenerally requires law enforcement officials to obtain a warrant before conducting\\n\\na search. United States v. Watts, 329 F.3d 1282, 1284 (11th Cir. 2003). There are,\\n\\nhowever, exceptions. Id.\\n\\n Under the automobile exception to the warrant requirement, “[t]he police\\n\\nmay search an automobile and the containers within it where they have probable\\n\\ncause to believe contraband or evidence is contained.” California v. Acevedo, 500\\n\\n\\n\\n 3\\n “A denial of a motion to suppress involves mixed questions of fact and law. We review\\nfactual findings for clear error, and view the evidence in the light most favorable to the\\nprevailing party. We review de novo the application of the law to the facts.” United States v.\\nBarber, 777 F.3d 1303, 1304 (11th Cir. 2015) (citations omitted).\\n 4\\n On appeal, Bechir does not challenge the admission of the physical evidence seized from\\nthe townhouse or his oral and written confessions. In his brief, however, Bechir mentions in an\\nargument summary and heading that the district court erred in failing to suppress his “arrest” and\\nthat no probable cause existed for the Agents to stop him as he walked away from his Mercedes.\\nBut other than simply stating this issue, Bechir does not explain or discuss it any further.\\n Because Bechir has not sufficiently raised this detention issue on appeal, he has\\nabandoned it. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n\\nappellant’s simply stating that an issue exists, without further argument or discussion, constitutes\\nabandonment of that issue and precludes our considering the issue on appeal.”).\\n 21\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 22 of 55\\n\\n\\nU.S. 565, 580, 111 S. Ct. 1982, 1991 (1991); United States v. Magluta, 418 F.3d\\n\\n1166, 1182 (11th Cir. 2005). For a warrantless search of an automobile to be\\n\\nconstitutional, “(1) the automobile must be readily mobile, and (2) there must be\\n\\nprobable cause to believe that it contains contraband or evidence of a crime.”\\n\\nUnited States v. Lanzon, 639 F.3d 1293, 1299–300 (11th Cir. 2011).\\n\\n Probable cause exists to conduct a warrantless search when “there is a fair\\n\\nprobability that contraband or evidence of a crime will be found in the vehicle”\\n\\nunder the totality of the circumstances. United States v. Tamari, 454 F.3d 1259,\\n\\n1261–62 (11th Cir. 2006) (quotations omitted). Facts provided by a confidential\\n\\ninformant and then independently corroborated by the government can support\\n\\nprobable cause to believe that a vehicle contains contraband. United States v.\\n\\nTalley, 108 F.3d 277, 281–82 (11th Cir. 1997).\\n\\n There is no dispute in this case that the Mercedes was operational. Our\\n\\ninquiry is limited to determining whether probable cause existed to allow the\\n\\nwarrantless search of the vehicle. Upon review of the record, we readily conclude\\n\\nthat Agent Deslauriers had probable cause to conduct the initial search of the\\n\\nMercedes because there was a fair probability that the car contained evidence of a\\n\\ncrime.\\n\\n To begin with, Francois told the Agents that Bechir and Kenny were\\n\\nconducting identity theft and tax fraud operations out of the townhouse. To\\n\\n\\n 22\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 23 of 55\\n\\n\\ninvestigate this tip, the Agents equipped Francois with a recording device and sent\\n\\nhim to the townhouse on June 9, 2014. While inside, Francois took pictures and\\n\\nsent them to the Agents, which showed a white shoebox lid flipped upside down\\n\\ncontaining numerous debit cards and documents listing PII, multiple people using\\n\\nlaptops, a money counter, and a firearm. Francois’s covert video recording further\\n\\ncorroborated his account of Bechir’s and Kenny’s fraud operations.\\n\\n After leaving the townhouse, Francois told the Agents that the individuals\\n\\nknew law enforcement was surveilling the townhouse and planned to relocate their\\n\\noperations and remove the fraud-related materials from the townhouse as soon as\\n\\npossible. Consistent with Francois’s account, when Agent Eustice returned to the\\n\\ntownhouse, he saw Bechir removing three white shoeboxes and a backpack from\\n\\nthe townhouse and loading them in his Mercedes. The Agents had seen a white\\n\\nshoebox lid containing debit cards and papers with PII in both the pictures from\\n\\nFrancois and in the undercover video.\\n\\n And when Agents Eustice and Deslauriers looked through the windows of\\n\\nthe parked Mercedes, they could see the boxes in the car. One box lid was ajar,\\n\\nand the Agents saw what appeared to be credit or debit cards inside. Given the\\n\\ntotality of these circumstances, at that point, a reasonable Agent could deduce with\\n\\na fair probability that the Mercedes contained evidence of a crime. See Tamari,\\n\\n\\n\\n\\n 23\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 24 of 55\\n\\n\\n454 F.3d at 1261–62. Thus, the Agents were entitled to search the Mercedes under\\n\\nthe automobile exception to the warrant requirement.\\n\\n We recognize that Bechir argues, in a conclusory fashion, that no probable\\n\\ncause existed to search the car because the Agents could not see evidence of fraud\\n\\nin plain view in the Mercedes. 5 Based on the uncontroverted testimony of Agents\\n\\nDeslauriers and Eustice, however, the district court found as fact that the boxes and\\n\\ncredit cards were in plain view in the Mercedes. To the extent that Bechir is\\n\\nchallenging this factual finding, he has not shown that it was clearly erroneous.\\n\\n Before concluding, we address one final suppression issue. During the trial,\\n\\nBechir disavowed any connection to the activities inside the townhouse, or to the\\n\\ntownhouse itself at that time. Bechir maintained that he did not live at the\\n\\ntownhouse or otherwise stay there. In fact, Bechir said that he was rarely at the\\n\\ntownhouse and only visited once in a while. During the district court proceedings\\n\\nand in the suppression motion, in particular, Bechir never claimed that his\\n\\nMercedes was parked in front of the townhouse or within its curtilage when the\\n\\nAgents initially searched it without a warrant.\\n\\n\\n 5\\n For the first time on appeal, Bechir contends that the district court incorrectly found that\\nthe search of his Mercedes was permissible as a vehicle search incident to arrest under Arizona\\nv. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009). This, however, was not the basis for the district\\ncourt’s denial of Bechir’s motion to suppress. As we set forth earlier, the district court found\\nthat the search of the Mercedes was valid under the automobile exception and, alternatively,\\nunder the inevitable discovery doctrine. Because we conclude that the search was valid under\\nthe automobile exception and, alternatively, the inevitable discovery doctrine, we need not\\nexamine the search-incident-to-arrest exception.\\n 24\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 25 of 55\\n\\n\\n Yet, before oral argument, Bechir filed a Federal Rule of Appellate\\n\\nProcedure 28(j) letter citing Collins v. Virginia, 584 U.S. __, 138 S. Ct. 1663\\n\\n(2018), which addresses searching a vehicle within the curtilage of a home. To the\\n\\nextent that Bechir seeks to raise a home-curtilage issue as to his vehicle, Bechir’s\\n\\nreliance on Collins is misplaced. The facts in Collins involved a warrantless\\n\\nsearch of a motorcycle that was parked at the top of a driveway that “abut[ted] the\\n\\nhouse” of the defendant’s girlfriend. Id. at __, 138 S. Ct. at 1671. The Supreme\\n\\nCourt determined that the part of the driveway where the defendant’s motorcycle\\n\\nwas parked and subsequently searched constituted curtilage of the home. Id. The\\n\\nquestion posed was “whether the automobile exception justifies the invasion of the\\n\\ncurtilage” of a home. Id. The Supreme Court then considered the relationship\\n\\nbetween the Fourth Amendment protections provided to the curtilage of a home\\n\\nand the automobile exception. Id. at __, 138 S. Ct. at 1675. Ultimately, the\\n\\nSupreme Court held that “the automobile exception does not permit an officer\\n\\nwithout a warrant to enter a home or its curtilage in order to search a vehicle\\n\\ntherein.” Id. (emphasis added).\\n\\n In contrast to Collins, Bechir’s Mercedes, at the time of the search, was no\\n\\nlonger at the townhouse or parked in a driveway abutting the townhouse. Rather,\\n\\nBechir departed the townhouse (Unit 105, Building 2492) and drove along the\\n\\nmain Centergate Drive. After driving around a curve in the road, Bechir got off\\n\\n\\n 25\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 26 of 55\\n\\n\\nthat main drag and turned into one of the other apartment communities within the\\n\\ncomplex and parked. That parking area was not within the curtilage of the\\n\\ntownhouse where the Delvas conducted their fraud activities. See Florida v.\\n\\nJardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414 (2013) (instructing that the area\\n\\n“immediately surrounding and associated with the home”—the curtilage—is “part\\n\\nof the home itself for Fourth Amendment purposes”); United States v. Taylor, 458\\n\\nF.3d 1201, 1206 (11th Cir. 2006) (A home’s curtilage is “[t]he private property\\n\\nimmediately adjacent to a home.”); Collins, 584 U.S. at __, 138 S. Ct. at 1671\\n\\n(explaining that the driveway abutting the house is “an area adjacent to the home\\n\\nand to which the activity of home life extends, and so is properly considered\\n\\ncurtilage” (quotations omitted)). Therefore, Collins does not help Bechir.\\n\\nB. Inevitable Discovery Doctrine\\n\\n As an independent and alternative ground, we also conclude that the\\n\\nevidence obtained from the warrantless search of the Mercedes was admissible\\n\\nunder the inevitable discovery doctrine. “Under the exception for ‘inevitable\\n\\ndiscovery,’ the government may introduce evidence that was obtained by an illegal\\n\\nsearch if the government can establish a reasonable probability that the evidence in\\n\\nquestion would have been discovered by lawful means.” United States v. Johnson,\\n\\n777 F.3d 1270, 1274 (11th Cir. 2015) (quotations omitted). The government must\\n\\n\\n\\n\\n 26\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 27 of 55\\n\\n\\nshow that “the lawful means which made discovery inevitable were being actively\\n\\npursued prior to the occurrence of the illegal conduct.” Id. (quotations omitted).\\n\\n Here, in addition to obtaining a warrant to search the Mercedes later that\\n\\nsame day, the Agents were actively pursuing that warrant before they initially\\n\\nsearched the Mercedes. Agent Goodwin went to secure a federal search warrant\\n\\nimmediately after debriefing Francois. While the warrant affidavit included Agent\\n\\nEustice’s observation of Bechir’s loading the boxes into his Mercedes, it did not\\n\\ninclude information learned by Agent Deslauriers’ initial search of the vehicle.\\n\\nThe evidence in the Mercedes therefore would have been inevitably discovered\\n\\nwhen the Agents later searched the vehicle pursuant to the search warrant.\\n\\n For these reasons, the district court did not err in denying Bechir’s\\n\\nsuppression motion.\\n\\n V. KENNY’S SUFFICIENCY OF THE EVIDENCE ISSUES\\n\\n On appeal, Kenny argues that his seven convictions should be vacated\\n\\nbecause there was insufficient evidence that he knowingly took part in the criminal\\n\\nactivities of identity theft and tax fraud. 6 We address each conviction in turn.\\n\\n\\n\\n 6\\n “We review de novo challenges to the sufficiency of the evidence to support a\\nconviction, viewing the evidence and all reasonable inferences derived therefrom in the light\\nmost favorable to the government.” United States v. Baldwin, 774 F.3d 711, 721 (11th Cir.\\n2014). To sustain a verdict of guilt, the evidence “need not exclude every reasonable hypothesis\\nof innocence” or be “wholly inconsistent with every conclusion except that of guilt,” as long as a\\n“reasonable factfinder” choosing from among reasonable constructions of the evidence “could\\nfind that the evidence establishes guilt beyond a reasonable doubt.” United States v. Kelly, 888\\n 27\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 28 of 55\\n\\n\\n\\n\\nA. Conspiracy to Possess Unauthorized Access Devices\\n\\n As to Count 1, Kenny argues that the evidence was insufficient to convict\\n\\nhim of conspiracy to possess 15 or more unauthorized access devices because there\\n\\nwas no evidence that he took part in any criminal activity or knew about any of the\\n\\nprocesses by which he could obtain fraudulent tax refunds.\\n\\n Section 1029(a)(3) makes it a crime for anyone to “knowingly and with\\n\\nintent to defraud possess[] fifteen or more devices which are counterfeit or\\n\\nunauthorized access devices.” 18 U.S.C. § 1029(a)(3). Section 1029(b)(2), in turn,\\n\\nprovides criminal liability for “[w]hoever is a party to a conspiracy of two or more\\n\\npersons to commit an offense under subsection (a) of this section, if any of the\\n\\nparties engages in any conduct in furtherance of such offense.” Id. § 1029(b)(2).\\n\\nSocial Security numbers and debit cards are “access devices.” See Baldwin, 774\\n\\nF.3d at 722; see also 18 U.S.C. § 1029(e)(1) (defining “access devices” to include\\n\\n“any card . . . [or] personal identification number . . . that can be used . . . to obtain\\n\\nmoney, goods, services, or any other thing of value, or that can be used to initiate a\\n\\ntransfer of funds”).\\n\\n\\n\\n\\nF.2d 732, 740 (11th Cir. 1989). “This standard of review applies to both direct and\\ncircumstantial evidence.” United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997).\\n\\n\\n 28\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 29 of 55\\n\\n\\n To obtain a conviction for conspiracy, the government must prove “beyond a\\n\\nreasonable doubt, even if only by circumstantial evidence, that a conspiracy existed\\n\\nand that the defendant knowingly and voluntarily joined the conspiracy.” United\\n\\nStates v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotations omitted).\\n\\n“Although mere presence at the scene of a crime is insufficient to support a\\n\\nconspiracy conviction, presence nonetheless is a probative factor which the jury\\n\\nmay consider in determining whether a defendant was a knowing and intentional\\n\\nparticipant in a criminal scheme.” Id. (quotations omitted). “A conspiracy\\n\\nconviction will be upheld when the circumstances surrounding a person’s presence\\n\\nat the scene of conspiratorial activity are so obvious that knowledge of its character\\n\\ncan fairly be attributed to him.” United States v. Garcia, 447 F.3d 1327, 1338\\n\\n(11th Cir. 2006) (quotation and alteration omitted); see also United States v.\\n\\nBrantley, 68 F.3d 1283, 1288 (11th Cir. 1995) (noting that the personal\\n\\nrelationship and close proximity between a defendant and co-conspirator during\\n\\nthe commission of an offense made it more likely that the defendant was aware of\\n\\nthe illicit plan).\\n\\n Construed in the light most favorable to the government, the trial evidence\\n\\nhere permitted a reasonable jury to find Kenny guilty of the conspiracy charge\\n\\nbeyond a reasonable doubt. For starters, the June 9, 2014, undercover\\n\\ninvestigation placed Kenny at the townhouse, along with Bechir and Francois.\\n\\n\\n 29\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 30 of 55\\n\\n\\nBoth the Agents and Bechir identified Kenny on the undercover video that\\n\\nFrancois recorded. Notably, that video depicted Kenny right alongside laptops,\\n\\ndocuments listing PII, debit cards, a money counter, and a rifle—all out in the\\n\\nopen. At one point, Kenny was holding a laptop power cord and papers. As\\n\\nobserved earlier, the fraudulent tax returns were filed using computers and the\\n\\npapers containing PII had hundreds of names of real people with their dates of\\n\\nbirth and Social Security numbers.\\n\\n Moreover, Kenny’s own statements on the undercover video demonstrated\\n\\nthat he knew that the PII and debit cards were being used in the identity theft and\\n\\ntax fraud scheme. As Bechir confirmed at trial, it was Kenny who said: “[w]hen\\n\\nyou work over and over, and you send everything at once, and you’re done, that’s\\n\\nbetter.” Detective Sealy testified that, in this type of fraud, the term “work” meant\\n\\nusing stolen PII to file a fraudulent tax return or to open a credit card account. On\\n\\nthe video, Kenny also said that “I’m going to have these chicks buy me some\\n\\nplastic,” and Detective Sealy testified that “plastic” in this context referred to debit\\n\\nor credit cards.\\n\\n Also, after learning that the Agents were surveilling the townhouse, Kenny\\n\\nsaid he was leaving and going to a hotel where it would be safer to “work.”\\n\\nAccording to Detective Sealy, criminals involved in “stolen identity refund fraud”\\n\\noften work out of hotels so that they can use the hotel’s wi-fi, which makes it\\n\\n\\n 30\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 31 of 55\\n\\n\\nharder for law enforcement to track their online activities. Around this time,\\n\\nsomeone also told Kenny that he looked scared, and Bechir mentioned that\\n\\nsomeone might go to jail. Moments later, Kenny was holding the laptop power\\n\\ncord and papers, and then he left the townhouse.\\n\\n Not only was Kenny present in the townhouse on June 9, his personal\\n\\nbelongings were found amidst the extensive evidence of fraud. In the townhouse,\\n\\nthe Agents found an IRS letter addressed to Kenny and receipts showing that\\n\\nKenny had purchased the three firearms. These items of Kenny’s were found\\n\\nalong with various documents containing PII, other documents listing Gustavo\\n\\nCruz’s EFIN, a boxful of prepaid debit cards, $29,000 in a safe, and money\\n\\ncounters. Then, in the garage, along with Kenny’s Audi service contract and\\n\\ninsurance records, Agents found other documents related to Gustavo Cruz, a record\\n\\nshowing that a parcel was shipped to the IRS, and instructions for obtaining an\\n\\nEFIN.\\n\\n In the three boxes Bechir moved from the townhouse to his Mercedes, the\\n\\nAgents found one of Kenny’s bills comingled with several other documents listing\\n\\nPII and even more prepaid debit cards. Importantly too, Kenny’s fingerprints were\\n\\nfound on one of the documents containing PII that was recovered from the\\n\\nMercedes. That document was a printed Excel spreadsheet that listed the names,\\n\\ndates of birth, and Social Security numbers of 32 different people. And on that\\n\\n\\n 31\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 32 of 55\\n\\n\\nspecific spreadsheet, there were debit account numbers written next to certain\\n\\nindividuals’ PII, which indicated that their personal information was used to file\\n\\nfraudulent tax returns.\\n\\n Furthermore, the IRS Analyst reviewed just six pages of these same type of\\n\\nExcel spreadsheets and determined that the debit account numbers written next to\\n\\nthe PII entries were linked to 21 fraudulent tax returns that had been filed. Those\\n\\nfraudulent tax returns had requested a total of $186,697 in tax refunds. Of the\\n\\nrequested refunds, the IRS directly deposited $51,441 in tax refunds to the listed\\n\\ndebit accounts. In addition, those fraudulent tax returns were all filed in the two\\n\\nmonths preceding the June 9 investigation with Gustavo Cruz’s EFIN—the same\\n\\nEFIN that the Agents found in the townhouse.\\n\\n In sum, there was more than sufficient evidence for a reasonable jury to\\n\\nconvict Kenny of the conspiracy charge in Count 1.\\n\\nB. Possession of Unauthorized Access Devices\\n\\n As to his Count 2 conviction, Kenny argues that the evidence was\\n\\ninsufficient for the jury to find that he knowingly possessed 15 or more access\\n\\ndevices. As stated above, § 1029(a)(3) makes it a crime for anyone to “knowingly\\n\\nand with intent to defraud possess[] fifteen or more devices which are counterfeit\\n\\nor unauthorized access devices.” 18 U.S.C. § 1029(a)(3). “A person\\n\\nconstructively possesses an item when he has knowledge of the thing possessed\\n\\n\\n 32\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 33 of 55\\n\\n\\ncoupled with the ability to maintain control over it or reduce it to his physical\\n\\npossession, even though he does not have actual personal dominion.” Baldwin,\\n\\n774 F.3d at 722 (quotations omitted). “Constructive possession also occurs when a\\n\\nperson exercises ownership, dominion, or control over the contraband itself or\\n\\ndominion or control over the premises or the vehicle in which the contraband [is]\\n\\nconcealed.” Id. (quotations omitted).\\n\\n The same evidence supporting the conspiracy to possess unauthorized access\\n\\ndevices amply shows that Kenny was aware of and had the ability to control the PII\\n\\nand debit cards that were being used in the identity theft and tax fraud scheme. For\\n\\ninstance, the video recording placed Kenny in the townhouse surrounded by the\\n\\nidentity theft and tax fraud evidence and showed him talking about purchasing\\n\\n“plastic,” among other things. Additionally, Kenny’s personal items were mixed\\n\\nwith the loose documents listing the PII, as well as the stacks of debit cards, in\\n\\nboth the townhouse and Mercedes, and his fingerprints were found on a document\\n\\ncontaining PII. That page alone contained 32 individuals’ names, dates of birth,\\n\\nand Social Security numbers and notations indicating that the personal information\\n\\nwas used to file fraudulent tax returns. This evidence was sufficient for the jury to\\n\\nconclude that Kenny knowingly possessed the Social Security numbers and debit\\n\\ncards used in the identity theft and tax fraud scheme.\\n\\nC. Aggravated Identity Theft\\n\\n\\n 33\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 34 of 55\\n\\n\\n As to Counts 3-7, Kenny contends that his aggravated identity theft\\n\\nconvictions, under 18 U.S.C. § 1028A(a)(1), should be vacated because there was\\n\\ninsufficient evidence that he knew that the means of personal identification he\\n\\npossessed belonged to real people.7\\n\\n Section 1028A(a)(1) provides for an additional two-year sentence for\\n\\nwhoever “during and in relation to” certain felonies, including possession of 15 or\\n\\nmore unauthorized access devices, “knowingly transfers, possesses, or uses,\\n\\nwithout lawful authority, a means of identification of another person.” 18 U.S.C.\\n\\n§ 1028A(a)(1) (emphasis added). The “means of identification” element refers to\\n\\n“a name, social security number, date of birth, or driver’s license number, among\\n\\nother things.” United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011).\\n\\n For aggravated identity theft convictions under § 1028A(a)(1), the\\n\\ngovernment must prove “that the defendant knew that the means of identification\\n\\nat issue belonged to another person.” Flores-Figueroa v. United States, 556 U.S.\\n\\n646, 657, 129 S. Ct. 1886, 1894 (2009). That is, the defendant must know that he\\n\\npossessed “for example, a real ID belonging to another person rather than, say, a\\n\\nfake ID (i.e., a group of numbers that does not correspond to any real Social\\n\\n\\n\\n 7\\n To the extent that Kenny argues that his aggravated identity theft convictions were not\\nsupported by sufficient evidence that he had knowledge of the PII or identity theft in general, the\\nsame evidence supporting the knowledge element for his conspiracy to possess unauthorized\\naccess devices and possession of unauthorized access devices convictions establishes his\\nknowledge of the PII for the aggravated identity theft convictions as well.\\n 34\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 35 of 55\\n\\n\\nSecurity number).” Id. at 648, 129 S. Ct. at 1889. Therefore, to convict Kenny of\\n\\nthe five aggravated identity theft counts, the government was required to show that\\n\\nKenny knew the means of identification for L.C. (Count 3), J.F. (Count 4), C.L.\\n\\n(Count 5), D.S. (Count 6), and G.S. (Count 7), belonged to real people. See\\n\\nBaldwin, 774 F.3d at 723.\\n\\n In United States v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010), this Court\\n\\nestablished that the government can rely on circumstantial evidence about an\\n\\noffender’s misuse of a victim’s identity to prove the offender knew the identity\\n\\nbelonged to a real person to support aggravated identity theft convictions under\\n\\n§ 1028A(a)(1). We held that a reasonable jury could have found that the\\n\\ngovernment had proved that the defendant knew that a Social Security card and\\n\\nbirth certificate belonged to a real person when she used them to apply for a\\n\\ndriver’s license. Id. We explained that, because the defendant obtained a line of\\n\\ncredit and successfully used the Social Security card and birth certificate to obtain\\n\\na passport and two identification cards before she used the victim’s identity in the\\n\\ncharged offense, a reasonable trier of fact could have found the defendant knew the\\n\\nidentity belonged to a real person. Id. We reasoned further that a reasonable jury\\n\\ncould have found that “[the defendant] would not have sought credit using [the\\n\\nvictim’s] personal information if [the defendant] were not confident that [the\\n\\nvictim] likely had an actual credit history.” Id. Thus, “a defendant’s repeated and\\n\\n\\n 35\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 36 of 55\\n\\n\\nsuccessful testing of the authenticity of a victim’s identifying information prior to\\n\\nthe crime at issue is powerful circumstantial evidence that the defendant knew the\\n\\nidentifying information belonged to a real person as opposed to a fictitious one.”\\n\\nDoe, 661 F.3d at 562-63.\\n\\n This Court reaffirmed that principle in United States v. Gomez-Castro, 605\\n\\nF.3d 1245, 1248–49 (11th Cir. 2010), holding that the defendant’s purchase of the\\n\\nvictim’s birth certificate and Social Security card for $2,500 and repeated testing of\\n\\nthe authenticity of both by successfully obtaining a driver’s license, two credit\\n\\ncards, and a bank account, was sufficient to show that the defendant knew the birth\\n\\ncertificate and Social Security card belonged to a real person for his aggravated\\n\\nidentity theft conviction under § 1028A(a)(1). We explained that “[b]oth the\\n\\ncircumstances in which an offender obtained a victim’s identity and the offender’s\\n\\nlater misuse of that identity can shed light on the offender’s knowledge about that\\n\\nidentity.” Id. at 1248.\\n\\n In Baldwin, an identity theft and tax fraud case like this one, this Court held\\n\\nthat a reasonable jury could consider that a victim’s information was “used as part\\n\\nof a scheme to obtain a refund from the IRS, which verifies the name and Social\\n\\nSecurity number of the person requesting the refund, in considering whether [the\\n\\ndefendant] knew that [the victim] was a real person” for the aggravated identity\\n\\ntheft convictions under § 1028A(a)(1). Baldwin, 774 F.3d at 723–26. We also\\n\\n\\n 36\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 37 of 55\\n\\n\\nsaid that a jury could consider the origin of the personal information being used.\\n\\nId. at 723. There, the information was found on a document from the Florida\\n\\nAgency for Persons with Disabilities, and the jury could infer that the state agency\\n\\ndid not keep records that did not relate to real people. Id.\\n\\n Under this precedent, a reasonable jury could have found, beyond a\\n\\nreasonable doubt, that Kenny knew the five victims’ personal information\\n\\nbelonged to real people because the Delvas were using the information “as part of\\n\\n[their] scheme to obtain a refund from the IRS, which verifies the name and Social\\n\\nSecurity number of the person requesting the refund.” Id. at 723–26. And the\\n\\nDelvas’ identity theft and tax fraud scheme was working.\\n\\n Indeed, the five victims’ names, dates of birth, and Social Security numbers\\n\\nwere found listed on spreadsheets in one of the boxes that Bechir moved from the\\n\\ntownhouse to his car. Kenny’s fingerprints were on one of the spreadsheet\\n\\ndocuments, along with notations indicating that the personal information was used\\n\\nto file fraudulent tax returns. The evidence indicated that the Delvas either already\\n\\nhad used or planned to use the names, dates of birth, and Social Security numbers\\n\\ncontained in these same spreadsheets to request fraudulent tax refunds from the\\n\\nIRS. In six pages worth of spreadsheets alone, the Delvas already had used 21\\n\\nidentities to file fraudulent tax returns. The fraud scheme clearly worked because\\n\\nthe IRS paid out $51,441 in refunds in connection with those fraudulent tax\\n\\n\\n 37\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 38 of 55\\n\\n\\nreturns. To be sure, “[u]sing stolen identities was the central feature of the\\n\\nscheme.” See United States v. Sammour, 816 F.3d 1328, 1337 (11th Cir. 2016)\\n\\n(holding that evidence was sufficient to find identifications belonged to real people\\n\\nto support convictions of aggravated identity theft where, inter alia, a defendant\\n\\nhad sophisticated knowledge of stolen identity refund scheme and was sure that\\n\\nchecks from the IRS were valid). A reasonable jury could have found that Kenny\\n\\nwould not have sought a refund from the IRS with the personal information he\\n\\npossessed, including the five victims’ information, unless he thought that the\\n\\nvictims were real people with real Social Security numbers. See Holmes, 595 F.3d\\n\\nat 1258.\\n\\n Further, from the sheer volume of PII listed on the documents seized in this\\n\\ncase, the jury could infer that the Delvas expected their ongoing tax-fraud scheme\\n\\nto continue working for some time. The Delvas possessed nearly 1,700 names\\n\\nwith Social Security numbers, and all but 16 of those belonged to real people.\\n\\nEven after learning that law enforcement was surveilling them, Kenny planned to\\n\\nrelocate the operations and continue “working” out of a hotel. Viewing this\\n\\nevidence in the light most favorable to the government, the jury could infer that the\\n\\nidentity theft and tax fraud scheme was working and that Kenny knew that all of\\n\\n\\n\\n\\n 38\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 39 of 55\\n\\n\\nthe names, dates of birth, and Social Security numbers listed in those spreadsheets,\\n\\nincluding those of the five named victims, belonged to real people. 8\\n\\n VI. THE EXPERT OPINION ISSUE\\n\\n Together, the Delvas next argue that the district court abused its discretion in\\n\\npermitting Detective Sealy to testify as an expert in identity theft and tax fraud and\\n\\nthe terminology and jargon used in this type of crime. Specifically, their\\n\\nobjections relate to Sealy’s opinion interpreting what he saw on the undercover\\n\\nvideo and to his testimony on terminology. 9\\n\\nA. Detective Sealy’s Expert Testimony\\n\\n In determining the admissibility of expert testimony under Federal Rule of\\n\\nEvidence 702, a district court must consider whether: “(1) the expert is qualified to\\n\\ntestify competently regarding the matters he intends to address; (2) the\\n\\nmethodology by which the expert reaches his conclusions is sufficiently reliable as\\n\\n\\n\\n\\n 8\\n In this particular Section V(C), we have focused on Counts 3 through 7. But as to\\nCounts 1 and 2, to the extent Kenny also argues the government failed to prove he knew the PII\\nbelonged to real people, that claim fails because knowledge that the PII belonged to real people\\nis not a requirement of his convictions under § 1029(b)(2) in Count 1 and § 1029(a)(3) in Count\\n2. 18 U.S.C. § 1029(a)(3), (b)(2). In any event, the evidence in this case was sufficient to show\\nKenny knew the PII belonged to real people with regard to Counts 1 and 2 as well.\\n 9\\n We note that, while Kenny objected at trial to the admission of Detective Sealy’s expert\\ntestimony, Bechir did not and thus our review is for plain error. However, because we conclude\\nthat the Delvas have not shown any error, much less plain error, we need not undertake a\\nseparate plain error analysis here.\\n\\n\\n 39\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 40 of 55\\n\\n\\ndetermined by the sort of inquiry mandated in Daubert; 10 and (3) the testimony\\n\\nassists the trier of fact, through the application of scientific, technical, or\\n\\nspecialized expertise, to understand the evidence or to determine a fact in issue.”\\n\\nUnited States v. Holt, 777 F.3d 1234, 1265 (11th Cir. 2015). 11\\n\\n It is well-settled that experienced and qualified law enforcement agents can\\n\\ntestify as experts to decode criminal conversations and operations that jurors might\\n\\nnot otherwise understand. See, e.g., Holt, 777 F.3d at 1265 (holding the district\\n\\ncourt did not err in permitting an agent to “testify as to the meanings of coded\\n\\nlanguage used by the defendants in intercepted communications” relating to their\\n\\nnarcotics charges because of agent’s extensive involvement in this investigation\\n\\nand her training and experience in previous wiretaps); United States v. Emmanuel,\\n\\n565 F.3d 1324, 1335 (11th Cir. 2009) (“The operations of narcotics dealers,\\n\\nincluding drug codes and jargon, are proper subjects of expert testimony”); Garcia,\\n\\n447 F.3d at 1335 (recognizing well-established rule that an experienced narcotics\\n\\nagent may testify as an expert to interpret drug codes and terminology to help a\\n\\njury understand the significance of operations unique to the drug distribution\\n\\n\\n 10\\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\\n 11\\n We review a district court’s decision to admit expert testimony for an abuse of\\ndiscretion. United States v. Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). We will not\\nreverse a district court’s evidentiary ruling in the absence of manifest error. Holt, 777 F.3d at\\n1264. As we have explained, “a district court enjoys considerable leeway” in making its\\nevidentiary rulings. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).\\n\\n 40\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 41 of 55\\n\\n\\nbusiness); United States v. Cross, 928 F.2d 1030, 1051 n.65 (11th Cir. 1991)\\n\\n(noting that it was proper for an FBI agent to testify that, in communicating with\\n\\none another, pedophiles use certain code words to refer to photographs of\\n\\nchildren); United States v. Brown, 872 F.2d 385, 392 (11th Cir. 1989) (determining\\n\\nthat the district court did not err in allowing FBI agent to testify as to drug code\\n\\nwords); United States v. Masson, 582 F.2d 961, 963–64 (5th Cir. 1978) (finding no\\n\\nerror where FBI agent with extensive experience and knowledge of bookmaking\\n\\noperations and terminology gave expert testimony interpreting gambling jargon to\\n\\naid the jury’s understanding of recorded conversations); United States v. Alfonso,\\n\\n552 F.2d 605, 618 (5th Cir. 1977) (upholding use of expert testimony to supply\\n\\nmeaning to the “cryptic nature of [some] recorded conversations, often framed in\\n\\njargon peculiar to the gambling trade” because “it was appropriate to present\\n\\nexpert testimony to supply meaning to the conversations and explain the roles of\\n\\nthe appellants”).\\n\\n “[F]ederal courts have ordinarily allowed law enforcement officials to testify\\n\\nas experts . . . to establish the modus operandi of particular crimes, in order to\\n\\nexplain the actions of the defendants.” Cross, 928 F.2d at 1050 (quotations\\n\\nomitted); see also United States v. Burchfield, 719 F.2d 356, 358 (11th Cir. 1983)\\n\\n(concluding that an agent’s testimony regarding counterfeit-bill-passing techniques\\n\\nhelped to elucidate the actions of the defendants).\\n\\n\\n 41\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 42 of 55\\n\\n\\n Here, the district court did not abuse its discretion in allowing Detective\\n\\nSealy to testify as an expert witness as to the meanings of the terminology used in\\n\\nstolen identity refund fraud generally or by the individuals recorded on the\\n\\nundercover video specifically. First, Detective Sealy was qualified to testify\\n\\ncompetently regarding the terminology used in this type of fraud based on his\\n\\ntraining and experience. Detective Sealy received extensive training on identity\\n\\ntheft crimes from the IRS, U.S. Secret Service, Citibank, Homeland Security,\\n\\nDiscover Card, Broward Community College, and the Broward College Police\\n\\nAcademy. His IRS training specifically focused on the ways in which stolen\\n\\nidentities are used to fraudulently request tax refunds and how to investigate those\\n\\ncrimes.\\n\\n As to his experience, Detective Sealy had personally participated in more\\n\\nthan 75 fraud-related investigations, sometimes in an undercover capacity, with 50\\n\\nof those investigations involving tax fraud. He had listened in on over 30 jail calls\\n\\nplaced by defendants charged with stolen identity refund fraud and debriefed over\\n\\n20 such cooperating defendants. Detective Sealy had even taught classes on fraud-\\n\\nrelated topics, as well as previously testified in a case in federal court as an expert\\n\\nin fraud investigations and terminology. Detective Sealy clearly was an\\n\\nexperienced agent with specific and substantial exposure to “stolen identity refund\\n\\nfraud.” See Garcia, 447 F.3d at 1334–35 (finding agent to be properly qualified as\\n\\n\\n 42\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 43 of 55\\n\\n\\nan expert because he “had been a DEA agent for several years and had received\\n\\ntraining regarding the operation and structure of drug trafficking organizations and\\n\\nhow those organizations transport and distribute drugs,” as well as personally\\n\\nparticipating in at least 50 drug investigations and numerous wiretap\\n\\ninvestigations, which made him familiar with the coded language that some drug\\n\\ntrafficking organizations use); Holt, 777 F.3d at 1265 (“Agent Sargent was\\n\\nqualified based on, most notably, her extensive involvement in this particular\\n\\ninvestigation, including review of more than 99 percent of the intercepted\\n\\ncommunications in this case, as well as her training, experience in previous\\n\\nwiretaps, and general investigative experience during her six years as a DEA\\n\\nAgent.”).\\n\\n Second, Detective Sealy’s methodology was reliable because his opinions\\n\\nwere based on his extensive experience working on stolen identity refund fraud\\n\\ncases, including investigating them, working undercover, listening in on numerous\\n\\njail calls, and debriefing defendants charged with this crime. Based on these\\n\\ninvestigations, Detective Sealy was familiar with the methods by which stolen\\n\\nidentity refund fraud is conducted and the terminology used in this type of fraud.\\n\\nOf the 50 tax fraud cases Detective Sealy investigated, the majority involved\\n\\ncriminals using coded terminology.\\n\\n\\n\\n\\n 43\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 44 of 55\\n\\n\\n Third, Detective Sealy’s testimony assisted the jury in understanding how\\n\\nthe slang terms used by Bechir and Kenny related to the terminology used in this\\n\\nstolen identity refund fraud. For example, in his post-Miranda interview, Bechir\\n\\nadmitted to finding the “fos” online and using it to file fraudulent tax returns.\\n\\nDetective Sealy competently testified that, in South Florida, “fos” is a common\\n\\nslang term used in “stolen identity refund fraud” and means personal identifying\\n\\ninformation or PII, such as an individual’s name, date of birth, and Social Security\\n\\nnumber. On the undercover video recording, when Kenny said that he was going\\n\\nto “have these chicks buy me some plastic,” Detective Sealy explained to the jury\\n\\nthat “plastic” refers to debit cards or credit cards. This scheme involved having the\\n\\ntax refunds deposited in debit card accounts that were opened using the same PII\\n\\nthat was used to file corresponding fraudulent tax returns. While a lay person\\n\\nmight be able to guess the meanings of the code words or terminology used by\\n\\nBechir and Kenny, Detective Sealy “could—based on [his] training and\\n\\nexperience—interpret the meaning of the words more accurately than a lay person\\n\\nor the prosecutor.” See Holt, 777 F.3d at 1266.\\n\\n To the extent that the Delvas contend that allowing Detective Sealy to testify\\n\\nas an expert permitted him to invade the province of the jury and give his opinion\\n\\non their ultimate guilt, we find no support for that contention in the record.\\n\\nDetective Sealy’s testimony was focused on describing stolen identity tax refund\\n\\n\\n 44\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 45 of 55\\n\\n\\nfraud generally and explaining the meanings of particular words used on the video\\n\\nrecording. The record does not show that Detective Sealy offered overall opinions\\n\\nas to Bechir’s or Kenny’s guilt. The district court did not err, much less manifestly\\n\\nerr, in admitting Detective Sealy’s testimony.\\n\\n VII. CUMULATIVE ERROR\\n\\n The Delvas’ last argument concerning their convictions is that cumulative\\n\\nerror by the district court requires reversal. Bechir and Kenny have not established\\n\\na single error, let alone the aggregation of “many errors” that may require a\\n\\nreversal where the individual errors do not. See United States v. Baker, 432 F.3d\\n\\n1189, 1223 (11th Cir. 2005), abrogated on other grounds by Davis v. Washington,\\n\\n547 U.S. 813, 821, 126 S. Ct. 2266, 2273 (2006). The Delvas’ cumulative error\\n\\nclaim therefore lacks merit.\\n\\n VIII. SENTENCING ISSUES\\n\\n Both Delvas raise sentencing issues. After the guilty verdicts, a probation\\n\\nofficer prepared presentence investigation reports (“PSI”) for the Delvas.\\n\\nA. Bechir’s Sentencing\\n\\n Bechir’s PSI applied a base offense level of 6 under U.S.S.G. § 2B1.1(a)(2)\\n\\nbecause he was convicted of a fraud crime with less than a 20-year statutory\\n\\nmaximum term of imprisonment. The PSI increased Bechir’s offense level to 26\\n\\nbased on: (1) a 14-level increase under § 2B1.1(b)(1)(H) because the loss amount\\n\\n\\n 45\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 46 of 55\\n\\n\\nwas $1,014,697; (2) a 2-level increase under § 2B1.1(b)(2)(A)(i) because the\\n\\noffense involved more than 10 victims; (3) a 2-level increase under § 3C1.1\\n\\nbecause Bechir willfully obstructed justice by falsely testifying at trial; and (4) a 2-\\n\\nlevel increase under § 2B1.1(b)(15)(B) because the offense involved possession of\\n\\na firearm in connection with the offense.\\n\\n Bechir’s total offense level of 26 and criminal history category of I yielded\\n\\nan advisory guidelines range of 63 to 78 months’ imprisonment for Counts 1 and 2.\\n\\nAs to Counts 3-7, Bechir was subject to a mandatory 24-month prison term, which\\n\\nwas required to be served consecutive to any other sentence imposed for Counts 1\\n\\nand 2, but that could be imposed concurrently with each other. See 18 U.S.C.\\n\\n§ 1028A(a)(1), (b)(2), and (b)(4).\\n\\n Bechir’s only objection to his guidelines range calculation was to the\\n\\napplication of the firearm enhancement. At the sentencing hearing, Bechir argued\\n\\nthat, although he had admitted that the firearms were in the townhouse for\\n\\nprotection against getting robbed, the firearm enhancement was improper because\\n\\nthe weapons were not used in any way.\\n\\n The district court overruled this objection to the firearm enhancement,\\n\\nfinding that “[t]he gun was clearly there as a means of enforcement or protection to\\n\\nprotect the fraud factory that was going on there.” The district court found further\\n\\n\\n\\n\\n 46\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 47 of 55\\n\\n\\nthat possessing the gun was “inherent to the fraud crime that was going on and a\\n\\npart of it.”\\n\\n The district court stated that it had considered the Sentencing Guidelines, the\\n\\n18 U.S.C. § 3553(a) factors, and Bechir’s personal characteristics, among other\\n\\nthings. Highlighting the need for deterrence, the district court found it appropriate\\n\\nto impose a sentence that could prevent others who would be “tempted to make a\\n\\nquick, easy buck and swindle the government out of thousands, if not hundreds of\\n\\nthousands of dollars.”\\n\\n The district court sentenced Bechir to imprisonment of: (1) 60 months on\\n\\nCount 1 (the conspiracy); (2) 78 months on Count 2 (the possession of\\n\\nunauthorized access devices) to run concurrent with Count 1; and (3) 24 months on\\n\\neach of Counts 3-7 (the aggravated identity thefts) to run concurrent with each\\n\\nother, but consecutive to Counts 1 and 2.\\n\\nB. Kenny’s Sentencing\\n\\n The PSI’s calculation of Kenny’s advisory guidelines range was largely\\n\\nidentical to Bechir’s, except that Kenny did not receive the 2-level obstruction of\\n\\njustice increase under § 3C1.1. Kenny’s total offense level of 24 and criminal\\n\\nhistory category of I yielded an advisory guidelines imprisonment range of 51 to\\n\\n63 months’ imprisonment for Counts 1 and 2. As to Counts 3-7, Kenny was\\n\\nsubject to a mandatory 24-month prison term, which was required to be served\\n\\n\\n 47\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 48 of 55\\n\\n\\nconsecutive to any other sentence imposed for Counts 1 and 2, but that could be\\n\\nimposed concurrently with each other. See 18 U.S.C. § 1028A(a)(1), (b)(2), and\\n\\n(b)(4).\\n\\n As with Bechir, Kenny objected to the firearm enhancement. Kenny argued\\n\\nthat, even though Bechir said that Kenny bought the firearms and Bechir kept them\\n\\n“for protection from robbery,” there was no evidence that Kenny: (1) was aware\\n\\nthat Bechir was using the firearms for protection; (2) had possession or control of\\n\\nthe firearms after giving them to Bechir; or (3) had any intent or plan to use the\\n\\nfirearms for protection. At the sentencing hearing, Kenny acknowledged the\\n\\nstrength of Bechir’s admissions that the firearms were used for protection in the\\n\\nfraud scheme, but argued nevertheless that there was no evidence linking Kenny to\\n\\nthe use of those firearms other than the fact that he bought them for his brother\\n\\nBechir.\\n\\n The district court overruled this objection, finding that “the rifle was there in\\n\\nopen view for easy access, so that the people who were involved in the fraud\\n\\nfactory could grab it real quick and defend themselves . . . if someone was going to\\n\\ntry to rip them off.” The district court found further that everyone who was in the\\n\\nroom with the rifle and participating in the fraudulent tax return scheme was in\\n\\nconstructive possession of the firearm, and it was reasonably foreseeable to all of\\n\\nthem that the gun was there to protect “the fraud factory.”\\n\\n\\n 48\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 49 of 55\\n\\n\\n After considering the Sentencing Guidelines and the § 3553(a) factors, the\\n\\ndistrict court sentenced Kenny to imprisonment of: (1) 60 months on each of\\n\\nCounts 1 and 2 to run concurrent to each other; and (2) 24 months on Counts 3-7,\\n\\nto run concurrent with each other, but consecutive to Counts 1 and 2.\\n\\nC. Firearm Enhancement\\n\\n On appeal, both Bechir and Kenny argue that, in calculating their advisory\\n\\nguidelines ranges for Counts 1 and 2, the district court erred in applying the 2-level\\n\\nenhancement under § 2B1.1(b)(15)(B) for possession of a firearm in connection\\n\\nwith their offenses. Individually, Bechir contends that the district court erred in\\n\\napplying the enhancement because his post-Miranda written statement was\\n\\ninsufficient to trigger the firearm enhancement, and there was no other evidence\\n\\nthat he intended to use the firearm for protection. Kenny argues that the district\\n\\ncourt erred when it found he was in constructive possession of the firearm found in\\n\\nthe townhouse because there was no evidence that he possessed the firearm, knew\\n\\nthat Bechir was using the firearm for protection, or was aware of the money in the\\n\\nsafe.\\n\\n In reviewing the procedural reasonableness of a sentence, we must “ensure\\n\\nthat the district court committed no significant procedural error, such as failing to\\n\\ncalculate (or improperly calculating) the Guidelines range, treating the Guidelines\\n\\nas mandatory, failing to consider the § 3553(a) factors, selecting a sentence based\\n\\n\\n 49\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 50 of 55\\n\\n\\non clearly erroneous facts, or failing to adequately explain the chosen sentence.”\\n\\nUnited States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011) (quotations\\n\\nomitted). When a defendant challenges the application of a sentencing\\n\\nenhancement, we review a district court’s factual findings on the disputed\\n\\nsentencing enhancement only for clear error and its application of the Sentencing\\n\\nGuidelines to those facts de novo. United States v. Matos-Rodriguez, 188 F.3d\\n\\n1300, 1309 (11th Cir. 1999). Under clear error review, we will not disturb the\\n\\ndistrict court’s findings unless we are left with a definite and firm conviction that a\\n\\nmistake was made. United States v. Monzo, 852 F.3d 1343, 1345 (11th Cir. 2017).\\n\\n The Sentencing Guidelines provide for a two-level offense increase if a\\n\\ndefendant possessed a dangerous weapon, such as a firearm, in connection with his\\n\\nfraud offense of conviction. U.S.S.G. § 2B1.1(b)(15)(B) (2016). The mere\\n\\npossession of a firearm during the commission of an offense can, in certain\\n\\ncircumstances, be sufficient to apply a sentencing enhancement. United States v.\\n\\nJackson, 276 F.3d 1231, 1234 (11th Cir. 2001) (holding that a firearm sentencing\\n\\nenhancement for mere possession is proper “where it is reasonable to assume that a\\n\\ndefendant possesses a firearm, even without using it, to prevent the theft of\\n\\ncounterfeit currency in his possession”). We look at the circumstances\\n\\nsurrounding the offense and firearm possession to determine whether it is\\n\\nreasonable to infer that the firearm might be used during an offense. See United\\n\\n\\n 50\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 51 of 55\\n\\n\\nStates v. McClain, 252 F.3d 1279, 1288 (11th Cir. 2001). A co-conspirator’s\\n\\npossession of a firearm may be attributed to the defendant if the co-conspirator’s\\n\\npossession of the firearm was reasonably foreseeable by the defendant, occurred\\n\\nwhile the defendant was a member of the conspiracy, and was in furtherance of the\\n\\nconspiracy. United States v. Villarreal, 613 F.3d 1344, 1359 (11th Cir. 2010).\\n\\n In this case, the district court did not err in applying the firearm\\n\\nenhancement or clearly err in finding that Bechir and Kenny had possessed a\\n\\nfirearm in connection with their offenses. Bechir and Kenny were conducting\\n\\nsubstantial identity theft and tax fraud operations out of the townhouse. Not only\\n\\ndid they have scores of PII and debit cards there, they also kept the proceeds from\\n\\ntheir fraud in the townhouse—$29,000 in a safe. Amidst all the fraud-related\\n\\nmaterials and money, the Delvas had a rifle that Kenny had purchased leaning up\\n\\nagainst the wall in the exact same room and at the exact same time as they were\\n\\nconducting their various fraudulent activities.\\n\\n More still, Bechir expressly admitted in his post-Miranda statement that the\\n\\nfirearms were kept in the townhouse to protect them from being robbed. Although\\n\\nBechir testified at trial that the Agents coerced his statement and the firearms were\\n\\nactually kept for recreational purposes, the district court was free to reject that\\n\\ntestimony and conclude instead that the gun was in the townhouse to protect the\\n\\nfraud operations.\\n\\n\\n 51\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 52 of 55\\n\\n\\n And while Kenny now disclaims any knowledge of the purpose of the\\n\\nfirearm or the money in the safe, the trial evidence indicated otherwise. Kenny\\n\\nwas the registered owner of the firearms found in the townhouse and a knowing\\n\\nparticipant in the identity theft and tax fraud scheme. Even though Bechir said that\\n\\nhe kept the guns for protection, possession of the firearms could be properly\\n\\nattributed to Kenny too because it was reasonably foreseeable that Bechir would\\n\\npossess a firearm in furtherance of the fraud in any event. See Villarreal, 613 F.3d\\n\\nat 1359. Indeed, Kenny purchased the firearms for Bechir.\\n\\n Based on this record, the district court did not clearly err in finding that the\\n\\nrifle was in the townhouse as a means of protection against potential robberies and,\\n\\nthus, both Delvas possessed the firearm in connection with their offenses. See\\n\\nMatos-Rodriguez, 188 F.3d at 1309 (holding that a defendant who “possessed [a]\\n\\npistol to prevent theft [of counterfeit money] during a close, face-to-face,\\n\\nhand-to-hand encounter with a person he apparently did not know well” possessed\\n\\na firearm “in connection with” the offense). Therefore, the 2-level increase\\n\\npursuant to § 2B1.1(b)(15)(B) was properly applied to Bechir’s and Kenny’s\\n\\nsentences.\\n\\nD. Substantive Reasonableness\\n\\n Kenny asserts that his total 84-month sentence was substantively\\n\\nunreasonable because the nature and circumstances of his offenses, the need to\\n\\n\\n 52\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 53 of 55\\n\\n\\nreflect the serious of the offenses, and the need to protect the public, all support a\\n\\nlesser sentence.\\n\\n We review the reasonableness of a sentence under the deferential\\n\\nabuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.\\n\\n586, 597 (2007). “The party challenging the sentence bears the burden to show\\n\\nthat the sentence imposed is unreasonable in light of the record and the 18 U.S.C.\\n\\n§ 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).\\n\\n The district court must impose a sentence sufficient, but not greater than\\n\\nnecessary, to comply with the purposes listed in 18 U.S.C. § 3553(a)(2), including\\n\\nthe need to reflect the seriousness of the offense, promote respect for the law,\\n\\nprovide just punishment for the offense, deter criminal conduct, and protect the\\n\\npublic. See 18 U.S.C. § 3553(a)(2). The district court must also consider, among\\n\\nother things, the nature and circumstances of the offense, the history and\\n\\ncharacteristics of the defendant, the kinds of sentences available, the applicable\\n\\nadvisory guidelines range, the pertinent policy statements of the Sentencing\\n\\nCommission, and the need to provide restitution to victims. 18 U.S.C.\\n\\n§ 3553(a)(1), (3)-(7).\\n\\n We have made clear, though, that the weight given to any specific § 3553(a)\\n\\nfactor is committed to the sound discretion of the district court. United States v.\\n\\nCroteau, 819 F.3d 1293, 1310 (11th Cir. 2016). We will not remand for\\n\\n\\n 53\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 54 of 55\\n\\n\\nresentencing unless we are “left with the definite and firm conviction that the\\n\\ndistrict court committed a clear error of judgment in weighing the § 3553(a) factors\\n\\nby arriving at a sentence that lies outside the range of reasonable sentences dictated\\n\\nby the facts of the case.” Id. (citing United States v. Irey, 612 F.3d 1160, 1190\\n\\n(11th Cir. 2010) (en banc)). And while we do not presume that a sentence falling\\n\\nwithin the guidelines range is reasonable, we ordinarily expect it to be so. United\\n\\nStates v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). “A sentence imposed well\\n\\nbelow the statutory maximum penalty is another indicator of reasonableness.”\\n\\nCroteau, 819 F.3d at 1310.”\\n\\n Kenny has not demonstrated that his 84-month sentence was substantively\\n\\nunreasonable. In fashioning Kenny’s sentence, the district court considered the\\n\\nSentencing Guidelines and the § 3553(a) factors and imposed a total\\n\\nwithin-guidelines sentence of 60 months’ imprisonment followed by the mandatory\\n\\nconsecutive 24-month sentence for his five aggravated identity theft convictions.\\n\\nWe normally expect a sentence falling within the guidelines range to be\\n\\nreasonable. See Hunt, 526 F.3d at 746. The district court also ordered that\\n\\nKenny’s five mandatory 24-month aggravated identity theft sentences run\\n\\nconcurrently with each other, not consecutively to each other, which resulted in a\\n\\nsignificantly shorter total sentence. Although the district court emphasized the\\n\\nneed to deter others from engaging in this type of fraud when it imposed Kenny’s\\n\\n\\n 54\\n\\f Case: 16-12947 Date Filed: 04/29/2019 Page: 55 of 55\\n\\n\\nsentence, the district court did not abuse its discretion in doing so. Finally,\\n\\nKenny’s total 84-month sentence was well below the 25-year statutory maximum\\n\\nfor all of the charged crimes combined, another indicator of reasonableness. See\\n\\nCroteau, 819 F.3d at 1310.\\n\\n IX. CONCLUSION\\n\\n For the reasons stated above, we affirm Bechir Delva’s and Kenny Delva’s\\n\\nconvictions and sentences.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 55\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1897,"cells":{"id":{"kind":"number","value":4614593,"string":"4,614,593"},"name":{"kind":"string","value":"Stoney LESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee."},"name_abbreviation":{"kind":"string","value":"Stoney Lester v. United States"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"18-10523"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Carnes, Tjoflat, Marcus, Wilson, Pryor, Martin, Jordan, Rosenbaum, Newsom, Branch, Grant\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc\", \"type\": \"010combined\", \"text\": \"Case: 18-10523 Date Filed: 04/29/2019 Page: 1 of 64\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n\\n\\n No. 18-10523\\n\\n\\n D.C. Docket No. 5:16-cv-00258-CAR\\n\\n\\n\\nSTONEY LESTER,\\n\\n Petitioner - Appellant,\\n\\nversus\\n\\nUNITED STATES OF AMERICA,\\n\\n Respondent - Appellee.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Georgia\\n\\n\\n\\n\\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\\nBRANCH, and GRANT, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A petition for rehearing having been filed and a member of this Court in\\n\\nactive service having requested a poll on whether this case should be reheard by\\n\\nthe Court sitting en banc, and a majority of the judges in active service on this\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 2 of 64\\n\\n\\nCourt having voted against granting a rehearing en banc, it is ORDERED that this\\n\\ncase will not be reheard en banc.\\n\\n\\n\\n\\n 2\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 3 of 64\\n\\n\\nWILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:\\n\\n A majority of the Court has voted not to rehear this appeal en banc to\\n\\nreconsider whether a subset of federal prisoners classified as career offenders\\n\\nunder the United States Sentencing Guidelines can seek resentencing on collateral\\n\\nreview based on the void-for-vagueness doctrine explicated in Johnson v. United\\n\\nStates, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed\\n\\nCareer Criminal Act. As background, we held in United States v. Matchett, 802\\n\\nF.3d 1185 (11th Cir. 2015), and the Supreme Court later confirmed in Beckles v.\\n\\nUnited States, 137 S. Ct. 886 (2017), that prisoners who were sentenced as career\\n\\noffenders after the Supreme Court’s decision in United States v. Booker, 543 U.S.\\n\\n220 (2005), cannot benefit from Johnson because—at least after Booker—the void-\\n\\nfor-vagueness doctrine does not apply to the Sentencing Guidelines. But neither\\n\\nMatchett nor Beckles resolved whether those sentenced as career offenders before\\n\\nBooker can collaterally attack their sentences.\\n\\n Our published order In re Griffin, 823 F.3d 1350 (11th Cir. 2016), answered\\n\\nthat question in the negative for two independent reasons. First, Griffin applied the\\n\\nreasoning of Matchett to hold that the Guidelines are not susceptible to void-for-\\n\\nvagueness challenges no matter whether a prisoner was sentenced before or after\\n\\nBooker. See id. at 1354–55. Second, although the Supreme Court has held that the\\n\\nnew legal rule of Johnson applies retroactively to cases on collateral review\\n\\n\\n 3\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 4 of 64\\n\\n\\nbecause it is “substantive,” see Welch v. United States, 136 S. Ct. 1257 (2016),\\n\\nGriffin held that an analogous new rule applying the void-for-vagueness doctrine to\\n\\npre-Booker career-offender sentences under the Guidelines would be not be\\n\\nsubstantive and, as a result, could not be applied retroactively. See 823 F.3d at\\n\\n1355–56.\\n\\n Griffin and Matchett speak for themselves as to the first holding, but I write\\n\\nin response to Judge Martin’s statement respecting the denial of rehearing en banc\\n\\nto explain that Griffin’s second holding must be correct. In brief, Johnson was a\\n\\nsubstantive decision that entitled prisoners sentenced under the residual clause of\\n\\nthe Armed Career Criminal Act to relief because it made clear that the law had\\n\\nnever authorized their convictions and sentences. By contrast, a new rule extending\\n\\nJohnson to set aside pre-Booker career-offender sentences—all of which fall\\n\\nwithin the substantive statutory ranges prescribed by Congress—would require\\n\\nonly the procedural formality of a resentencing in which the district court would\\n\\nhave the power to impose exactly the same sentence as before. Such a rule, as we\\n\\nconcluded in Griffin, would not be substantive. See id. at 1355–56. To my mind,\\n\\nthis nutshell summary of Griffin’s second holding says all that needs to be said.\\n\\nBut, because some of my colleagues see the matter differently, this statement\\n\\nexplains at greater length why a new rule extending Johnson’s void-for-vagueness\\n\\n\\n\\n\\n 4\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 5 of 64\\n\\n\\nholding to invalidate pre-Booker career-offender sentences would not be\\n\\nsubstantive.\\n\\n I divide my discussion in three parts. First, I explain that the rationale\\n\\nunderlying the retroactivity of substantive rules is that courts lack the authority to\\n\\nenter a judgment of conviction or impose a sentence the substance of which the\\n\\nlaw does not authorize, and I explain that the new rule that Judge Martin’s\\n\\nstatement advocates would not be substantive in this sense because the sentences it\\n\\nwould invalidate were imposed within the statutory ranges established by\\n\\nCongress. Second, I explain that Judge Martin’s counterargument cannot be\\n\\nsquared with Booker. Third, I respond briefly to Judge Rosenbaum’s statement.\\n\\n A. The Retroactivity of Substantive Rules.\\n\\n In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court “adopt[ed] [the]\\n\\napproach to retroactivity for cases on collateral review” that the second Justice\\n\\nHarlan had developed in two influential opinions. Id. at 292; Mackey v. United\\n\\nStates, 401 U.S. 667, 675–702 (1971) (Harlan, J., concurring in the judgment);\\n\\nDesist v. United States, 394 U.S. 244, 256–69 (1969) (Harlan, J., dissenting).\\n\\nUnder this familiar framework, “new constitutional rules of criminal procedure\\n\\nwill not be applicable to those cases which have become final before the new rules\\n\\nare announced.” Teague, 489 U.S. at 310 (O’Connor, J., plurality opinion).\\n\\nAlthough the Court has maintained that there exists an exception for “a small set of\\n\\n\\n 5\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 6 of 64\\n\\n\\n‘watershed rules of criminal procedure implicating the fundamental fairness and\\n\\naccuracy of the criminal proceeding,’” it has also stressed that this exception is\\n\\n“extremely narrow,” and it has never held that any rule falls within the exception.\\n\\nSchriro v. Summerlin, 542 U.S. 348, 352 (2004) (some internal quotation marks\\n\\nomitted) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).\\n\\n In contrast to new procedural rules, “[n]ew substantive rules generally apply\\n\\nretroactively.” Id. at 351. This category “includes decisions that narrow the scope\\n\\nof a criminal statute by interpreting its terms, as well as constitutional\\n\\ndeterminations that place particular conduct or persons covered by the statute\\n\\nbeyond the State’s power to punish.” Id. at 351–52 (citation omitted). It also\\n\\nincludes “rules prohibiting a certain category of punishment for a class of\\n\\ndefendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 302,\\n\\n330 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).\\n\\n Although it is common for courts to “refer[] to rules of this . . . type as\\n\\nfalling under an exception to Teague’s bar on retroactive application of procedural\\n\\nrules,” “they are more accurately characterized as substantive rules not subject to\\n\\nthe bar.” Schriro, 542 U.S. at 352 n.4. After all, “Teague by its terms applies only\\n\\nto procedural rules.” Bousley v. United States, 523 U.S. 614, 620 (1998). To be\\n\\nsure, there is no practical difference between a rule that falls within “an exception\\n\\nto Teague’s bar” and a rule “not subject to the bar.” Schriro, 542 U.S. at 352 n.4.\\n\\n\\n 6\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 7 of 64\\n\\n\\nBut the doctrinal basis of the retroactivity of substantive rules is independent of\\n\\nTeague and indeed long predates it.\\n\\n More than a century before Teague, the Supreme Court held that prisoners\\n\\ncould use the writ of habeas corpus to challenge the substantive validity of their\\n\\nconvictions and sentences. Traditionally, of course, the writ was unavailable to\\n\\nchallenge mere error by the sentencing court. The habeas jurisdiction of the federal\\n\\ncourts was subject to “limitations . . . arising from the nature and objects of the writ\\n\\nitself, as defined by the common law.” Ex parte Siebold, 100 U.S. 371, 375 (1879).\\n\\nAnd “the general rule [was] that a conviction and sentence by a court of competent\\n\\njurisdiction [was] lawful cause of imprisonment,” from which “no relief [could] be\\n\\ngiven by habeas corpus.” Id. “The only ground” for relief “to a prisoner under\\n\\nconviction and sentence of another court [was] the want of jurisdiction in such\\n\\ncourt over the person or the cause, or some other matter rendering its proceedings\\n\\nvoid.” Id.\\n\\n In Siebold, the best known of a number of late-nineteenth-century decisions\\n\\nwith similar rationales, the Court held that a prisoner’s argument that his statute of\\n\\nconviction was unconstitutional did not exceed the limited scope of the writ. The\\n\\nCourt reasoned that an unconstitutional statute “affects the foundations of the\\n\\nwhole proceedings.” Id. at 376. After all, “[a]n unconstitutional law is void, and is\\n\\nas no law.” Id. So, the Court deduced, “[a] conviction under it is not merely\\n\\n\\n 7\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 8 of 64\\n\\n\\nerroneous, but is illegal and void.” Id. And because the trial court’s “authority to\\n\\nindict and try the petitioners arose solely upon the[] laws” they challenged, “if the\\n\\nlaws [were] unconstitutional,” it followed that “the [trial court] acquired no\\n\\njurisdiction of the causes.” Id. at 377. In other decisions, the Court employed the\\n\\nsame jurisdictional logic to hold that habeas corpus was available to correct a\\n\\nsentence imposed without legal authority. See, e.g., In re Bonner, 151 U.S. 242,\\n\\n255 (1894); In re Mills, 135 U.S. 263, 270 (1890); Ex parte Lange, 85 U.S. 163,\\n\\n176 (1873). The Court treated each of these cases “not [as] a case of mere error,\\n\\nbut [as] one in which the court below transcended its powers”—that is, exceeded\\n\\nits jurisdiction. Mills, 135 U.S. at 270.\\n\\n To be sure, the Court’s reasoning in Siebold and in related decisions has had\\n\\nits doubters. Some jurists have argued that these decisions expanded the traditional\\n\\nconcept of jurisdiction, see, e.g., Wright v. West, 505 U.S. 277, 285 (1992)\\n\\n(opinion of Thomas, J.); Fay v. Noia, 372 U.S. 391, 450–51, 454–55 (1963)\\n\\n(Harlan, J., dissenting), maybe even to the point of unintelligibility, see Paul M.\\n\\nBator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,\\n\\n76 Harv. L. Rev. 441, 470–71 & n.66 (1963). And Supreme Court justices have\\n\\ndisagreed about how to interpret Siebold and about how far its logic extends.\\n\\nCompare Montgomery v. Louisiana, 136 S. Ct. 718, 730–32 (2016), with id. at\\n\\n740–41 (Scalia, J., dissenting), and id. at 748 (Thomas, J., dissenting).\\n\\n\\n 8\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 9 of 64\\n\\n\\n But whatever doubt there may be about the reasoning in Siebold and similar\\n\\ndecisions, there should be no doubt that, as a historical matter, it supplied the\\n\\nrationale for what we now know as the substantive “exception.” When Justice\\n\\nHarlan explained that courts should not bar the retroactive application of new rules\\n\\n“that place . . . certain kinds of primary, private individual conduct beyond the\\n\\npower of the criminal law-making authority to proscribe,” he added—with specific\\n\\nreference to Siebold and kindred decisions—that “the writ has historically been\\n\\navailable for attacking convictions on such grounds.” Mackey, 401 U.S. at 692–93\\n\\n& n.8 (Harlan, J., concurring in the judgment); see also Desist, 394 U.S. at 261 n.2\\n\\n(Harlan, J., dissenting) (discussing Siebold’s jurisdictional rationale); Fay, 372\\n\\nU.S. at 454–55 (Harlan, J., dissenting) (same). As the Court started to embrace\\n\\nJustice Harlan’s retroactivity framework in decisions leading up to Teague, it too\\n\\nconnected retroactivity with the sentencing court’s lack of jurisdiction. See United\\n\\nStates v. Johnson, 457 U.S. 537, 550 (1982) (“recogniz[ing] [that] full retroactivity\\n\\n[is] a necessary adjunct to a ruling that a trial court lacked authority to convict or\\n\\npunish a criminal defendant in the first place,” making its “judgments or sentences\\n\\n. . . void ab initio”); see also Griffith v. Kentucky, 479 U.S. 314, 324 (1987)\\n\\n(paraphrasing Johnson as having explained that retroactivity attaches “when the\\n\\nnew ruling was that a trial court lacked authority to convict a criminal defendant in\\n\\nthe first place”).\\n\\n\\n 9\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 10 of 64\\n\\n\\n Nor can there be any doubt that the substantive exception continues to rest\\n\\non this jurisdictional rationale. In Montgomery v. Louisiana, the Court explained\\n\\nthat “[b]y holding that new substantive rules are . . . retroactive, Teague continued\\n\\na long tradition.” 136 S. Ct. at 730. The Montgomery Court illustrated that\\n\\n“tradition” with a detailed discussion of Siebold, which, it explained, had\\n\\n“addressed why substantive rules must have retroactive effect.” Id. The Court\\n\\nexplained that “the same logic”—that is, Siebold’s jurisdictional rationale—\\n\\n“governs a challenge to a punishment” that the states lack “authority to impose.”\\n\\nId. at 731. Montgomery reaffirmed Siebold’s rule that “[a] conviction or sentence\\n\\nimposed in violation of a substantive rule is not just erroneous but contrary to law\\n\\nand, as a result, void.” Id. And, the Court reasoned, “[i]t follows . . . that a court\\n\\nhas no authority to leave in place a conviction or sentence that violates a\\n\\nsubstantive rule, regardless of [when] the conviction or sentence became final.”\\n\\nId. The Court’s explanation in Welch of why Johnson is substantive—that because\\n\\nthe residual clause of the Armed Career Criminal Act “is invalid,” it cannot\\n\\n“mandate or authorize any sentence,” 136 S. Ct. at 1265—also would have been at\\n\\nhome in any of the decisions in the Siebold family. Cf., e.g., Mills, 135 U.S. at 270\\n\\n(“The court below was without jurisdiction to pass any such sentences . . . .”).\\n\\n The doctrinal pedigree and rationale of the substantive exception logically\\n\\ndictate its scope. The exception is based on the idea that a court has no authority to\\n\\n\\n 10\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 11 of 64\\n\\n\\nenter a judgment of conviction under a void statute or to impose a sentence not\\n\\nauthorized by law. Necessarily, then, when a prisoner’s conviction is supported by\\n\\na valid statute and his sentence is authorized by law, the substantive exception\\n\\ncannot apply. Cf. Lockhart v. Fretwell, 506 U.S. 364, 373 (1993) (“Cessante\\n\\nratione legis, cessat et ipsa lex.”).\\n\\n From this understanding of the substantive exception, it follows that the\\n\\nexception does not apply to pre-Booker sentences under the Guidelines. Every\\n\\nsentence that has ever been imposed under the Guidelines—either before or after\\n\\nBooker—falls within the statutory range of punishment prescribed by Congress for\\n\\nthe defendant’s offense. See Mistretta v. United States, 488 U.S. 361, 374–75\\n\\n(1989) (explaining that when Congress empowered the Sentencing Commission to\\n\\npromulgate the Guidelines, it “instructed the Commission that these sentencing\\n\\nranges must be consistent with pertinent provisions of Title 18 of the United States\\n\\nCode and could not include sentences in excess of the statutory maxima”). And\\n\\nevery court that has ever imposed a sentence under the Guidelines had the\\n\\nauthority to impose a sentence within the statutory range.\\n\\n Take Stoney Lester as an example. Lester pleaded guilty in 2003 to\\n\\ndistributing more than five grams of crack cocaine, an offense with a statutory\\n\\nrange of five to 40 years of imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).\\n\\nThe sentence he received under the Guidelines—21 years and 10 months—was\\n\\n\\n 11\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 12 of 64\\n\\n\\nsquarely within the statutory range and, as such, within the authority granted to the\\n\\ndistrict court by Congress. So even if the career-offender provision that was used\\n\\nto calculate Lester’s sentence under the Guidelines were somehow\\n\\nunconstitutionally vague, the substantive exception would not extend to Lester’s\\n\\nsentence.\\n\\n To look at the same idea from a different angle, consider the result if Lester\\n\\nor a similarly situated prisoner prevailed in a vagueness attack on the career-\\n\\noffender sentencing Guideline. A successful vagueness challenge would establish\\n\\nonly that the district court improperly relied on an unacceptably unclear directive\\n\\nin arriving at the prisoner’s sentence. But it would not in the slightest establish that\\n\\nthe district court lacked the authority to impose the substantive sentence at which it\\n\\narrived. On the contrary, as Griffin observed, the district court could impose\\n\\nexactly the same sentence on remand after the appellate court corrected its error.\\n\\n823 F.3d at 1355. In this respect, erroneous reliance on an unconstitutionally vague\\n\\nsentencing Guideline, if such a thing were to exist, resembles “procedural”\\n\\nsentencing errors—errors like “failing to calculate (or improperly calculating) the\\n\\nGuideline range, treating the Guidelines as mandatory, . . . or failing to adequately\\n\\nexplain the chosen sentence,” Gall v. United States, 552 U.S. 38, 51 (2007)—for\\n\\nwhich the remedy is a remand with corrective instructions but with no guarantee of\\n\\na different outcome. And, as we explained in Griffin and as the Solicitor General\\n\\n\\n 12\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 13 of 64\\n\\n\\nargued in Beckles, this fact means that a new rule extending Johnson to the career-\\n\\noffender sentencing Guideline would also be “procedural,” not substantive, for\\n\\npurposes of retroactivity. See Griffin, 823 F.3d at 1355–56; Brief for the United\\n\\nStates at 11–33, Beckles v. United States, 137 S. Ct. 886 (No. 15-8544).\\n\\n B. The “Mandatory Guidelines” and Booker.\\n\\n Judge Martin’s statement responds that this reasoning “fundamentally\\n\\nmisunderstands how the mandatory Guidelines worked” because it ignores that,\\n\\nbefore Booker, “the shortest sentence the District Court was legally allowed to give\\n\\n[Lester]” “[o]nce categorized as a career-offender” was greater than “the longest\\n\\nsentence he could have received if not deemed a career offender.” Statement of\\n\\nMartin, J., at 48. The argument is not expressly framed in terms of whether the\\n\\ndistrict court had the substantive authority to impose Lester’s sentence, but to\\n\\ntranslate it into those terms is easy enough. In this view, it does not matter to\\n\\nretroactivity that the district court could sentence a pre-Booker career offender like\\n\\nLester to the same term of imprisonment today. See id. at 49. Instead, the critical\\n\\npoint is that—without the career-offender provision—it lacked the substantive\\n\\nauthority to impose the sentence then, in the pre-Booker era when the Guidelines\\n\\ndictated what sentences were “legally allowed.” Id. at 48; see also id. at 38–40.\\n\\n This response contains an important internal tension. In Judge Martin’s\\n\\naccount, the putative unconstitutionality of the career-offender Guideline, which\\n\\n\\n 13\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 14 of 64\\n\\n\\nher statement contends was established by the Supreme Court’s 2015 decision in\\n\\nJohnson, must “relate back” to the time of Lester’s sentencing in 2003; otherwise,\\n\\nthere would be no ground to argue that Lester’s sentence was substantively invalid.\\n\\nBut the advisory nature of the Guidelines, which was established by the Supreme\\n\\nCourt’s 2005 decision in Booker, must not relate back to Lester’s sentencing. If\\n\\nBooker’s construction of the Guidelines’ legal status was the correct view of the\\n\\nlaw at the time of Lester’s sentencing, then the “mandatory Guidelines” did not\\n\\nexist in a legal sense, did not limit the district court’s discretion to choose an\\n\\nappropriate sentence within the statutory range, and did not render his actual\\n\\nsentence substantively invalid.\\n\\n The premise that the Sentencing Guidelines were in the strictest sense\\n\\nlegally binding before Booker pervades Judge Martin’s statement. As her statement\\n\\nputs it, “[u]nder the mandatory Guidelines, federal district courts were bound by\\n\\nlaw to impose sentences within the guideline range.” Id. at 38. Her statement\\n\\nexplains, “the mandatory Guidelines were laws that increased punishment”—laws\\n\\nthat, “[i]n effect, . . . set minimum and maximum sentences.” Id. at 40, 48. And it\\n\\ninsists that the Guidelines, “[b]y law,” dictated the sentences that the district court\\n\\n“was legally allowed to give” Lester. Id. at 48. In this view, “the sentencing judge\\n\\nhad no legal authority to sentence [Lester] to other than a sentence mandated by\\n\\nthe Guidelines then in effect.” Id. at 38–39.\\n\\n\\n 14\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 15 of 64\\n\\n\\n This manner of speaking, of course, is by no means peculiar to Judge\\n\\nMartin. Virtually all of us are in the habit of distinguishing, in one way or another,\\n\\nbetween the “mandatory Guidelines” that operated before Booker and the\\n\\n“advisory Guidelines” that have operated since. See, e.g., Matchett, 802 F.3d at\\n\\n1196 (referring to “when the guidelines were still mandatory”); United States v.\\n\\nMartin, 455 F.3d 1227, 1236 (11th Cir. 2006) (“As we all now know, Booker made\\n\\nthe guidelines advisory.”).\\n\\n Purely as a description of judicial doctrine and practice, this language makes\\n\\nsense. Cf. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457,\\n\\n457–61 (1897). Before Booker, district courts believed they were bound to apply\\n\\nthe Guidelines as mandatory, and the courts of appeals would reverse district\\n\\ncourts that treated them as merely advisory. After Booker, district courts\\n\\nrecognized that they were bound not to apply the Guidelines as mandatory, and the\\n\\ncourts of appeals will now reverse district courts that fail to treat them as advisory.\\n\\nThis change in court behavior makes it natural to say that Booker “made the\\n\\nGuidelines advisory.”\\n\\n But even if our idioms adequately describe judicial practice, they may be\\n\\nerroneous or inadequate in other respects. And we must be careful not to let the\\n\\nimprecision of our language control our reasoning. “[W]ords are wise men’s\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 16 of 64\\n\\n\\ncounters, they do but reckon by them; but they are the money of fools.” Thomas\\n\\nHobbes, Leviathan 19 (Edwin Curley ed., Hackett 1994 [1651]).\\n\\n In particular, we should be mindful of the difference between a change in\\n\\njudicial doctrine and a change in law. This distinction, although sometimes easy to\\n\\noverlook, is fundamental. Without distinguishing between judges’ understanding\\n\\nof the law and the law itself, we could not meaningfully say, for example, that a\\n\\nchange in judicial doctrine “proved Mr. Lester’s objection right and Eleventh\\n\\nCircuit case law wrong,” Statement of Martin, J., at 33, nor could the Supreme\\n\\nCourt meaningfully describe a past decision of its own as “wrong the day it was\\n\\ndecided,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863 (1992)\\n\\n(joint opinion of O’Connor, Kennedy, and Souter, JJ.); see also Stephen E. Sachs,\\n\\nFinding Law, 107 Calif. L. Rev. (forthcoming Apr. 2019) (manuscript at 43)\\n\\n(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443 (last\\n\\nvisited Apr. 28, 2019)). And we would be hard-pressed to explain why Johnson\\n\\nrequired the retroactive invalidation of final convictions and sentences based on the\\n\\nresidual clause of the Armed Career Criminal Act, see Welch, 136 S. Ct. at 1265,\\n\\nwhen an act of Congress that merely repealed the clause would not do so. The\\n\\nanswer, of course, is that Johnson did not strictly speaking change the law; “rather,\\n\\nit held and therefore established that the prior decisions [treating the residual\\n\\nclause as valid] were incorrect.” Rivers v. Roadway Express, Inc., 511 U.S. 298,\\n\\n\\n 16\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 17 of 64\\n\\n\\n312 (1994); see also Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). In\\n\\nthe light of Johnson, the residual clause was, as a matter of law, always invalid.\\n\\n So it can be misleading to say, as we often do, that “the Sentencing\\n\\nGuidelines were mandatory,” Statement of Martin, J., at 31, and that the Supreme\\n\\nCourt “made” them advisory in Booker. These idioms suggest that the Guidelines\\n\\nwere once really mandatory as a matter of law and that they became advisory as a\\n\\nmatter of law only after—and only because of—Booker. But that cannot be right. If\\n\\nBooker’s effect was to change the essential legal status of the Guidelines from\\n\\nmandatory to advisory, then it must have been one of two things: either a\\n\\nlegislative amendment that removed the textual command that courts apply the\\n\\nGuidelines as mandatory, see 18 U.S.C. § 3553(b)(1), from the Sentencing Reform\\n\\nAct and replaced it with a provision that the Guidelines be treated as advisory or,\\n\\nalternatively, a constitutional amendment that newly prohibited the mandatory\\n\\napplication of the Guidelines. But Booker—a judicial decision—was neither of\\n\\nthose things.\\n\\n The Supreme Court wields judicial power, not legislative power. See U.S.\\n\\nConst. art. I, § 1; id. art. III, § 1. It has no power to amend the text or meaning of\\n\\nany statute; it has the authority only “to say what a statute means,” which means\\n\\n“what the statute meant before as well as after the decision of the case giving rise\\n\\nto that construction,” in the course of deciding a case or controversy. Rivers, 511\\n\\n\\n 17\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 18 of 64\\n\\n\\nU.S. at 312–13. Nor does the Supreme Court have the authority to amend the\\n\\nConstitution. See, e.g., Bell v. Maryland, 378 U.S. 226, 288 (1964) (In\\n\\nconstitutional cases, the Court’s “duty is to construe, not to rewrite or amend, the\\n\\nConstitution.” (internal quotation marks omitted)); South Carolina v. United\\n\\nStates, 199 U.S. 437, 448 (1905) (“The Constitution is a written instrument. As\\n\\nsuch its meaning does not alter. That which it meant when adopted, it means\\n\\nnow.”). So, instead of a legislative act or constitutional amendment that changed\\n\\nthe law, Booker was a judicial decision that held that the statutory requirement that\\n\\ncourts apply the Guidelines as mandatory is without legal effect.\\n\\n Booker established that the Guidelines are not mandatory through two\\n\\nholdings. First, the Court held that the statutory requirement of mandatory\\n\\napplication of the Guidelines would violate the Sixth Amendment as applied\\n\\nwhenever it resulted in a sentence greater than the maximum sentence that could be\\n\\nimposed based only on the facts reflected in a jury’s guilty verdict or admitted by\\n\\nthe defendant. See Booker, 543 U.S. at 233–37 (Stevens, J., opinion of the Court).\\n\\nSecond, as a matter of severability, the Court held that the Guidelines could not be\\n\\napplied as mandatory in any cases, even when their mandatory application would\\n\\nnot violate the Sixth Amendment, because the resulting system would be\\n\\nstructurally unsound and contrary to the intent of Congress. See id. at 249–59, 265–\\n\\n67 (Breyer, J., opinion of the Court).\\n\\n\\n 18\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 19 of 64\\n\\n\\n Although Booker radically changed judicial doctrine with respect to the\\n\\nGuidelines, neither of its holdings was the equivalent of a legislative or\\n\\nconstitutional amendment to the substance of the law. As far as the constitutional\\n\\nholding is concerned, this point should be obvious: “Constitutional invalidity of\\n\\nfederal statutes . . . is produced by the Constitution itself, not by the order of a\\n\\ncourt.” John Harrison, Severability, Remedies, and Constitutional Adjudication, 83\\n\\nGeo. Wash. L. Rev. 56, 87 (2014); see also Marbury v. Madison, 5 U.S. 137, 177–\\n\\n78 (1803). The Sixth Amendment did not mean one thing the day before Booker\\n\\nand another thing the day Booker was decided. The Court in Booker did not make\\n\\nthe statutory provision requiring the mandatory application of the Guidelines\\n\\nunconstitutional. Instead, the Court recognized that the provision was\\n\\nunconstitutional by determining the meaning of the Sixth Amendment—that is, by\\n\\ninterpreting it—and that its meaning was incompatible with that of the statutory\\n\\nprovision in certain circumstances. In those applications, the statutory provision\\n\\nwas always unconstitutional; it was always “void, and . . . as no law.” Siebold, 100\\n\\nU.S. at 376; accord Marbury, 5 U.S. at 177.\\n\\n Booker’s severability conclusion is no different. As the Supreme Court and\\n\\ncommentators have long acknowledged, severability is fundamentally “an exercise\\n\\nin statutory interpretation.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.\\n\\n1461, 1486 (2018) (Thomas, J., concurring); see also, e.g., Dorchy v. Kansas, 264\\n\\n\\n 19\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 20 of 64\\n\\n\\nU.S. 286, 290 (1924) (Severability is “a question of interpretation and of legislative\\n\\nintent.”); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46\\n\\nStan. L. Rev. 235, 289 (1994) (“Severability presents a question of statutory\\n\\ninterpretation . . . .”). Specifically, issues of severability pose the interpretive\\n\\nquestion of how to understand a legal text as a whole in the light of a newly\\n\\nacknowledged fact—that part of the text cannot be given legal effect. See Murphy,\\n\\n138 S. Ct. at 1486 (Thomas, J., concurring) (“[T]he severability doctrine has courts\\n\\ndecide how a statute operates once they conclude that part of it cannot be\\n\\nconstitutionally enforced.”); Harrison, supra, 83 Geo. Wash. L. Rev. at 88; see also\\n\\nBooker, 543 U.S. at 247 (Breyer, J., opinion of the Court) (observing that\\n\\n“severability questions . . . can arise when a legislatively unforeseen constitutional\\n\\nproblem requires modification of a statutory provision as applied in a significant\\n\\nnumber of instances”); id. at 265 (“[W]e have examined the statute in depth to\\n\\ndetermine Congress’ likely intent in light of today’s holding.”); Dorchy, 264 U.S.\\n\\nat 290 (posing the question whether one section of a state statute was “so\\n\\ninterwoven with the [other sections] held invalid that the section cannot stand\\n\\nalone”). It is because severability issues are interpretive questions that courts\\n\\nanswer them by using the same kinds of tools that are applied to other issues of\\n\\nstatutory construction, see, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 687\\n\\n(1987) (finding “abundant indication of a clear congressional intent of severability\\n\\n\\n 20\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 21 of 64\\n\\n\\nboth in the language and structure of the Act and in its legislative history”), and\\n\\nthat they produce the same kinds of disagreements about interpretive methods as\\n\\ndo other interpretive problems, see, e.g., Booker, 543 U.S. at 313 (Thomas, J.,\\n\\ndissenting in part) (“disagree[ing] with [Justice Stevens’s] restatement of\\n\\nseverability principles and reliance on legislative history”).\\n\\n The interpretive character of severability holdings—Booker’s included—\\n\\nalso means that they cannot be understood as if they changed the law in the manner\\n\\nof a legislative amendment. As Justice Scalia once observed, even if it sometimes\\n\\nright to say that “judges in a real sense ‘make’ law,” we must not forget that “they\\n\\nmake it as judges make it, which is to say as though they were ‘finding’ it—\\n\\ndiscerning what the law is, rather than decreeing what it is today changed to, or\\n\\nwhat it will tomorrow be.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,\\n\\n549 (1991) (Scalia, J., concurring in the judgment). No less than a decision in any\\n\\nother interpretive context, a judicial construction of the Sentencing Reform Act in\\n\\nthe light of its conflict with the Sixth Amendment—a conflict that always existed,\\n\\neven if the Court did not formally acknowledge it until Booker—“is an\\n\\nauthoritative statement of what the statute meant before as well as after the\\n\\ndecision of the case giving rise to that construction.” Rivers, 511 U.S. at 312–13.\\n\\nWere it otherwise, Booker and other severability decisions would “entail\\n\\nquintessentially legislative work,” which is exactly what the Supreme Court has\\n\\n\\n 21\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 22 of 64\\n\\n\\nsaid they do not entail. Ayotte v. Planned Parenthood of N. New England, 546 U.S.\\n\\n320, 329 (2006); accord Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292,\\n\\n2319 (2016).\\n\\n So, our usual figures of speech notwithstanding, it follows from the holdings\\n\\nin Booker that the Guidelines were never really mandatory—not as a matter of law.\\n\\nTo be sure, an act of Congress instructed that the sentencing court “shall impose a\\n\\nsentence of the kind, and within the range,” defined in the Guidelines, 18 U.S.C.\\n\\n§ 3553(b)(1), and district courts thought that this mandatory instruction was legally\\n\\nbinding. The courts of appeals thought so too. But, if Booker is right, we were all\\n\\nwrong. The law—not judges’ understanding of the law, but the actual law—was\\n\\notherwise. The Sixth Amendment forbade the mandatory application of the\\n\\nGuidelines whenever they prescribed a sentence greater than the law allowed based\\n\\nonly on the facts reflected in a guilty verdict or plea. And, as interpreted by Booker\\n\\nin the light of that constitutional prohibition, the Sentencing Reform Act did not\\n\\nprescribe the mandatory application of the Guidelines in any other circumstances\\n\\neither.\\n\\n The district court did err when it sentenced Lester, but the error was not\\n\\nimposing an illegal sentence under a mandatory, but unconstitutionally vague,\\n\\nsentencing Guideline. Instead, its error—an error that also happened to be shared\\n\\nby every other district court at the time—was treating the career-offender\\n\\n\\n 22\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 23 of 64\\n\\n\\nGuideline as mandatory in the first place. To be sure, that was an error of\\n\\n“constitutional significance,” as Booker confirmed. Statement of Martin, J., at 49.\\n\\nBut it was a procedural constitutional error, not a substantive one. See Varela v.\\n\\nUnited States, 400 F.3d 864, 868 (11th Cir. 2005) (holding “that Booker’s\\n\\nconstitutional rule falls squarely under the category of new rules of criminal\\n\\nprocedure that do not apply retroactively”). And, although Judge Martin’s\\n\\nstatement suggests that my acknowledgment of that error should convince me to\\n\\n“agree to fix the sentences mistakenly imposed as mandatory,” the whole point of\\n\\nTeague is that merely procedural “mistake[s]” do not warrant the extraordinary\\n\\n“fix” of collateral relief. Statement of Martin, J., at 39.\\n\\n That job is reserved for substantive rules, and, in the light of Booker,\\n\\nJohnson cannot possibly have established that the district court lacked the\\n\\nsubstantive authority to impose Lester’s sentence. If the sentencing court had\\n\\nknown what Booker later clarified to be the correct understanding of the law, it\\n\\nwould not have recognized that, “[b]y law, the longest sentence [Lester] could . . .\\n\\nreceive[] . . . was 151 months.” Id. at 48 (emphasis omitted). Instead, Johnson or\\n\\nno Johnson, it would have recognized that it was “legally allowed,” id., to impose\\n\\nany sentence within the statutory range of five to 40 years—just as it could if it\\n\\nsentenced Lester today.\\n\\n\\n\\n\\n 23\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 24 of 64\\n\\n\\n Of course, we do not know what sentence Lester would have received if the\\n\\ndistrict court had been aware of what Booker later held. But all we need to know is\\n\\nwhether his sentence was within the substantive authority of the district court at the\\n\\ntime it was imposed. And it clearly was. So Griffin was absolutely right to hold\\n\\nthat a new rule extending Johnson to set aside pre-Booker sentences based on the\\n\\ncareer-offender Guideline would not be substantive and would not apply\\n\\nretroactively to cases on collateral review.\\n\\n C. Judge Rosenbaum’s Statement.\\n Judge Rosenbaum’s statement responds to my argument in three parts. The\\n\\nfirst and second parts fail to engage with my argument. And the third part\\n\\npropounds a doctrine of judicial lawmaking that contradicts Marbury’s rationale\\n\\nfor judicial review.\\n\\n The first part of Judge Rosenbaum’s statement quarrels with my account of\\n\\nthe substantive exception. I am not sure Judge Rosenbaum’s belief that the\\n\\nexception concerns equally ultra vires action by any branch, not just the judiciary,\\n\\ncan be squared with basic habeas principles or with the precedents—all of which\\n\\nstress the sentencing “court[’s] lack[] [of] power to exact a penalty that has not\\n\\nbeen authorized by any valid criminal statute,” Welch, 136 S. Ct. at 1268; accord\\n\\nSiebold, 100 U.S. at 377 (“We think [habeas lies], because, if the laws are\\n\\nunconstitutional and void, the Circuit Court acquired no jurisdiction of the\\n\\n\\n 24\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 25 of 64\\n\\n\\ncauses.” (emphases added)), or the habeas court’s lack of “authority to leave in\\n\\nplace a conviction or sentence that violates a substantive rule,” Montgomery, 136\\n\\nS. Ct. at 731—but I also doubt that it matters. After all, my argument is that\\n\\nLester’s sentencing court did not exceed its powers because the statutory provision\\n\\nthat purported to limit its sentencing discretion was unconstitutional and therefore\\n\\nvoid. Far from “gloss[ing] over th[e] constitutionally significant problem” of the\\n\\nmandatory application of the Guidelines, Statement of Rosenbaum, J., at 55, I\\n\\nargue that Booker’s holding that their mandatory application was unconstitutional\\n\\ncontrols the question we are discussing. And it establishes that the only rule the\\n\\ndistrict court violated when it sentenced Lester was procedural, not substantive.\\n\\n The second part of Judge Rosenbaum’s statement identifies the heart of my\\n\\nargument, but it offers no meaningful response. I have said that statements like\\n\\n“Booker made the Guidelines advisory” are ubiquitous but not precisely accurate.\\n\\nJudge Rosenbaum’s statement responds only by confirming that they are\\n\\nubiquitous but makes no effort to refute my point that they are imprecise. See id. at\\n\\n58–60. I have said that courts used to treat the Guidelines as mandatory but that, as\\n\\nBooker held, they committed legal error by doing so. Judge Rosenbaum’s\\n\\nstatement responds only by insisting that courts used to treat the Guidelines as\\n\\nmandatory. See id. at 60. Her statement’s flotilla of quotations from the United\\n\\nStates Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense\\n\\n\\n 25\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 26 of 64\\n\\n\\nof those statements is false and, second, that courts routinely describe the terms\\n\\nand intended effects of statutes as if they were valid even as they hold the opposite.\\n\\nSee, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional\\n\\nand Amateur Sports Protection Act “banned the authorization of sports gambling in\\n\\ncasinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176\\n\\n(“The authority . . . given to the supreme court . . . appears not to be warranted by\\n\\nthe [C]onstitution . . . .” (emphasis added)). The second part’s only direct response\\n\\nto my argument—that “the Booker Court did not make the Guidelines advisory\\n\\nbecause they were always advisory, since the Sixth Amendment never allowed\\n\\nthem to be mandatory”—is that it “is certainly interesting on a metaphysical level.”\\n\\nStatement of Rosenbaum, J., at 60. I appreciate the compliment.\\n\\n Only the third part of Judge Rosenbaum’s statement is responsive, but\\n\\nunfortunately it fumbles the basic tenets—one might even say the metaphysics—of\\n\\njudicial review. Before Booker, it tells us, “18 U.S.C. § 3553(b)(1) was the law of\\n\\nthe land.” Id. at 61. Wrong. As Chief Justice Marshall explained in Marbury, “[t]he\\n\\nquestion, whether an act, repugnant to the [C]onstitution, can become the law of\\n\\nthe land” is to be answered resoundingly in the negative. Marbury, 5 U.S. at 176;\\n\\nsee also U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United\\n\\nStates . . . in Pursuance thereof . . . shall be the supreme Law of the Land . . . .”\\n\\n(emphasis added)); Mackey, 401 U.S. at 678 (Harlan, J., concurring in the\\n\\n\\n 26\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 27 of 64\\n\\n\\njudgment) (observing that Marbury provides “from that day to this the sole\\n\\ncontinuing rationale for the exercise of” judicial review).\\n\\n Judge Rosenbaum’s statement continues: “[T]he Court’s change effectively\\n\\nexcised the Guidelines’ mandatory language from the United States Code.”\\n\\nStatement of Rosenbaum, J., at 62. The word “effectively” bears the whole weight\\n\\nof this sentence. Section 3553(b)(1)’s mandatory language is still there in the\\n\\nCode. See 18 U.S.C. § 3553(b)(1); see also generally Jonathan F. Mitchell, The\\n\\nWrit-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). The only thing that has\\n\\nchanged is that now, thanks to Booker, we know that it is legally inoperative\\n\\nbecause the Sixth Amendment—adopted in 1791—requires and has always\\n\\nrequired that result.\\n\\n It follows that the correct application of the Guidelines has always been\\n\\nadvisory—even for offenders, like Stoney Lester, convicted before Booker. And it\\n\\nfollows from that that the substantive exception would not apply to a new rule\\n\\nextending Johnson to set aside Lester’s sentence and others like it. Understanding\\n\\nthe law on this point requires no familiarity with “the laws of physics” or “the\\n\\nspace-time continuum.” Statement of Rosenbaum, J., at 60. It instead requires only\\n\\nthe humility that comes with appreciating the modest role that the federal judiciary\\n\\nperforms in our constitutional system: “to say what the law is,” not what it should\\n\\nbe. Marbury, 5 U.S. at 177.\\n\\n\\n 27\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 28 of 64\\n\\n\\nMARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Circuit\\n\\nJudges, respecting the denial of rehearing en banc:\\n\\n In 2004, Stoney Lester was sentenced in the Middle District of Georgia to\\n\\nalmost 22 years in prison for possessing more than five grams of cocaine. This\\n\\nlong sentence was required by law at the time because the sentencing court had to\\n\\ntreat Mr. Lester as a “career offender” under the then-mandatory United States\\n\\nSentencing Guidelines. The Eleventh Circuit’s binding precedent required the\\n\\nsentencing judge to count Mr. Lester’s past conviction for walkaway escape as a\\n\\n“crime of violence” under a provision of the career-offender guideline known as\\n\\nthe “residual clause.” U.S.S.G. § 4B1.2(a) (2003). If Mr. Lester had not been\\n\\nsentenced as a “career offender,” his term of incarceration would have been at least\\n\\nnine years shorter.\\n\\n About eleven years after he was sentenced, the Supreme Court invalidated\\n\\nthe residual clause of the Armed Career Criminal Act. Johnson v. United States,\\n\\n576 U.S. , 136 S. Ct. 2551 (2015). Since the residual clause under which he was\\n\\nsentenced was identical to that stricken by the Supreme Court, Mr. Lester filed a\\n\\nmotion in Federal Court in Georgia under 28 U.S.C. § 2255, seeking to correct his\\n\\nsentence. At that time, he already had a pending petition under 28 U.S.C. § 2241\\n\\nin the Eastern District of Virginia, where the Bureau of Prisons assigned him at\\n\\nsome point. His petition in Virginia asked that court to correct his sentence based\\n\\n\\n 28\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 29 of 64\\n\\n\\non Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), which\\n\\noverruled the Eleventh Circuit precedent that characterized walkaway escape as a\\n\\ncrime of violence. Lester v. Wilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb.\\n\\n27, 2019). Mr. Lester’s § 2241 petition would have failed in the Eleventh Circuit\\n\\nbecause our precedent foreclosed such a claim based on procedural grounds. See\\n\\nMcCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1090 (11th\\n\\nCir. 2017) (en banc).\\n\\n So too with Mr. Lester’s § 2255 petition. Our Court denied him relief based\\n\\non our precedent in In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (per curiam),\\n\\nwhich held that inmates like Mr. Lester cannot bring Johnson-based challenges to\\n\\nmandatory Guidelines sentences. Happily for Mr. Lester, things turned out better\\n\\nfor him in the Fourth Circuit. That court said Mr. Lester’s sentence contained a\\n\\n“fundamental defect.” Specifically, the Fourth Circuit said Mr. Lester’s longer\\n\\nsentence based on his walkaway escape conviction was fundamentally defective\\n\\nsince the Supreme Court had made plain that this should not count as a crime of\\n\\nviolence. Lester v. Flournoy, 909 F.3d 708, 714 (4th Cir. 2018). While this Court\\n\\nwas debating whether to consider Mr. Lester’s case en banc, the Fourth Circuit\\n\\ngranted him relief.\\n\\n I understand that Mr. Lester is a free man today. Dkt. No. 44, Lester v.\\n\\nWilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb. 27, 2019). He served 15\\n\\n\\n 29\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 30 of 64\\n\\n\\nyears and seven months in prison. This was more than two-thirds of the sentence\\n\\noriginally imposed on him, and three years longer than he would have served if his\\n\\nwalkaway escape conviction had not counted in the first place.\\n\\n I asked the Court withhold the issuance of the mandate in Mr. Lester’s case,\\n\\nin hopes that we could correct what I see as two errors in In re Griffin. First, I\\n\\nbelieve In re Griffin erroneously held that the mandatory Guidelines are not subject\\n\\nto vagueness challenges. Second, I think In re Griffin was wrong to say that\\n\\nJohnson does not apply retroactively in mandatory Guidelines cases. This Court\\n\\ndeclined to take up either issue. In making that decision, the Court also denied Mr.\\n\\nLester all relief.\\n\\n I wrote a dissent from the denial of en banc rehearing to express my\\n\\ndisagreement with Griffin. But since Mr. Lester has won his freedom, there is no\\n\\nlonger a need for en banc review of his case. Still, I am mindful that Mr. Lester is\\n\\nbreathing free air solely because of a happenstance administrative decision to move\\n\\nhim to a prison in the Eastern District of Virginia, together with his savviness in\\n\\nfiling a § 2241 petition while he was there. Failing either one of these things, Mr.\\n\\nLester would have been required to serve six more years in prison. His case is a\\n\\ntestament to the arbitrariness of contemporary habeas law, where liberty can\\n\\ndepend as much on geography as anything else. It also illustrates how limited is\\n\\n\\n\\n\\n 30\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 31 of 64\\n\\n\\nrelief for the thousands of inmates sentenced within the Eleventh Circuit and\\n\\nwhose sentence Johnson affected.\\n\\n Not all inmates will be moved out of this Circuit. Also, Griffin continues to\\n\\nstand as binding precedent in this Circuit. For these reasons I take this opportunity\\n\\nto review why I believe the opinion in In re Griffin is mistaken.\\n\\n I.\\n\\n In 2004, Mr. Lester pled guilty to possession with intent to distribute more\\n\\nthan five grams crack cocaine. At that time, the Sentencing Guidelines were\\n\\nmandatory, see United States v. Booker, 543 U.S. 220, 233–34, 125 S. Ct. 738, 750\\n\\n(2005), so the calculation of Mr. Lester’s guideline range set his prison sentence.\\n\\nThe District Court calculated Mr. Lester’s guideline range as 262–327 months and,\\n\\nbecause it had no statutory basis to depart, see 18 U.S.C. § 3553(b)(1), it imposed a\\n\\n262-month sentence.\\n\\n Mr. Lester’s long sentence resulted from the District Court’s finding that he\\n\\nwas a “career offender” as that term was then defined in the Guidelines. See\\n\\nU.S.S.G. § 4B1.1 (2003). The career-offender provision required longer sentences\\n\\nfor defendants sentenced for a “crime of violence” or a “controlled substance\\n\\noffense,” and who in addition have two past convictions that are either a “crime of\\n\\n\\n\\n\\n 31\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 32 of 64\\n\\n\\nviolence” or “controlled substance offense.”1 Id. § 4B1.1(a). Earlier in his life,\\n\\nMr. Lester had been convicted in Georgia once for sale of marijuana and once for\\n\\nwalkaway escape. The District Court counted the marijuana conviction as a\\n\\n“controlled substance offense.” It also counted Mr. Lester’s walkaway escape\\n\\nconviction as a “crime of violence” under the “residual clause” of the Guidelines.\\n\\nThat “residual clause” defined a crime of violence as an offense punishable by\\n\\nmore than a year in prison that “involves conduct that presents a serious potential\\n\\nrisk of physical injury to another.” Id. § 4B1.2(a). Mr. Lester objected to counting\\n\\nhis walkaway escape conviction as a crime of violence under the residual clause,\\n\\nbut our Circuit precedent foreclosed his objection. See United States v. Gay, 251\\n\\nF.3d 950, 953–55 (11th Cir. 2001) (per curiam), abrogation recognized by\\n\\nMcCarthan, 851 F.3d at 1080.\\n\\n In light of his career-offender status, Mr. Lester was assigned an offense\\n\\nlevel of 34 and a criminal history category of VI. This yielded a guideline range of\\n\\n262 to 327 months. U.S.S.G. chap. 5, pt. A. At the time, the District Court had no\\n\\ndiscretion to sentence Mr. Lester outside of this range. If (as we now know should\\n\\nhave been the case) Mr. Lester had not been designated a career-offender, he\\n\\n\\n\\n\\n 1\\n The Guidelines contain a career-offender provision in their current iteration, see\\nU.S.S.G. § 4B1.1 (2018), but the provision and our interpretation of it have changed since Mr.\\nLester was sentenced. My discussion here is about the career-offender provision that was\\noperative when Mr. Lester was sentenced.\\n 32\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 33 of 64\\n\\n\\nwould have had an offense level of 30 and a criminal history category of III, which\\n\\ntogether yield a guideline range of 121–151 months. Id. Because of the residual\\n\\nclause, Mr. Lester faced at least nine years more in prison than he would have\\n\\nwithout it.\\n\\n Over the years after his sentence was imposed, developments in the law\\n\\nproved Mr. Lester’s objection right and Eleventh Circuit case law wrong. In 2009,\\n\\nthe Supreme Court overturned the Eleventh Circuit rule that walkaway escape\\n\\ncounts as a crime of violence. Chambers, 555 U.S. at 130, 129 S. Ct. at 693,\\n\\nabrogated on other grounds by Johnson, 135 S. Ct. at 2563. If Mr. Lester were\\n\\nsentenced today, his conviction for walkaway escape could not count as a “crime\\n\\nof violence,” and as a result, he would not be sentenced as a career offender. See\\n\\nMcCarthan, 851 F.3d at 1080. If he had been sentenced under Eleventh Circuit\\n\\nlaw as it exists today, Mr. Lester would have been a free man in 2016 at the latest.\\n\\n Then in 2015, the Supreme Court changed the law in a second way that\\n\\nmade clear Mr. Lester’s sentence resulted from not only on a mistaken\\n\\ninterpretation of the Guidelines, but on an unconstitutionally vague Guideline\\n\\nprovision as well. Johnson, 135 S. Ct. at 2563. In Johnson, the Supreme Court\\n\\nstruck down a provision of the Armed Career Criminal Act (ACCA) that is\\n\\nidentical to the career-offender residual clause in the Guidelines. Id. ACCA\\n\\nrequires longer sentences for defendants with certain types of earlier convictions\\n\\n\\n 33\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 34 of 64\\n\\n\\nwho are convicted of possessing a firearm as a convicted felon in violation of 18\\n\\nU.S.C. § 922(g). The maximum sentence for possessing a firearm as a convicted\\n\\nfelon is ordinarily ten years. 18 U.S.C. § 924(a)(2). But ACCA mandates a\\n\\nsentence of no less than fifteen years for a person who has three earlier convictions\\n\\nfor either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).\\n\\nACCA defines “violent felony” with the same words that the career-offender\\n\\nguideline used when Mr. Lester was sentenced. Specifically, ACCA defines a\\n\\n“violent felony” as an offense punishable by more than a year in prison that either\\n\\n“has as an element the use, attempted use, or threatened use of physical force\\n\\nagainst the person of another” or “is burglary, arson, or extortion, involves use of\\n\\nexplosives, or otherwise involves conduct that presents a serious potential risk of\\n\\nphysical injury to another.” Compare id. § 924(e)(2)(B), with U.S.S.G. § 4B1.2\\n\\n(defining “crime of violence” as the term is used in U.S.S.G. § 4B1.1). After years\\n\\nof litigation over how to interpret the residual clause, see Johnson, 135 S. Ct. at\\n\\n2558–60, in Johnson, the Supreme Court struck it down as unconstitutionally\\n\\nvague, id. at 2563.\\n\\n The constitutional problem with the residual clause is apparent in the\\n\\napplication of what has become known as the categorical approach. When\\n\\ndeciding whether a person’s earlier criminal conviction counts as a violent felony\\n\\nunder the ACCA residual clause, the Supreme Court instructed us not to look at\\n\\n\\n 34\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 35 of 64\\n\\n\\nwhat the defendant actually did. See Johnson, 135 S. Ct. at 2557. For that matter,\\n\\nthis is also true for the residual clause in the Guidelines. See United States v.\\n\\nLockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011). Rather than reconstruct the\\n\\nconduct that resulted in the earlier conviction, courts were instructed to “picture the\\n\\nkind of conduct that the crime involves in the ordinary case” and “judge whether\\n\\nthat abstraction presents a serious potential risk of physical injury.” Id. (quotation\\n\\nmarks omitted). But the residual clause gave no guidance “about how to estimate\\n\\nthe risk posed by a crime,” because it gave no way for us to decide “what kind of\\n\\nconduct the ‘ordinary case’ of a crime involves.” Id. In a string of cases over the\\n\\nyears, the Supreme Court used different “ad hoc test[s] to guide [the] inquiry”\\n\\nbefore abandoning the endeavor in 2015. Id. at 2558–59. Among other things, the\\n\\nSupreme Court was concerned that the residual clause left “uncertainty about how\\n\\nmuch risk it takes for a crime to qualify as a violent felony.” Id. at 2558.\\n\\nUltimately the Supreme Court held that these features of the residual clause\\n\\n“produce[d] more unpredictability and arbitrariness than the Due Process Clause\\n\\ntolerates.” Id.\\n\\n Johnson “called into question the sentences of thousands of federal prisoners\\n\\nsentenced under ACCA and other, similarly worded statutes,” including the career-\\n\\noffender guideline. Ovalles v. United States, 905 F.3d 1231, 1263 (11th Cir. 2018)\\n\\n(en banc) (Martin, J., dissenting). Johnson told us it is unconstitutional to require a\\n\\n\\n 35\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 36 of 64\\n\\n\\nlonger sentence based on a judge imagining whether a defendant’s past convictions\\n\\ninvolve a “serious potential risk of physical injury.” Compare 18 U.S.C. § 924(e),\\n\\nwith U.S.S.G. § 4B1.2(a). This is precisely how Mr. Lester got his longer\\n\\nsentence.\\n\\n To correct an unlawful sentence, a prisoner may file a motion under 28\\n\\nU.S.C. § 2255. But the Antiterrorism and Effective Death Penalty Act limits a\\n\\nprisoner to one such motion unless the prisoner comes to a Court of Appeals and\\n\\napplies for permission to file a second or successive § 2255 motion. Id. §\\n\\n2244(b)(3)(A). This Court can, in turn, grant permission only if the prisoner\\n\\nmakes a prima facie case that his second or successive motion will rely on newly\\n\\ndiscovered evidence or a new rule of constitutional law made retroactively\\n\\napplicable on collateral review by the Supreme Court. Id. §§ 2244(b), 2255(h).\\n\\nOnce the Supreme Court told us that Johnson applies retroactively (to those\\n\\nsentenced before Johnson was decided) in Welch, 136 S. Ct. at 1268, this Circuit\\n\\nfaced a flood of requests to file a second or successive motion, including one from\\n\\nMr. Lester. The Court granted him permission to file a second § 2255 motion in\\n\\nDistrict Court. In re Lester, No. 16-11730, slip op. at 9.\\n\\n I think Johnson entitled Mr. Lester to relief. Yet in the Eleventh Circuit he\\n\\ngets none. Just as Mr. Lester was about to have his sentence reviewed, his efforts\\n\\nwere halted by a decision this Court published a few days after he got permission\\n\\n\\n 36\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 37 of 64\\n\\n\\nto file his second or successive § 2255 motion. In re Griffin ruled that the\\n\\nmandatory Guidelines are not subject to vagueness challenges and, alternatively,\\n\\nthat Johnson is not retroactive as applied in this context. 823 F.3d at 1353–56.\\n\\nGriffin foreclosed Mr. Lester’s claim, so the District Court denied Mr. Lester’s\\n\\n§ 2255 motion. Mr. Lester appealed, and a panel summarily affirmed, again\\n\\nrelying on Griffin. Lester v. United States, No. 18-10523, slip op. at 3.\\n\\n But Griffin was wrong in both its rulings, and it should not have stood in the\\n\\nway of Mr. Lester having his sentence corrected.2 If it were not for the Fourth\\n\\nCircuit’s intervention, Mr. Lester would still be in prison. Because Griffin will\\n\\ncontinue to bar relief to others like Mr. Lester, I will elaborate on how it erred.\\n\\n II.\\n\\n First, Griffin held that the mandatory Guidelines are not subject to\\n\\nvagueness challenges. 823 F.3d at 1353–56. But this cannot be accurate. The\\n\\nmandatory Guidelines are indeed subject to vagueness challenges because they\\n\\n“ha[d] the force and effect of laws.” Booker, 543 U.S. at 234, 125 S. Ct. at 750.\\n\\nLike any law, to comply with constitutional due process requirements the\\n\\nmandatory Guidelines had to “give ordinary people fair notice of the conduct\\n\\n 2\\n Griffin ruled on the merits of this issue of first impression, even though the only\\nquestion before the panel was whether the inmate there had made a prima facie case that his\\nmotion would contain a new rule of constitutional law made retroactive by the Supreme Court.\\nThis Court has had a long-running debate about this practice, and some of my colleagues and I\\nhave criticized it on various grounds. See Ovalles, 905 F.3d at 1266–68 (Martin, J., dissenting);\\nIn re Williams, 898 F.3d 1098, 1101–02 (11th Cir. 2018) (Wilson, J., specially concurring).\\n 37\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 38 of 64\\n\\n\\n[they] punishe[d]” and could not be “so standardless” as to “invite[] arbitrary\\n\\nenforcement.” Johnson, 135 S. Ct. at 2556.\\n\\n Supreme Court precedent amply establishes that the Guidelines were\\n\\nequivalent to law. The Supreme Court characterized the mandatory Guidelines as\\n\\n“the equivalent of legislative rules adopted by federal agencies.” Stinson v. United\\n\\nStates, 508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993); see also Mistretta v. United\\n\\nStates, 488 U.S. 361, 371–379, 109 S. Ct. 647, 654–59 (upholding the Sentencing\\n\\nCommission’s mandate to set penalties for crimes as a valid delegation of\\n\\nCongress’s legislative power). Under the mandatory Guidelines, federal district\\n\\njudges were bound by law to impose sentences within the guideline range\\n\\ncalculated for any given defendant. See 18 U.S.C. § 3553(b) (1984); Booker, 543\\n\\nU.S. at 234, 125 S. Ct. at 750 (“[S]ubsection (b) of [§ 3553] directs that the court\\n\\n‘shall impose a sentence of the kind, and within the range’ established by the\\n\\nGuidelines, subject to departures in specific, limited cases.” (quoting 18 U.S.C.\\n\\n§ 3553(b))). In Judge William Pryor’s statement respecting the denial of\\n\\nrehearing, he says that once Booker invalidated the mandatory guideline system,\\n\\n“it follows from the holdings in Booker that the Guidelines were never really\\n\\nmandatory – not as a matter of law.” Pryor Statement, p. 22. However, no one can\\n\\ndispute that when Mr. Lester was in the courtroom facing his sentence in 2004, the\\n\\nsentencing judge had no legal authority to sentence him to other than a sentence\\n\\n\\n 38\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 39 of 64\\n\\n\\nmandated by the Guidelines then in effect. But if it is true that Judge Pryor and I\\n\\nagree that Mr. Lester’s sentence never should have been imposed as though it were\\n\\nmandatory – I say we should agree to fix the sentences mistakenly imposed as\\n\\nmandatory on Mr. Lester and others like him.\\n\\n We know that in the mine-run case, if any given Guidelines provision—say,\\n\\nthe career-offender provision—required a longer sentence, courts were legally\\n\\nbound to impose that longer sentence, just as they would be bound to follow the\\n\\nstatutory provisions of ACCA. For that reason, the mandatory Guidelines must be\\n\\nsubject to vagueness challenges in the same way regulations are. E.g., FCC v. Fox\\n\\nTelevision Stations, Inc., 567 U.S. 239, 253, 132 S. Ct. 2307, 2317 (2012) (“Th[e]\\n\\nrequirement of clarity in regulation is essential to the protections provided by the\\n\\nDue Process Clause of the Fifth Amendment. It requires the invalidation of laws\\n\\nthat are impermissibly vague.” (citation omitted)). And five Courts of Appeal, this\\n\\none included, entertained vagueness challenges to the mandatory Guidelines. See\\n\\nUnited States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003); United States v.\\n\\nRutherford, 175 F.3d 899, 906 (11th Cir. 1999); United States v. Johnson, 130 F.3d\\n\\n1352, 1354 (9th Cir. 1997); United States v. Jones, 979 F.2d 317, 318–19 (3d Cir.\\n\\n1992); United States v. Moore, No. 95-5586, 1997 WL 71707, at *1 (4th Cir. Feb.\\n\\n20, 1997) (per curiam) (unpublished). But see United States v. Brierton, 165 F.3d\\n\\n1133, 1139 (7th Cir. 1999) (concluding the mandatory Guidelines were not subject\\n\\n\\n 39\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 40 of 64\\n\\n\\nto vagueness challenges), abrogation recognized by Cross v. United States, 892\\n\\nF.3d 288, 296 (7th Cir. 2018); United States v. Smith, 73 F.3d 1414, 1417–18 (6th\\n\\nCir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United\\n\\nStates v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).\\n\\n Mr. Lester’s case well illustrates why the mandatory Guidelines must give\\n\\nfair notice of the conduct they punish. If he had not been designated a career-\\n\\noffender, the law would not have permitted a sentence of higher than 151 months.\\n\\nOnce he was designated a career-offender, however, the law did not permit the\\n\\nDistrict Judge to impose a sentence of less than 262 months. The mandatory\\n\\nGuidelines established sentences in the same way ACCA does. Under ACCA,\\n\\nthree prior qualifying convictions require a minimum fifteen-year sentence instead\\n\\nof a maximum ten-year sentence. 28 U.S.C. § 924(e). Under the career-offender\\n\\nguideline, two prior qualifying convictions required a minimum 262-month\\n\\nsentence for Mr. Lester instead of a maximum 151-month sentence. U.S.S.G.\\n\\n§ 4B1.2(a) (2003). Just like ACCA, the mandatory Guidelines were laws that\\n\\nincreased punishment. So in the same way as ACCA, they must be subject to\\n\\nvagueness challenges. See Johnson v. United States, 135 S. Ct. at 2557; Cross,\\n\\n892 F.3d at 304–06 (holding the mandatory Guidelines are subject to vagueness\\n\\nchallenges); In re Sapp, 827 F.3d 1334, 1338–39 (11th Cir. 2016) (Jordan,\\n\\nRosenbaum, and Jill Pryor, JJ., concurring).\\n\\n\\n 40\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 41 of 64\\n\\n\\n The statute that made the Guidelines mandatory did allow departures in\\n\\nlimited circumstances. But this is not enough to insulate them from vagueness\\n\\nchallenges. For one thing, “departures [were] not available in every case, and in\\n\\nfact [were] unavailable in most.” Booker, 543 U.S. at 243, 125 S. Ct. at 750; see\\n\\nCross v. United States, 892 F.3d at 305–06 (concluding that Booker “addressed,\\n\\nand rejected, the argument that the possibility of departures from the mandatory\\n\\nguideline range was enough to make it advisory”). For another, the Supreme Court\\n\\nsuggested that a defendant had a due process right to notice when a court was\\n\\ngoing to sentence him above the guideline range. Specifically, in Burns v. United\\n\\nStates, 501 U.S. 129, 111 S. Ct. 2182 (1991), abrogated on other grounds as\\n\\nrecognized by Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683 (2010), the\\n\\nSupreme Court read Federal Rule of Criminal Procedure 32 to require notice to a\\n\\ndefendant before a district court sua sponte departed upward from the mandatory\\n\\nrange. Id. at 135, 111 S. Ct. at 2186. Burns interpreted Rule 32 this way in part\\n\\nbecause of the due process problems that would result if defendants were not given\\n\\nnotice. Id. at 138, 111 S. Ct. at 2187. I say that if due process demanded notice of\\n\\na departure above the mandatory Guidelines, certainly due process would likewise\\n\\ndemand notice that certain conduct would require imposition of a longer sentence\\n\\non account of one’s career offender status. At any rate, we know departures were\\n\\navailable from ACCA-enhanced sentences, see 18 U.S.C. § 3553(e), but this\\n\\n\\n 41\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 42 of 64\\n\\n\\nfeature did not stop the Supreme Court from ruling the ACCA residual clause\\n\\nunconstitutionally vague in Johnson.\\n\\n This Supreme Court precedent makes plain that the Griffin panel erred when\\n\\nit held the mandatory Guidelines are not subject to vagueness challenges. See 823\\n\\nF.3d at 1354–56. The Griffin panel said that the “logic and principles” of United\\n\\nStates v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015), which held the\\n\\nadvisory Guidelines are not subject to vagueness challenges, extended to the\\n\\nmandatory Guidelines, thus insulating them from vagueness challenges as well.\\n\\nSee Griffin, 823 F.3d at 1354. The Supreme Court has endorsed the rationale of\\n\\nMatchett,3 recognizing the advisory Guidelines neither define a crime nor fix a\\n\\nsentence, but rather merely guide a judge’s sentencing discretion within the\\n\\napplicable statutory range. Beckles v. United States, 580 U.S. , 137 S. Ct. 886,\\n\\n892 (2017).4 Griffin missed the mark when it said that the mandatory Guidelines\\n\\nlikewise only “cabin discretion.” 823 F.3d at 1355. The Supreme Court has\\n\\nconsistently held that the mandatory Guidelines were like sentencing laws. They\\n\\n\\n 3\\n In the interest of full disclosure, I thought that Matchett’s ruling that the advisory\\nGuidelines are not subject to vagueness challenges was wrong. In re Clayton, 829 F.3d 1254,\\n1258–61 (Martin, J., concurring in the result). Of course, I stand corrected by the Supreme\\nCourt’s ruling in Beckles.\\n 4\\n Beckles did not decide anything about the mandatory Guidelines. 137 S. Ct. at 890\\n(“Because we hold that the advisory Guidelines are not subject to vagueness challenges under the\\nDue Process Clause, we reject petitioner’s argument.” (emphasis added)); id. at 903 n.4\\n(Sotomayor, J., concurring) (noting that Beckles leaves open the question of vagueness\\nchallenges to the mandatory Guidelines).\\n 42\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 43 of 64\\n\\n\\ndid not guide discretion—they fixed punishments. For that reason, they should be\\n\\nsubject to vagueness challenges.\\n\\n III.\\n\\n The Griffin panel also wrongly held that the rule established in Johnson does\\n\\nnot apply retroactively to cases like Mr. Lester’s for the reason that he was\\n\\nsentenced under the mandatory Guidelines, as opposed to ACCA. 823 F.3d at\\n\\n1355–56. Griffin’s refusal to give retroactive application to Johnson flies in the\\n\\nface of the Supreme Court’s instruction to us that it should be applied retroactively.\\n\\nWelch, 136 S. Ct. at 1268. Again, Johnson pronounced it unconstitutional to\\n\\nimpose longer sentences on people who were earlier convicted under statutes that\\n\\nrequired judges to decide whether, in the ordinary case, the prior conviction posed\\n\\na “serious potential risk of physical injury to another.” 135 S. Ct. at 2563; see also\\n\\n18 U.S.C. § 924(e)(2)(B). The Supreme Court has told us that this rule applies\\n\\nretroactively, and Mr. Lester should have been able to benefit from it.\\n\\n Griffin’s recognition of the retroactive application of the Johnson rule for\\n\\none statute, but not for others, is a novel approach I have not found elsewhere.\\n\\nNotably, Griffin cited no legal precedent that would allow us to parcel out\\n\\nretroactivity in this way. See In re Sapp, 827 F.3d at 1339–40 (Jordan,\\n\\nRosenbaum, and Jill Pryor, JJ., concurring) (noting that Griffin had no authority\\n\\nfor its assumed premise “that a substantive rule of constitutional law expressly\\n\\n\\n 43\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 44 of 64\\n\\n\\nmade retroactive by the Supreme Court can later be made only partially retroactive\\n\\nby a circuit court”). Neither have my independent efforts located support for this\\n\\nconcept. To my knowledge, the Supreme Court has never sanctioned giving\\n\\nintermittent retroactive application to a decision since Teague v. Lane, 489 U.S.\\n\\n288, 109 S. Ct. 1060 (1989), established the current law on retroactivity. One of\\n\\nour sister circuits seems to have assumed, as Griffin did, that Johnson might not\\n\\nalways apply retroactively. See Cross, 892 F.3d at 306–07 (observing that the\\n\\nSupreme Court’s reasoning in Welch “justifies treating Johnson as substantive, and\\n\\ntherefore retroactive, when applied to the mandatory guidelines”). But like the\\n\\nGriffin opinion, Cross did not explain its retroactivity principle either. Also, Cross\\n\\nis in some tension with other 7th Circuit precedent. See Price v. United States, 795\\n\\nF.3d 731, 732 (7th Cir. 2015) (“We now conclude, consistently with the\\n\\ngovernment’s position, that Johnson announces a new substantive rule of\\n\\nconstitutional law that the Supreme Court has categorically made retroactive to\\n\\nfinal convictions.” (emphasis added)). Other circuits appear to have rejected\\n\\nintermittent retroactivity. See In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016)\\n\\n(“[T]he government has cited no case to support the proposition that a rule can be\\n\\nsubstantive in one context but procedural in another.”); see also United States v.\\n\\nDoe, 810 F.3d 132, 154 & n.13 (3d Cir. 2015) (accepting the government’s\\n\\nconcession that Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), an\\n\\n\\n 44\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 45 of 64\\n\\n\\nACCA case, applies retroactively on collateral review of a sentence and observing\\n\\nthat “[u]nder Teague, either a rule is retroactive or it is not”).\\n\\n The Supreme Court does not ask in each case whether a new rule, as applied,\\n\\nwould meet Teague’s retroactivity standard. Instead, it analyzes whether the rule\\n\\nitself meets the retroactivity standard and then determines whether the petitioner\\n\\ncan benefit from the rule. See Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.\\n\\nCt. 1029, 1032 (2008) (“New constitutional rules announced by this Court that\\n\\nplace certain kinds of primary individual conduct beyond the power of the state to\\n\\nproscribe . . . must be applied in . . . all federal habeas corpus proceedings.”)\\n\\n(emphasis added)).\\n\\n Two cases make the point. In Sawyer v. Smith, 497 U.S. 227, 110 S. Ct.\\n\\n2822 (1990), the Supreme Court considered whether Caldwell v. Mississippi, 472\\n\\nU.S. 320, 105 S. Ct. 2633 (1985), which prohibited death sentences imposed by\\n\\njuries who were led to believe the responsibility for the sentence rested elsewhere,\\n\\napplied retroactively. In conducting the retroactivity analysis, the Sawyer Court\\n\\nleft to one side “the significant questions concerning the merits of petitioner’s\\n\\nCaldwell claim . . . , or the question whether application of Caldwell to the facts\\n\\npresented . . . would itself involve a new rule of law.” Sawyer, 497 U.S. at 234,\\n\\n110 S. Ct. at 2827. It spoke only to “whether Caldwell is available to petitioner as\\n\\na ground upon which he may seek relief”—that is, whether Caldwell announced a\\n\\n\\n 45\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 46 of 64\\n\\n\\nretroactively applicable rule, separate and apart from the merits of the petitioner’s\\n\\nCaldwell claim. Id.\\n\\n For another example, in O’Dell v. Netherland, 521 U.S. 151, 117 S. Ct. 1969\\n\\n(1997), the Supreme Court addressed the retroactivity of Simmons v. South\\n\\nCarolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), which requires a capital defendant\\n\\nbe permitted to inform a jury deciding whether to impose a death sentence that he\\n\\nis not eligible for parole when the prosecution argues he presents a future danger.\\n\\nBefore considering whether the petitioner’s claim came within the scope of the\\n\\nSimmons rule, the Court explained it had to “determine whether the rule of\\n\\nSimmons was new for Teague purposes, and, if so, whether that rule falls within\\n\\none of the two exceptions to Teague’s bar.” O’Dell, 521 U.S. at 159, 117 S. Ct. at\\n\\n1974.\\n\\n This Court’s own precedent (Griffin aside) likewise treats rules as either\\n\\nretroactive or not. E.g., In re Hill, 777 F.3d 1214, 1223–24 (11th Cir. 2015) (per\\n\\ncuriam); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). In In re Hill, for\\n\\nexample, the panel first ruled that Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986\\n\\n(2014), did not apply retroactively on collateral review and only then ruled in the\\n\\nalternative that the petitioner did not come within the Hall rule. 777 F.3d at 1223–\\n\\n24. Our sister circuits seem to follow a similar practice. See, e.g., Hubbard, 825\\n\\nF.3d at 234; Price, 795 F.3d at 734. But see Cross, 892 F.3d at 306–07.\\n\\n\\n 46\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 47 of 64\\n\\n\\n It is worth noting that this across-the-board approach to retroactivity\\n\\nemerged from a backlash to pre-Teague jurisprudence. Before Teague, the\\n\\nSupreme Court decided whether a new rule applied retroactively in any given\\n\\ncollateral review case by weighing the purpose of the new rule, the reliance of the\\n\\nStates on prior law, and the effect on the administration of justice of a retroactive\\n\\napplication of the new rule. See Linkletter v. Walker, 381 U.S. 618, 636–39, 85 S.\\n\\nCt. 1731, 1741–43 (1965). The Linkletter standard resulted in an “unfortunate\\n\\ndisparity in the treatment of similarly situated defendants on collateral review,”\\n\\nand the Supreme Court abandoned it for that reason. Teague, 489 U.S. at 305, 109\\n\\nS. Ct. at 1072. The Griffin holding that substantive rules may apply retroactively\\n\\nin some cases but not others likewise invites disparity between habeas petitioners.\\n\\nIts holding is thus inconsistent with the purpose that drove the Teague decision:\\n\\nthat new substantive rules should apply to all petitioners on collateral review. Id.\\n\\nat 316, 109 S. Ct. at 1078.\\n\\n Perhaps worst of all, Griffin gave no explanation for its novel retroactivity\\n\\nholding. If this Court intends to intermittently apply rules retroactively, it should\\n\\ngive the many habeas petitioners who come to us seeking relief an understanding\\n\\nof when a rule will apply retroactively to their case. This is particularly true\\n\\nwhere, as here, this Court does not intend to apply the rule after the Supreme Court\\n\\n\\n\\n\\n 47\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 48 of 64\\n\\n\\nhas told us it applies retroactively. Will we do it case by case? Statute by statute?\\n\\nGriffin gives no answer to these questions.\\n\\n IV.\\n\\n Griffin also indicates that Johnson should be treated differently for\\n\\nsentencing Guidelines, because in that context Johnson would merely “produce\\n\\nchanges in how the sentencing procedural process is to be conducted.” Griffin,\\n\\n823 F.3d at 1355. The suggestion is that Johnson, applied to a mandatory\\n\\nGuidelines sentence, would merely change how a sentence is calculated and not the\\n\\nsentence itself. This fundamentally misunderstands how the mandatory Guidelines\\n\\nworked.\\n\\n Mr. Lester’s case is illustrative. By law, the longest sentence he could have\\n\\nreceived if not deemed a career offender was 151 months. Once categorized as a\\n\\ncareer-offender, however, the shortest sentence District Court was legally allowed\\n\\nto give him was 262 months. In effect, the mandatory Guidelines set minimum\\n\\nand maximum sentences. Sapp, 827 F.3d at 1340 (Jordan, Rosenbaum, and Jill\\n\\nPryor, JJ., concurring) (citing United States v. Wright, 607 F.3d 708, 718 (11th Cir.\\n\\n2010) (William Pryor, J., concurring) (“Because Congress required sentencing\\n\\ncourts to apply the [mandatory] Sentencing Guidelines and impose a sentence\\n\\nwithin the applicable guideline range, it was reasonable to view the Guidelines as\\n\\n\\n\\n\\n 48\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 49 of 64\\n\\n\\neffectively setting minimum and maximum penalties that varied based on the\\n\\ncircumstances of the offense and the characteristics of the offender.”).\\n\\n Neither is it an answer to say, as Griffin does, that Johnson’s rule is simply\\n\\nprocedural because Mr. Lester might receive the same sentence if he were\\n\\nresentenced now under the advisory Guidelines. Judge William Pryor makes this\\n\\nargument as well. Pryor Statement, pp. 11–12. On remand a district court would\\n\\nresentence Mr. Lester under the advisory Guidelines, as opposed to the mandatory\\n\\nGuidelines, and this is a difference with constitutional significance. See Booker,\\n\\n543 U.S. at 233–34, 125 S. Ct. at 750; see also Beckles, 137 S. Ct. at 892 (noting\\n\\nthat the advisory Guidelines “merely guide the exercise of a court’s discretion in\\n\\nchoosing an appropriate sentence within the statutory range”). There is no\\n\\nconstitutional doubt about the authority of a district judge to “exercise broad\\n\\ndiscretion in imposing a sentence within a statutory range,” including taking a\\n\\ndefendant’s criminal history into account. Booker, 543 U.S. at 233, 125 S. Ct. at\\n\\n750. But Johnson makes clear that Congress had no power to require a longer\\n\\nsentence based on a prior conviction because it “involves conduct that presents a\\n\\nserious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)\\n\\n(2003). In that sense, Johnson “alter[ed] the range of conduct . . . that the law\\n\\npunishes.” Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 2523\\n\\n(2004).\\n\\n\\n 49\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 50 of 64\\n\\n\\n What’s more, the Supreme Court has taught us in other contexts that a rule is\\n\\nnot procedural just because a court might impose the same sentence after\\n\\nresentencing. In Montgomery v. Louisiana, 577 U.S. , 136 S. Ct. 718 (2016),\\n\\nthe Supreme Court held that the right of all but permanently incorrigible juveniles\\n\\nnot to be sentenced to life without parole was a substantive rule. Id. at 732–34.\\n\\nMontgomery addressed a class of juvenile offenders who were being punished in\\n\\nan unconstitutional way. The opinion recognized that a subset of the juvenile\\n\\noffender class might be permanently incorrigible, and therefore entitled to no\\n\\nrelief. However, this did not change the substantive right afforded to all juveniles.\\n\\nThe same is true here. On remand, a district court could have decided that the\\n\\nsentence it imposed under the mandatory regime remains appropriate in light of the\\n\\n§ 3553(a) factors. But this possibility does not change Johnson’s pronouncement\\n\\nof a substantive right not to have a longer sentence mandated under an\\n\\nunconstitutionally vague law. See Sapp, 827 F.3d at 1341 (Jordan, Rosenbaum,\\n\\nand Jill Pryor, JJ., concurring).\\n\\n V.\\n\\n Mr. Lester should have been able to correct his 262-month career-offender\\n\\nsentence by a § 2255 motion in this Circuit, where he was sentenced. The residual\\n\\nclause in the mandatory Guidelines is unconstitutional for the same reasons it is\\n\\nunconstitutional in ACCA. There is simply no meaningful distinction between the\\n\\n\\n 50\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 51 of 64\\n\\n\\ntwo. See United States v. Brown, 868 F.3d 297, 311 (4th Cir. 2017) (Gregory,\\n\\nC.J., dissenting). This Court treats precedent interpreting the two as\\n\\ninterchangeable. See Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir.\\n\\n2011) (en banc). If a sentence imposed under the ACCA residual clause “does not\\n\\ncomport with the Constitution’s guarantee of due process,” it must be true that\\n\\nrelying on an identical “shapeless . . . provision” to impose a mandatory Guideline\\n\\nsentence doesn’t either. Johnson, 135 S. Ct. at 2560.\\n\\n The relief Mr. Lester got from the Fourth Circuit highlights the limits this\\n\\nCourt has placed on the Great Writ. His sentence was doubly infirm. He should\\n\\nnot have been sentenced as a career offender. And his sentence was the product of\\n\\nan unconstitutionally vague Guidelines provision. The Fourth Circuit corrected the\\n\\nformer error. If Mr. Lester had been convicted in the Seventh Circuit, that court\\n\\nwould have corrected the latter. Eleventh Circuit precedent holds we have no\\n\\npower to do either.\\n\\n I hoped our en banc Court would give Mr. Lester relief. Fortunately the\\n\\nCourt’s decision not to do so did not stand in the way of his freedom. But it bears\\n\\nnotice that our unwillingness to reconsider Mr. Lester’s sentence will impact\\n\\nscores of inmates sentenced under the mandatory Guidelines in Alabama, Georgia,\\n\\nand Florida who have not been incarcerated outside of the Eleventh Circuit.\\n\\n\\n\\n\\n 51\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 52 of 64\\n\\n\\nROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit\\n\\nJudges, respecting the denial of rehearing en banc:\\n\\n I agree with Judge Martin’s well-reasoned Statement respecting the denial of\\n\\nrehearing en banc. I write separately only to add a few points in response to Judge\\n\\nWilliam Pryor’s Statement respecting the denial of rehearing en banc (“Pryor\\n\\nStatement”).\\n\\n Section I of this dissent takes issue with the Pryor Statement’s argument that\\n\\nprisoners sentenced under the pre-Booker1 Guidelines can never state a successful\\n\\nJohnson2 claim because Johnson’s rule is not retroactively applicable to them. As I\\n\\nexplain, Johnson’s rule, in fact, is retroactively applicable to such prisoners since\\n\\npre-Booker, prisoners wrongly sentenced under the career-offender guideline were\\n\\nsubjected to higher mandatory-minimum sentences than they otherwise would have\\n\\nbeen. Section II explores the Pryor Statement’s theory that the Sentencing\\n\\nGuidelines “were never really mandatory,” Pryor Statement at 22, even though\\n\\nindividuals sentenced during the two decades when courts applied the pre-Booker\\n\\nGuidelines—including the career-offender provision—remain in prison because of\\n\\na sentencing regime that supposedly never was. And Section III shows how the\\n\\nPryor Statement’s theory that judicial opinions never change the law cannot be\\n\\n\\n\\n 1\\n United States v. Booker, 543 U.S. 220 (2005).\\n 2\\n Johnson v. United States, 135 S. Ct. 2551 (2015).\\n\\n 52\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 53 of 64\\n\\n\\nconceptually squared with the real effects of judicial opinions and the courts’ role in\\n\\nour constitutional system.\\n\\n I.\\n\\n The Pryor Statement asserts that Lester could not state a viable Johnson claim\\n\\nbecause Johnson is not retroactively applicable to cases where the career-offender\\n\\nguideline was applied pre-Booker. Pryor Statement at 22-23. It arrives at this\\n\\nincorrect conclusion by oversimplifying the “doctrinal pedigree and rationale of the\\n\\nsubstantive exception” that requires retroactivity. That oversimplification\\n\\nincorrectly causes the Pryor Statement to overlook the constitutional significance of\\n\\nwrongly applied mandatory-minimum sentences. Id. at 10.\\n\\n In fact, as I have explained in McCarthan v. Director of Goodwill Industries—\\n\\nSuncoast, Inc., 851 F.3d 1076, 1121-41 (11th Cir. 2017) (en banc) (Rosenbaum, J.,\\n\\ndissenting), retroactivity applies when a previous rule imposed detention in violation\\n\\nof the separation of powers or of the government’s limited powers—that is, when\\n\\nthe Congress, the Executive, or the Judiciary exercised powers it does not have in\\n\\nrelation to causing the detention of a person. See, e.g., Mackey v. United States, 401\\n\\nU.S. 667, 692 (1971) (Harlan, J., concurring) (defining substantive rules that warrant\\n\\nretroactivity as “those that place, as a matter of constitutional interpretation, certain\\n\\nkinds of primary, private individual conduct beyond the power of the criminal law-\\n\\nmaking authority to proscribe”) (emphasis added).\\n\\n\\n 53\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 54 of 64\\n\\n\\n In Johnson, for example, Congress exceeded its authority by enacting an\\n\\nunconstitutionally vague law—the residual clause of the Armed Career Criminal Act\\n\\n(“ACCA”)—“that fix[ed] the permissible sentences for criminal offenses.” Beckles\\n\\nv. United States, 137 S. Ct. 886, 892 (2017) (emphasis omitted). The Judiciary also\\n\\nexceeded its authority when it applied this unconstitutional law to, among other\\n\\nthings, increase mandatory-minimum sentences. See id. So not surprisingly, the\\n\\nSupreme Court held Johnson’s rule retroactively applicable. Welch v. United States,\\n\\n136 S. Ct. 1257 (2016).\\n\\n The residual clause of the career-offender guideline, as employed under the\\n\\npre-Booker regime, caused the same problem as the residual clause of the ACCA.\\n\\nFirst, the career-offender guideline mirrored the language of the ACCA’s residual\\n\\nclause that the Supreme Court ruled unconstitutionally vague. And second, as Judge\\n\\nWilliam Pryor has previously explained, when “Congress required sentencing courts\\n\\nto apply the Sentencing Guidelines and impose a sentence within the applicable\\n\\nguidelines range, it was reasonable to view the Guidelines as effectively setting\\n\\nminimum and maximum penalties that varied based on the circumstances of the\\n\\noffense and the characteristics of the offender.” United States v. Wright, 607 F.3d\\n\\n708, 717–18 (11th Cir. 2010) (Pryor, J.); see also Booker, 543 U.S. at 233–34\\n\\n(opinion of Stevens, J.) (explaining how the pre-Booker Guidelines fixed sentences).\\n\\n\\n\\n\\n 54\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 55 of 64\\n\\n\\n So a defendant wrongly found to qualify for the career-offender guideline was\\n\\nsubjected to a higher mandatory-minimum sentence than he would have been under\\n\\nthe mandatory Guidelines regime, had the career-offender guideline not been\\n\\napplied. And that is a constitutional problem. See Alleyne v. United States, 570 U.S.\\n\\n99, 112 (“It is impossible to dissociate the floor of a sentencing range from the\\n\\npenalty affixed to the crime.”), 113 (“Elevating the low-end of a sentencing range\\n\\nheightens the loss of liberty associated with the crime: the defendant’s expected\\n\\npunishment has increased as a result of the narrowed range, and the prosecution is\\n\\nempowered, by invoking the mandatory minimum, to require the judge to impose a\\n\\nhigher punishment than he might wish.”) (cleaned up) (2013). In other words, by\\n\\nrequiring courts to apply the unconstitutionally vague residual clause of the career-\\n\\noffender guideline in a mandatory way, Congress exceeded its constitutional power,\\n\\nsince it prescribed mandatory-minimum sentences based on solely an\\n\\nunconstitutionally vague guideline it gave the force of binding law. And we, in\\n\\napplying these mandatory-minimum sentences based on solely an unconstitutionally\\n\\nvague guideline, also acted beyond our jurisdiction.\\n\\n The Pryor Statement conveniently glosses over this constitutionally\\n\\nsignificant problem, diverting attention by focusing on the fact that the pre-Booker\\n\\nGuidelines did not cause defendants to be sentenced to higher maximum sentences\\n\\nthan they would have been under the post-Booker Guidelines. But that defendants\\n\\n\\n 55\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 56 of 64\\n\\n\\nwere not exposed to higher maximum penalties does not somehow render\\n\\nconstitutionally insignificant the separate constitutional problem of “fix[ed]” higher\\n\\nmandatory-minimum sentences for defendants than were permissible under the pre-\\n\\nBooker regime. See Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citing\\n\\nAlleyne, 570 U.S. at 112-13, as “describing the legally prescribed range of available\\n\\nsentences [which includes the mandatory minimum to the maximum] as the penalty\\n\\nfixed to a crime”).\\n\\n The Pryor Statement has no answer to this problem. Instead, it conclusorily\\n\\ninsists all that matters is whether the sentence that was actually imposed could have\\n\\nbeen applied under the substantive criminal statute for which the prisoner was\\n\\nconvicted. But that ignores the fact that when a court applied the career-offender\\n\\nguideline during the mandatory Guidelines regime, the “legally prescribed range of\\n\\navailable sentences” differed from what it would have been in the absence of the\\n\\ncareer-offender guideline during the mandatory Guidelines regime. In other words,\\n\\nit disregards the constitutional pickle created when Congress exceeded its powers in\\n\\nrequiring, through 18 U.S.C. § 3553(b)(1)’s provision making the Guidelines\\n\\nmandatory, courts to apply higher mandatory-minimum sentences than would have\\n\\notherwise applied in the absence of the unconstitutionally vague residual clause of\\n\\nthe career-offender guideline, and courts followed that mandate. And it pays no\\n\\nattention to this problem even though the Supreme Court has expressly identified the\\n\\n\\n 56\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 57 of 64\\n\\n\\nconstitutional significance attached to mandatory minimums. See Beckles, 137 S.\\n\\nCt. at 892 (citing Alleyne, 570 U.S. at 112-13).\\n\\n The Pryor Statement divorces the fact that Congress made all the Guidelines\\n\\nmandatory through 18 U.S.C. § 3553(b)(1), from Congress’s exceeding of its powers\\n\\nby making the unconstitutionally vague residual clause of the career-offender\\n\\nguideline mandatory. By making this move, the Pryor Statement picks its real fight\\n\\nwith Booker, not Johnson. See Pryor Statement at 25 (“I argue that Booker’s holding\\n\\nthat their mandatory application was unconstitutional controls the question we are\\n\\ndiscussing.”). In doing so, the Pryor Statement misses that Congress’s Johnson error\\n\\nunder the pre-Booker Guidelines was substantive in nature, since Congress exceeded\\n\\nits powers in requiring courts to apply higher mandatory-minimum sentences based\\n\\nsolely on the unconstitutionally vague residual clause of the career-offender\\n\\nguideline, and courts followed that mandate.\\n\\n II.\\n\\n Perhaps for this reason, the Pryor Statement takes a second tack to argue\\n\\nprisoners incorrectly sentenced as career offenders pre-Booker have no cognizable\\n\\n§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these\\n\\nprisoners were actually sentenced under a mandatory regime. It reasons that since\\n\\nthe Supreme Court in Booker found that the mandatory Guidelines violated the Sixth\\n\\n\\n\\n\\n 57\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 58 of 64\\n\\n\\nAmendment, they “were never really mandatory,” even though courts applied them\\n\\nthat way for two decades. Pryor Statement at 22 (emphasis in original).\\n\\n Hmm.\\n\\n I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a\\n\\ncourt sentenced them using a mandatory version of the Guidelines with an\\n\\nindisputably unconstitutionally vague career-offender clause would agree.4\\n\\n Nor does the Pryor Statement’s conclusion that the Guidelines “were never\\n\\nreally mandatory” comport with what the Supreme Court has had to say on the\\n\\nsubject. On the contrary, the Court has bluntly explained that the pre-Booker\\n\\nGuidelines “b[ou]nd judges and courts in the exercise of their uncontested\\n\\nresponsibility to pass sentence in criminal cases,” Mistretta v. United, 488 U.S. 361,\\n\\n391 (1989), and “ha[d] the force and effect of laws, prescribing the sentences\\n\\ncriminal defendants are to receive,” id. at 413 (Scalia, J., dissenting); see also Stinson\\n\\nv. United States, 508 U.S. 36, 42 (1993) (“The principle that the Guidelines Manual\\n\\nis binding on federal courts applies as well to policy statements”). And just before\\n\\n\\n\\n 3\\n Brown v. United States, 139 S. Ct. 14, 16 n.4 (2018) (noting that there are likely at least\\n1,187 Johnson challenges to sentences under the pre-Booker career-offender clause).\\n 4\\n The Pryor Statement expresses wonderment about whether the career-offender provision\\nof could “somehow [be] unconstitutionally vague . . . .” Pryor Statement at 12. He need not\\nwonder about the career-offender’s vagueness though because it employs the same language as the\\nACCA, and the Sentencing Commission expressly modeled the career-offender Guideline after\\nthe ACCA. U.S. Sentencing Guidelines Manual app. C, amend. 268 (U.S. Sentencing Comm’n\\n1989) (“The definition of crime of violence used in this amendment is derived from 18 U.S.C. §\\n924(e).”).\\n 58\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 59 of 64\\n\\n\\nexcising the statutory provision that made the Guidelines mandatory, the Supreme\\n\\nCourt stated that the Guidelines “are not advisory; they are mandatory and binding\\n\\non all judges” because § 3553(b) “directs that the court ‘shall impose a sentence of\\n\\nthe kind, and within the range’ established by the Guidelines.” Booker, 543 U.S. at\\n\\n233–34 (opinion of Stevens, J.).\\n\\n Indeed, the Pryor Statement’s conclusion today that the Guidelines “were\\n\\nnever really mandatory” conflicts even with Judge William Pryor’s own prior\\n\\nstatements. Judge Pryor has previously described the Sentencing Reform Act of\\n\\n1984 as “ma[king] the Guidelines mandatory.” Wright, 607 F.3d at 717–18. In fact,\\n\\nas I have noted, Judge Pryor found that “[b]ecause Congress required sentencing\\n\\ncourts to apply the Sentencing Guidelines and impose a sentence within the\\n\\napplicable guidelines range, it was reasonable to view the Guidelines as effectively\\n\\nsetting minimum and maximum penalties that varied based on the circumstances of\\n\\nthe offense and the characteristics of the offender.” Id. (emphasis added). And he\\n\\nexplained that “the Court in . . . Booker . . . made the Guidelines advisory.” Id.\\n\\n Today, though, the Pryor Statement chalks these remarks up to a failure of\\n\\nlinguistic precision and seeks to rewrite history. See Pryor Statement at 17.\\n\\nAccording to the Pryor Statement, the Booker Court did not make the Guidelines\\n\\nadvisory because they were always advisory, since the Sixth Amendment never\\n\\n\\n\\n\\n 59\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 60 of 64\\n\\n\\nallowed them to be mandatory. Id. at 19. That is certainly interesting on a\\n\\nmetaphysical level.\\n\\n But it ignores reality. Back here on Earth, the laws of physics still apply. And\\n\\nthe Supreme Court’s invalidation of a law does not alter the space-time continuum.\\n\\nIndeed, there can be no dispute that from when the Guidelines were adopted in 1984\\n\\nto when the Supreme Court handed down Booker in 2005, courts mandatorily\\n\\napplied them, as § 3553(b) required, to scores of criminal defendants—including\\n\\nmany who still sit in prison because of them.\\n\\n It’s also a particularly mindboggling bit of judicial fiction to, in one breath,\\n\\nconclude that the Guidelines were always advisory, and in the next, withhold relief\\n\\nfrom individuals in Lester’s circumstances by noting the advisory Guidelines do not\\n\\napply retroactively because Booker is a procedural rule, even though, according to\\n\\nthe Pryor Statement, the Guidelines always were advisory. Under the Pryor\\n\\nStatement’s reasoning, the Guidelines were never mandatory, but to inmates like\\n\\nLester, they will always be mandatory, since these prisoners remain subject to their\\n\\npunishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either\\n\\nthe Guidelines were never mandatory, in which case, Lester and inmates like Lester\\n\\nwould not have been sentenced under the mandatory regime or at least would not\\n\\nremain in prison because of the mandatory regime (a circumstance that is clearly not\\n\\n\\n\\n\\n 60\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 61 of 64\\n\\n\\nthe case), or they were mandatory until Booker ruled they weren’t, and inmates like\\n\\nLester can mount Johnson challenges.\\n\\n III.\\n\\n The last portion of the Pryor Statement that warrants a response is its theory\\n\\nthat when Booker invalidated the mandatory nature of the Guidelines, that was really\\n\\njust a change in “judicial doctrine,” but not “a change in law.” Pryor Statement at\\n\\n16. According to the Pryor Statement, the Supreme Court could not have made the\\n\\nSentencing Guidelines advisory because the “Supreme Court wields judicial power,\\n\\nnot legislative power” and therefore “has no power to amend the text or meaning of\\n\\nany statute . . . .” Id. at 17.\\n\\n To be sure, the “Supreme Court wields judicial power, not legislative power”\\n\\nand therefore “has no power to amend the text or meaning of any statute.” But that\\n\\ndoes not mean the Supreme Court’s actions do not, in a very real sense, change the\\n\\nlaw. In my view, there are at least two problems with the Pryor Statement’s line of\\n\\nthinking to the contrary: it ignores the reality of what happened in Booker, and it\\n\\nundermines the courts’ constitutional power of judicial review.\\n\\n First, I address what happened in Booker. When the United States went to\\n\\nsleep on January 11, 2005, 18 U.S.C. § 3553(b)(1) was the law of the land, and\\n\\nsentencing courts were required to “impose . . . sentence[s] of the kind, and within\\n\\nthe range” established by the Guidelines. But when the United States went to sleep\\n\\n\\n 61\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 62 of 64\\n\\n\\non January 12, 2005—hours after the Court issued Booker—§ 3553(b)(1) no longer\\n\\nhad the force of law. And that is so solely because the Court eliminated § 3553(b)(1)\\n\\n “through severance and excision”5 in order to “make the Guidelines system\\n\\nadvisory.” Booker, 543 U.S. at 245 (opinion of Breyer, J.). In striking § 3553(b)(1),\\n\\nthe Court recognized that it was “alter[ing] the system that Congress designed.” Id.\\n\\n Despite the Supreme Court’s express words, the Pryor Statement opines that\\n\\nthough the Court may have “radically changed judicial doctrine,” that change was\\n\\nnot “equivalent” to a change in “the substance of the law.” Pryor Statement at 19.\\n\\nCall it a change in doctrine, law, policy—pick the noun—but the reality will always\\n\\n be the same: the Court’s change effectively excised the Guidelines’ mandatory\\n\\nlanguage from the United States Code, rendering what were once statutorily imposed\\n\\n mandatory Guidelines advisory. Importantly, the Court had a duty under the\\n\\n Constitution to make this change to our law because “[i]t is emphatically the\\n\\n province and duty of the judicial department to say what the law is.” Marbury v.\\n\\nMadison, 5 U.S. 137, 177 (1803). And here, § 3553(b)(1) violated the Constitution.\\n\\nThat leads to my second point. Our duty to “say what the law is” likewise makes it\\n\\n our job, when a statute is unlawful, to render it unenforceable by saying\\n\\n 5\\n The Pryor Statement takes issue with my characterization of what the Supreme Court did\\nin Booker as “excis[ion].” See Pryor Statement at 27. Of course, that is precisely the word the\\nSupreme Court used. See Booker, 543 U.S. at 245 (opinion of Breyer, J.). And it used that word\\nbecause in the real world, that was the legal effect of what the Supreme Court did in Booker to the\\nmandatory nature of the Guidelines, whether the Pryor Statement wishes to acknowledge that fact\\nor not.\\n 62\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 63 of 64\\n\\n\\nwhat the Constitution requires of the statute. See id. (“If two laws conflict with each\\n\\nother, the courts must decide on the operation of each.”); see also The Federalist No.\\n\\n78. So while it is true that the “Supreme Court . . . has [only] the authority to say\\n\\nwhat a statute means,” Pryor Statement at 17, sometimes those statements\\n\\nnecessarily force a change in the law. And under our Constitution, those changes\\n\\nare every bit as valid and must be followed every bit as much as if Congress itself\\n\\nhad enacted them.\\n\\n Booker is a good example; one day the Guidelines were mandatory, and the\\n\\nnext day they were not, solely because of the Supreme Court’s opinion striking down\\n\\n§ 3553(b)(1). So while we can pretend that the Supreme Court’s decisions do not\\n\\n“change[] the law,” Pryor Statement at 17, the reality is that in our constitutional\\n\\nsystem, sometimes they can and they do.\\n\\nAnd as I have noted, when that happens, those changes are just as valid under our\\n\\nconstitutional system as if Congress had statutorily enacted them.\\n\\n Finally, I must respond to Judge Pryor’s charge that this Statement does not\\n\\n“say what the law is,” but rather what I supposedly think “it should be.” See Pryor\\n\\nStatement at 27 (quoting Marbury, 5 U.S. at 177) (quotation marks omitted). I trust\\n\\nthat any honest reading of this Statement soundly rebuts that accusation. Nor does\\n\\ndaring to disagree with the Pryor Statement’s analysis make my analysis either what\\n\\n\\n\\n\\n 63\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 64 of 64\\n\\n\\nI think the law “should be” or immodest. And I will let the irony of the Pryor\\n\\nStatement’s suggestion to the contrary speak for itself.\\n\\n IV.\\n\\n In short, Johnson’s rule applies retroactively when an unconstitutionally\\n\\nvague law results in the application of a fixed sentencing range that is higher than it\\n\\notherwise would have been. Pre-Booker, when courts applied the career-offender\\n\\nguideline, that resulted in a higher mandatory minimum than otherwise would have\\n\\npertained to a defendant under the mandatorily applied Guidelines. So Johnson’s\\n\\nrule applies to pre-Booker sentences that imposed the career-offender guideline\\n\\nbased on at least one predicate conviction that qualified under only the\\n\\nunconstitutionally vague residual clause. Nor does the judicial fiction that the\\n\\nGuidelines “were never really mandatory” somehow erase the fact that they were\\n\\napplied in a mandatory way for more than 20 years. So if because of the residual\\n\\nclause, a prisoner was incorrectly sentenced under the career-offender guideline in\\n\\nthe pre-Booker sentencing regime, he can establish a viable Johnson claim. And our\\n\\nCircuit precedent to the contrary is simply wrong.\\n\\n\\n\\n\\n 64\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391846/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc\"}]}"},"judge1":{"kind":"string","value":"CARNES"},"judge2":{"kind":"string","value":"TJOFLAT"},"judge3":{"kind":"string","value":"MARCUS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":"WILSON; PRYOR; MARTIN; JORDAN; ROSENBAUM; NEWSOM; BRANCH; GRANT"},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614593/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Stoney LESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10523 Date Filed: 04/29/2019 Page: 1 of 64\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n\n\n No. 18-10523\n\n\n D.C. Docket No. 5:16-cv-00258-CAR\n\n\n\nSTONEY LESTER,\n\n Petitioner - Appellant,\n\nversus\n\nUNITED STATES OF AMERICA,\n\n Respondent - Appellee.\n\n\n\n Appeal from the United States District Court\n for the Middle District of Georgia\n\n\n\n\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\nBRANCH, and GRANT, Circuit Judges.\n\nBY THE COURT:\n\n A petition for rehearing having been filed and a member of this Court in\n\nactive service having requested a poll on whether this case should be reheard by\n\nthe Court sitting en banc, and a majority of the judges in active service on this\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 2 of 64\n\n\nCourt having voted against granting a rehearing en banc, it is ORDERED that this\n\ncase will not be reheard en banc.\n\n\n\n\n 2\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 3 of 64\n\n\nWILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:\n\n A majority of the Court has voted not to rehear this appeal en banc to\n\nreconsider whether a subset of federal prisoners classified as career offenders\n\nunder the United States Sentencing Guidelines can seek resentencing on collateral\n\nreview based on the void-for-vagueness doctrine explicated in Johnson v. United\n\nStates, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed\n\nCareer Criminal Act. As background, we held in United States v. Matchett, 802\n\nF.3d 1185 (11th Cir. 2015), and the Supreme Court later confirmed in Beckles v.\n\nUnited States, 137 S. Ct. 886 (2017), that prisoners who were sentenced as career\n\noffenders after the Supreme Court’s decision in United States v. Booker, 543 U.S.\n\n220 (2005), cannot benefit from Johnson because—at least after Booker—the void-\n\nfor-vagueness doctrine does not apply to the Sentencing Guidelines. But neither\n\nMatchett nor Beckles resolved whether those sentenced as career offenders before\n\nBooker can collaterally attack their sentences.\n\n Our published order In re Griffin, 823 F.3d 1350 (11th Cir. 2016), answered\n\nthat question in the negative for two independent reasons. First, Griffin applied the\n\nreasoning of Matchett to hold that the Guidelines are not susceptible to void-for-\n\nvagueness challenges no matter whether a prisoner was sentenced before or after\n\nBooker. See id. at 1354–55. Second, although the Supreme Court has held that the\n\nnew legal rule of Johnson applies retroactively to cases on collateral review\n\n\n 3\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 4 of 64\n\n\nbecause it is “substantive,” see Welch v. United States, 136 S. Ct. 1257 (2016),\n\nGriffin held that an analogous new rule applying the void-for-vagueness doctrine to\n\npre-Booker career-offender sentences under the Guidelines would be not be\n\nsubstantive and, as a result, could not be applied retroactively. See 823 F.3d at\n\n1355–56.\n\n Griffin and Matchett speak for themselves as to the first holding, but I write\n\nin response to Judge Martin’s statement respecting the denial of rehearing en banc\n\nto explain that Griffin’s second holding must be correct. In brief, Johnson was a\n\nsubstantive decision that entitled prisoners sentenced under the residual clause of\n\nthe Armed Career Criminal Act to relief because it made clear that the law had\n\nnever authorized their convictions and sentences. By contrast, a new rule extending\n\nJohnson to set aside pre-Booker career-offender sentences—all of which fall\n\nwithin the substantive statutory ranges prescribed by Congress—would require\n\nonly the procedural formality of a resentencing in which the district court would\n\nhave the power to impose exactly the same sentence as before. Such a rule, as we\n\nconcluded in Griffin, would not be substantive. See id. at 1355–56. To my mind,\n\nthis nutshell summary of Griffin’s second holding says all that needs to be said.\n\nBut, because some of my colleagues see the matter differently, this statement\n\nexplains at greater length why a new rule extending Johnson’s void-for-vagueness\n\n\n\n\n 4\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 5 of 64\n\n\nholding to invalidate pre-Booker career-offender sentences would not be\n\nsubstantive.\n\n I divide my discussion in three parts. First, I explain that the rationale\n\nunderlying the retroactivity of substantive rules is that courts lack the authority to\n\nenter a judgment of conviction or impose a sentence the substance of which the\n\nlaw does not authorize, and I explain that the new rule that Judge Martin’s\n\nstatement advocates would not be substantive in this sense because the sentences it\n\nwould invalidate were imposed within the statutory ranges established by\n\nCongress. Second, I explain that Judge Martin’s counterargument cannot be\n\nsquared with Booker. Third, I respond briefly to Judge Rosenbaum’s statement.\n\n A. The Retroactivity of Substantive Rules.\n\n In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court “adopt[ed] [the]\n\napproach to retroactivity for cases on collateral review” that the second Justice\n\nHarlan had developed in two influential opinions. Id. at 292; Mackey v. United\n\nStates, 401 U.S. 667, 675–702 (1971) (Harlan, J., concurring in the judgment);\n\nDesist v. United States, 394 U.S. 244, 256–69 (1969) (Harlan, J., dissenting).\n\nUnder this familiar framework, “new constitutional rules of criminal procedure\n\nwill not be applicable to those cases which have become final before the new rules\n\nare announced.” Teague, 489 U.S. at 310 (O’Connor, J., plurality opinion).\n\nAlthough the Court has maintained that there exists an exception for “a small set of\n\n\n 5\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 6 of 64\n\n\n‘watershed rules of criminal procedure implicating the fundamental fairness and\n\naccuracy of the criminal proceeding,’” it has also stressed that this exception is\n\n“extremely narrow,” and it has never held that any rule falls within the exception.\n\nSchriro v. Summerlin, 542 U.S. 348, 352 (2004) (some internal quotation marks\n\nomitted) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).\n\n In contrast to new procedural rules, “[n]ew substantive rules generally apply\n\nretroactively.” Id. at 351. This category “includes decisions that narrow the scope\n\nof a criminal statute by interpreting its terms, as well as constitutional\n\ndeterminations that place particular conduct or persons covered by the statute\n\nbeyond the State’s power to punish.” Id. at 351–52 (citation omitted). It also\n\nincludes “rules prohibiting a certain category of punishment for a class of\n\ndefendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 302,\n\n330 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).\n\n Although it is common for courts to “refer[] to rules of this . . . type as\n\nfalling under an exception to Teague’s bar on retroactive application of procedural\n\nrules,” “they are more accurately characterized as substantive rules not subject to\n\nthe bar.” Schriro, 542 U.S. at 352 n.4. After all, “Teague by its terms applies only\n\nto procedural rules.” Bousley v. United States, 523 U.S. 614, 620 (1998). To be\n\nsure, there is no practical difference between a rule that falls within “an exception\n\nto Teague’s bar” and a rule “not subject to the bar.” Schriro, 542 U.S. at 352 n.4.\n\n\n 6\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 7 of 64\n\n\nBut the doctrinal basis of the retroactivity of substantive rules is independent of\n\nTeague and indeed long predates it.\n\n More than a century before Teague, the Supreme Court held that prisoners\n\ncould use the writ of habeas corpus to challenge the substantive validity of their\n\nconvictions and sentences. Traditionally, of course, the writ was unavailable to\n\nchallenge mere error by the sentencing court. The habeas jurisdiction of the federal\n\ncourts was subject to “limitations . . . arising from the nature and objects of the writ\n\nitself, as defined by the common law.” Ex parte Siebold, 100 U.S. 371, 375 (1879).\n\nAnd “the general rule [was] that a conviction and sentence by a court of competent\n\njurisdiction [was] lawful cause of imprisonment,” from which “no relief [could] be\n\ngiven by habeas corpus.” Id. “The only ground” for relief “to a prisoner under\n\nconviction and sentence of another court [was] the want of jurisdiction in such\n\ncourt over the person or the cause, or some other matter rendering its proceedings\n\nvoid.” Id.\n\n In Siebold, the best known of a number of late-nineteenth-century decisions\n\nwith similar rationales, the Court held that a prisoner’s argument that his statute of\n\nconviction was unconstitutional did not exceed the limited scope of the writ. The\n\nCourt reasoned that an unconstitutional statute “affects the foundations of the\n\nwhole proceedings.” Id. at 376. After all, “[a]n unconstitutional law is void, and is\n\nas no law.” Id. So, the Court deduced, “[a] conviction under it is not merely\n\n\n 7\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 8 of 64\n\n\nerroneous, but is illegal and void.” Id. And because the trial court’s “authority to\n\nindict and try the petitioners arose solely upon the[] laws” they challenged, “if the\n\nlaws [were] unconstitutional,” it followed that “the [trial court] acquired no\n\njurisdiction of the causes.” Id. at 377. In other decisions, the Court employed the\n\nsame jurisdictional logic to hold that habeas corpus was available to correct a\n\nsentence imposed without legal authority. See, e.g., In re Bonner, 151 U.S. 242,\n\n255 (1894); In re Mills, 135 U.S. 263, 270 (1890); Ex parte Lange, 85 U.S. 163,\n\n176 (1873). The Court treated each of these cases “not [as] a case of mere error,\n\nbut [as] one in which the court below transcended its powers”—that is, exceeded\n\nits jurisdiction. Mills, 135 U.S. at 270.\n\n To be sure, the Court’s reasoning in Siebold and in related decisions has had\n\nits doubters. Some jurists have argued that these decisions expanded the traditional\n\nconcept of jurisdiction, see, e.g., Wright v. West, 505 U.S. 277, 285 (1992)\n\n(opinion of Thomas, J.); Fay v. Noia, 372 U.S. 391, 450–51, 454–55 (1963)\n\n(Harlan, J., dissenting), maybe even to the point of unintelligibility, see Paul M.\n\nBator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,\n\n76 Harv. L. Rev. 441, 470–71 & n.66 (1963). And Supreme Court justices have\n\ndisagreed about how to interpret Siebold and about how far its logic extends.\n\nCompare Montgomery v. Louisiana, 136 S. Ct. 718, 730–32 (2016), with id. at\n\n740–41 (Scalia, J., dissenting), and id. at 748 (Thomas, J., dissenting).\n\n\n 8\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 9 of 64\n\n\n But whatever doubt there may be about the reasoning in Siebold and similar\n\ndecisions, there should be no doubt that, as a historical matter, it supplied the\n\nrationale for what we now know as the substantive “exception.” When Justice\n\nHarlan explained that courts should not bar the retroactive application of new rules\n\n“that place . . . certain kinds of primary, private individual conduct beyond the\n\npower of the criminal law-making authority to proscribe,” he added—with specific\n\nreference to Siebold and kindred decisions—that “the writ has historically been\n\navailable for attacking convictions on such grounds.” Mackey, 401 U.S. at 692–93\n\n& n.8 (Harlan, J., concurring in the judgment); see also Desist, 394 U.S. at 261 n.2\n\n(Harlan, J., dissenting) (discussing Siebold’s jurisdictional rationale); Fay, 372\n\nU.S. at 454–55 (Harlan, J., dissenting) (same). As the Court started to embrace\n\nJustice Harlan’s retroactivity framework in decisions leading up to Teague, it too\n\nconnected retroactivity with the sentencing court’s lack of jurisdiction. See United\n\nStates v. Johnson, 457 U.S. 537, 550 (1982) (“recogniz[ing] [that] full retroactivity\n\n[is] a necessary adjunct to a ruling that a trial court lacked authority to convict or\n\npunish a criminal defendant in the first place,” making its “judgments or sentences\n\n. . . void ab initio”); see also Griffith v. Kentucky, 479 U.S. 314, 324 (1987)\n\n(paraphrasing Johnson as having explained that retroactivity attaches “when the\n\nnew ruling was that a trial court lacked authority to convict a criminal defendant in\n\nthe first place”).\n\n\n 9\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 10 of 64\n\n\n Nor can there be any doubt that the substantive exception continues to rest\n\non this jurisdictional rationale. In Montgomery v. Louisiana, the Court explained\n\nthat “[b]y holding that new substantive rules are . . . retroactive, Teague continued\n\na long tradition.” 136 S. Ct. at 730. The Montgomery Court illustrated that\n\n“tradition” with a detailed discussion of Siebold, which, it explained, had\n\n“addressed why substantive rules must have retroactive effect.” Id. The Court\n\nexplained that “the same logic”—that is, Siebold’s jurisdictional rationale—\n\n“governs a challenge to a punishment” that the states lack “authority to impose.”\n\nId. at 731. Montgomery reaffirmed Siebold’s rule that “[a] conviction or sentence\n\nimposed in violation of a substantive rule is not just erroneous but contrary to law\n\nand, as a result, void.” Id. And, the Court reasoned, “[i]t follows . . . that a court\n\nhas no authority to leave in place a conviction or sentence that violates a\n\nsubstantive rule, regardless of [when] the conviction or sentence became final.”\n\nId. The Court’s explanation in Welch of why Johnson is substantive—that because\n\nthe residual clause of the Armed Career Criminal Act “is invalid,” it cannot\n\n“mandate or authorize any sentence,” 136 S. Ct. at 1265—also would have been at\n\nhome in any of the decisions in the Siebold family. Cf., e.g., Mills, 135 U.S. at 270\n\n(“The court below was without jurisdiction to pass any such sentences . . . .”).\n\n The doctrinal pedigree and rationale of the substantive exception logically\n\ndictate its scope. The exception is based on the idea that a court has no authority to\n\n\n 10\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 11 of 64\n\n\nenter a judgment of conviction under a void statute or to impose a sentence not\n\nauthorized by law. Necessarily, then, when a prisoner’s conviction is supported by\n\na valid statute and his sentence is authorized by law, the substantive exception\n\ncannot apply. Cf. Lockhart v. Fretwell, 506 U.S. 364, 373 (1993) (“Cessante\n\nratione legis, cessat et ipsa lex.”).\n\n From this understanding of the substantive exception, it follows that the\n\nexception does not apply to pre-Booker sentences under the Guidelines. Every\n\nsentence that has ever been imposed under the Guidelines—either before or after\n\nBooker—falls within the statutory range of punishment prescribed by Congress for\n\nthe defendant’s offense. See Mistretta v. United States, 488 U.S. 361, 374–75\n\n(1989) (explaining that when Congress empowered the Sentencing Commission to\n\npromulgate the Guidelines, it “instructed the Commission that these sentencing\n\nranges must be consistent with pertinent provisions of Title 18 of the United States\n\nCode and could not include sentences in excess of the statutory maxima”). And\n\nevery court that has ever imposed a sentence under the Guidelines had the\n\nauthority to impose a sentence within the statutory range.\n\n Take Stoney Lester as an example. Lester pleaded guilty in 2003 to\n\ndistributing more than five grams of crack cocaine, an offense with a statutory\n\nrange of five to 40 years of imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).\n\nThe sentence he received under the Guidelines—21 years and 10 months—was\n\n\n 11\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 12 of 64\n\n\nsquarely within the statutory range and, as such, within the authority granted to the\n\ndistrict court by Congress. So even if the career-offender provision that was used\n\nto calculate Lester’s sentence under the Guidelines were somehow\n\nunconstitutionally vague, the substantive exception would not extend to Lester’s\n\nsentence.\n\n To look at the same idea from a different angle, consider the result if Lester\n\nor a similarly situated prisoner prevailed in a vagueness attack on the career-\n\noffender sentencing Guideline. A successful vagueness challenge would establish\n\nonly that the district court improperly relied on an unacceptably unclear directive\n\nin arriving at the prisoner’s sentence. But it would not in the slightest establish that\n\nthe district court lacked the authority to impose the substantive sentence at which it\n\narrived. On the contrary, as Griffin observed, the district court could impose\n\nexactly the same sentence on remand after the appellate court corrected its error.\n\n823 F.3d at 1355. In this respect, erroneous reliance on an unconstitutionally vague\n\nsentencing Guideline, if such a thing were to exist, resembles “procedural”\n\nsentencing errors—errors like “failing to calculate (or improperly calculating) the\n\nGuideline range, treating the Guidelines as mandatory, . . . or failing to adequately\n\nexplain the chosen sentence,” Gall v. United States, 552 U.S. 38, 51 (2007)—for\n\nwhich the remedy is a remand with corrective instructions but with no guarantee of\n\na different outcome. And, as we explained in Griffin and as the Solicitor General\n\n\n 12\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 13 of 64\n\n\nargued in Beckles, this fact means that a new rule extending Johnson to the career-\n\noffender sentencing Guideline would also be “procedural,” not substantive, for\n\npurposes of retroactivity. See Griffin, 823 F.3d at 1355–56; Brief for the United\n\nStates at 11–33, Beckles v. United States, 137 S. Ct. 886 (No. 15-8544).\n\n B. The “Mandatory Guidelines” and Booker.\n\n Judge Martin’s statement responds that this reasoning “fundamentally\n\nmisunderstands how the mandatory Guidelines worked” because it ignores that,\n\nbefore Booker, “the shortest sentence the District Court was legally allowed to give\n\n[Lester]” “[o]nce categorized as a career-offender” was greater than “the longest\n\nsentence he could have received if not deemed a career offender.” Statement of\n\nMartin, J., at 48. The argument is not expressly framed in terms of whether the\n\ndistrict court had the substantive authority to impose Lester’s sentence, but to\n\ntranslate it into those terms is easy enough. In this view, it does not matter to\n\nretroactivity that the district court could sentence a pre-Booker career offender like\n\nLester to the same term of imprisonment today. See id. at 49. Instead, the critical\n\npoint is that—without the career-offender provision—it lacked the substantive\n\nauthority to impose the sentence then, in the pre-Booker era when the Guidelines\n\ndictated what sentences were “legally allowed.” Id. at 48; see also id. at 38–40.\n\n This response contains an important internal tension. In Judge Martin’s\n\naccount, the putative unconstitutionality of the career-offender Guideline, which\n\n\n 13\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 14 of 64\n\n\nher statement contends was established by the Supreme Court’s 2015 decision in\n\nJohnson, must “relate back” to the time of Lester’s sentencing in 2003; otherwise,\n\nthere would be no ground to argue that Lester’s sentence was substantively invalid.\n\nBut the advisory nature of the Guidelines, which was established by the Supreme\n\nCourt’s 2005 decision in Booker, must not relate back to Lester’s sentencing. If\n\nBooker’s construction of the Guidelines’ legal status was the correct view of the\n\nlaw at the time of Lester’s sentencing, then the “mandatory Guidelines” did not\n\nexist in a legal sense, did not limit the district court’s discretion to choose an\n\nappropriate sentence within the statutory range, and did not render his actual\n\nsentence substantively invalid.\n\n The premise that the Sentencing Guidelines were in the strictest sense\n\nlegally binding before Booker pervades Judge Martin’s statement. As her statement\n\nputs it, “[u]nder the mandatory Guidelines, federal district courts were bound by\n\nlaw to impose sentences within the guideline range.” Id. at 38. Her statement\n\nexplains, “the mandatory Guidelines were laws that increased punishment”—laws\n\nthat, “[i]n effect, . . . set minimum and maximum sentences.” Id. at 40, 48. And it\n\ninsists that the Guidelines, “[b]y law,” dictated the sentences that the district court\n\n“was legally allowed to give” Lester. Id. at 48. In this view, “the sentencing judge\n\nhad no legal authority to sentence [Lester] to other than a sentence mandated by\n\nthe Guidelines then in effect.” Id. at 38–39.\n\n\n 14\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 15 of 64\n\n\n This manner of speaking, of course, is by no means peculiar to Judge\n\nMartin. Virtually all of us are in the habit of distinguishing, in one way or another,\n\nbetween the “mandatory Guidelines” that operated before Booker and the\n\n“advisory Guidelines” that have operated since. See, e.g., Matchett, 802 F.3d at\n\n1196 (referring to “when the guidelines were still mandatory”); United States v.\n\nMartin, 455 F.3d 1227, 1236 (11th Cir. 2006) (“As we all now know, Booker made\n\nthe guidelines advisory.”).\n\n Purely as a description of judicial doctrine and practice, this language makes\n\nsense. Cf. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457,\n\n457–61 (1897). Before Booker, district courts believed they were bound to apply\n\nthe Guidelines as mandatory, and the courts of appeals would reverse district\n\ncourts that treated them as merely advisory. After Booker, district courts\n\nrecognized that they were bound not to apply the Guidelines as mandatory, and the\n\ncourts of appeals will now reverse district courts that fail to treat them as advisory.\n\nThis change in court behavior makes it natural to say that Booker “made the\n\nGuidelines advisory.”\n\n But even if our idioms adequately describe judicial practice, they may be\n\nerroneous or inadequate in other respects. And we must be careful not to let the\n\nimprecision of our language control our reasoning. “[W]ords are wise men’s\n\n\n\n\n 15\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 16 of 64\n\n\ncounters, they do but reckon by them; but they are the money of fools.” Thomas\n\nHobbes, Leviathan 19 (Edwin Curley ed., Hackett 1994 [1651]).\n\n In particular, we should be mindful of the difference between a change in\n\njudicial doctrine and a change in law. This distinction, although sometimes easy to\n\noverlook, is fundamental. Without distinguishing between judges’ understanding\n\nof the law and the law itself, we could not meaningfully say, for example, that a\n\nchange in judicial doctrine “proved Mr. Lester’s objection right and Eleventh\n\nCircuit case law wrong,” Statement of Martin, J., at 33, nor could the Supreme\n\nCourt meaningfully describe a past decision of its own as “wrong the day it was\n\ndecided,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863 (1992)\n\n(joint opinion of O’Connor, Kennedy, and Souter, JJ.); see also Stephen E. Sachs,\n\nFinding Law, 107 Calif. L. Rev. (forthcoming Apr. 2019) (manuscript at 43)\n\n(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443 (last\n\nvisited Apr. 28, 2019)). And we would be hard-pressed to explain why Johnson\n\nrequired the retroactive invalidation of final convictions and sentences based on the\n\nresidual clause of the Armed Career Criminal Act, see Welch, 136 S. Ct. at 1265,\n\nwhen an act of Congress that merely repealed the clause would not do so. The\n\nanswer, of course, is that Johnson did not strictly speaking change the law; “rather,\n\nit held and therefore established that the prior decisions [treating the residual\n\nclause as valid] were incorrect.” Rivers v. Roadway Express, Inc., 511 U.S. 298,\n\n\n 16\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 17 of 64\n\n\n312 (1994); see also Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). In\n\nthe light of Johnson, the residual clause was, as a matter of law, always invalid.\n\n So it can be misleading to say, as we often do, that “the Sentencing\n\nGuidelines were mandatory,” Statement of Martin, J., at 31, and that the Supreme\n\nCourt “made” them advisory in Booker. These idioms suggest that the Guidelines\n\nwere once really mandatory as a matter of law and that they became advisory as a\n\nmatter of law only after—and only because of—Booker. But that cannot be right. If\n\nBooker’s effect was to change the essential legal status of the Guidelines from\n\nmandatory to advisory, then it must have been one of two things: either a\n\nlegislative amendment that removed the textual command that courts apply the\n\nGuidelines as mandatory, see 18 U.S.C. § 3553(b)(1), from the Sentencing Reform\n\nAct and replaced it with a provision that the Guidelines be treated as advisory or,\n\nalternatively, a constitutional amendment that newly prohibited the mandatory\n\napplication of the Guidelines. But Booker—a judicial decision—was neither of\n\nthose things.\n\n The Supreme Court wields judicial power, not legislative power. See U.S.\n\nConst. art. I, § 1; id. art. III, § 1. It has no power to amend the text or meaning of\n\nany statute; it has the authority only “to say what a statute means,” which means\n\n“what the statute meant before as well as after the decision of the case giving rise\n\nto that construction,” in the course of deciding a case or controversy. Rivers, 511\n\n\n 17\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 18 of 64\n\n\nU.S. at 312–13. Nor does the Supreme Court have the authority to amend the\n\nConstitution. See, e.g., Bell v. Maryland, 378 U.S. 226, 288 (1964) (In\n\nconstitutional cases, the Court’s “duty is to construe, not to rewrite or amend, the\n\nConstitution.” (internal quotation marks omitted)); South Carolina v. United\n\nStates, 199 U.S. 437, 448 (1905) (“The Constitution is a written instrument. As\n\nsuch its meaning does not alter. That which it meant when adopted, it means\n\nnow.”). So, instead of a legislative act or constitutional amendment that changed\n\nthe law, Booker was a judicial decision that held that the statutory requirement that\n\ncourts apply the Guidelines as mandatory is without legal effect.\n\n Booker established that the Guidelines are not mandatory through two\n\nholdings. First, the Court held that the statutory requirement of mandatory\n\napplication of the Guidelines would violate the Sixth Amendment as applied\n\nwhenever it resulted in a sentence greater than the maximum sentence that could be\n\nimposed based only on the facts reflected in a jury’s guilty verdict or admitted by\n\nthe defendant. See Booker, 543 U.S. at 233–37 (Stevens, J., opinion of the Court).\n\nSecond, as a matter of severability, the Court held that the Guidelines could not be\n\napplied as mandatory in any cases, even when their mandatory application would\n\nnot violate the Sixth Amendment, because the resulting system would be\n\nstructurally unsound and contrary to the intent of Congress. See id. at 249–59, 265–\n\n67 (Breyer, J., opinion of the Court).\n\n\n 18\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 19 of 64\n\n\n Although Booker radically changed judicial doctrine with respect to the\n\nGuidelines, neither of its holdings was the equivalent of a legislative or\n\nconstitutional amendment to the substance of the law. As far as the constitutional\n\nholding is concerned, this point should be obvious: “Constitutional invalidity of\n\nfederal statutes . . . is produced by the Constitution itself, not by the order of a\n\ncourt.” John Harrison, Severability, Remedies, and Constitutional Adjudication, 83\n\nGeo. Wash. L. Rev. 56, 87 (2014); see also Marbury v. Madison, 5 U.S. 137, 177–\n\n78 (1803). The Sixth Amendment did not mean one thing the day before Booker\n\nand another thing the day Booker was decided. The Court in Booker did not make\n\nthe statutory provision requiring the mandatory application of the Guidelines\n\nunconstitutional. Instead, the Court recognized that the provision was\n\nunconstitutional by determining the meaning of the Sixth Amendment—that is, by\n\ninterpreting it—and that its meaning was incompatible with that of the statutory\n\nprovision in certain circumstances. In those applications, the statutory provision\n\nwas always unconstitutional; it was always “void, and . . . as no law.” Siebold, 100\n\nU.S. at 376; accord Marbury, 5 U.S. at 177.\n\n Booker’s severability conclusion is no different. As the Supreme Court and\n\ncommentators have long acknowledged, severability is fundamentally “an exercise\n\nin statutory interpretation.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.\n\n1461, 1486 (2018) (Thomas, J., concurring); see also, e.g., Dorchy v. Kansas, 264\n\n\n 19\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 20 of 64\n\n\nU.S. 286, 290 (1924) (Severability is “a question of interpretation and of legislative\n\nintent.”); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46\n\nStan. L. Rev. 235, 289 (1994) (“Severability presents a question of statutory\n\ninterpretation . . . .”). Specifically, issues of severability pose the interpretive\n\nquestion of how to understand a legal text as a whole in the light of a newly\n\nacknowledged fact—that part of the text cannot be given legal effect. See Murphy,\n\n138 S. Ct. at 1486 (Thomas, J., concurring) (“[T]he severability doctrine has courts\n\ndecide how a statute operates once they conclude that part of it cannot be\n\nconstitutionally enforced.”); Harrison, supra, 83 Geo. Wash. L. Rev. at 88; see also\n\nBooker, 543 U.S. at 247 (Breyer, J., opinion of the Court) (observing that\n\n“severability questions . . . can arise when a legislatively unforeseen constitutional\n\nproblem requires modification of a statutory provision as applied in a significant\n\nnumber of instances”); id. at 265 (“[W]e have examined the statute in depth to\n\ndetermine Congress’ likely intent in light of today’s holding.”); Dorchy, 264 U.S.\n\nat 290 (posing the question whether one section of a state statute was “so\n\ninterwoven with the [other sections] held invalid that the section cannot stand\n\nalone”). It is because severability issues are interpretive questions that courts\n\nanswer them by using the same kinds of tools that are applied to other issues of\n\nstatutory construction, see, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 687\n\n(1987) (finding “abundant indication of a clear congressional intent of severability\n\n\n 20\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 21 of 64\n\n\nboth in the language and structure of the Act and in its legislative history”), and\n\nthat they produce the same kinds of disagreements about interpretive methods as\n\ndo other interpretive problems, see, e.g., Booker, 543 U.S. at 313 (Thomas, J.,\n\ndissenting in part) (“disagree[ing] with [Justice Stevens’s] restatement of\n\nseverability principles and reliance on legislative history”).\n\n The interpretive character of severability holdings—Booker’s included—\n\nalso means that they cannot be understood as if they changed the law in the manner\n\nof a legislative amendment. As Justice Scalia once observed, even if it sometimes\n\nright to say that “judges in a real sense ‘make’ law,” we must not forget that “they\n\nmake it as judges make it, which is to say as though they were ‘finding’ it—\n\ndiscerning what the law is, rather than decreeing what it is today changed to, or\n\nwhat it will tomorrow be.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,\n\n549 (1991) (Scalia, J., concurring in the judgment). No less than a decision in any\n\nother interpretive context, a judicial construction of the Sentencing Reform Act in\n\nthe light of its conflict with the Sixth Amendment—a conflict that always existed,\n\neven if the Court did not formally acknowledge it until Booker—“is an\n\nauthoritative statement of what the statute meant before as well as after the\n\ndecision of the case giving rise to that construction.” Rivers, 511 U.S. at 312–13.\n\nWere it otherwise, Booker and other severability decisions would “entail\n\nquintessentially legislative work,” which is exactly what the Supreme Court has\n\n\n 21\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 22 of 64\n\n\nsaid they do not entail. Ayotte v. Planned Parenthood of N. New England, 546 U.S.\n\n320, 329 (2006); accord Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292,\n\n2319 (2016).\n\n So, our usual figures of speech notwithstanding, it follows from the holdings\n\nin Booker that the Guidelines were never really mandatory—not as a matter of law.\n\nTo be sure, an act of Congress instructed that the sentencing court “shall impose a\n\nsentence of the kind, and within the range,” defined in the Guidelines, 18 U.S.C.\n\n§ 3553(b)(1), and district courts thought that this mandatory instruction was legally\n\nbinding. The courts of appeals thought so too. But, if Booker is right, we were all\n\nwrong. The law—not judges’ understanding of the law, but the actual law—was\n\notherwise. The Sixth Amendment forbade the mandatory application of the\n\nGuidelines whenever they prescribed a sentence greater than the law allowed based\n\nonly on the facts reflected in a guilty verdict or plea. And, as interpreted by Booker\n\nin the light of that constitutional prohibition, the Sentencing Reform Act did not\n\nprescribe the mandatory application of the Guidelines in any other circumstances\n\neither.\n\n The district court did err when it sentenced Lester, but the error was not\n\nimposing an illegal sentence under a mandatory, but unconstitutionally vague,\n\nsentencing Guideline. Instead, its error—an error that also happened to be shared\n\nby every other district court at the time—was treating the career-offender\n\n\n 22\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 23 of 64\n\n\nGuideline as mandatory in the first place. To be sure, that was an error of\n\n“constitutional significance,” as Booker confirmed. Statement of Martin, J., at 49.\n\nBut it was a procedural constitutional error, not a substantive one. See Varela v.\n\nUnited States, 400 F.3d 864, 868 (11th Cir. 2005) (holding “that Booker’s\n\nconstitutional rule falls squarely under the category of new rules of criminal\n\nprocedure that do not apply retroactively”). And, although Judge Martin’s\n\nstatement suggests that my acknowledgment of that error should convince me to\n\n“agree to fix the sentences mistakenly imposed as mandatory,” the whole point of\n\nTeague is that merely procedural “mistake[s]” do not warrant the extraordinary\n\n“fix” of collateral relief. Statement of Martin, J., at 39.\n\n That job is reserved for substantive rules, and, in the light of Booker,\n\nJohnson cannot possibly have established that the district court lacked the\n\nsubstantive authority to impose Lester’s sentence. If the sentencing court had\n\nknown what Booker later clarified to be the correct understanding of the law, it\n\nwould not have recognized that, “[b]y law, the longest sentence [Lester] could . . .\n\nreceive[] . . . was 151 months.” Id. at 48 (emphasis omitted). Instead, Johnson or\n\nno Johnson, it would have recognized that it was “legally allowed,” id., to impose\n\nany sentence within the statutory range of five to 40 years—just as it could if it\n\nsentenced Lester today.\n\n\n\n\n 23\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 24 of 64\n\n\n Of course, we do not know what sentence Lester would have received if the\n\ndistrict court had been aware of what Booker later held. But all we need to know is\n\nwhether his sentence was within the substantive authority of the district court at the\n\ntime it was imposed. And it clearly was. So Griffin was absolutely right to hold\n\nthat a new rule extending Johnson to set aside pre-Booker sentences based on the\n\ncareer-offender Guideline would not be substantive and would not apply\n\nretroactively to cases on collateral review.\n\n C. Judge Rosenbaum’s Statement.\n Judge Rosenbaum’s statement responds to my argument in three parts. The\n\nfirst and second parts fail to engage with my argument. And the third part\n\npropounds a doctrine of judicial lawmaking that contradicts Marbury’s rationale\n\nfor judicial review.\n\n The first part of Judge Rosenbaum’s statement quarrels with my account of\n\nthe substantive exception. I am not sure Judge Rosenbaum’s belief that the\n\nexception concerns equally ultra vires action by any branch, not just the judiciary,\n\ncan be squared with basic habeas principles or with the precedents—all of which\n\nstress the sentencing “court[’s] lack[] [of] power to exact a penalty that has not\n\nbeen authorized by any valid criminal statute,” Welch, 136 S. Ct. at 1268; accord\n\nSiebold, 100 U.S. at 377 (“We think [habeas lies], because, if the laws are\n\nunconstitutional and void, the Circuit Court acquired no jurisdiction of the\n\n\n 24\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 25 of 64\n\n\ncauses.” (emphases added)), or the habeas court’s lack of “authority to leave in\n\nplace a conviction or sentence that violates a substantive rule,” Montgomery, 136\n\nS. Ct. at 731—but I also doubt that it matters. After all, my argument is that\n\nLester’s sentencing court did not exceed its powers because the statutory provision\n\nthat purported to limit its sentencing discretion was unconstitutional and therefore\n\nvoid. Far from “gloss[ing] over th[e] constitutionally significant problem” of the\n\nmandatory application of the Guidelines, Statement of Rosenbaum, J., at 55, I\n\nargue that Booker’s holding that their mandatory application was unconstitutional\n\ncontrols the question we are discussing. And it establishes that the only rule the\n\ndistrict court violated when it sentenced Lester was procedural, not substantive.\n\n The second part of Judge Rosenbaum’s statement identifies the heart of my\n\nargument, but it offers no meaningful response. I have said that statements like\n\n“Booker made the Guidelines advisory” are ubiquitous but not precisely accurate.\n\nJudge Rosenbaum’s statement responds only by confirming that they are\n\nubiquitous but makes no effort to refute my point that they are imprecise. See id. at\n\n58–60. I have said that courts used to treat the Guidelines as mandatory but that, as\n\nBooker held, they committed legal error by doing so. Judge Rosenbaum’s\n\nstatement responds only by insisting that courts used to treat the Guidelines as\n\nmandatory. See id. at 60. Her statement’s flotilla of quotations from the United\n\nStates Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense\n\n\n 25\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 26 of 64\n\n\nof those statements is false and, second, that courts routinely describe the terms\n\nand intended effects of statutes as if they were valid even as they hold the opposite.\n\nSee, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional\n\nand Amateur Sports Protection Act “banned the authorization of sports gambling in\n\ncasinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176\n\n(“The authority . . . given to the supreme court . . . appears not to be warranted by\n\nthe [C]onstitution . . . .” (emphasis added)). The second part’s only direct response\n\nto my argument—that “the Booker Court did not make the Guidelines advisory\n\nbecause they were always advisory, since the Sixth Amendment never allowed\n\nthem to be mandatory”—is that it “is certainly interesting on a metaphysical level.”\n\nStatement of Rosenbaum, J., at 60. I appreciate the compliment.\n\n Only the third part of Judge Rosenbaum’s statement is responsive, but\n\nunfortunately it fumbles the basic tenets—one might even say the metaphysics—of\n\njudicial review. Before Booker, it tells us, “18 U.S.C. § 3553(b)(1) was the law of\n\nthe land.” Id. at 61. Wrong. As Chief Justice Marshall explained in Marbury, “[t]he\n\nquestion, whether an act, repugnant to the [C]onstitution, can become the law of\n\nthe land” is to be answered resoundingly in the negative. Marbury, 5 U.S. at 176;\n\nsee also U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United\n\nStates . . . in Pursuance thereof . . . shall be the supreme Law of the Land . . . .”\n\n(emphasis added)); Mackey, 401 U.S. at 678 (Harlan, J., concurring in the\n\n\n 26\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 27 of 64\n\n\njudgment) (observing that Marbury provides “from that day to this the sole\n\ncontinuing rationale for the exercise of” judicial review).\n\n Judge Rosenbaum’s statement continues: “[T]he Court’s change effectively\n\nexcised the Guidelines’ mandatory language from the United States Code.”\n\nStatement of Rosenbaum, J., at 62. The word “effectively” bears the whole weight\n\nof this sentence. Section 3553(b)(1)’s mandatory language is still there in the\n\nCode. See 18 U.S.C. § 3553(b)(1); see also generally Jonathan F. Mitchell, The\n\nWrit-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). The only thing that has\n\nchanged is that now, thanks to Booker, we know that it is legally inoperative\n\nbecause the Sixth Amendment—adopted in 1791—requires and has always\n\nrequired that result.\n\n It follows that the correct application of the Guidelines has always been\n\nadvisory—even for offenders, like Stoney Lester, convicted before Booker. And it\n\nfollows from that that the substantive exception would not apply to a new rule\n\nextending Johnson to set aside Lester’s sentence and others like it. Understanding\n\nthe law on this point requires no familiarity with “the laws of physics” or “the\n\nspace-time continuum.” Statement of Rosenbaum, J., at 60. It instead requires only\n\nthe humility that comes with appreciating the modest role that the federal judiciary\n\nperforms in our constitutional system: “to say what the law is,” not what it should\n\nbe. Marbury, 5 U.S. at 177.\n\n\n 27\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 28 of 64\n\n\nMARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Circuit\n\nJudges, respecting the denial of rehearing en banc:\n\n In 2004, Stoney Lester was sentenced in the Middle District of Georgia to\n\nalmost 22 years in prison for possessing more than five grams of cocaine. This\n\nlong sentence was required by law at the time because the sentencing court had to\n\ntreat Mr. Lester as a “career offender” under the then-mandatory United States\n\nSentencing Guidelines. The Eleventh Circuit’s binding precedent required the\n\nsentencing judge to count Mr. Lester’s past conviction for walkaway escape as a\n\n“crime of violence” under a provision of the career-offender guideline known as\n\nthe “residual clause.” U.S.S.G. § 4B1.2(a) (2003). If Mr. Lester had not been\n\nsentenced as a “career offender,” his term of incarceration would have been at least\n\nnine years shorter.\n\n About eleven years after he was sentenced, the Supreme Court invalidated\n\nthe residual clause of the Armed Career Criminal Act. Johnson v. United States,\n\n576 U.S. , 136 S. Ct. 2551 (2015). Since the residual clause under which he was\n\nsentenced was identical to that stricken by the Supreme Court, Mr. Lester filed a\n\nmotion in Federal Court in Georgia under 28 U.S.C. § 2255, seeking to correct his\n\nsentence. At that time, he already had a pending petition under 28 U.S.C. § 2241\n\nin the Eastern District of Virginia, where the Bureau of Prisons assigned him at\n\nsome point. His petition in Virginia asked that court to correct his sentence based\n\n\n 28\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 29 of 64\n\n\non Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), which\n\noverruled the Eleventh Circuit precedent that characterized walkaway escape as a\n\ncrime of violence. Lester v. Wilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb.\n\n27, 2019). Mr. Lester’s § 2241 petition would have failed in the Eleventh Circuit\n\nbecause our precedent foreclosed such a claim based on procedural grounds. See\n\nMcCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1090 (11th\n\nCir. 2017) (en banc).\n\n So too with Mr. Lester’s § 2255 petition. Our Court denied him relief based\n\non our precedent in In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (per curiam),\n\nwhich held that inmates like Mr. Lester cannot bring Johnson-based challenges to\n\nmandatory Guidelines sentences. Happily for Mr. Lester, things turned out better\n\nfor him in the Fourth Circuit. That court said Mr. Lester’s sentence contained a\n\n“fundamental defect.” Specifically, the Fourth Circuit said Mr. Lester’s longer\n\nsentence based on his walkaway escape conviction was fundamentally defective\n\nsince the Supreme Court had made plain that this should not count as a crime of\n\nviolence. Lester v. Flournoy, 909 F.3d 708, 714 (4th Cir. 2018). While this Court\n\nwas debating whether to consider Mr. Lester’s case en banc, the Fourth Circuit\n\ngranted him relief.\n\n I understand that Mr. Lester is a free man today. Dkt. No. 44, Lester v.\n\nWilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb. 27, 2019). He served 15\n\n\n 29\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 30 of 64\n\n\nyears and seven months in prison. This was more than two-thirds of the sentence\n\noriginally imposed on him, and three years longer than he would have served if his\n\nwalkaway escape conviction had not counted in the first place.\n\n I asked the Court withhold the issuance of the mandate in Mr. Lester’s case,\n\nin hopes that we could correct what I see as two errors in In re Griffin. First, I\n\nbelieve In re Griffin erroneously held that the mandatory Guidelines are not subject\n\nto vagueness challenges. Second, I think In re Griffin was wrong to say that\n\nJohnson does not apply retroactively in mandatory Guidelines cases. This Court\n\ndeclined to take up either issue. In making that decision, the Court also denied Mr.\n\nLester all relief.\n\n I wrote a dissent from the denial of en banc rehearing to express my\n\ndisagreement with Griffin. But since Mr. Lester has won his freedom, there is no\n\nlonger a need for en banc review of his case. Still, I am mindful that Mr. Lester is\n\nbreathing free air solely because of a happenstance administrative decision to move\n\nhim to a prison in the Eastern District of Virginia, together with his savviness in\n\nfiling a § 2241 petition while he was there. Failing either one of these things, Mr.\n\nLester would have been required to serve six more years in prison. His case is a\n\ntestament to the arbitrariness of contemporary habeas law, where liberty can\n\ndepend as much on geography as anything else. It also illustrates how limited is\n\n\n\n\n 30\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 31 of 64\n\n\nrelief for the thousands of inmates sentenced within the Eleventh Circuit and\n\nwhose sentence Johnson affected.\n\n Not all inmates will be moved out of this Circuit. Also, Griffin continues to\n\nstand as binding precedent in this Circuit. For these reasons I take this opportunity\n\nto review why I believe the opinion in In re Griffin is mistaken.\n\n I.\n\n In 2004, Mr. Lester pled guilty to possession with intent to distribute more\n\nthan five grams crack cocaine. At that time, the Sentencing Guidelines were\n\nmandatory, see United States v. Booker, 543 U.S. 220, 233–34, 125 S. Ct. 738, 750\n\n(2005), so the calculation of Mr. Lester’s guideline range set his prison sentence.\n\nThe District Court calculated Mr. Lester’s guideline range as 262–327 months and,\n\nbecause it had no statutory basis to depart, see 18 U.S.C. § 3553(b)(1), it imposed a\n\n262-month sentence.\n\n Mr. Lester’s long sentence resulted from the District Court’s finding that he\n\nwas a “career offender” as that term was then defined in the Guidelines. See\n\nU.S.S.G. § 4B1.1 (2003). The career-offender provision required longer sentences\n\nfor defendants sentenced for a “crime of violence” or a “controlled substance\n\noffense,” and who in addition have two past convictions that are either a “crime of\n\n\n\n\n 31\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 32 of 64\n\n\nviolence” or “controlled substance offense.”1 Id. § 4B1.1(a). Earlier in his life,\n\nMr. Lester had been convicted in Georgia once for sale of marijuana and once for\n\nwalkaway escape. The District Court counted the marijuana conviction as a\n\n“controlled substance offense.” It also counted Mr. Lester’s walkaway escape\n\nconviction as a “crime of violence” under the “residual clause” of the Guidelines.\n\nThat “residual clause” defined a crime of violence as an offense punishable by\n\nmore than a year in prison that “involves conduct that presents a serious potential\n\nrisk of physical injury to another.” Id. § 4B1.2(a). Mr. Lester objected to counting\n\nhis walkaway escape conviction as a crime of violence under the residual clause,\n\nbut our Circuit precedent foreclosed his objection. See United States v. Gay, 251\n\nF.3d 950, 953–55 (11th Cir. 2001) (per curiam), abrogation recognized by\n\nMcCarthan, 851 F.3d at 1080.\n\n In light of his career-offender status, Mr. Lester was assigned an offense\n\nlevel of 34 and a criminal history category of VI. This yielded a guideline range of\n\n262 to 327 months. U.S.S.G. chap. 5, pt. A. At the time, the District Court had no\n\ndiscretion to sentence Mr. Lester outside of this range. If (as we now know should\n\nhave been the case) Mr. Lester had not been designated a career-offender, he\n\n\n\n\n 1\n The Guidelines contain a career-offender provision in their current iteration, see\nU.S.S.G. § 4B1.1 (2018), but the provision and our interpretation of it have changed since Mr.\nLester was sentenced. My discussion here is about the career-offender provision that was\noperative when Mr. Lester was sentenced.\n 32\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 33 of 64\n\n\nwould have had an offense level of 30 and a criminal history category of III, which\n\ntogether yield a guideline range of 121–151 months. Id. Because of the residual\n\nclause, Mr. Lester faced at least nine years more in prison than he would have\n\nwithout it.\n\n Over the years after his sentence was imposed, developments in the law\n\nproved Mr. Lester’s objection right and Eleventh Circuit case law wrong. In 2009,\n\nthe Supreme Court overturned the Eleventh Circuit rule that walkaway escape\n\ncounts as a crime of violence. Chambers, 555 U.S. at 130, 129 S. Ct. at 693,\n\nabrogated on other grounds by Johnson, 135 S. Ct. at 2563. If Mr. Lester were\n\nsentenced today, his conviction for walkaway escape could not count as a “crime\n\nof violence,” and as a result, he would not be sentenced as a career offender. See\n\nMcCarthan, 851 F.3d at 1080. If he had been sentenced under Eleventh Circuit\n\nlaw as it exists today, Mr. Lester would have been a free man in 2016 at the latest.\n\n Then in 2015, the Supreme Court changed the law in a second way that\n\nmade clear Mr. Lester’s sentence resulted from not only on a mistaken\n\ninterpretation of the Guidelines, but on an unconstitutionally vague Guideline\n\nprovision as well. Johnson, 135 S. Ct. at 2563. In Johnson, the Supreme Court\n\nstruck down a provision of the Armed Career Criminal Act (ACCA) that is\n\nidentical to the career-offender residual clause in the Guidelines. Id. ACCA\n\nrequires longer sentences for defendants with certain types of earlier convictions\n\n\n 33\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 34 of 64\n\n\nwho are convicted of possessing a firearm as a convicted felon in violation of 18\n\nU.S.C. § 922(g). The maximum sentence for possessing a firearm as a convicted\n\nfelon is ordinarily ten years. 18 U.S.C. § 924(a)(2). But ACCA mandates a\n\nsentence of no less than fifteen years for a person who has three earlier convictions\n\nfor either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).\n\nACCA defines “violent felony” with the same words that the career-offender\n\nguideline used when Mr. Lester was sentenced. Specifically, ACCA defines a\n\n“violent felony” as an offense punishable by more than a year in prison that either\n\n“has as an element the use, attempted use, or threatened use of physical force\n\nagainst the person of another” or “is burglary, arson, or extortion, involves use of\n\nexplosives, or otherwise involves conduct that presents a serious potential risk of\n\nphysical injury to another.” Compare id. § 924(e)(2)(B), with U.S.S.G. § 4B1.2\n\n(defining “crime of violence” as the term is used in U.S.S.G. § 4B1.1). After years\n\nof litigation over how to interpret the residual clause, see Johnson, 135 S. Ct. at\n\n2558–60, in Johnson, the Supreme Court struck it down as unconstitutionally\n\nvague, id. at 2563.\n\n The constitutional problem with the residual clause is apparent in the\n\napplication of what has become known as the categorical approach. When\n\ndeciding whether a person’s earlier criminal conviction counts as a violent felony\n\nunder the ACCA residual clause, the Supreme Court instructed us not to look at\n\n\n 34\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 35 of 64\n\n\nwhat the defendant actually did. See Johnson, 135 S. Ct. at 2557. For that matter,\n\nthis is also true for the residual clause in the Guidelines. See United States v.\n\nLockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011). Rather than reconstruct the\n\nconduct that resulted in the earlier conviction, courts were instructed to “picture the\n\nkind of conduct that the crime involves in the ordinary case” and “judge whether\n\nthat abstraction presents a serious potential risk of physical injury.” Id. (quotation\n\nmarks omitted). But the residual clause gave no guidance “about how to estimate\n\nthe risk posed by a crime,” because it gave no way for us to decide “what kind of\n\nconduct the ‘ordinary case’ of a crime involves.” Id. In a string of cases over the\n\nyears, the Supreme Court used different “ad hoc test[s] to guide [the] inquiry”\n\nbefore abandoning the endeavor in 2015. Id. at 2558–59. Among other things, the\n\nSupreme Court was concerned that the residual clause left “uncertainty about how\n\nmuch risk it takes for a crime to qualify as a violent felony.” Id. at 2558.\n\nUltimately the Supreme Court held that these features of the residual clause\n\n“produce[d] more unpredictability and arbitrariness than the Due Process Clause\n\ntolerates.” Id.\n\n Johnson “called into question the sentences of thousands of federal prisoners\n\nsentenced under ACCA and other, similarly worded statutes,” including the career-\n\noffender guideline. Ovalles v. United States, 905 F.3d 1231, 1263 (11th Cir. 2018)\n\n(en banc) (Martin, J., dissenting). Johnson told us it is unconstitutional to require a\n\n\n 35\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 36 of 64\n\n\nlonger sentence based on a judge imagining whether a defendant’s past convictions\n\ninvolve a “serious potential risk of physical injury.” Compare 18 U.S.C. § 924(e),\n\nwith U.S.S.G. § 4B1.2(a). This is precisely how Mr. Lester got his longer\n\nsentence.\n\n To correct an unlawful sentence, a prisoner may file a motion under 28\n\nU.S.C. § 2255. But the Antiterrorism and Effective Death Penalty Act limits a\n\nprisoner to one such motion unless the prisoner comes to a Court of Appeals and\n\napplies for permission to file a second or successive § 2255 motion. Id. §\n\n2244(b)(3)(A). This Court can, in turn, grant permission only if the prisoner\n\nmakes a prima facie case that his second or successive motion will rely on newly\n\ndiscovered evidence or a new rule of constitutional law made retroactively\n\napplicable on collateral review by the Supreme Court. Id. §§ 2244(b), 2255(h).\n\nOnce the Supreme Court told us that Johnson applies retroactively (to those\n\nsentenced before Johnson was decided) in Welch, 136 S. Ct. at 1268, this Circuit\n\nfaced a flood of requests to file a second or successive motion, including one from\n\nMr. Lester. The Court granted him permission to file a second § 2255 motion in\n\nDistrict Court. In re Lester, No. 16-11730, slip op. at 9.\n\n I think Johnson entitled Mr. Lester to relief. Yet in the Eleventh Circuit he\n\ngets none. Just as Mr. Lester was about to have his sentence reviewed, his efforts\n\nwere halted by a decision this Court published a few days after he got permission\n\n\n 36\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 37 of 64\n\n\nto file his second or successive § 2255 motion. In re Griffin ruled that the\n\nmandatory Guidelines are not subject to vagueness challenges and, alternatively,\n\nthat Johnson is not retroactive as applied in this context. 823 F.3d at 1353–56.\n\nGriffin foreclosed Mr. Lester’s claim, so the District Court denied Mr. Lester’s\n\n§ 2255 motion. Mr. Lester appealed, and a panel summarily affirmed, again\n\nrelying on Griffin. Lester v. United States, No. 18-10523, slip op. at 3.\n\n But Griffin was wrong in both its rulings, and it should not have stood in the\n\nway of Mr. Lester having his sentence corrected.2 If it were not for the Fourth\n\nCircuit’s intervention, Mr. Lester would still be in prison. Because Griffin will\n\ncontinue to bar relief to others like Mr. Lester, I will elaborate on how it erred.\n\n II.\n\n First, Griffin held that the mandatory Guidelines are not subject to\n\nvagueness challenges. 823 F.3d at 1353–56. But this cannot be accurate. The\n\nmandatory Guidelines are indeed subject to vagueness challenges because they\n\n“ha[d] the force and effect of laws.” Booker, 543 U.S. at 234, 125 S. Ct. at 750.\n\nLike any law, to comply with constitutional due process requirements the\n\nmandatory Guidelines had to “give ordinary people fair notice of the conduct\n\n 2\n Griffin ruled on the merits of this issue of first impression, even though the only\nquestion before the panel was whether the inmate there had made a prima facie case that his\nmotion would contain a new rule of constitutional law made retroactive by the Supreme Court.\nThis Court has had a long-running debate about this practice, and some of my colleagues and I\nhave criticized it on various grounds. See Ovalles, 905 F.3d at 1266–68 (Martin, J., dissenting);\nIn re Williams, 898 F.3d 1098, 1101–02 (11th Cir. 2018) (Wilson, J., specially concurring).\n 37\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 38 of 64\n\n\n[they] punishe[d]” and could not be “so standardless” as to “invite[] arbitrary\n\nenforcement.” Johnson, 135 S. Ct. at 2556.\n\n Supreme Court precedent amply establishes that the Guidelines were\n\nequivalent to law. The Supreme Court characterized the mandatory Guidelines as\n\n“the equivalent of legislative rules adopted by federal agencies.” Stinson v. United\n\nStates, 508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993); see also Mistretta v. United\n\nStates, 488 U.S. 361, 371–379, 109 S. Ct. 647, 654–59 (upholding the Sentencing\n\nCommission’s mandate to set penalties for crimes as a valid delegation of\n\nCongress’s legislative power). Under the mandatory Guidelines, federal district\n\njudges were bound by law to impose sentences within the guideline range\n\ncalculated for any given defendant. See 18 U.S.C. § 3553(b) (1984); Booker, 543\n\nU.S. at 234, 125 S. Ct. at 750 (“[S]ubsection (b) of [§ 3553] directs that the court\n\n‘shall impose a sentence of the kind, and within the range’ established by the\n\nGuidelines, subject to departures in specific, limited cases.” (quoting 18 U.S.C.\n\n§ 3553(b))). In Judge William Pryor’s statement respecting the denial of\n\nrehearing, he says that once Booker invalidated the mandatory guideline system,\n\n“it follows from the holdings in Booker that the Guidelines were never really\n\nmandatory – not as a matter of law.” Pryor Statement, p. 22. However, no one can\n\ndispute that when Mr. Lester was in the courtroom facing his sentence in 2004, the\n\nsentencing judge had no legal authority to sentence him to other than a sentence\n\n\n 38\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 39 of 64\n\n\nmandated by the Guidelines then in effect. But if it is true that Judge Pryor and I\n\nagree that Mr. Lester’s sentence never should have been imposed as though it were\n\nmandatory – I say we should agree to fix the sentences mistakenly imposed as\n\nmandatory on Mr. Lester and others like him.\n\n We know that in the mine-run case, if any given Guidelines provision—say,\n\nthe career-offender provision—required a longer sentence, courts were legally\n\nbound to impose that longer sentence, just as they would be bound to follow the\n\nstatutory provisions of ACCA. For that reason, the mandatory Guidelines must be\n\nsubject to vagueness challenges in the same way regulations are. E.g., FCC v. Fox\n\nTelevision Stations, Inc., 567 U.S. 239, 253, 132 S. Ct. 2307, 2317 (2012) (“Th[e]\n\nrequirement of clarity in regulation is essential to the protections provided by the\n\nDue Process Clause of the Fifth Amendment. It requires the invalidation of laws\n\nthat are impermissibly vague.” (citation omitted)). And five Courts of Appeal, this\n\none included, entertained vagueness challenges to the mandatory Guidelines. See\n\nUnited States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003); United States v.\n\nRutherford, 175 F.3d 899, 906 (11th Cir. 1999); United States v. Johnson, 130 F.3d\n\n1352, 1354 (9th Cir. 1997); United States v. Jones, 979 F.2d 317, 318–19 (3d Cir.\n\n1992); United States v. Moore, No. 95-5586, 1997 WL 71707, at *1 (4th Cir. Feb.\n\n20, 1997) (per curiam) (unpublished). But see United States v. Brierton, 165 F.3d\n\n1133, 1139 (7th Cir. 1999) (concluding the mandatory Guidelines were not subject\n\n\n 39\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 40 of 64\n\n\nto vagueness challenges), abrogation recognized by Cross v. United States, 892\n\nF.3d 288, 296 (7th Cir. 2018); United States v. Smith, 73 F.3d 1414, 1417–18 (6th\n\nCir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United\n\nStates v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).\n\n Mr. Lester’s case well illustrates why the mandatory Guidelines must give\n\nfair notice of the conduct they punish. If he had not been designated a career-\n\noffender, the law would not have permitted a sentence of higher than 151 months.\n\nOnce he was designated a career-offender, however, the law did not permit the\n\nDistrict Judge to impose a sentence of less than 262 months. The mandatory\n\nGuidelines established sentences in the same way ACCA does. Under ACCA,\n\nthree prior qualifying convictions require a minimum fifteen-year sentence instead\n\nof a maximum ten-year sentence. 28 U.S.C. § 924(e). Under the career-offender\n\nguideline, two prior qualifying convictions required a minimum 262-month\n\nsentence for Mr. Lester instead of a maximum 151-month sentence. U.S.S.G.\n\n§ 4B1.2(a) (2003). Just like ACCA, the mandatory Guidelines were laws that\n\nincreased punishment. So in the same way as ACCA, they must be subject to\n\nvagueness challenges. See Johnson v. United States, 135 S. Ct. at 2557; Cross,\n\n892 F.3d at 304–06 (holding the mandatory Guidelines are subject to vagueness\n\nchallenges); In re Sapp, 827 F.3d 1334, 1338–39 (11th Cir. 2016) (Jordan,\n\nRosenbaum, and Jill Pryor, JJ., concurring).\n\n\n 40\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 41 of 64\n\n\n The statute that made the Guidelines mandatory did allow departures in\n\nlimited circumstances. But this is not enough to insulate them from vagueness\n\nchallenges. For one thing, “departures [were] not available in every case, and in\n\nfact [were] unavailable in most.” Booker, 543 U.S. at 243, 125 S. Ct. at 750; see\n\nCross v. United States, 892 F.3d at 305–06 (concluding that Booker “addressed,\n\nand rejected, the argument that the possibility of departures from the mandatory\n\nguideline range was enough to make it advisory”). For another, the Supreme Court\n\nsuggested that a defendant had a due process right to notice when a court was\n\ngoing to sentence him above the guideline range. Specifically, in Burns v. United\n\nStates, 501 U.S. 129, 111 S. Ct. 2182 (1991), abrogated on other grounds as\n\nrecognized by Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683 (2010), the\n\nSupreme Court read Federal Rule of Criminal Procedure 32 to require notice to a\n\ndefendant before a district court sua sponte departed upward from the mandatory\n\nrange. Id. at 135, 111 S. Ct. at 2186. Burns interpreted Rule 32 this way in part\n\nbecause of the due process problems that would result if defendants were not given\n\nnotice. Id. at 138, 111 S. Ct. at 2187. I say that if due process demanded notice of\n\na departure above the mandatory Guidelines, certainly due process would likewise\n\ndemand notice that certain conduct would require imposition of a longer sentence\n\non account of one’s career offender status. At any rate, we know departures were\n\navailable from ACCA-enhanced sentences, see 18 U.S.C. § 3553(e), but this\n\n\n 41\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 42 of 64\n\n\nfeature did not stop the Supreme Court from ruling the ACCA residual clause\n\nunconstitutionally vague in Johnson.\n\n This Supreme Court precedent makes plain that the Griffin panel erred when\n\nit held the mandatory Guidelines are not subject to vagueness challenges. See 823\n\nF.3d at 1354–56. The Griffin panel said that the “logic and principles” of United\n\nStates v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015), which held the\n\nadvisory Guidelines are not subject to vagueness challenges, extended to the\n\nmandatory Guidelines, thus insulating them from vagueness challenges as well.\n\nSee Griffin, 823 F.3d at 1354. The Supreme Court has endorsed the rationale of\n\nMatchett,3 recognizing the advisory Guidelines neither define a crime nor fix a\n\nsentence, but rather merely guide a judge’s sentencing discretion within the\n\napplicable statutory range. Beckles v. United States, 580 U.S. , 137 S. Ct. 886,\n\n892 (2017).4 Griffin missed the mark when it said that the mandatory Guidelines\n\nlikewise only “cabin discretion.” 823 F.3d at 1355. The Supreme Court has\n\nconsistently held that the mandatory Guidelines were like sentencing laws. They\n\n\n 3\n In the interest of full disclosure, I thought that Matchett’s ruling that the advisory\nGuidelines are not subject to vagueness challenges was wrong. In re Clayton, 829 F.3d 1254,\n1258–61 (Martin, J., concurring in the result). Of course, I stand corrected by the Supreme\nCourt’s ruling in Beckles.\n 4\n Beckles did not decide anything about the mandatory Guidelines. 137 S. Ct. at 890\n(“Because we hold that the advisory Guidelines are not subject to vagueness challenges under the\nDue Process Clause, we reject petitioner’s argument.” (emphasis added)); id. at 903 n.4\n(Sotomayor, J., concurring) (noting that Beckles leaves open the question of vagueness\nchallenges to the mandatory Guidelines).\n 42\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 43 of 64\n\n\ndid not guide discretion—they fixed punishments. For that reason, they should be\n\nsubject to vagueness challenges.\n\n III.\n\n The Griffin panel also wrongly held that the rule established in Johnson does\n\nnot apply retroactively to cases like Mr. Lester’s for the reason that he was\n\nsentenced under the mandatory Guidelines, as opposed to ACCA. 823 F.3d at\n\n1355–56. Griffin’s refusal to give retroactive application to Johnson flies in the\n\nface of the Supreme Court’s instruction to us that it should be applied retroactively.\n\nWelch, 136 S. Ct. at 1268. Again, Johnson pronounced it unconstitutional to\n\nimpose longer sentences on people who were earlier convicted under statutes that\n\nrequired judges to decide whether, in the ordinary case, the prior conviction posed\n\na “serious potential risk of physical injury to another.” 135 S. Ct. at 2563; see also\n\n18 U.S.C. § 924(e)(2)(B). The Supreme Court has told us that this rule applies\n\nretroactively, and Mr. Lester should have been able to benefit from it.\n\n Griffin’s recognition of the retroactive application of the Johnson rule for\n\none statute, but not for others, is a novel approach I have not found elsewhere.\n\nNotably, Griffin cited no legal precedent that would allow us to parcel out\n\nretroactivity in this way. See In re Sapp, 827 F.3d at 1339–40 (Jordan,\n\nRosenbaum, and Jill Pryor, JJ., concurring) (noting that Griffin had no authority\n\nfor its assumed premise “that a substantive rule of constitutional law expressly\n\n\n 43\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 44 of 64\n\n\nmade retroactive by the Supreme Court can later be made only partially retroactive\n\nby a circuit court”). Neither have my independent efforts located support for this\n\nconcept. To my knowledge, the Supreme Court has never sanctioned giving\n\nintermittent retroactive application to a decision since Teague v. Lane, 489 U.S.\n\n288, 109 S. Ct. 1060 (1989), established the current law on retroactivity. One of\n\nour sister circuits seems to have assumed, as Griffin did, that Johnson might not\n\nalways apply retroactively. See Cross, 892 F.3d at 306–07 (observing that the\n\nSupreme Court’s reasoning in Welch “justifies treating Johnson as substantive, and\n\ntherefore retroactive, when applied to the mandatory guidelines”). But like the\n\nGriffin opinion, Cross did not explain its retroactivity principle either. Also, Cross\n\nis in some tension with other 7th Circuit precedent. See Price v. United States, 795\n\nF.3d 731, 732 (7th Cir. 2015) (“We now conclude, consistently with the\n\ngovernment’s position, that Johnson announces a new substantive rule of\n\nconstitutional law that the Supreme Court has categorically made retroactive to\n\nfinal convictions.” (emphasis added)). Other circuits appear to have rejected\n\nintermittent retroactivity. See In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016)\n\n(“[T]he government has cited no case to support the proposition that a rule can be\n\nsubstantive in one context but procedural in another.”); see also United States v.\n\nDoe, 810 F.3d 132, 154 & n.13 (3d Cir. 2015) (accepting the government’s\n\nconcession that Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), an\n\n\n 44\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 45 of 64\n\n\nACCA case, applies retroactively on collateral review of a sentence and observing\n\nthat “[u]nder Teague, either a rule is retroactive or it is not”).\n\n The Supreme Court does not ask in each case whether a new rule, as applied,\n\nwould meet Teague’s retroactivity standard. Instead, it analyzes whether the rule\n\nitself meets the retroactivity standard and then determines whether the petitioner\n\ncan benefit from the rule. See Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.\n\nCt. 1029, 1032 (2008) (“New constitutional rules announced by this Court that\n\nplace certain kinds of primary individual conduct beyond the power of the state to\n\nproscribe . . . must be applied in . . . all federal habeas corpus proceedings.”)\n\n(emphasis added)).\n\n Two cases make the point. In Sawyer v. Smith, 497 U.S. 227, 110 S. Ct.\n\n2822 (1990), the Supreme Court considered whether Caldwell v. Mississippi, 472\n\nU.S. 320, 105 S. Ct. 2633 (1985), which prohibited death sentences imposed by\n\njuries who were led to believe the responsibility for the sentence rested elsewhere,\n\napplied retroactively. In conducting the retroactivity analysis, the Sawyer Court\n\nleft to one side “the significant questions concerning the merits of petitioner’s\n\nCaldwell claim . . . , or the question whether application of Caldwell to the facts\n\npresented . . . would itself involve a new rule of law.” Sawyer, 497 U.S. at 234,\n\n110 S. Ct. at 2827. It spoke only to “whether Caldwell is available to petitioner as\n\na ground upon which he may seek relief”—that is, whether Caldwell announced a\n\n\n 45\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 46 of 64\n\n\nretroactively applicable rule, separate and apart from the merits of the petitioner’s\n\nCaldwell claim. Id.\n\n For another example, in O’Dell v. Netherland, 521 U.S. 151, 117 S. Ct. 1969\n\n(1997), the Supreme Court addressed the retroactivity of Simmons v. South\n\nCarolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), which requires a capital defendant\n\nbe permitted to inform a jury deciding whether to impose a death sentence that he\n\nis not eligible for parole when the prosecution argues he presents a future danger.\n\nBefore considering whether the petitioner’s claim came within the scope of the\n\nSimmons rule, the Court explained it had to “determine whether the rule of\n\nSimmons was new for Teague purposes, and, if so, whether that rule falls within\n\none of the two exceptions to Teague’s bar.” O’Dell, 521 U.S. at 159, 117 S. Ct. at\n\n1974.\n\n This Court’s own precedent (Griffin aside) likewise treats rules as either\n\nretroactive or not. E.g., In re Hill, 777 F.3d 1214, 1223–24 (11th Cir. 2015) (per\n\ncuriam); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). In In re Hill, for\n\nexample, the panel first ruled that Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986\n\n(2014), did not apply retroactively on collateral review and only then ruled in the\n\nalternative that the petitioner did not come within the Hall rule. 777 F.3d at 1223–\n\n24. Our sister circuits seem to follow a similar practice. See, e.g., Hubbard, 825\n\nF.3d at 234; Price, 795 F.3d at 734. But see Cross, 892 F.3d at 306–07.\n\n\n 46\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 47 of 64\n\n\n It is worth noting that this across-the-board approach to retroactivity\n\nemerged from a backlash to pre-Teague jurisprudence. Before Teague, the\n\nSupreme Court decided whether a new rule applied retroactively in any given\n\ncollateral review case by weighing the purpose of the new rule, the reliance of the\n\nStates on prior law, and the effect on the administration of justice of a retroactive\n\napplication of the new rule. See Linkletter v. Walker, 381 U.S. 618, 636–39, 85 S.\n\nCt. 1731, 1741–43 (1965). The Linkletter standard resulted in an “unfortunate\n\ndisparity in the treatment of similarly situated defendants on collateral review,”\n\nand the Supreme Court abandoned it for that reason. Teague, 489 U.S. at 305, 109\n\nS. Ct. at 1072. The Griffin holding that substantive rules may apply retroactively\n\nin some cases but not others likewise invites disparity between habeas petitioners.\n\nIts holding is thus inconsistent with the purpose that drove the Teague decision:\n\nthat new substantive rules should apply to all petitioners on collateral review. Id.\n\nat 316, 109 S. Ct. at 1078.\n\n Perhaps worst of all, Griffin gave no explanation for its novel retroactivity\n\nholding. If this Court intends to intermittently apply rules retroactively, it should\n\ngive the many habeas petitioners who come to us seeking relief an understanding\n\nof when a rule will apply retroactively to their case. This is particularly true\n\nwhere, as here, this Court does not intend to apply the rule after the Supreme Court\n\n\n\n\n 47\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 48 of 64\n\n\nhas told us it applies retroactively. Will we do it case by case? Statute by statute?\n\nGriffin gives no answer to these questions.\n\n IV.\n\n Griffin also indicates that Johnson should be treated differently for\n\nsentencing Guidelines, because in that context Johnson would merely “produce\n\nchanges in how the sentencing procedural process is to be conducted.” Griffin,\n\n823 F.3d at 1355. The suggestion is that Johnson, applied to a mandatory\n\nGuidelines sentence, would merely change how a sentence is calculated and not the\n\nsentence itself. This fundamentally misunderstands how the mandatory Guidelines\n\nworked.\n\n Mr. Lester’s case is illustrative. By law, the longest sentence he could have\n\nreceived if not deemed a career offender was 151 months. Once categorized as a\n\ncareer-offender, however, the shortest sentence District Court was legally allowed\n\nto give him was 262 months. In effect, the mandatory Guidelines set minimum\n\nand maximum sentences. Sapp, 827 F.3d at 1340 (Jordan, Rosenbaum, and Jill\n\nPryor, JJ., concurring) (citing United States v. Wright, 607 F.3d 708, 718 (11th Cir.\n\n2010) (William Pryor, J., concurring) (“Because Congress required sentencing\n\ncourts to apply the [mandatory] Sentencing Guidelines and impose a sentence\n\nwithin the applicable guideline range, it was reasonable to view the Guidelines as\n\n\n\n\n 48\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 49 of 64\n\n\neffectively setting minimum and maximum penalties that varied based on the\n\ncircumstances of the offense and the characteristics of the offender.”).\n\n Neither is it an answer to say, as Griffin does, that Johnson’s rule is simply\n\nprocedural because Mr. Lester might receive the same sentence if he were\n\nresentenced now under the advisory Guidelines. Judge William Pryor makes this\n\nargument as well. Pryor Statement, pp. 11–12. On remand a district court would\n\nresentence Mr. Lester under the advisory Guidelines, as opposed to the mandatory\n\nGuidelines, and this is a difference with constitutional significance. See Booker,\n\n543 U.S. at 233–34, 125 S. Ct. at 750; see also Beckles, 137 S. Ct. at 892 (noting\n\nthat the advisory Guidelines “merely guide the exercise of a court’s discretion in\n\nchoosing an appropriate sentence within the statutory range”). There is no\n\nconstitutional doubt about the authority of a district judge to “exercise broad\n\ndiscretion in imposing a sentence within a statutory range,” including taking a\n\ndefendant’s criminal history into account. Booker, 543 U.S. at 233, 125 S. Ct. at\n\n750. But Johnson makes clear that Congress had no power to require a longer\n\nsentence based on a prior conviction because it “involves conduct that presents a\n\nserious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)\n\n(2003). In that sense, Johnson “alter[ed] the range of conduct . . . that the law\n\npunishes.” Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 2523\n\n(2004).\n\n\n 49\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 50 of 64\n\n\n What’s more, the Supreme Court has taught us in other contexts that a rule is\n\nnot procedural just because a court might impose the same sentence after\n\nresentencing. In Montgomery v. Louisiana, 577 U.S. , 136 S. Ct. 718 (2016),\n\nthe Supreme Court held that the right of all but permanently incorrigible juveniles\n\nnot to be sentenced to life without parole was a substantive rule. Id. at 732–34.\n\nMontgomery addressed a class of juvenile offenders who were being punished in\n\nan unconstitutional way. The opinion recognized that a subset of the juvenile\n\noffender class might be permanently incorrigible, and therefore entitled to no\n\nrelief. However, this did not change the substantive right afforded to all juveniles.\n\nThe same is true here. On remand, a district court could have decided that the\n\nsentence it imposed under the mandatory regime remains appropriate in light of the\n\n§ 3553(a) factors. But this possibility does not change Johnson’s pronouncement\n\nof a substantive right not to have a longer sentence mandated under an\n\nunconstitutionally vague law. See Sapp, 827 F.3d at 1341 (Jordan, Rosenbaum,\n\nand Jill Pryor, JJ., concurring).\n\n V.\n\n Mr. Lester should have been able to correct his 262-month career-offender\n\nsentence by a § 2255 motion in this Circuit, where he was sentenced. The residual\n\nclause in the mandatory Guidelines is unconstitutional for the same reasons it is\n\nunconstitutional in ACCA. There is simply no meaningful distinction between the\n\n\n 50\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 51 of 64\n\n\ntwo. See United States v. Brown, 868 F.3d 297, 311 (4th Cir. 2017) (Gregory,\n\nC.J., dissenting). This Court treats precedent interpreting the two as\n\ninterchangeable. See Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir.\n\n2011) (en banc). If a sentence imposed under the ACCA residual clause “does not\n\ncomport with the Constitution’s guarantee of due process,” it must be true that\n\nrelying on an identical “shapeless . . . provision” to impose a mandatory Guideline\n\nsentence doesn’t either. Johnson, 135 S. Ct. at 2560.\n\n The relief Mr. Lester got from the Fourth Circuit highlights the limits this\n\nCourt has placed on the Great Writ. His sentence was doubly infirm. He should\n\nnot have been sentenced as a career offender. And his sentence was the product of\n\nan unconstitutionally vague Guidelines provision. The Fourth Circuit corrected the\n\nformer error. If Mr. Lester had been convicted in the Seventh Circuit, that court\n\nwould have corrected the latter. Eleventh Circuit precedent holds we have no\n\npower to do either.\n\n I hoped our en banc Court would give Mr. Lester relief. Fortunately the\n\nCourt’s decision not to do so did not stand in the way of his freedom. But it bears\n\nnotice that our unwillingness to reconsider Mr. Lester’s sentence will impact\n\nscores of inmates sentenced under the mandatory Guidelines in Alabama, Georgia,\n\nand Florida who have not been incarcerated outside of the Eleventh Circuit.\n\n\n\n\n 51\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 52 of 64\n\n\nROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit\n\nJudges, respecting the denial of rehearing en banc:\n\n I agree with Judge Martin’s well-reasoned Statement respecting the denial of\n\nrehearing en banc. I write separately only to add a few points in response to Judge\n\nWilliam Pryor’s Statement respecting the denial of rehearing en banc (“Pryor\n\nStatement”).\n\n Section I of this dissent takes issue with the Pryor Statement’s argument that\n\nprisoners sentenced under the pre-Booker1 Guidelines can never state a successful\n\nJohnson2 claim because Johnson’s rule is not retroactively applicable to them. As I\n\nexplain, Johnson’s rule, in fact, is retroactively applicable to such prisoners since\n\npre-Booker, prisoners wrongly sentenced under the career-offender guideline were\n\nsubjected to higher mandatory-minimum sentences than they otherwise would have\n\nbeen. Section II explores the Pryor Statement’s theory that the Sentencing\n\nGuidelines “were never really mandatory,” Pryor Statement at 22, even though\n\nindividuals sentenced during the two decades when courts applied the pre-Booker\n\nGuidelines—including the career-offender provision—remain in prison because of\n\na sentencing regime that supposedly never was. And Section III shows how the\n\nPryor Statement’s theory that judicial opinions never change the law cannot be\n\n\n\n 1\n United States v. Booker, 543 U.S. 220 (2005).\n 2\n Johnson v. United States, 135 S. Ct. 2551 (2015).\n\n 52\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 53 of 64\n\n\nconceptually squared with the real effects of judicial opinions and the courts’ role in\n\nour constitutional system.\n\n I.\n\n The Pryor Statement asserts that Lester could not state a viable Johnson claim\n\nbecause Johnson is not retroactively applicable to cases where the career-offender\n\nguideline was applied pre-Booker. Pryor Statement at 22-23. It arrives at this\n\nincorrect conclusion by oversimplifying the “doctrinal pedigree and rationale of the\n\nsubstantive exception” that requires retroactivity. That oversimplification\n\nincorrectly causes the Pryor Statement to overlook the constitutional significance of\n\nwrongly applied mandatory-minimum sentences. Id. at 10.\n\n In fact, as I have explained in McCarthan v. Director of Goodwill Industries—\n\nSuncoast, Inc., 851 F.3d 1076, 1121-41 (11th Cir. 2017) (en banc) (Rosenbaum, J.,\n\ndissenting), retroactivity applies when a previous rule imposed detention in violation\n\nof the separation of powers or of the government’s limited powers—that is, when\n\nthe Congress, the Executive, or the Judiciary exercised powers it does not have in\n\nrelation to causing the detention of a person. See, e.g., Mackey v. United States, 401\n\nU.S. 667, 692 (1971) (Harlan, J., concurring) (defining substantive rules that warrant\n\nretroactivity as “those that place, as a matter of constitutional interpretation, certain\n\nkinds of primary, private individual conduct beyond the power of the criminal law-\n\nmaking authority to proscribe”) (emphasis added).\n\n\n 53\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 54 of 64\n\n\n In Johnson, for example, Congress exceeded its authority by enacting an\n\nunconstitutionally vague law—the residual clause of the Armed Career Criminal Act\n\n(“ACCA”)—“that fix[ed] the permissible sentences for criminal offenses.” Beckles\n\nv. United States, 137 S. Ct. 886, 892 (2017) (emphasis omitted). The Judiciary also\n\nexceeded its authority when it applied this unconstitutional law to, among other\n\nthings, increase mandatory-minimum sentences. See id. So not surprisingly, the\n\nSupreme Court held Johnson’s rule retroactively applicable. Welch v. United States,\n\n136 S. Ct. 1257 (2016).\n\n The residual clause of the career-offender guideline, as employed under the\n\npre-Booker regime, caused the same problem as the residual clause of the ACCA.\n\nFirst, the career-offender guideline mirrored the language of the ACCA’s residual\n\nclause that the Supreme Court ruled unconstitutionally vague. And second, as Judge\n\nWilliam Pryor has previously explained, when “Congress required sentencing courts\n\nto apply the Sentencing Guidelines and impose a sentence within the applicable\n\nguidelines range, it was reasonable to view the Guidelines as effectively setting\n\nminimum and maximum penalties that varied based on the circumstances of the\n\noffense and the characteristics of the offender.” United States v. Wright, 607 F.3d\n\n708, 717–18 (11th Cir. 2010) (Pryor, J.); see also Booker, 543 U.S. at 233–34\n\n(opinion of Stevens, J.) (explaining how the pre-Booker Guidelines fixed sentences).\n\n\n\n\n 54\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 55 of 64\n\n\n So a defendant wrongly found to qualify for the career-offender guideline was\n\nsubjected to a higher mandatory-minimum sentence than he would have been under\n\nthe mandatory Guidelines regime, had the career-offender guideline not been\n\napplied. And that is a constitutional problem. See Alleyne v. United States, 570 U.S.\n\n99, 112 (“It is impossible to dissociate the floor of a sentencing range from the\n\npenalty affixed to the crime.”), 113 (“Elevating the low-end of a sentencing range\n\nheightens the loss of liberty associated with the crime: the defendant’s expected\n\npunishment has increased as a result of the narrowed range, and the prosecution is\n\nempowered, by invoking the mandatory minimum, to require the judge to impose a\n\nhigher punishment than he might wish.”) (cleaned up) (2013). In other words, by\n\nrequiring courts to apply the unconstitutionally vague residual clause of the career-\n\noffender guideline in a mandatory way, Congress exceeded its constitutional power,\n\nsince it prescribed mandatory-minimum sentences based on solely an\n\nunconstitutionally vague guideline it gave the force of binding law. And we, in\n\napplying these mandatory-minimum sentences based on solely an unconstitutionally\n\nvague guideline, also acted beyond our jurisdiction.\n\n The Pryor Statement conveniently glosses over this constitutionally\n\nsignificant problem, diverting attention by focusing on the fact that the pre-Booker\n\nGuidelines did not cause defendants to be sentenced to higher maximum sentences\n\nthan they would have been under the post-Booker Guidelines. But that defendants\n\n\n 55\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 56 of 64\n\n\nwere not exposed to higher maximum penalties does not somehow render\n\nconstitutionally insignificant the separate constitutional problem of “fix[ed]” higher\n\nmandatory-minimum sentences for defendants than were permissible under the pre-\n\nBooker regime. See Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citing\n\nAlleyne, 570 U.S. at 112-13, as “describing the legally prescribed range of available\n\nsentences [which includes the mandatory minimum to the maximum] as the penalty\n\nfixed to a crime”).\n\n The Pryor Statement has no answer to this problem. Instead, it conclusorily\n\ninsists all that matters is whether the sentence that was actually imposed could have\n\nbeen applied under the substantive criminal statute for which the prisoner was\n\nconvicted. But that ignores the fact that when a court applied the career-offender\n\nguideline during the mandatory Guidelines regime, the “legally prescribed range of\n\navailable sentences” differed from what it would have been in the absence of the\n\ncareer-offender guideline during the mandatory Guidelines regime. In other words,\n\nit disregards the constitutional pickle created when Congress exceeded its powers in\n\nrequiring, through 18 U.S.C. § 3553(b)(1)’s provision making the Guidelines\n\nmandatory, courts to apply higher mandatory-minimum sentences than would have\n\notherwise applied in the absence of the unconstitutionally vague residual clause of\n\nthe career-offender guideline, and courts followed that mandate. And it pays no\n\nattention to this problem even though the Supreme Court has expressly identified the\n\n\n 56\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 57 of 64\n\n\nconstitutional significance attached to mandatory minimums. See Beckles, 137 S.\n\nCt. at 892 (citing Alleyne, 570 U.S. at 112-13).\n\n The Pryor Statement divorces the fact that Congress made all the Guidelines\n\nmandatory through 18 U.S.C. § 3553(b)(1), from Congress’s exceeding of its powers\n\nby making the unconstitutionally vague residual clause of the career-offender\n\nguideline mandatory. By making this move, the Pryor Statement picks its real fight\n\nwith Booker, not Johnson. See Pryor Statement at 25 (“I argue that Booker’s holding\n\nthat their mandatory application was unconstitutional controls the question we are\n\ndiscussing.”). In doing so, the Pryor Statement misses that Congress’s Johnson error\n\nunder the pre-Booker Guidelines was substantive in nature, since Congress exceeded\n\nits powers in requiring courts to apply higher mandatory-minimum sentences based\n\nsolely on the unconstitutionally vague residual clause of the career-offender\n\nguideline, and courts followed that mandate.\n\n II.\n\n Perhaps for this reason, the Pryor Statement takes a second tack to argue\n\nprisoners incorrectly sentenced as career offenders pre-Booker have no cognizable\n\n§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these\n\nprisoners were actually sentenced under a mandatory regime. It reasons that since\n\nthe Supreme Court in Booker found that the mandatory Guidelines violated the Sixth\n\n\n\n\n 57\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 58 of 64\n\n\nAmendment, they “were never really mandatory,” even though courts applied them\n\nthat way for two decades. Pryor Statement at 22 (emphasis in original).\n\n Hmm.\n\n I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a\n\ncourt sentenced them using a mandatory version of the Guidelines with an\n\nindisputably unconstitutionally vague career-offender clause would agree.4\n\n Nor does the Pryor Statement’s conclusion that the Guidelines “were never\n\nreally mandatory” comport with what the Supreme Court has had to say on the\n\nsubject. On the contrary, the Court has bluntly explained that the pre-Booker\n\nGuidelines “b[ou]nd judges and courts in the exercise of their uncontested\n\nresponsibility to pass sentence in criminal cases,” Mistretta v. United, 488 U.S. 361,\n\n391 (1989), and “ha[d] the force and effect of laws, prescribing the sentences\n\ncriminal defendants are to receive,” id. at 413 (Scalia, J., dissenting); see also Stinson\n\nv. United States, 508 U.S. 36, 42 (1993) (“The principle that the Guidelines Manual\n\nis binding on federal courts applies as well to policy statements”). And just before\n\n\n\n 3\n Brown v. United States, 139 S. Ct. 14, 16 n.4 (2018) (noting that there are likely at least\n1,187 Johnson challenges to sentences under the pre-Booker career-offender clause).\n 4\n The Pryor Statement expresses wonderment about whether the career-offender provision\nof could “somehow [be] unconstitutionally vague . . . .” Pryor Statement at 12. He need not\nwonder about the career-offender’s vagueness though because it employs the same language as the\nACCA, and the Sentencing Commission expressly modeled the career-offender Guideline after\nthe ACCA. U.S. Sentencing Guidelines Manual app. C, amend. 268 (U.S. Sentencing Comm’n\n1989) (“The definition of crime of violence used in this amendment is derived from 18 U.S.C. §\n924(e).”).\n 58\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 59 of 64\n\n\nexcising the statutory provision that made the Guidelines mandatory, the Supreme\n\nCourt stated that the Guidelines “are not advisory; they are mandatory and binding\n\non all judges” because § 3553(b) “directs that the court ‘shall impose a sentence of\n\nthe kind, and within the range’ established by the Guidelines.” Booker, 543 U.S. at\n\n233–34 (opinion of Stevens, J.).\n\n Indeed, the Pryor Statement’s conclusion today that the Guidelines “were\n\nnever really mandatory” conflicts even with Judge William Pryor’s own prior\n\nstatements. Judge Pryor has previously described the Sentencing Reform Act of\n\n1984 as “ma[king] the Guidelines mandatory.” Wright, 607 F.3d at 717–18. In fact,\n\nas I have noted, Judge Pryor found that “[b]ecause Congress required sentencing\n\ncourts to apply the Sentencing Guidelines and impose a sentence within the\n\napplicable guidelines range, it was reasonable to view the Guidelines as effectively\n\nsetting minimum and maximum penalties that varied based on the circumstances of\n\nthe offense and the characteristics of the offender.” Id. (emphasis added). And he\n\nexplained that “the Court in . . . Booker . . . made the Guidelines advisory.” Id.\n\n Today, though, the Pryor Statement chalks these remarks up to a failure of\n\nlinguistic precision and seeks to rewrite history. See Pryor Statement at 17.\n\nAccording to the Pryor Statement, the Booker Court did not make the Guidelines\n\nadvisory because they were always advisory, since the Sixth Amendment never\n\n\n\n\n 59\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 60 of 64\n\n\nallowed them to be mandatory. Id. at 19. That is certainly interesting on a\n\nmetaphysical level.\n\n But it ignores reality. Back here on Earth, the laws of physics still apply. And\n\nthe Supreme Court’s invalidation of a law does not alter the space-time continuum.\n\nIndeed, there can be no dispute that from when the Guidelines were adopted in 1984\n\nto when the Supreme Court handed down Booker in 2005, courts mandatorily\n\napplied them, as § 3553(b) required, to scores of criminal defendants—including\n\nmany who still sit in prison because of them.\n\n It’s also a particularly mindboggling bit of judicial fiction to, in one breath,\n\nconclude that the Guidelines were always advisory, and in the next, withhold relief\n\nfrom individuals in Lester’s circumstances by noting the advisory Guidelines do not\n\napply retroactively because Booker is a procedural rule, even though, according to\n\nthe Pryor Statement, the Guidelines always were advisory. Under the Pryor\n\nStatement’s reasoning, the Guidelines were never mandatory, but to inmates like\n\nLester, they will always be mandatory, since these prisoners remain subject to their\n\npunishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either\n\nthe Guidelines were never mandatory, in which case, Lester and inmates like Lester\n\nwould not have been sentenced under the mandatory regime or at least would not\n\nremain in prison because of the mandatory regime (a circumstance that is clearly not\n\n\n\n\n 60\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 61 of 64\n\n\nthe case), or they were mandatory until Booker ruled they weren’t, and inmates like\n\nLester can mount Johnson challenges.\n\n III.\n\n The last portion of the Pryor Statement that warrants a response is its theory\n\nthat when Booker invalidated the mandatory nature of the Guidelines, that was really\n\njust a change in “judicial doctrine,” but not “a change in law.” Pryor Statement at\n\n16. According to the Pryor Statement, the Supreme Court could not have made the\n\nSentencing Guidelines advisory because the “Supreme Court wields judicial power,\n\nnot legislative power” and therefore “has no power to amend the text or meaning of\n\nany statute . . . .” Id. at 17.\n\n To be sure, the “Supreme Court wields judicial power, not legislative power”\n\nand therefore “has no power to amend the text or meaning of any statute.” But that\n\ndoes not mean the Supreme Court’s actions do not, in a very real sense, change the\n\nlaw. In my view, there are at least two problems with the Pryor Statement’s line of\n\nthinking to the contrary: it ignores the reality of what happened in Booker, and it\n\nundermines the courts’ constitutional power of judicial review.\n\n First, I address what happened in Booker. When the United States went to\n\nsleep on January 11, 2005, 18 U.S.C. § 3553(b)(1) was the law of the land, and\n\nsentencing courts were required to “impose . . . sentence[s] of the kind, and within\n\nthe range” established by the Guidelines. But when the United States went to sleep\n\n\n 61\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 62 of 64\n\n\non January 12, 2005—hours after the Court issued Booker—§ 3553(b)(1) no longer\n\nhad the force of law. And that is so solely because the Court eliminated § 3553(b)(1)\n\n “through severance and excision”5 in order to “make the Guidelines system\n\nadvisory.” Booker, 543 U.S. at 245 (opinion of Breyer, J.). In striking § 3553(b)(1),\n\nthe Court recognized that it was “alter[ing] the system that Congress designed.” Id.\n\n Despite the Supreme Court’s express words, the Pryor Statement opines that\n\nthough the Court may have “radically changed judicial doctrine,” that change was\n\nnot “equivalent” to a change in “the substance of the law.” Pryor Statement at 19.\n\nCall it a change in doctrine, law, policy—pick the noun—but the reality will always\n\n be the same: the Court’s change effectively excised the Guidelines’ mandatory\n\nlanguage from the United States Code, rendering what were once statutorily imposed\n\n mandatory Guidelines advisory. Importantly, the Court had a duty under the\n\n Constitution to make this change to our law because “[i]t is emphatically the\n\n province and duty of the judicial department to say what the law is.” Marbury v.\n\nMadison, 5 U.S. 137, 177 (1803). And here, § 3553(b)(1) violated the Constitution.\n\nThat leads to my second point. Our duty to “say what the law is” likewise makes it\n\n our job, when a statute is unlawful, to render it unenforceable by saying\n\n 5\n The Pryor Statement takes issue with my characterization of what the Supreme Court did\nin Booker as “excis[ion].” See Pryor Statement at 27. Of course, that is precisely the word the\nSupreme Court used. See Booker, 543 U.S. at 245 (opinion of Breyer, J.). And it used that word\nbecause in the real world, that was the legal effect of what the Supreme Court did in Booker to the\nmandatory nature of the Guidelines, whether the Pryor Statement wishes to acknowledge that fact\nor not.\n 62\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 63 of 64\n\n\nwhat the Constitution requires of the statute. See id. (“If two laws conflict with each\n\nother, the courts must decide on the operation of each.”); see also The Federalist No.\n\n78. So while it is true that the “Supreme Court . . . has [only] the authority to say\n\nwhat a statute means,” Pryor Statement at 17, sometimes those statements\n\nnecessarily force a change in the law. And under our Constitution, those changes\n\nare every bit as valid and must be followed every bit as much as if Congress itself\n\nhad enacted them.\n\n Booker is a good example; one day the Guidelines were mandatory, and the\n\nnext day they were not, solely because of the Supreme Court’s opinion striking down\n\n§ 3553(b)(1). So while we can pretend that the Supreme Court’s decisions do not\n\n“change[] the law,” Pryor Statement at 17, the reality is that in our constitutional\n\nsystem, sometimes they can and they do.\n\nAnd as I have noted, when that happens, those changes are just as valid under our\n\nconstitutional system as if Congress had statutorily enacted them.\n\n Finally, I must respond to Judge Pryor’s charge that this Statement does not\n\n“say what the law is,” but rather what I supposedly think “it should be.” See Pryor\n\nStatement at 27 (quoting Marbury, 5 U.S. at 177) (quotation marks omitted). I trust\n\nthat any honest reading of this Statement soundly rebuts that accusation. Nor does\n\ndaring to disagree with the Pryor Statement’s analysis make my analysis either what\n\n\n\n\n 63\n\f Case: 18-10523 Date Filed: 04/29/2019 Page: 64 of 64\n\n\nI think the law “should be” or immodest. And I will let the irony of the Pryor\n\nStatement’s suggestion to the contrary speak for itself.\n\n IV.\n\n In short, Johnson’s rule applies retroactively when an unconstitutionally\n\nvague law results in the application of a fixed sentencing range that is higher than it\n\notherwise would have been. Pre-Booker, when courts applied the career-offender\n\nguideline, that resulted in a higher mandatory minimum than otherwise would have\n\npertained to a defendant under the mandatorily applied Guidelines. So Johnson’s\n\nrule applies to pre-Booker sentences that imposed the career-offender guideline\n\nbased on at least one predicate conviction that qualified under only the\n\nunconstitutionally vague residual clause. Nor does the judicial fiction that the\n\nGuidelines “were never really mandatory” somehow erase the fact that they were\n\napplied in a mandatory way for more than 20 years. So if because of the residual\n\nclause, a prisoner was incorrectly sentenced under the career-offender guideline in\n\nthe pre-Booker sentencing regime, he can establish a viable Johnson claim. And our\n\nCircuit precedent to the contrary is simply wrong.\n\n\n\n\n 64\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Stoney LESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10523 Date Filed: 04/29/2019 Page: 1 of 64\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n\\n\\n No. 18-10523\\n\\n\\n D.C. Docket No. 5:16-cv-00258-CAR\\n\\n\\n\\nSTONEY LESTER,\\n\\n Petitioner - Appellant,\\n\\nversus\\n\\nUNITED STATES OF AMERICA,\\n\\n Respondent - Appellee.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Middle District of Georgia\\n\\n\\n\\n\\nBefore ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM\\nPRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM,\\nBRANCH, and GRANT, Circuit Judges.\\n\\nBY THE COURT:\\n\\n A petition for rehearing having been filed and a member of this Court in\\n\\nactive service having requested a poll on whether this case should be reheard by\\n\\nthe Court sitting en banc, and a majority of the judges in active service on this\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 2 of 64\\n\\n\\nCourt having voted against granting a rehearing en banc, it is ORDERED that this\\n\\ncase will not be reheard en banc.\\n\\n\\n\\n\\n 2\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 3 of 64\\n\\n\\nWILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:\\n\\n A majority of the Court has voted not to rehear this appeal en banc to\\n\\nreconsider whether a subset of federal prisoners classified as career offenders\\n\\nunder the United States Sentencing Guidelines can seek resentencing on collateral\\n\\nreview based on the void-for-vagueness doctrine explicated in Johnson v. United\\n\\nStates, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed\\n\\nCareer Criminal Act. As background, we held in United States v. Matchett, 802\\n\\nF.3d 1185 (11th Cir. 2015), and the Supreme Court later confirmed in Beckles v.\\n\\nUnited States, 137 S. Ct. 886 (2017), that prisoners who were sentenced as career\\n\\noffenders after the Supreme Court’s decision in United States v. Booker, 543 U.S.\\n\\n220 (2005), cannot benefit from Johnson because—at least after Booker—the void-\\n\\nfor-vagueness doctrine does not apply to the Sentencing Guidelines. But neither\\n\\nMatchett nor Beckles resolved whether those sentenced as career offenders before\\n\\nBooker can collaterally attack their sentences.\\n\\n Our published order In re Griffin, 823 F.3d 1350 (11th Cir. 2016), answered\\n\\nthat question in the negative for two independent reasons. First, Griffin applied the\\n\\nreasoning of Matchett to hold that the Guidelines are not susceptible to void-for-\\n\\nvagueness challenges no matter whether a prisoner was sentenced before or after\\n\\nBooker. See id. at 1354–55. Second, although the Supreme Court has held that the\\n\\nnew legal rule of Johnson applies retroactively to cases on collateral review\\n\\n\\n 3\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 4 of 64\\n\\n\\nbecause it is “substantive,” see Welch v. United States, 136 S. Ct. 1257 (2016),\\n\\nGriffin held that an analogous new rule applying the void-for-vagueness doctrine to\\n\\npre-Booker career-offender sentences under the Guidelines would be not be\\n\\nsubstantive and, as a result, could not be applied retroactively. See 823 F.3d at\\n\\n1355–56.\\n\\n Griffin and Matchett speak for themselves as to the first holding, but I write\\n\\nin response to Judge Martin’s statement respecting the denial of rehearing en banc\\n\\nto explain that Griffin’s second holding must be correct. In brief, Johnson was a\\n\\nsubstantive decision that entitled prisoners sentenced under the residual clause of\\n\\nthe Armed Career Criminal Act to relief because it made clear that the law had\\n\\nnever authorized their convictions and sentences. By contrast, a new rule extending\\n\\nJohnson to set aside pre-Booker career-offender sentences—all of which fall\\n\\nwithin the substantive statutory ranges prescribed by Congress—would require\\n\\nonly the procedural formality of a resentencing in which the district court would\\n\\nhave the power to impose exactly the same sentence as before. Such a rule, as we\\n\\nconcluded in Griffin, would not be substantive. See id. at 1355–56. To my mind,\\n\\nthis nutshell summary of Griffin’s second holding says all that needs to be said.\\n\\nBut, because some of my colleagues see the matter differently, this statement\\n\\nexplains at greater length why a new rule extending Johnson’s void-for-vagueness\\n\\n\\n\\n\\n 4\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 5 of 64\\n\\n\\nholding to invalidate pre-Booker career-offender sentences would not be\\n\\nsubstantive.\\n\\n I divide my discussion in three parts. First, I explain that the rationale\\n\\nunderlying the retroactivity of substantive rules is that courts lack the authority to\\n\\nenter a judgment of conviction or impose a sentence the substance of which the\\n\\nlaw does not authorize, and I explain that the new rule that Judge Martin’s\\n\\nstatement advocates would not be substantive in this sense because the sentences it\\n\\nwould invalidate were imposed within the statutory ranges established by\\n\\nCongress. Second, I explain that Judge Martin’s counterargument cannot be\\n\\nsquared with Booker. Third, I respond briefly to Judge Rosenbaum’s statement.\\n\\n A. The Retroactivity of Substantive Rules.\\n\\n In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court “adopt[ed] [the]\\n\\napproach to retroactivity for cases on collateral review” that the second Justice\\n\\nHarlan had developed in two influential opinions. Id. at 292; Mackey v. United\\n\\nStates, 401 U.S. 667, 675–702 (1971) (Harlan, J., concurring in the judgment);\\n\\nDesist v. United States, 394 U.S. 244, 256–69 (1969) (Harlan, J., dissenting).\\n\\nUnder this familiar framework, “new constitutional rules of criminal procedure\\n\\nwill not be applicable to those cases which have become final before the new rules\\n\\nare announced.” Teague, 489 U.S. at 310 (O’Connor, J., plurality opinion).\\n\\nAlthough the Court has maintained that there exists an exception for “a small set of\\n\\n\\n 5\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 6 of 64\\n\\n\\n‘watershed rules of criminal procedure implicating the fundamental fairness and\\n\\naccuracy of the criminal proceeding,’” it has also stressed that this exception is\\n\\n“extremely narrow,” and it has never held that any rule falls within the exception.\\n\\nSchriro v. Summerlin, 542 U.S. 348, 352 (2004) (some internal quotation marks\\n\\nomitted) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).\\n\\n In contrast to new procedural rules, “[n]ew substantive rules generally apply\\n\\nretroactively.” Id. at 351. This category “includes decisions that narrow the scope\\n\\nof a criminal statute by interpreting its terms, as well as constitutional\\n\\ndeterminations that place particular conduct or persons covered by the statute\\n\\nbeyond the State’s power to punish.” Id. at 351–52 (citation omitted). It also\\n\\nincludes “rules prohibiting a certain category of punishment for a class of\\n\\ndefendants because of their status or offense.” Penry v. Lynaugh, 492 U.S. 302,\\n\\n330 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).\\n\\n Although it is common for courts to “refer[] to rules of this . . . type as\\n\\nfalling under an exception to Teague’s bar on retroactive application of procedural\\n\\nrules,” “they are more accurately characterized as substantive rules not subject to\\n\\nthe bar.” Schriro, 542 U.S. at 352 n.4. After all, “Teague by its terms applies only\\n\\nto procedural rules.” Bousley v. United States, 523 U.S. 614, 620 (1998). To be\\n\\nsure, there is no practical difference between a rule that falls within “an exception\\n\\nto Teague’s bar” and a rule “not subject to the bar.” Schriro, 542 U.S. at 352 n.4.\\n\\n\\n 6\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 7 of 64\\n\\n\\nBut the doctrinal basis of the retroactivity of substantive rules is independent of\\n\\nTeague and indeed long predates it.\\n\\n More than a century before Teague, the Supreme Court held that prisoners\\n\\ncould use the writ of habeas corpus to challenge the substantive validity of their\\n\\nconvictions and sentences. Traditionally, of course, the writ was unavailable to\\n\\nchallenge mere error by the sentencing court. The habeas jurisdiction of the federal\\n\\ncourts was subject to “limitations . . . arising from the nature and objects of the writ\\n\\nitself, as defined by the common law.” Ex parte Siebold, 100 U.S. 371, 375 (1879).\\n\\nAnd “the general rule [was] that a conviction and sentence by a court of competent\\n\\njurisdiction [was] lawful cause of imprisonment,” from which “no relief [could] be\\n\\ngiven by habeas corpus.” Id. “The only ground” for relief “to a prisoner under\\n\\nconviction and sentence of another court [was] the want of jurisdiction in such\\n\\ncourt over the person or the cause, or some other matter rendering its proceedings\\n\\nvoid.” Id.\\n\\n In Siebold, the best known of a number of late-nineteenth-century decisions\\n\\nwith similar rationales, the Court held that a prisoner’s argument that his statute of\\n\\nconviction was unconstitutional did not exceed the limited scope of the writ. The\\n\\nCourt reasoned that an unconstitutional statute “affects the foundations of the\\n\\nwhole proceedings.” Id. at 376. After all, “[a]n unconstitutional law is void, and is\\n\\nas no law.” Id. So, the Court deduced, “[a] conviction under it is not merely\\n\\n\\n 7\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 8 of 64\\n\\n\\nerroneous, but is illegal and void.” Id. And because the trial court’s “authority to\\n\\nindict and try the petitioners arose solely upon the[] laws” they challenged, “if the\\n\\nlaws [were] unconstitutional,” it followed that “the [trial court] acquired no\\n\\njurisdiction of the causes.” Id. at 377. In other decisions, the Court employed the\\n\\nsame jurisdictional logic to hold that habeas corpus was available to correct a\\n\\nsentence imposed without legal authority. See, e.g., In re Bonner, 151 U.S. 242,\\n\\n255 (1894); In re Mills, 135 U.S. 263, 270 (1890); Ex parte Lange, 85 U.S. 163,\\n\\n176 (1873). The Court treated each of these cases “not [as] a case of mere error,\\n\\nbut [as] one in which the court below transcended its powers”—that is, exceeded\\n\\nits jurisdiction. Mills, 135 U.S. at 270.\\n\\n To be sure, the Court’s reasoning in Siebold and in related decisions has had\\n\\nits doubters. Some jurists have argued that these decisions expanded the traditional\\n\\nconcept of jurisdiction, see, e.g., Wright v. West, 505 U.S. 277, 285 (1992)\\n\\n(opinion of Thomas, J.); Fay v. Noia, 372 U.S. 391, 450–51, 454–55 (1963)\\n\\n(Harlan, J., dissenting), maybe even to the point of unintelligibility, see Paul M.\\n\\nBator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,\\n\\n76 Harv. L. Rev. 441, 470–71 & n.66 (1963). And Supreme Court justices have\\n\\ndisagreed about how to interpret Siebold and about how far its logic extends.\\n\\nCompare Montgomery v. Louisiana, 136 S. Ct. 718, 730–32 (2016), with id. at\\n\\n740–41 (Scalia, J., dissenting), and id. at 748 (Thomas, J., dissenting).\\n\\n\\n 8\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 9 of 64\\n\\n\\n But whatever doubt there may be about the reasoning in Siebold and similar\\n\\ndecisions, there should be no doubt that, as a historical matter, it supplied the\\n\\nrationale for what we now know as the substantive “exception.” When Justice\\n\\nHarlan explained that courts should not bar the retroactive application of new rules\\n\\n“that place . . . certain kinds of primary, private individual conduct beyond the\\n\\npower of the criminal law-making authority to proscribe,” he added—with specific\\n\\nreference to Siebold and kindred decisions—that “the writ has historically been\\n\\navailable for attacking convictions on such grounds.” Mackey, 401 U.S. at 692–93\\n\\n& n.8 (Harlan, J., concurring in the judgment); see also Desist, 394 U.S. at 261 n.2\\n\\n(Harlan, J., dissenting) (discussing Siebold’s jurisdictional rationale); Fay, 372\\n\\nU.S. at 454–55 (Harlan, J., dissenting) (same). As the Court started to embrace\\n\\nJustice Harlan’s retroactivity framework in decisions leading up to Teague, it too\\n\\nconnected retroactivity with the sentencing court’s lack of jurisdiction. See United\\n\\nStates v. Johnson, 457 U.S. 537, 550 (1982) (“recogniz[ing] [that] full retroactivity\\n\\n[is] a necessary adjunct to a ruling that a trial court lacked authority to convict or\\n\\npunish a criminal defendant in the first place,” making its “judgments or sentences\\n\\n. . . void ab initio”); see also Griffith v. Kentucky, 479 U.S. 314, 324 (1987)\\n\\n(paraphrasing Johnson as having explained that retroactivity attaches “when the\\n\\nnew ruling was that a trial court lacked authority to convict a criminal defendant in\\n\\nthe first place”).\\n\\n\\n 9\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 10 of 64\\n\\n\\n Nor can there be any doubt that the substantive exception continues to rest\\n\\non this jurisdictional rationale. In Montgomery v. Louisiana, the Court explained\\n\\nthat “[b]y holding that new substantive rules are . . . retroactive, Teague continued\\n\\na long tradition.” 136 S. Ct. at 730. The Montgomery Court illustrated that\\n\\n“tradition” with a detailed discussion of Siebold, which, it explained, had\\n\\n“addressed why substantive rules must have retroactive effect.” Id. The Court\\n\\nexplained that “the same logic”—that is, Siebold’s jurisdictional rationale—\\n\\n“governs a challenge to a punishment” that the states lack “authority to impose.”\\n\\nId. at 731. Montgomery reaffirmed Siebold’s rule that “[a] conviction or sentence\\n\\nimposed in violation of a substantive rule is not just erroneous but contrary to law\\n\\nand, as a result, void.” Id. And, the Court reasoned, “[i]t follows . . . that a court\\n\\nhas no authority to leave in place a conviction or sentence that violates a\\n\\nsubstantive rule, regardless of [when] the conviction or sentence became final.”\\n\\nId. The Court’s explanation in Welch of why Johnson is substantive—that because\\n\\nthe residual clause of the Armed Career Criminal Act “is invalid,” it cannot\\n\\n“mandate or authorize any sentence,” 136 S. Ct. at 1265—also would have been at\\n\\nhome in any of the decisions in the Siebold family. Cf., e.g., Mills, 135 U.S. at 270\\n\\n(“The court below was without jurisdiction to pass any such sentences . . . .”).\\n\\n The doctrinal pedigree and rationale of the substantive exception logically\\n\\ndictate its scope. The exception is based on the idea that a court has no authority to\\n\\n\\n 10\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 11 of 64\\n\\n\\nenter a judgment of conviction under a void statute or to impose a sentence not\\n\\nauthorized by law. Necessarily, then, when a prisoner’s conviction is supported by\\n\\na valid statute and his sentence is authorized by law, the substantive exception\\n\\ncannot apply. Cf. Lockhart v. Fretwell, 506 U.S. 364, 373 (1993) (“Cessante\\n\\nratione legis, cessat et ipsa lex.”).\\n\\n From this understanding of the substantive exception, it follows that the\\n\\nexception does not apply to pre-Booker sentences under the Guidelines. Every\\n\\nsentence that has ever been imposed under the Guidelines—either before or after\\n\\nBooker—falls within the statutory range of punishment prescribed by Congress for\\n\\nthe defendant’s offense. See Mistretta v. United States, 488 U.S. 361, 374–75\\n\\n(1989) (explaining that when Congress empowered the Sentencing Commission to\\n\\npromulgate the Guidelines, it “instructed the Commission that these sentencing\\n\\nranges must be consistent with pertinent provisions of Title 18 of the United States\\n\\nCode and could not include sentences in excess of the statutory maxima”). And\\n\\nevery court that has ever imposed a sentence under the Guidelines had the\\n\\nauthority to impose a sentence within the statutory range.\\n\\n Take Stoney Lester as an example. Lester pleaded guilty in 2003 to\\n\\ndistributing more than five grams of crack cocaine, an offense with a statutory\\n\\nrange of five to 40 years of imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii).\\n\\nThe sentence he received under the Guidelines—21 years and 10 months—was\\n\\n\\n 11\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 12 of 64\\n\\n\\nsquarely within the statutory range and, as such, within the authority granted to the\\n\\ndistrict court by Congress. So even if the career-offender provision that was used\\n\\nto calculate Lester’s sentence under the Guidelines were somehow\\n\\nunconstitutionally vague, the substantive exception would not extend to Lester’s\\n\\nsentence.\\n\\n To look at the same idea from a different angle, consider the result if Lester\\n\\nor a similarly situated prisoner prevailed in a vagueness attack on the career-\\n\\noffender sentencing Guideline. A successful vagueness challenge would establish\\n\\nonly that the district court improperly relied on an unacceptably unclear directive\\n\\nin arriving at the prisoner’s sentence. But it would not in the slightest establish that\\n\\nthe district court lacked the authority to impose the substantive sentence at which it\\n\\narrived. On the contrary, as Griffin observed, the district court could impose\\n\\nexactly the same sentence on remand after the appellate court corrected its error.\\n\\n823 F.3d at 1355. In this respect, erroneous reliance on an unconstitutionally vague\\n\\nsentencing Guideline, if such a thing were to exist, resembles “procedural”\\n\\nsentencing errors—errors like “failing to calculate (or improperly calculating) the\\n\\nGuideline range, treating the Guidelines as mandatory, . . . or failing to adequately\\n\\nexplain the chosen sentence,” Gall v. United States, 552 U.S. 38, 51 (2007)—for\\n\\nwhich the remedy is a remand with corrective instructions but with no guarantee of\\n\\na different outcome. And, as we explained in Griffin and as the Solicitor General\\n\\n\\n 12\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 13 of 64\\n\\n\\nargued in Beckles, this fact means that a new rule extending Johnson to the career-\\n\\noffender sentencing Guideline would also be “procedural,” not substantive, for\\n\\npurposes of retroactivity. See Griffin, 823 F.3d at 1355–56; Brief for the United\\n\\nStates at 11–33, Beckles v. United States, 137 S. Ct. 886 (No. 15-8544).\\n\\n B. The “Mandatory Guidelines” and Booker.\\n\\n Judge Martin’s statement responds that this reasoning “fundamentally\\n\\nmisunderstands how the mandatory Guidelines worked” because it ignores that,\\n\\nbefore Booker, “the shortest sentence the District Court was legally allowed to give\\n\\n[Lester]” “[o]nce categorized as a career-offender” was greater than “the longest\\n\\nsentence he could have received if not deemed a career offender.” Statement of\\n\\nMartin, J., at 48. The argument is not expressly framed in terms of whether the\\n\\ndistrict court had the substantive authority to impose Lester’s sentence, but to\\n\\ntranslate it into those terms is easy enough. In this view, it does not matter to\\n\\nretroactivity that the district court could sentence a pre-Booker career offender like\\n\\nLester to the same term of imprisonment today. See id. at 49. Instead, the critical\\n\\npoint is that—without the career-offender provision—it lacked the substantive\\n\\nauthority to impose the sentence then, in the pre-Booker era when the Guidelines\\n\\ndictated what sentences were “legally allowed.” Id. at 48; see also id. at 38–40.\\n\\n This response contains an important internal tension. In Judge Martin’s\\n\\naccount, the putative unconstitutionality of the career-offender Guideline, which\\n\\n\\n 13\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 14 of 64\\n\\n\\nher statement contends was established by the Supreme Court’s 2015 decision in\\n\\nJohnson, must “relate back” to the time of Lester’s sentencing in 2003; otherwise,\\n\\nthere would be no ground to argue that Lester’s sentence was substantively invalid.\\n\\nBut the advisory nature of the Guidelines, which was established by the Supreme\\n\\nCourt’s 2005 decision in Booker, must not relate back to Lester’s sentencing. If\\n\\nBooker’s construction of the Guidelines’ legal status was the correct view of the\\n\\nlaw at the time of Lester’s sentencing, then the “mandatory Guidelines” did not\\n\\nexist in a legal sense, did not limit the district court’s discretion to choose an\\n\\nappropriate sentence within the statutory range, and did not render his actual\\n\\nsentence substantively invalid.\\n\\n The premise that the Sentencing Guidelines were in the strictest sense\\n\\nlegally binding before Booker pervades Judge Martin’s statement. As her statement\\n\\nputs it, “[u]nder the mandatory Guidelines, federal district courts were bound by\\n\\nlaw to impose sentences within the guideline range.” Id. at 38. Her statement\\n\\nexplains, “the mandatory Guidelines were laws that increased punishment”—laws\\n\\nthat, “[i]n effect, . . . set minimum and maximum sentences.” Id. at 40, 48. And it\\n\\ninsists that the Guidelines, “[b]y law,” dictated the sentences that the district court\\n\\n“was legally allowed to give” Lester. Id. at 48. In this view, “the sentencing judge\\n\\nhad no legal authority to sentence [Lester] to other than a sentence mandated by\\n\\nthe Guidelines then in effect.” Id. at 38–39.\\n\\n\\n 14\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 15 of 64\\n\\n\\n This manner of speaking, of course, is by no means peculiar to Judge\\n\\nMartin. Virtually all of us are in the habit of distinguishing, in one way or another,\\n\\nbetween the “mandatory Guidelines” that operated before Booker and the\\n\\n“advisory Guidelines” that have operated since. See, e.g., Matchett, 802 F.3d at\\n\\n1196 (referring to “when the guidelines were still mandatory”); United States v.\\n\\nMartin, 455 F.3d 1227, 1236 (11th Cir. 2006) (“As we all now know, Booker made\\n\\nthe guidelines advisory.”).\\n\\n Purely as a description of judicial doctrine and practice, this language makes\\n\\nsense. Cf. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457,\\n\\n457–61 (1897). Before Booker, district courts believed they were bound to apply\\n\\nthe Guidelines as mandatory, and the courts of appeals would reverse district\\n\\ncourts that treated them as merely advisory. After Booker, district courts\\n\\nrecognized that they were bound not to apply the Guidelines as mandatory, and the\\n\\ncourts of appeals will now reverse district courts that fail to treat them as advisory.\\n\\nThis change in court behavior makes it natural to say that Booker “made the\\n\\nGuidelines advisory.”\\n\\n But even if our idioms adequately describe judicial practice, they may be\\n\\nerroneous or inadequate in other respects. And we must be careful not to let the\\n\\nimprecision of our language control our reasoning. “[W]ords are wise men’s\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 16 of 64\\n\\n\\ncounters, they do but reckon by them; but they are the money of fools.” Thomas\\n\\nHobbes, Leviathan 19 (Edwin Curley ed., Hackett 1994 [1651]).\\n\\n In particular, we should be mindful of the difference between a change in\\n\\njudicial doctrine and a change in law. This distinction, although sometimes easy to\\n\\noverlook, is fundamental. Without distinguishing between judges’ understanding\\n\\nof the law and the law itself, we could not meaningfully say, for example, that a\\n\\nchange in judicial doctrine “proved Mr. Lester’s objection right and Eleventh\\n\\nCircuit case law wrong,” Statement of Martin, J., at 33, nor could the Supreme\\n\\nCourt meaningfully describe a past decision of its own as “wrong the day it was\\n\\ndecided,” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863 (1992)\\n\\n(joint opinion of O’Connor, Kennedy, and Souter, JJ.); see also Stephen E. Sachs,\\n\\nFinding Law, 107 Calif. L. Rev. (forthcoming Apr. 2019) (manuscript at 43)\\n\\n(available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443 (last\\n\\nvisited Apr. 28, 2019)). And we would be hard-pressed to explain why Johnson\\n\\nrequired the retroactive invalidation of final convictions and sentences based on the\\n\\nresidual clause of the Armed Career Criminal Act, see Welch, 136 S. Ct. at 1265,\\n\\nwhen an act of Congress that merely repealed the clause would not do so. The\\n\\nanswer, of course, is that Johnson did not strictly speaking change the law; “rather,\\n\\nit held and therefore established that the prior decisions [treating the residual\\n\\nclause as valid] were incorrect.” Rivers v. Roadway Express, Inc., 511 U.S. 298,\\n\\n\\n 16\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 17 of 64\\n\\n\\n312 (1994); see also Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). In\\n\\nthe light of Johnson, the residual clause was, as a matter of law, always invalid.\\n\\n So it can be misleading to say, as we often do, that “the Sentencing\\n\\nGuidelines were mandatory,” Statement of Martin, J., at 31, and that the Supreme\\n\\nCourt “made” them advisory in Booker. These idioms suggest that the Guidelines\\n\\nwere once really mandatory as a matter of law and that they became advisory as a\\n\\nmatter of law only after—and only because of—Booker. But that cannot be right. If\\n\\nBooker’s effect was to change the essential legal status of the Guidelines from\\n\\nmandatory to advisory, then it must have been one of two things: either a\\n\\nlegislative amendment that removed the textual command that courts apply the\\n\\nGuidelines as mandatory, see 18 U.S.C. § 3553(b)(1), from the Sentencing Reform\\n\\nAct and replaced it with a provision that the Guidelines be treated as advisory or,\\n\\nalternatively, a constitutional amendment that newly prohibited the mandatory\\n\\napplication of the Guidelines. But Booker—a judicial decision—was neither of\\n\\nthose things.\\n\\n The Supreme Court wields judicial power, not legislative power. See U.S.\\n\\nConst. art. I, § 1; id. art. III, § 1. It has no power to amend the text or meaning of\\n\\nany statute; it has the authority only “to say what a statute means,” which means\\n\\n“what the statute meant before as well as after the decision of the case giving rise\\n\\nto that construction,” in the course of deciding a case or controversy. Rivers, 511\\n\\n\\n 17\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 18 of 64\\n\\n\\nU.S. at 312–13. Nor does the Supreme Court have the authority to amend the\\n\\nConstitution. See, e.g., Bell v. Maryland, 378 U.S. 226, 288 (1964) (In\\n\\nconstitutional cases, the Court’s “duty is to construe, not to rewrite or amend, the\\n\\nConstitution.” (internal quotation marks omitted)); South Carolina v. United\\n\\nStates, 199 U.S. 437, 448 (1905) (“The Constitution is a written instrument. As\\n\\nsuch its meaning does not alter. That which it meant when adopted, it means\\n\\nnow.”). So, instead of a legislative act or constitutional amendment that changed\\n\\nthe law, Booker was a judicial decision that held that the statutory requirement that\\n\\ncourts apply the Guidelines as mandatory is without legal effect.\\n\\n Booker established that the Guidelines are not mandatory through two\\n\\nholdings. First, the Court held that the statutory requirement of mandatory\\n\\napplication of the Guidelines would violate the Sixth Amendment as applied\\n\\nwhenever it resulted in a sentence greater than the maximum sentence that could be\\n\\nimposed based only on the facts reflected in a jury’s guilty verdict or admitted by\\n\\nthe defendant. See Booker, 543 U.S. at 233–37 (Stevens, J., opinion of the Court).\\n\\nSecond, as a matter of severability, the Court held that the Guidelines could not be\\n\\napplied as mandatory in any cases, even when their mandatory application would\\n\\nnot violate the Sixth Amendment, because the resulting system would be\\n\\nstructurally unsound and contrary to the intent of Congress. See id. at 249–59, 265–\\n\\n67 (Breyer, J., opinion of the Court).\\n\\n\\n 18\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 19 of 64\\n\\n\\n Although Booker radically changed judicial doctrine with respect to the\\n\\nGuidelines, neither of its holdings was the equivalent of a legislative or\\n\\nconstitutional amendment to the substance of the law. As far as the constitutional\\n\\nholding is concerned, this point should be obvious: “Constitutional invalidity of\\n\\nfederal statutes . . . is produced by the Constitution itself, not by the order of a\\n\\ncourt.” John Harrison, Severability, Remedies, and Constitutional Adjudication, 83\\n\\nGeo. Wash. L. Rev. 56, 87 (2014); see also Marbury v. Madison, 5 U.S. 137, 177–\\n\\n78 (1803). The Sixth Amendment did not mean one thing the day before Booker\\n\\nand another thing the day Booker was decided. The Court in Booker did not make\\n\\nthe statutory provision requiring the mandatory application of the Guidelines\\n\\nunconstitutional. Instead, the Court recognized that the provision was\\n\\nunconstitutional by determining the meaning of the Sixth Amendment—that is, by\\n\\ninterpreting it—and that its meaning was incompatible with that of the statutory\\n\\nprovision in certain circumstances. In those applications, the statutory provision\\n\\nwas always unconstitutional; it was always “void, and . . . as no law.” Siebold, 100\\n\\nU.S. at 376; accord Marbury, 5 U.S. at 177.\\n\\n Booker’s severability conclusion is no different. As the Supreme Court and\\n\\ncommentators have long acknowledged, severability is fundamentally “an exercise\\n\\nin statutory interpretation.” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.\\n\\n1461, 1486 (2018) (Thomas, J., concurring); see also, e.g., Dorchy v. Kansas, 264\\n\\n\\n 19\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 20 of 64\\n\\n\\nU.S. 286, 290 (1924) (Severability is “a question of interpretation and of legislative\\n\\nintent.”); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46\\n\\nStan. L. Rev. 235, 289 (1994) (“Severability presents a question of statutory\\n\\ninterpretation . . . .”). Specifically, issues of severability pose the interpretive\\n\\nquestion of how to understand a legal text as a whole in the light of a newly\\n\\nacknowledged fact—that part of the text cannot be given legal effect. See Murphy,\\n\\n138 S. Ct. at 1486 (Thomas, J., concurring) (“[T]he severability doctrine has courts\\n\\ndecide how a statute operates once they conclude that part of it cannot be\\n\\nconstitutionally enforced.”); Harrison, supra, 83 Geo. Wash. L. Rev. at 88; see also\\n\\nBooker, 543 U.S. at 247 (Breyer, J., opinion of the Court) (observing that\\n\\n“severability questions . . . can arise when a legislatively unforeseen constitutional\\n\\nproblem requires modification of a statutory provision as applied in a significant\\n\\nnumber of instances”); id. at 265 (“[W]e have examined the statute in depth to\\n\\ndetermine Congress’ likely intent in light of today’s holding.”); Dorchy, 264 U.S.\\n\\nat 290 (posing the question whether one section of a state statute was “so\\n\\ninterwoven with the [other sections] held invalid that the section cannot stand\\n\\nalone”). It is because severability issues are interpretive questions that courts\\n\\nanswer them by using the same kinds of tools that are applied to other issues of\\n\\nstatutory construction, see, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 687\\n\\n(1987) (finding “abundant indication of a clear congressional intent of severability\\n\\n\\n 20\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 21 of 64\\n\\n\\nboth in the language and structure of the Act and in its legislative history”), and\\n\\nthat they produce the same kinds of disagreements about interpretive methods as\\n\\ndo other interpretive problems, see, e.g., Booker, 543 U.S. at 313 (Thomas, J.,\\n\\ndissenting in part) (“disagree[ing] with [Justice Stevens’s] restatement of\\n\\nseverability principles and reliance on legislative history”).\\n\\n The interpretive character of severability holdings—Booker’s included—\\n\\nalso means that they cannot be understood as if they changed the law in the manner\\n\\nof a legislative amendment. As Justice Scalia once observed, even if it sometimes\\n\\nright to say that “judges in a real sense ‘make’ law,” we must not forget that “they\\n\\nmake it as judges make it, which is to say as though they were ‘finding’ it—\\n\\ndiscerning what the law is, rather than decreeing what it is today changed to, or\\n\\nwhat it will tomorrow be.” James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,\\n\\n549 (1991) (Scalia, J., concurring in the judgment). No less than a decision in any\\n\\nother interpretive context, a judicial construction of the Sentencing Reform Act in\\n\\nthe light of its conflict with the Sixth Amendment—a conflict that always existed,\\n\\neven if the Court did not formally acknowledge it until Booker—“is an\\n\\nauthoritative statement of what the statute meant before as well as after the\\n\\ndecision of the case giving rise to that construction.” Rivers, 511 U.S. at 312–13.\\n\\nWere it otherwise, Booker and other severability decisions would “entail\\n\\nquintessentially legislative work,” which is exactly what the Supreme Court has\\n\\n\\n 21\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 22 of 64\\n\\n\\nsaid they do not entail. Ayotte v. Planned Parenthood of N. New England, 546 U.S.\\n\\n320, 329 (2006); accord Whole Women’s Health v. Hellerstedt, 136 S. Ct. 2292,\\n\\n2319 (2016).\\n\\n So, our usual figures of speech notwithstanding, it follows from the holdings\\n\\nin Booker that the Guidelines were never really mandatory—not as a matter of law.\\n\\nTo be sure, an act of Congress instructed that the sentencing court “shall impose a\\n\\nsentence of the kind, and within the range,” defined in the Guidelines, 18 U.S.C.\\n\\n§ 3553(b)(1), and district courts thought that this mandatory instruction was legally\\n\\nbinding. The courts of appeals thought so too. But, if Booker is right, we were all\\n\\nwrong. The law—not judges’ understanding of the law, but the actual law—was\\n\\notherwise. The Sixth Amendment forbade the mandatory application of the\\n\\nGuidelines whenever they prescribed a sentence greater than the law allowed based\\n\\nonly on the facts reflected in a guilty verdict or plea. And, as interpreted by Booker\\n\\nin the light of that constitutional prohibition, the Sentencing Reform Act did not\\n\\nprescribe the mandatory application of the Guidelines in any other circumstances\\n\\neither.\\n\\n The district court did err when it sentenced Lester, but the error was not\\n\\nimposing an illegal sentence under a mandatory, but unconstitutionally vague,\\n\\nsentencing Guideline. Instead, its error—an error that also happened to be shared\\n\\nby every other district court at the time—was treating the career-offender\\n\\n\\n 22\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 23 of 64\\n\\n\\nGuideline as mandatory in the first place. To be sure, that was an error of\\n\\n“constitutional significance,” as Booker confirmed. Statement of Martin, J., at 49.\\n\\nBut it was a procedural constitutional error, not a substantive one. See Varela v.\\n\\nUnited States, 400 F.3d 864, 868 (11th Cir. 2005) (holding “that Booker’s\\n\\nconstitutional rule falls squarely under the category of new rules of criminal\\n\\nprocedure that do not apply retroactively”). And, although Judge Martin’s\\n\\nstatement suggests that my acknowledgment of that error should convince me to\\n\\n“agree to fix the sentences mistakenly imposed as mandatory,” the whole point of\\n\\nTeague is that merely procedural “mistake[s]” do not warrant the extraordinary\\n\\n“fix” of collateral relief. Statement of Martin, J., at 39.\\n\\n That job is reserved for substantive rules, and, in the light of Booker,\\n\\nJohnson cannot possibly have established that the district court lacked the\\n\\nsubstantive authority to impose Lester’s sentence. If the sentencing court had\\n\\nknown what Booker later clarified to be the correct understanding of the law, it\\n\\nwould not have recognized that, “[b]y law, the longest sentence [Lester] could . . .\\n\\nreceive[] . . . was 151 months.” Id. at 48 (emphasis omitted). Instead, Johnson or\\n\\nno Johnson, it would have recognized that it was “legally allowed,” id., to impose\\n\\nany sentence within the statutory range of five to 40 years—just as it could if it\\n\\nsentenced Lester today.\\n\\n\\n\\n\\n 23\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 24 of 64\\n\\n\\n Of course, we do not know what sentence Lester would have received if the\\n\\ndistrict court had been aware of what Booker later held. But all we need to know is\\n\\nwhether his sentence was within the substantive authority of the district court at the\\n\\ntime it was imposed. And it clearly was. So Griffin was absolutely right to hold\\n\\nthat a new rule extending Johnson to set aside pre-Booker sentences based on the\\n\\ncareer-offender Guideline would not be substantive and would not apply\\n\\nretroactively to cases on collateral review.\\n\\n C. Judge Rosenbaum’s Statement.\\n Judge Rosenbaum’s statement responds to my argument in three parts. The\\n\\nfirst and second parts fail to engage with my argument. And the third part\\n\\npropounds a doctrine of judicial lawmaking that contradicts Marbury’s rationale\\n\\nfor judicial review.\\n\\n The first part of Judge Rosenbaum’s statement quarrels with my account of\\n\\nthe substantive exception. I am not sure Judge Rosenbaum’s belief that the\\n\\nexception concerns equally ultra vires action by any branch, not just the judiciary,\\n\\ncan be squared with basic habeas principles or with the precedents—all of which\\n\\nstress the sentencing “court[’s] lack[] [of] power to exact a penalty that has not\\n\\nbeen authorized by any valid criminal statute,” Welch, 136 S. Ct. at 1268; accord\\n\\nSiebold, 100 U.S. at 377 (“We think [habeas lies], because, if the laws are\\n\\nunconstitutional and void, the Circuit Court acquired no jurisdiction of the\\n\\n\\n 24\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 25 of 64\\n\\n\\ncauses.” (emphases added)), or the habeas court’s lack of “authority to leave in\\n\\nplace a conviction or sentence that violates a substantive rule,” Montgomery, 136\\n\\nS. Ct. at 731—but I also doubt that it matters. After all, my argument is that\\n\\nLester’s sentencing court did not exceed its powers because the statutory provision\\n\\nthat purported to limit its sentencing discretion was unconstitutional and therefore\\n\\nvoid. Far from “gloss[ing] over th[e] constitutionally significant problem” of the\\n\\nmandatory application of the Guidelines, Statement of Rosenbaum, J., at 55, I\\n\\nargue that Booker’s holding that their mandatory application was unconstitutional\\n\\ncontrols the question we are discussing. And it establishes that the only rule the\\n\\ndistrict court violated when it sentenced Lester was procedural, not substantive.\\n\\n The second part of Judge Rosenbaum’s statement identifies the heart of my\\n\\nargument, but it offers no meaningful response. I have said that statements like\\n\\n“Booker made the Guidelines advisory” are ubiquitous but not precisely accurate.\\n\\nJudge Rosenbaum’s statement responds only by confirming that they are\\n\\nubiquitous but makes no effort to refute my point that they are imprecise. See id. at\\n\\n58–60. I have said that courts used to treat the Guidelines as mandatory but that, as\\n\\nBooker held, they committed legal error by doing so. Judge Rosenbaum’s\\n\\nstatement responds only by insisting that courts used to treat the Guidelines as\\n\\nmandatory. See id. at 60. Her statement’s flotilla of quotations from the United\\n\\nStates Reports, see id. at 58–59, ignores, first, that Booker held that the literal sense\\n\\n\\n 25\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 26 of 64\\n\\n\\nof those statements is false and, second, that courts routinely describe the terms\\n\\nand intended effects of statutes as if they were valid even as they hold the opposite.\\n\\nSee, e.g., Murphy, 138 S. Ct. at 1483 (stating that the unconstitutional Professional\\n\\nand Amateur Sports Protection Act “banned the authorization of sports gambling in\\n\\ncasinos” and “prohibited the spread of state-run lotteries”); Marbury, 5 U.S. at 176\\n\\n(“The authority . . . given to the supreme court . . . appears not to be warranted by\\n\\nthe [C]onstitution . . . .” (emphasis added)). The second part’s only direct response\\n\\nto my argument—that “the Booker Court did not make the Guidelines advisory\\n\\nbecause they were always advisory, since the Sixth Amendment never allowed\\n\\nthem to be mandatory”—is that it “is certainly interesting on a metaphysical level.”\\n\\nStatement of Rosenbaum, J., at 60. I appreciate the compliment.\\n\\n Only the third part of Judge Rosenbaum’s statement is responsive, but\\n\\nunfortunately it fumbles the basic tenets—one might even say the metaphysics—of\\n\\njudicial review. Before Booker, it tells us, “18 U.S.C. § 3553(b)(1) was the law of\\n\\nthe land.” Id. at 61. Wrong. As Chief Justice Marshall explained in Marbury, “[t]he\\n\\nquestion, whether an act, repugnant to the [C]onstitution, can become the law of\\n\\nthe land” is to be answered resoundingly in the negative. Marbury, 5 U.S. at 176;\\n\\nsee also U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United\\n\\nStates . . . in Pursuance thereof . . . shall be the supreme Law of the Land . . . .”\\n\\n(emphasis added)); Mackey, 401 U.S. at 678 (Harlan, J., concurring in the\\n\\n\\n 26\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 27 of 64\\n\\n\\njudgment) (observing that Marbury provides “from that day to this the sole\\n\\ncontinuing rationale for the exercise of” judicial review).\\n\\n Judge Rosenbaum’s statement continues: “[T]he Court’s change effectively\\n\\nexcised the Guidelines’ mandatory language from the United States Code.”\\n\\nStatement of Rosenbaum, J., at 62. The word “effectively” bears the whole weight\\n\\nof this sentence. Section 3553(b)(1)’s mandatory language is still there in the\\n\\nCode. See 18 U.S.C. § 3553(b)(1); see also generally Jonathan F. Mitchell, The\\n\\nWrit-of-Erasure Fallacy, 104 Va. L. Rev. 933 (2018). The only thing that has\\n\\nchanged is that now, thanks to Booker, we know that it is legally inoperative\\n\\nbecause the Sixth Amendment—adopted in 1791—requires and has always\\n\\nrequired that result.\\n\\n It follows that the correct application of the Guidelines has always been\\n\\nadvisory—even for offenders, like Stoney Lester, convicted before Booker. And it\\n\\nfollows from that that the substantive exception would not apply to a new rule\\n\\nextending Johnson to set aside Lester’s sentence and others like it. Understanding\\n\\nthe law on this point requires no familiarity with “the laws of physics” or “the\\n\\nspace-time continuum.” Statement of Rosenbaum, J., at 60. It instead requires only\\n\\nthe humility that comes with appreciating the modest role that the federal judiciary\\n\\nperforms in our constitutional system: “to say what the law is,” not what it should\\n\\nbe. Marbury, 5 U.S. at 177.\\n\\n\\n 27\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 28 of 64\\n\\n\\nMARTIN, Circuit Judge, joined by ROSENBAUM and JILL PRYOR, Circuit\\n\\nJudges, respecting the denial of rehearing en banc:\\n\\n In 2004, Stoney Lester was sentenced in the Middle District of Georgia to\\n\\nalmost 22 years in prison for possessing more than five grams of cocaine. This\\n\\nlong sentence was required by law at the time because the sentencing court had to\\n\\ntreat Mr. Lester as a “career offender” under the then-mandatory United States\\n\\nSentencing Guidelines. The Eleventh Circuit’s binding precedent required the\\n\\nsentencing judge to count Mr. Lester’s past conviction for walkaway escape as a\\n\\n“crime of violence” under a provision of the career-offender guideline known as\\n\\nthe “residual clause.” U.S.S.G. § 4B1.2(a) (2003). If Mr. Lester had not been\\n\\nsentenced as a “career offender,” his term of incarceration would have been at least\\n\\nnine years shorter.\\n\\n About eleven years after he was sentenced, the Supreme Court invalidated\\n\\nthe residual clause of the Armed Career Criminal Act. Johnson v. United States,\\n\\n576 U.S. , 136 S. Ct. 2551 (2015). Since the residual clause under which he was\\n\\nsentenced was identical to that stricken by the Supreme Court, Mr. Lester filed a\\n\\nmotion in Federal Court in Georgia under 28 U.S.C. § 2255, seeking to correct his\\n\\nsentence. At that time, he already had a pending petition under 28 U.S.C. § 2241\\n\\nin the Eastern District of Virginia, where the Bureau of Prisons assigned him at\\n\\nsome point. His petition in Virginia asked that court to correct his sentence based\\n\\n\\n 28\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 29 of 64\\n\\n\\non Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), which\\n\\noverruled the Eleventh Circuit precedent that characterized walkaway escape as a\\n\\ncrime of violence. Lester v. Wilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb.\\n\\n27, 2019). Mr. Lester’s § 2241 petition would have failed in the Eleventh Circuit\\n\\nbecause our precedent foreclosed such a claim based on procedural grounds. See\\n\\nMcCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1090 (11th\\n\\nCir. 2017) (en banc).\\n\\n So too with Mr. Lester’s § 2255 petition. Our Court denied him relief based\\n\\non our precedent in In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (per curiam),\\n\\nwhich held that inmates like Mr. Lester cannot bring Johnson-based challenges to\\n\\nmandatory Guidelines sentences. Happily for Mr. Lester, things turned out better\\n\\nfor him in the Fourth Circuit. That court said Mr. Lester’s sentence contained a\\n\\n“fundamental defect.” Specifically, the Fourth Circuit said Mr. Lester’s longer\\n\\nsentence based on his walkaway escape conviction was fundamentally defective\\n\\nsince the Supreme Court had made plain that this should not count as a crime of\\n\\nviolence. Lester v. Flournoy, 909 F.3d 708, 714 (4th Cir. 2018). While this Court\\n\\nwas debating whether to consider Mr. Lester’s case en banc, the Fourth Circuit\\n\\ngranted him relief.\\n\\n I understand that Mr. Lester is a free man today. Dkt. No. 44, Lester v.\\n\\nWilson, Case No. 1:12cv681-LO-JFA (E.D. Va. Feb. 27, 2019). He served 15\\n\\n\\n 29\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 30 of 64\\n\\n\\nyears and seven months in prison. This was more than two-thirds of the sentence\\n\\noriginally imposed on him, and three years longer than he would have served if his\\n\\nwalkaway escape conviction had not counted in the first place.\\n\\n I asked the Court withhold the issuance of the mandate in Mr. Lester’s case,\\n\\nin hopes that we could correct what I see as two errors in In re Griffin. First, I\\n\\nbelieve In re Griffin erroneously held that the mandatory Guidelines are not subject\\n\\nto vagueness challenges. Second, I think In re Griffin was wrong to say that\\n\\nJohnson does not apply retroactively in mandatory Guidelines cases. This Court\\n\\ndeclined to take up either issue. In making that decision, the Court also denied Mr.\\n\\nLester all relief.\\n\\n I wrote a dissent from the denial of en banc rehearing to express my\\n\\ndisagreement with Griffin. But since Mr. Lester has won his freedom, there is no\\n\\nlonger a need for en banc review of his case. Still, I am mindful that Mr. Lester is\\n\\nbreathing free air solely because of a happenstance administrative decision to move\\n\\nhim to a prison in the Eastern District of Virginia, together with his savviness in\\n\\nfiling a § 2241 petition while he was there. Failing either one of these things, Mr.\\n\\nLester would have been required to serve six more years in prison. His case is a\\n\\ntestament to the arbitrariness of contemporary habeas law, where liberty can\\n\\ndepend as much on geography as anything else. It also illustrates how limited is\\n\\n\\n\\n\\n 30\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 31 of 64\\n\\n\\nrelief for the thousands of inmates sentenced within the Eleventh Circuit and\\n\\nwhose sentence Johnson affected.\\n\\n Not all inmates will be moved out of this Circuit. Also, Griffin continues to\\n\\nstand as binding precedent in this Circuit. For these reasons I take this opportunity\\n\\nto review why I believe the opinion in In re Griffin is mistaken.\\n\\n I.\\n\\n In 2004, Mr. Lester pled guilty to possession with intent to distribute more\\n\\nthan five grams crack cocaine. At that time, the Sentencing Guidelines were\\n\\nmandatory, see United States v. Booker, 543 U.S. 220, 233–34, 125 S. Ct. 738, 750\\n\\n(2005), so the calculation of Mr. Lester’s guideline range set his prison sentence.\\n\\nThe District Court calculated Mr. Lester’s guideline range as 262–327 months and,\\n\\nbecause it had no statutory basis to depart, see 18 U.S.C. § 3553(b)(1), it imposed a\\n\\n262-month sentence.\\n\\n Mr. Lester’s long sentence resulted from the District Court’s finding that he\\n\\nwas a “career offender” as that term was then defined in the Guidelines. See\\n\\nU.S.S.G. § 4B1.1 (2003). The career-offender provision required longer sentences\\n\\nfor defendants sentenced for a “crime of violence” or a “controlled substance\\n\\noffense,” and who in addition have two past convictions that are either a “crime of\\n\\n\\n\\n\\n 31\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 32 of 64\\n\\n\\nviolence” or “controlled substance offense.”1 Id. § 4B1.1(a). Earlier in his life,\\n\\nMr. Lester had been convicted in Georgia once for sale of marijuana and once for\\n\\nwalkaway escape. The District Court counted the marijuana conviction as a\\n\\n“controlled substance offense.” It also counted Mr. Lester’s walkaway escape\\n\\nconviction as a “crime of violence” under the “residual clause” of the Guidelines.\\n\\nThat “residual clause” defined a crime of violence as an offense punishable by\\n\\nmore than a year in prison that “involves conduct that presents a serious potential\\n\\nrisk of physical injury to another.” Id. § 4B1.2(a). Mr. Lester objected to counting\\n\\nhis walkaway escape conviction as a crime of violence under the residual clause,\\n\\nbut our Circuit precedent foreclosed his objection. See United States v. Gay, 251\\n\\nF.3d 950, 953–55 (11th Cir. 2001) (per curiam), abrogation recognized by\\n\\nMcCarthan, 851 F.3d at 1080.\\n\\n In light of his career-offender status, Mr. Lester was assigned an offense\\n\\nlevel of 34 and a criminal history category of VI. This yielded a guideline range of\\n\\n262 to 327 months. U.S.S.G. chap. 5, pt. A. At the time, the District Court had no\\n\\ndiscretion to sentence Mr. Lester outside of this range. If (as we now know should\\n\\nhave been the case) Mr. Lester had not been designated a career-offender, he\\n\\n\\n\\n\\n 1\\n The Guidelines contain a career-offender provision in their current iteration, see\\nU.S.S.G. § 4B1.1 (2018), but the provision and our interpretation of it have changed since Mr.\\nLester was sentenced. My discussion here is about the career-offender provision that was\\noperative when Mr. Lester was sentenced.\\n 32\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 33 of 64\\n\\n\\nwould have had an offense level of 30 and a criminal history category of III, which\\n\\ntogether yield a guideline range of 121–151 months. Id. Because of the residual\\n\\nclause, Mr. Lester faced at least nine years more in prison than he would have\\n\\nwithout it.\\n\\n Over the years after his sentence was imposed, developments in the law\\n\\nproved Mr. Lester’s objection right and Eleventh Circuit case law wrong. In 2009,\\n\\nthe Supreme Court overturned the Eleventh Circuit rule that walkaway escape\\n\\ncounts as a crime of violence. Chambers, 555 U.S. at 130, 129 S. Ct. at 693,\\n\\nabrogated on other grounds by Johnson, 135 S. Ct. at 2563. If Mr. Lester were\\n\\nsentenced today, his conviction for walkaway escape could not count as a “crime\\n\\nof violence,” and as a result, he would not be sentenced as a career offender. See\\n\\nMcCarthan, 851 F.3d at 1080. If he had been sentenced under Eleventh Circuit\\n\\nlaw as it exists today, Mr. Lester would have been a free man in 2016 at the latest.\\n\\n Then in 2015, the Supreme Court changed the law in a second way that\\n\\nmade clear Mr. Lester’s sentence resulted from not only on a mistaken\\n\\ninterpretation of the Guidelines, but on an unconstitutionally vague Guideline\\n\\nprovision as well. Johnson, 135 S. Ct. at 2563. In Johnson, the Supreme Court\\n\\nstruck down a provision of the Armed Career Criminal Act (ACCA) that is\\n\\nidentical to the career-offender residual clause in the Guidelines. Id. ACCA\\n\\nrequires longer sentences for defendants with certain types of earlier convictions\\n\\n\\n 33\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 34 of 64\\n\\n\\nwho are convicted of possessing a firearm as a convicted felon in violation of 18\\n\\nU.S.C. § 922(g). The maximum sentence for possessing a firearm as a convicted\\n\\nfelon is ordinarily ten years. 18 U.S.C. § 924(a)(2). But ACCA mandates a\\n\\nsentence of no less than fifteen years for a person who has three earlier convictions\\n\\nfor either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e).\\n\\nACCA defines “violent felony” with the same words that the career-offender\\n\\nguideline used when Mr. Lester was sentenced. Specifically, ACCA defines a\\n\\n“violent felony” as an offense punishable by more than a year in prison that either\\n\\n“has as an element the use, attempted use, or threatened use of physical force\\n\\nagainst the person of another” or “is burglary, arson, or extortion, involves use of\\n\\nexplosives, or otherwise involves conduct that presents a serious potential risk of\\n\\nphysical injury to another.” Compare id. § 924(e)(2)(B), with U.S.S.G. § 4B1.2\\n\\n(defining “crime of violence” as the term is used in U.S.S.G. § 4B1.1). After years\\n\\nof litigation over how to interpret the residual clause, see Johnson, 135 S. Ct. at\\n\\n2558–60, in Johnson, the Supreme Court struck it down as unconstitutionally\\n\\nvague, id. at 2563.\\n\\n The constitutional problem with the residual clause is apparent in the\\n\\napplication of what has become known as the categorical approach. When\\n\\ndeciding whether a person’s earlier criminal conviction counts as a violent felony\\n\\nunder the ACCA residual clause, the Supreme Court instructed us not to look at\\n\\n\\n 34\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 35 of 64\\n\\n\\nwhat the defendant actually did. See Johnson, 135 S. Ct. at 2557. For that matter,\\n\\nthis is also true for the residual clause in the Guidelines. See United States v.\\n\\nLockley, 632 F.3d 1238, 1243 n.5 (11th Cir. 2011). Rather than reconstruct the\\n\\nconduct that resulted in the earlier conviction, courts were instructed to “picture the\\n\\nkind of conduct that the crime involves in the ordinary case” and “judge whether\\n\\nthat abstraction presents a serious potential risk of physical injury.” Id. (quotation\\n\\nmarks omitted). But the residual clause gave no guidance “about how to estimate\\n\\nthe risk posed by a crime,” because it gave no way for us to decide “what kind of\\n\\nconduct the ‘ordinary case’ of a crime involves.” Id. In a string of cases over the\\n\\nyears, the Supreme Court used different “ad hoc test[s] to guide [the] inquiry”\\n\\nbefore abandoning the endeavor in 2015. Id. at 2558–59. Among other things, the\\n\\nSupreme Court was concerned that the residual clause left “uncertainty about how\\n\\nmuch risk it takes for a crime to qualify as a violent felony.” Id. at 2558.\\n\\nUltimately the Supreme Court held that these features of the residual clause\\n\\n“produce[d] more unpredictability and arbitrariness than the Due Process Clause\\n\\ntolerates.” Id.\\n\\n Johnson “called into question the sentences of thousands of federal prisoners\\n\\nsentenced under ACCA and other, similarly worded statutes,” including the career-\\n\\noffender guideline. Ovalles v. United States, 905 F.3d 1231, 1263 (11th Cir. 2018)\\n\\n(en banc) (Martin, J., dissenting). Johnson told us it is unconstitutional to require a\\n\\n\\n 35\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 36 of 64\\n\\n\\nlonger sentence based on a judge imagining whether a defendant’s past convictions\\n\\ninvolve a “serious potential risk of physical injury.” Compare 18 U.S.C. § 924(e),\\n\\nwith U.S.S.G. § 4B1.2(a). This is precisely how Mr. Lester got his longer\\n\\nsentence.\\n\\n To correct an unlawful sentence, a prisoner may file a motion under 28\\n\\nU.S.C. § 2255. But the Antiterrorism and Effective Death Penalty Act limits a\\n\\nprisoner to one such motion unless the prisoner comes to a Court of Appeals and\\n\\napplies for permission to file a second or successive § 2255 motion. Id. §\\n\\n2244(b)(3)(A). This Court can, in turn, grant permission only if the prisoner\\n\\nmakes a prima facie case that his second or successive motion will rely on newly\\n\\ndiscovered evidence or a new rule of constitutional law made retroactively\\n\\napplicable on collateral review by the Supreme Court. Id. §§ 2244(b), 2255(h).\\n\\nOnce the Supreme Court told us that Johnson applies retroactively (to those\\n\\nsentenced before Johnson was decided) in Welch, 136 S. Ct. at 1268, this Circuit\\n\\nfaced a flood of requests to file a second or successive motion, including one from\\n\\nMr. Lester. The Court granted him permission to file a second § 2255 motion in\\n\\nDistrict Court. In re Lester, No. 16-11730, slip op. at 9.\\n\\n I think Johnson entitled Mr. Lester to relief. Yet in the Eleventh Circuit he\\n\\ngets none. Just as Mr. Lester was about to have his sentence reviewed, his efforts\\n\\nwere halted by a decision this Court published a few days after he got permission\\n\\n\\n 36\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 37 of 64\\n\\n\\nto file his second or successive § 2255 motion. In re Griffin ruled that the\\n\\nmandatory Guidelines are not subject to vagueness challenges and, alternatively,\\n\\nthat Johnson is not retroactive as applied in this context. 823 F.3d at 1353–56.\\n\\nGriffin foreclosed Mr. Lester’s claim, so the District Court denied Mr. Lester’s\\n\\n§ 2255 motion. Mr. Lester appealed, and a panel summarily affirmed, again\\n\\nrelying on Griffin. Lester v. United States, No. 18-10523, slip op. at 3.\\n\\n But Griffin was wrong in both its rulings, and it should not have stood in the\\n\\nway of Mr. Lester having his sentence corrected.2 If it were not for the Fourth\\n\\nCircuit’s intervention, Mr. Lester would still be in prison. Because Griffin will\\n\\ncontinue to bar relief to others like Mr. Lester, I will elaborate on how it erred.\\n\\n II.\\n\\n First, Griffin held that the mandatory Guidelines are not subject to\\n\\nvagueness challenges. 823 F.3d at 1353–56. But this cannot be accurate. The\\n\\nmandatory Guidelines are indeed subject to vagueness challenges because they\\n\\n“ha[d] the force and effect of laws.” Booker, 543 U.S. at 234, 125 S. Ct. at 750.\\n\\nLike any law, to comply with constitutional due process requirements the\\n\\nmandatory Guidelines had to “give ordinary people fair notice of the conduct\\n\\n 2\\n Griffin ruled on the merits of this issue of first impression, even though the only\\nquestion before the panel was whether the inmate there had made a prima facie case that his\\nmotion would contain a new rule of constitutional law made retroactive by the Supreme Court.\\nThis Court has had a long-running debate about this practice, and some of my colleagues and I\\nhave criticized it on various grounds. See Ovalles, 905 F.3d at 1266–68 (Martin, J., dissenting);\\nIn re Williams, 898 F.3d 1098, 1101–02 (11th Cir. 2018) (Wilson, J., specially concurring).\\n 37\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 38 of 64\\n\\n\\n[they] punishe[d]” and could not be “so standardless” as to “invite[] arbitrary\\n\\nenforcement.” Johnson, 135 S. Ct. at 2556.\\n\\n Supreme Court precedent amply establishes that the Guidelines were\\n\\nequivalent to law. The Supreme Court characterized the mandatory Guidelines as\\n\\n“the equivalent of legislative rules adopted by federal agencies.” Stinson v. United\\n\\nStates, 508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993); see also Mistretta v. United\\n\\nStates, 488 U.S. 361, 371–379, 109 S. Ct. 647, 654–59 (upholding the Sentencing\\n\\nCommission’s mandate to set penalties for crimes as a valid delegation of\\n\\nCongress’s legislative power). Under the mandatory Guidelines, federal district\\n\\njudges were bound by law to impose sentences within the guideline range\\n\\ncalculated for any given defendant. See 18 U.S.C. § 3553(b) (1984); Booker, 543\\n\\nU.S. at 234, 125 S. Ct. at 750 (“[S]ubsection (b) of [§ 3553] directs that the court\\n\\n‘shall impose a sentence of the kind, and within the range’ established by the\\n\\nGuidelines, subject to departures in specific, limited cases.” (quoting 18 U.S.C.\\n\\n§ 3553(b))). In Judge William Pryor’s statement respecting the denial of\\n\\nrehearing, he says that once Booker invalidated the mandatory guideline system,\\n\\n“it follows from the holdings in Booker that the Guidelines were never really\\n\\nmandatory – not as a matter of law.” Pryor Statement, p. 22. However, no one can\\n\\ndispute that when Mr. Lester was in the courtroom facing his sentence in 2004, the\\n\\nsentencing judge had no legal authority to sentence him to other than a sentence\\n\\n\\n 38\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 39 of 64\\n\\n\\nmandated by the Guidelines then in effect. But if it is true that Judge Pryor and I\\n\\nagree that Mr. Lester’s sentence never should have been imposed as though it were\\n\\nmandatory – I say we should agree to fix the sentences mistakenly imposed as\\n\\nmandatory on Mr. Lester and others like him.\\n\\n We know that in the mine-run case, if any given Guidelines provision—say,\\n\\nthe career-offender provision—required a longer sentence, courts were legally\\n\\nbound to impose that longer sentence, just as they would be bound to follow the\\n\\nstatutory provisions of ACCA. For that reason, the mandatory Guidelines must be\\n\\nsubject to vagueness challenges in the same way regulations are. E.g., FCC v. Fox\\n\\nTelevision Stations, Inc., 567 U.S. 239, 253, 132 S. Ct. 2307, 2317 (2012) (“Th[e]\\n\\nrequirement of clarity in regulation is essential to the protections provided by the\\n\\nDue Process Clause of the Fifth Amendment. It requires the invalidation of laws\\n\\nthat are impermissibly vague.” (citation omitted)). And five Courts of Appeal, this\\n\\none included, entertained vagueness challenges to the mandatory Guidelines. See\\n\\nUnited States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003); United States v.\\n\\nRutherford, 175 F.3d 899, 906 (11th Cir. 1999); United States v. Johnson, 130 F.3d\\n\\n1352, 1354 (9th Cir. 1997); United States v. Jones, 979 F.2d 317, 318–19 (3d Cir.\\n\\n1992); United States v. Moore, No. 95-5586, 1997 WL 71707, at *1 (4th Cir. Feb.\\n\\n20, 1997) (per curiam) (unpublished). But see United States v. Brierton, 165 F.3d\\n\\n1133, 1139 (7th Cir. 1999) (concluding the mandatory Guidelines were not subject\\n\\n\\n 39\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 40 of 64\\n\\n\\nto vagueness challenges), abrogation recognized by Cross v. United States, 892\\n\\nF.3d 288, 296 (7th Cir. 2018); United States v. Smith, 73 F.3d 1414, 1417–18 (6th\\n\\nCir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United\\n\\nStates v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).\\n\\n Mr. Lester’s case well illustrates why the mandatory Guidelines must give\\n\\nfair notice of the conduct they punish. If he had not been designated a career-\\n\\noffender, the law would not have permitted a sentence of higher than 151 months.\\n\\nOnce he was designated a career-offender, however, the law did not permit the\\n\\nDistrict Judge to impose a sentence of less than 262 months. The mandatory\\n\\nGuidelines established sentences in the same way ACCA does. Under ACCA,\\n\\nthree prior qualifying convictions require a minimum fifteen-year sentence instead\\n\\nof a maximum ten-year sentence. 28 U.S.C. § 924(e). Under the career-offender\\n\\nguideline, two prior qualifying convictions required a minimum 262-month\\n\\nsentence for Mr. Lester instead of a maximum 151-month sentence. U.S.S.G.\\n\\n§ 4B1.2(a) (2003). Just like ACCA, the mandatory Guidelines were laws that\\n\\nincreased punishment. So in the same way as ACCA, they must be subject to\\n\\nvagueness challenges. See Johnson v. United States, 135 S. Ct. at 2557; Cross,\\n\\n892 F.3d at 304–06 (holding the mandatory Guidelines are subject to vagueness\\n\\nchallenges); In re Sapp, 827 F.3d 1334, 1338–39 (11th Cir. 2016) (Jordan,\\n\\nRosenbaum, and Jill Pryor, JJ., concurring).\\n\\n\\n 40\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 41 of 64\\n\\n\\n The statute that made the Guidelines mandatory did allow departures in\\n\\nlimited circumstances. But this is not enough to insulate them from vagueness\\n\\nchallenges. For one thing, “departures [were] not available in every case, and in\\n\\nfact [were] unavailable in most.” Booker, 543 U.S. at 243, 125 S. Ct. at 750; see\\n\\nCross v. United States, 892 F.3d at 305–06 (concluding that Booker “addressed,\\n\\nand rejected, the argument that the possibility of departures from the mandatory\\n\\nguideline range was enough to make it advisory”). For another, the Supreme Court\\n\\nsuggested that a defendant had a due process right to notice when a court was\\n\\ngoing to sentence him above the guideline range. Specifically, in Burns v. United\\n\\nStates, 501 U.S. 129, 111 S. Ct. 2182 (1991), abrogated on other grounds as\\n\\nrecognized by Dillon v. United States, 560 U.S. 817, 130 S. Ct. 2683 (2010), the\\n\\nSupreme Court read Federal Rule of Criminal Procedure 32 to require notice to a\\n\\ndefendant before a district court sua sponte departed upward from the mandatory\\n\\nrange. Id. at 135, 111 S. Ct. at 2186. Burns interpreted Rule 32 this way in part\\n\\nbecause of the due process problems that would result if defendants were not given\\n\\nnotice. Id. at 138, 111 S. Ct. at 2187. I say that if due process demanded notice of\\n\\na departure above the mandatory Guidelines, certainly due process would likewise\\n\\ndemand notice that certain conduct would require imposition of a longer sentence\\n\\non account of one’s career offender status. At any rate, we know departures were\\n\\navailable from ACCA-enhanced sentences, see 18 U.S.C. § 3553(e), but this\\n\\n\\n 41\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 42 of 64\\n\\n\\nfeature did not stop the Supreme Court from ruling the ACCA residual clause\\n\\nunconstitutionally vague in Johnson.\\n\\n This Supreme Court precedent makes plain that the Griffin panel erred when\\n\\nit held the mandatory Guidelines are not subject to vagueness challenges. See 823\\n\\nF.3d at 1354–56. The Griffin panel said that the “logic and principles” of United\\n\\nStates v. Matchett, 802 F.3d 1185, 1193–96 (11th Cir. 2015), which held the\\n\\nadvisory Guidelines are not subject to vagueness challenges, extended to the\\n\\nmandatory Guidelines, thus insulating them from vagueness challenges as well.\\n\\nSee Griffin, 823 F.3d at 1354. The Supreme Court has endorsed the rationale of\\n\\nMatchett,3 recognizing the advisory Guidelines neither define a crime nor fix a\\n\\nsentence, but rather merely guide a judge’s sentencing discretion within the\\n\\napplicable statutory range. Beckles v. United States, 580 U.S. , 137 S. Ct. 886,\\n\\n892 (2017).4 Griffin missed the mark when it said that the mandatory Guidelines\\n\\nlikewise only “cabin discretion.” 823 F.3d at 1355. The Supreme Court has\\n\\nconsistently held that the mandatory Guidelines were like sentencing laws. They\\n\\n\\n 3\\n In the interest of full disclosure, I thought that Matchett’s ruling that the advisory\\nGuidelines are not subject to vagueness challenges was wrong. In re Clayton, 829 F.3d 1254,\\n1258–61 (Martin, J., concurring in the result). Of course, I stand corrected by the Supreme\\nCourt’s ruling in Beckles.\\n 4\\n Beckles did not decide anything about the mandatory Guidelines. 137 S. Ct. at 890\\n(“Because we hold that the advisory Guidelines are not subject to vagueness challenges under the\\nDue Process Clause, we reject petitioner’s argument.” (emphasis added)); id. at 903 n.4\\n(Sotomayor, J., concurring) (noting that Beckles leaves open the question of vagueness\\nchallenges to the mandatory Guidelines).\\n 42\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 43 of 64\\n\\n\\ndid not guide discretion—they fixed punishments. For that reason, they should be\\n\\nsubject to vagueness challenges.\\n\\n III.\\n\\n The Griffin panel also wrongly held that the rule established in Johnson does\\n\\nnot apply retroactively to cases like Mr. Lester’s for the reason that he was\\n\\nsentenced under the mandatory Guidelines, as opposed to ACCA. 823 F.3d at\\n\\n1355–56. Griffin’s refusal to give retroactive application to Johnson flies in the\\n\\nface of the Supreme Court’s instruction to us that it should be applied retroactively.\\n\\nWelch, 136 S. Ct. at 1268. Again, Johnson pronounced it unconstitutional to\\n\\nimpose longer sentences on people who were earlier convicted under statutes that\\n\\nrequired judges to decide whether, in the ordinary case, the prior conviction posed\\n\\na “serious potential risk of physical injury to another.” 135 S. Ct. at 2563; see also\\n\\n18 U.S.C. § 924(e)(2)(B). The Supreme Court has told us that this rule applies\\n\\nretroactively, and Mr. Lester should have been able to benefit from it.\\n\\n Griffin’s recognition of the retroactive application of the Johnson rule for\\n\\none statute, but not for others, is a novel approach I have not found elsewhere.\\n\\nNotably, Griffin cited no legal precedent that would allow us to parcel out\\n\\nretroactivity in this way. See In re Sapp, 827 F.3d at 1339–40 (Jordan,\\n\\nRosenbaum, and Jill Pryor, JJ., concurring) (noting that Griffin had no authority\\n\\nfor its assumed premise “that a substantive rule of constitutional law expressly\\n\\n\\n 43\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 44 of 64\\n\\n\\nmade retroactive by the Supreme Court can later be made only partially retroactive\\n\\nby a circuit court”). Neither have my independent efforts located support for this\\n\\nconcept. To my knowledge, the Supreme Court has never sanctioned giving\\n\\nintermittent retroactive application to a decision since Teague v. Lane, 489 U.S.\\n\\n288, 109 S. Ct. 1060 (1989), established the current law on retroactivity. One of\\n\\nour sister circuits seems to have assumed, as Griffin did, that Johnson might not\\n\\nalways apply retroactively. See Cross, 892 F.3d at 306–07 (observing that the\\n\\nSupreme Court’s reasoning in Welch “justifies treating Johnson as substantive, and\\n\\ntherefore retroactive, when applied to the mandatory guidelines”). But like the\\n\\nGriffin opinion, Cross did not explain its retroactivity principle either. Also, Cross\\n\\nis in some tension with other 7th Circuit precedent. See Price v. United States, 795\\n\\nF.3d 731, 732 (7th Cir. 2015) (“We now conclude, consistently with the\\n\\ngovernment’s position, that Johnson announces a new substantive rule of\\n\\nconstitutional law that the Supreme Court has categorically made retroactive to\\n\\nfinal convictions.” (emphasis added)). Other circuits appear to have rejected\\n\\nintermittent retroactivity. See In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016)\\n\\n(“[T]he government has cited no case to support the proposition that a rule can be\\n\\nsubstantive in one context but procedural in another.”); see also United States v.\\n\\nDoe, 810 F.3d 132, 154 & n.13 (3d Cir. 2015) (accepting the government’s\\n\\nconcession that Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), an\\n\\n\\n 44\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 45 of 64\\n\\n\\nACCA case, applies retroactively on collateral review of a sentence and observing\\n\\nthat “[u]nder Teague, either a rule is retroactive or it is not”).\\n\\n The Supreme Court does not ask in each case whether a new rule, as applied,\\n\\nwould meet Teague’s retroactivity standard. Instead, it analyzes whether the rule\\n\\nitself meets the retroactivity standard and then determines whether the petitioner\\n\\ncan benefit from the rule. See Danforth v. Minnesota, 552 U.S. 264, 266, 128 S.\\n\\nCt. 1029, 1032 (2008) (“New constitutional rules announced by this Court that\\n\\nplace certain kinds of primary individual conduct beyond the power of the state to\\n\\nproscribe . . . must be applied in . . . all federal habeas corpus proceedings.”)\\n\\n(emphasis added)).\\n\\n Two cases make the point. In Sawyer v. Smith, 497 U.S. 227, 110 S. Ct.\\n\\n2822 (1990), the Supreme Court considered whether Caldwell v. Mississippi, 472\\n\\nU.S. 320, 105 S. Ct. 2633 (1985), which prohibited death sentences imposed by\\n\\njuries who were led to believe the responsibility for the sentence rested elsewhere,\\n\\napplied retroactively. In conducting the retroactivity analysis, the Sawyer Court\\n\\nleft to one side “the significant questions concerning the merits of petitioner’s\\n\\nCaldwell claim . . . , or the question whether application of Caldwell to the facts\\n\\npresented . . . would itself involve a new rule of law.” Sawyer, 497 U.S. at 234,\\n\\n110 S. Ct. at 2827. It spoke only to “whether Caldwell is available to petitioner as\\n\\na ground upon which he may seek relief”—that is, whether Caldwell announced a\\n\\n\\n 45\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 46 of 64\\n\\n\\nretroactively applicable rule, separate and apart from the merits of the petitioner’s\\n\\nCaldwell claim. Id.\\n\\n For another example, in O’Dell v. Netherland, 521 U.S. 151, 117 S. Ct. 1969\\n\\n(1997), the Supreme Court addressed the retroactivity of Simmons v. South\\n\\nCarolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), which requires a capital defendant\\n\\nbe permitted to inform a jury deciding whether to impose a death sentence that he\\n\\nis not eligible for parole when the prosecution argues he presents a future danger.\\n\\nBefore considering whether the petitioner’s claim came within the scope of the\\n\\nSimmons rule, the Court explained it had to “determine whether the rule of\\n\\nSimmons was new for Teague purposes, and, if so, whether that rule falls within\\n\\none of the two exceptions to Teague’s bar.” O’Dell, 521 U.S. at 159, 117 S. Ct. at\\n\\n1974.\\n\\n This Court’s own precedent (Griffin aside) likewise treats rules as either\\n\\nretroactive or not. E.g., In re Hill, 777 F.3d 1214, 1223–24 (11th Cir. 2015) (per\\n\\ncuriam); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). In In re Hill, for\\n\\nexample, the panel first ruled that Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986\\n\\n(2014), did not apply retroactively on collateral review and only then ruled in the\\n\\nalternative that the petitioner did not come within the Hall rule. 777 F.3d at 1223–\\n\\n24. Our sister circuits seem to follow a similar practice. See, e.g., Hubbard, 825\\n\\nF.3d at 234; Price, 795 F.3d at 734. But see Cross, 892 F.3d at 306–07.\\n\\n\\n 46\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 47 of 64\\n\\n\\n It is worth noting that this across-the-board approach to retroactivity\\n\\nemerged from a backlash to pre-Teague jurisprudence. Before Teague, the\\n\\nSupreme Court decided whether a new rule applied retroactively in any given\\n\\ncollateral review case by weighing the purpose of the new rule, the reliance of the\\n\\nStates on prior law, and the effect on the administration of justice of a retroactive\\n\\napplication of the new rule. See Linkletter v. Walker, 381 U.S. 618, 636–39, 85 S.\\n\\nCt. 1731, 1741–43 (1965). The Linkletter standard resulted in an “unfortunate\\n\\ndisparity in the treatment of similarly situated defendants on collateral review,”\\n\\nand the Supreme Court abandoned it for that reason. Teague, 489 U.S. at 305, 109\\n\\nS. Ct. at 1072. The Griffin holding that substantive rules may apply retroactively\\n\\nin some cases but not others likewise invites disparity between habeas petitioners.\\n\\nIts holding is thus inconsistent with the purpose that drove the Teague decision:\\n\\nthat new substantive rules should apply to all petitioners on collateral review. Id.\\n\\nat 316, 109 S. Ct. at 1078.\\n\\n Perhaps worst of all, Griffin gave no explanation for its novel retroactivity\\n\\nholding. If this Court intends to intermittently apply rules retroactively, it should\\n\\ngive the many habeas petitioners who come to us seeking relief an understanding\\n\\nof when a rule will apply retroactively to their case. This is particularly true\\n\\nwhere, as here, this Court does not intend to apply the rule after the Supreme Court\\n\\n\\n\\n\\n 47\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 48 of 64\\n\\n\\nhas told us it applies retroactively. Will we do it case by case? Statute by statute?\\n\\nGriffin gives no answer to these questions.\\n\\n IV.\\n\\n Griffin also indicates that Johnson should be treated differently for\\n\\nsentencing Guidelines, because in that context Johnson would merely “produce\\n\\nchanges in how the sentencing procedural process is to be conducted.” Griffin,\\n\\n823 F.3d at 1355. The suggestion is that Johnson, applied to a mandatory\\n\\nGuidelines sentence, would merely change how a sentence is calculated and not the\\n\\nsentence itself. This fundamentally misunderstands how the mandatory Guidelines\\n\\nworked.\\n\\n Mr. Lester’s case is illustrative. By law, the longest sentence he could have\\n\\nreceived if not deemed a career offender was 151 months. Once categorized as a\\n\\ncareer-offender, however, the shortest sentence District Court was legally allowed\\n\\nto give him was 262 months. In effect, the mandatory Guidelines set minimum\\n\\nand maximum sentences. Sapp, 827 F.3d at 1340 (Jordan, Rosenbaum, and Jill\\n\\nPryor, JJ., concurring) (citing United States v. Wright, 607 F.3d 708, 718 (11th Cir.\\n\\n2010) (William Pryor, J., concurring) (“Because Congress required sentencing\\n\\ncourts to apply the [mandatory] Sentencing Guidelines and impose a sentence\\n\\nwithin the applicable guideline range, it was reasonable to view the Guidelines as\\n\\n\\n\\n\\n 48\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 49 of 64\\n\\n\\neffectively setting minimum and maximum penalties that varied based on the\\n\\ncircumstances of the offense and the characteristics of the offender.”).\\n\\n Neither is it an answer to say, as Griffin does, that Johnson’s rule is simply\\n\\nprocedural because Mr. Lester might receive the same sentence if he were\\n\\nresentenced now under the advisory Guidelines. Judge William Pryor makes this\\n\\nargument as well. Pryor Statement, pp. 11–12. On remand a district court would\\n\\nresentence Mr. Lester under the advisory Guidelines, as opposed to the mandatory\\n\\nGuidelines, and this is a difference with constitutional significance. See Booker,\\n\\n543 U.S. at 233–34, 125 S. Ct. at 750; see also Beckles, 137 S. Ct. at 892 (noting\\n\\nthat the advisory Guidelines “merely guide the exercise of a court’s discretion in\\n\\nchoosing an appropriate sentence within the statutory range”). There is no\\n\\nconstitutional doubt about the authority of a district judge to “exercise broad\\n\\ndiscretion in imposing a sentence within a statutory range,” including taking a\\n\\ndefendant’s criminal history into account. Booker, 543 U.S. at 233, 125 S. Ct. at\\n\\n750. But Johnson makes clear that Congress had no power to require a longer\\n\\nsentence based on a prior conviction because it “involves conduct that presents a\\n\\nserious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2)\\n\\n(2003). In that sense, Johnson “alter[ed] the range of conduct . . . that the law\\n\\npunishes.” Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 2523\\n\\n(2004).\\n\\n\\n 49\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 50 of 64\\n\\n\\n What’s more, the Supreme Court has taught us in other contexts that a rule is\\n\\nnot procedural just because a court might impose the same sentence after\\n\\nresentencing. In Montgomery v. Louisiana, 577 U.S. , 136 S. Ct. 718 (2016),\\n\\nthe Supreme Court held that the right of all but permanently incorrigible juveniles\\n\\nnot to be sentenced to life without parole was a substantive rule. Id. at 732–34.\\n\\nMontgomery addressed a class of juvenile offenders who were being punished in\\n\\nan unconstitutional way. The opinion recognized that a subset of the juvenile\\n\\noffender class might be permanently incorrigible, and therefore entitled to no\\n\\nrelief. However, this did not change the substantive right afforded to all juveniles.\\n\\nThe same is true here. On remand, a district court could have decided that the\\n\\nsentence it imposed under the mandatory regime remains appropriate in light of the\\n\\n§ 3553(a) factors. But this possibility does not change Johnson’s pronouncement\\n\\nof a substantive right not to have a longer sentence mandated under an\\n\\nunconstitutionally vague law. See Sapp, 827 F.3d at 1341 (Jordan, Rosenbaum,\\n\\nand Jill Pryor, JJ., concurring).\\n\\n V.\\n\\n Mr. Lester should have been able to correct his 262-month career-offender\\n\\nsentence by a § 2255 motion in this Circuit, where he was sentenced. The residual\\n\\nclause in the mandatory Guidelines is unconstitutional for the same reasons it is\\n\\nunconstitutional in ACCA. There is simply no meaningful distinction between the\\n\\n\\n 50\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 51 of 64\\n\\n\\ntwo. See United States v. Brown, 868 F.3d 297, 311 (4th Cir. 2017) (Gregory,\\n\\nC.J., dissenting). This Court treats precedent interpreting the two as\\n\\ninterchangeable. See Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir.\\n\\n2011) (en banc). If a sentence imposed under the ACCA residual clause “does not\\n\\ncomport with the Constitution’s guarantee of due process,” it must be true that\\n\\nrelying on an identical “shapeless . . . provision” to impose a mandatory Guideline\\n\\nsentence doesn’t either. Johnson, 135 S. Ct. at 2560.\\n\\n The relief Mr. Lester got from the Fourth Circuit highlights the limits this\\n\\nCourt has placed on the Great Writ. His sentence was doubly infirm. He should\\n\\nnot have been sentenced as a career offender. And his sentence was the product of\\n\\nan unconstitutionally vague Guidelines provision. The Fourth Circuit corrected the\\n\\nformer error. If Mr. Lester had been convicted in the Seventh Circuit, that court\\n\\nwould have corrected the latter. Eleventh Circuit precedent holds we have no\\n\\npower to do either.\\n\\n I hoped our en banc Court would give Mr. Lester relief. Fortunately the\\n\\nCourt’s decision not to do so did not stand in the way of his freedom. But it bears\\n\\nnotice that our unwillingness to reconsider Mr. Lester’s sentence will impact\\n\\nscores of inmates sentenced under the mandatory Guidelines in Alabama, Georgia,\\n\\nand Florida who have not been incarcerated outside of the Eleventh Circuit.\\n\\n\\n\\n\\n 51\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 52 of 64\\n\\n\\nROSENBAUM, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit\\n\\nJudges, respecting the denial of rehearing en banc:\\n\\n I agree with Judge Martin’s well-reasoned Statement respecting the denial of\\n\\nrehearing en banc. I write separately only to add a few points in response to Judge\\n\\nWilliam Pryor’s Statement respecting the denial of rehearing en banc (“Pryor\\n\\nStatement”).\\n\\n Section I of this dissent takes issue with the Pryor Statement’s argument that\\n\\nprisoners sentenced under the pre-Booker1 Guidelines can never state a successful\\n\\nJohnson2 claim because Johnson’s rule is not retroactively applicable to them. As I\\n\\nexplain, Johnson’s rule, in fact, is retroactively applicable to such prisoners since\\n\\npre-Booker, prisoners wrongly sentenced under the career-offender guideline were\\n\\nsubjected to higher mandatory-minimum sentences than they otherwise would have\\n\\nbeen. Section II explores the Pryor Statement’s theory that the Sentencing\\n\\nGuidelines “were never really mandatory,” Pryor Statement at 22, even though\\n\\nindividuals sentenced during the two decades when courts applied the pre-Booker\\n\\nGuidelines—including the career-offender provision—remain in prison because of\\n\\na sentencing regime that supposedly never was. And Section III shows how the\\n\\nPryor Statement’s theory that judicial opinions never change the law cannot be\\n\\n\\n\\n 1\\n United States v. Booker, 543 U.S. 220 (2005).\\n 2\\n Johnson v. United States, 135 S. Ct. 2551 (2015).\\n\\n 52\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 53 of 64\\n\\n\\nconceptually squared with the real effects of judicial opinions and the courts’ role in\\n\\nour constitutional system.\\n\\n I.\\n\\n The Pryor Statement asserts that Lester could not state a viable Johnson claim\\n\\nbecause Johnson is not retroactively applicable to cases where the career-offender\\n\\nguideline was applied pre-Booker. Pryor Statement at 22-23. It arrives at this\\n\\nincorrect conclusion by oversimplifying the “doctrinal pedigree and rationale of the\\n\\nsubstantive exception” that requires retroactivity. That oversimplification\\n\\nincorrectly causes the Pryor Statement to overlook the constitutional significance of\\n\\nwrongly applied mandatory-minimum sentences. Id. at 10.\\n\\n In fact, as I have explained in McCarthan v. Director of Goodwill Industries—\\n\\nSuncoast, Inc., 851 F.3d 1076, 1121-41 (11th Cir. 2017) (en banc) (Rosenbaum, J.,\\n\\ndissenting), retroactivity applies when a previous rule imposed detention in violation\\n\\nof the separation of powers or of the government’s limited powers—that is, when\\n\\nthe Congress, the Executive, or the Judiciary exercised powers it does not have in\\n\\nrelation to causing the detention of a person. See, e.g., Mackey v. United States, 401\\n\\nU.S. 667, 692 (1971) (Harlan, J., concurring) (defining substantive rules that warrant\\n\\nretroactivity as “those that place, as a matter of constitutional interpretation, certain\\n\\nkinds of primary, private individual conduct beyond the power of the criminal law-\\n\\nmaking authority to proscribe”) (emphasis added).\\n\\n\\n 53\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 54 of 64\\n\\n\\n In Johnson, for example, Congress exceeded its authority by enacting an\\n\\nunconstitutionally vague law—the residual clause of the Armed Career Criminal Act\\n\\n(“ACCA”)—“that fix[ed] the permissible sentences for criminal offenses.” Beckles\\n\\nv. United States, 137 S. Ct. 886, 892 (2017) (emphasis omitted). The Judiciary also\\n\\nexceeded its authority when it applied this unconstitutional law to, among other\\n\\nthings, increase mandatory-minimum sentences. See id. So not surprisingly, the\\n\\nSupreme Court held Johnson’s rule retroactively applicable. Welch v. United States,\\n\\n136 S. Ct. 1257 (2016).\\n\\n The residual clause of the career-offender guideline, as employed under the\\n\\npre-Booker regime, caused the same problem as the residual clause of the ACCA.\\n\\nFirst, the career-offender guideline mirrored the language of the ACCA’s residual\\n\\nclause that the Supreme Court ruled unconstitutionally vague. And second, as Judge\\n\\nWilliam Pryor has previously explained, when “Congress required sentencing courts\\n\\nto apply the Sentencing Guidelines and impose a sentence within the applicable\\n\\nguidelines range, it was reasonable to view the Guidelines as effectively setting\\n\\nminimum and maximum penalties that varied based on the circumstances of the\\n\\noffense and the characteristics of the offender.” United States v. Wright, 607 F.3d\\n\\n708, 717–18 (11th Cir. 2010) (Pryor, J.); see also Booker, 543 U.S. at 233–34\\n\\n(opinion of Stevens, J.) (explaining how the pre-Booker Guidelines fixed sentences).\\n\\n\\n\\n\\n 54\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 55 of 64\\n\\n\\n So a defendant wrongly found to qualify for the career-offender guideline was\\n\\nsubjected to a higher mandatory-minimum sentence than he would have been under\\n\\nthe mandatory Guidelines regime, had the career-offender guideline not been\\n\\napplied. And that is a constitutional problem. See Alleyne v. United States, 570 U.S.\\n\\n99, 112 (“It is impossible to dissociate the floor of a sentencing range from the\\n\\npenalty affixed to the crime.”), 113 (“Elevating the low-end of a sentencing range\\n\\nheightens the loss of liberty associated with the crime: the defendant’s expected\\n\\npunishment has increased as a result of the narrowed range, and the prosecution is\\n\\nempowered, by invoking the mandatory minimum, to require the judge to impose a\\n\\nhigher punishment than he might wish.”) (cleaned up) (2013). In other words, by\\n\\nrequiring courts to apply the unconstitutionally vague residual clause of the career-\\n\\noffender guideline in a mandatory way, Congress exceeded its constitutional power,\\n\\nsince it prescribed mandatory-minimum sentences based on solely an\\n\\nunconstitutionally vague guideline it gave the force of binding law. And we, in\\n\\napplying these mandatory-minimum sentences based on solely an unconstitutionally\\n\\nvague guideline, also acted beyond our jurisdiction.\\n\\n The Pryor Statement conveniently glosses over this constitutionally\\n\\nsignificant problem, diverting attention by focusing on the fact that the pre-Booker\\n\\nGuidelines did not cause defendants to be sentenced to higher maximum sentences\\n\\nthan they would have been under the post-Booker Guidelines. But that defendants\\n\\n\\n 55\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 56 of 64\\n\\n\\nwere not exposed to higher maximum penalties does not somehow render\\n\\nconstitutionally insignificant the separate constitutional problem of “fix[ed]” higher\\n\\nmandatory-minimum sentences for defendants than were permissible under the pre-\\n\\nBooker regime. See Beckles v. United States, 137 S. Ct. 886, 892 (2017) (citing\\n\\nAlleyne, 570 U.S. at 112-13, as “describing the legally prescribed range of available\\n\\nsentences [which includes the mandatory minimum to the maximum] as the penalty\\n\\nfixed to a crime”).\\n\\n The Pryor Statement has no answer to this problem. Instead, it conclusorily\\n\\ninsists all that matters is whether the sentence that was actually imposed could have\\n\\nbeen applied under the substantive criminal statute for which the prisoner was\\n\\nconvicted. But that ignores the fact that when a court applied the career-offender\\n\\nguideline during the mandatory Guidelines regime, the “legally prescribed range of\\n\\navailable sentences” differed from what it would have been in the absence of the\\n\\ncareer-offender guideline during the mandatory Guidelines regime. In other words,\\n\\nit disregards the constitutional pickle created when Congress exceeded its powers in\\n\\nrequiring, through 18 U.S.C. § 3553(b)(1)’s provision making the Guidelines\\n\\nmandatory, courts to apply higher mandatory-minimum sentences than would have\\n\\notherwise applied in the absence of the unconstitutionally vague residual clause of\\n\\nthe career-offender guideline, and courts followed that mandate. And it pays no\\n\\nattention to this problem even though the Supreme Court has expressly identified the\\n\\n\\n 56\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 57 of 64\\n\\n\\nconstitutional significance attached to mandatory minimums. See Beckles, 137 S.\\n\\nCt. at 892 (citing Alleyne, 570 U.S. at 112-13).\\n\\n The Pryor Statement divorces the fact that Congress made all the Guidelines\\n\\nmandatory through 18 U.S.C. § 3553(b)(1), from Congress’s exceeding of its powers\\n\\nby making the unconstitutionally vague residual clause of the career-offender\\n\\nguideline mandatory. By making this move, the Pryor Statement picks its real fight\\n\\nwith Booker, not Johnson. See Pryor Statement at 25 (“I argue that Booker’s holding\\n\\nthat their mandatory application was unconstitutional controls the question we are\\n\\ndiscussing.”). In doing so, the Pryor Statement misses that Congress’s Johnson error\\n\\nunder the pre-Booker Guidelines was substantive in nature, since Congress exceeded\\n\\nits powers in requiring courts to apply higher mandatory-minimum sentences based\\n\\nsolely on the unconstitutionally vague residual clause of the career-offender\\n\\nguideline, and courts followed that mandate.\\n\\n II.\\n\\n Perhaps for this reason, the Pryor Statement takes a second tack to argue\\n\\nprisoners incorrectly sentenced as career offenders pre-Booker have no cognizable\\n\\n§ 2255 claim. In an unusual move, the Pryor Statement denies the reality that these\\n\\nprisoners were actually sentenced under a mandatory regime. It reasons that since\\n\\nthe Supreme Court in Booker found that the mandatory Guidelines violated the Sixth\\n\\n\\n\\n\\n 57\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 58 of 64\\n\\n\\nAmendment, they “were never really mandatory,” even though courts applied them\\n\\nthat way for two decades. Pryor Statement at 22 (emphasis in original).\\n\\n Hmm.\\n\\n I doubt the perhaps 1,000-plus inmates3 who sit in prison right now because a\\n\\ncourt sentenced them using a mandatory version of the Guidelines with an\\n\\nindisputably unconstitutionally vague career-offender clause would agree.4\\n\\n Nor does the Pryor Statement’s conclusion that the Guidelines “were never\\n\\nreally mandatory” comport with what the Supreme Court has had to say on the\\n\\nsubject. On the contrary, the Court has bluntly explained that the pre-Booker\\n\\nGuidelines “b[ou]nd judges and courts in the exercise of their uncontested\\n\\nresponsibility to pass sentence in criminal cases,” Mistretta v. United, 488 U.S. 361,\\n\\n391 (1989), and “ha[d] the force and effect of laws, prescribing the sentences\\n\\ncriminal defendants are to receive,” id. at 413 (Scalia, J., dissenting); see also Stinson\\n\\nv. United States, 508 U.S. 36, 42 (1993) (“The principle that the Guidelines Manual\\n\\nis binding on federal courts applies as well to policy statements”). And just before\\n\\n\\n\\n 3\\n Brown v. United States, 139 S. Ct. 14, 16 n.4 (2018) (noting that there are likely at least\\n1,187 Johnson challenges to sentences under the pre-Booker career-offender clause).\\n 4\\n The Pryor Statement expresses wonderment about whether the career-offender provision\\nof could “somehow [be] unconstitutionally vague . . . .” Pryor Statement at 12. He need not\\nwonder about the career-offender’s vagueness though because it employs the same language as the\\nACCA, and the Sentencing Commission expressly modeled the career-offender Guideline after\\nthe ACCA. U.S. Sentencing Guidelines Manual app. C, amend. 268 (U.S. Sentencing Comm’n\\n1989) (“The definition of crime of violence used in this amendment is derived from 18 U.S.C. §\\n924(e).”).\\n 58\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 59 of 64\\n\\n\\nexcising the statutory provision that made the Guidelines mandatory, the Supreme\\n\\nCourt stated that the Guidelines “are not advisory; they are mandatory and binding\\n\\non all judges” because § 3553(b) “directs that the court ‘shall impose a sentence of\\n\\nthe kind, and within the range’ established by the Guidelines.” Booker, 543 U.S. at\\n\\n233–34 (opinion of Stevens, J.).\\n\\n Indeed, the Pryor Statement’s conclusion today that the Guidelines “were\\n\\nnever really mandatory” conflicts even with Judge William Pryor’s own prior\\n\\nstatements. Judge Pryor has previously described the Sentencing Reform Act of\\n\\n1984 as “ma[king] the Guidelines mandatory.” Wright, 607 F.3d at 717–18. In fact,\\n\\nas I have noted, Judge Pryor found that “[b]ecause Congress required sentencing\\n\\ncourts to apply the Sentencing Guidelines and impose a sentence within the\\n\\napplicable guidelines range, it was reasonable to view the Guidelines as effectively\\n\\nsetting minimum and maximum penalties that varied based on the circumstances of\\n\\nthe offense and the characteristics of the offender.” Id. (emphasis added). And he\\n\\nexplained that “the Court in . . . Booker . . . made the Guidelines advisory.” Id.\\n\\n Today, though, the Pryor Statement chalks these remarks up to a failure of\\n\\nlinguistic precision and seeks to rewrite history. See Pryor Statement at 17.\\n\\nAccording to the Pryor Statement, the Booker Court did not make the Guidelines\\n\\nadvisory because they were always advisory, since the Sixth Amendment never\\n\\n\\n\\n\\n 59\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 60 of 64\\n\\n\\nallowed them to be mandatory. Id. at 19. That is certainly interesting on a\\n\\nmetaphysical level.\\n\\n But it ignores reality. Back here on Earth, the laws of physics still apply. And\\n\\nthe Supreme Court’s invalidation of a law does not alter the space-time continuum.\\n\\nIndeed, there can be no dispute that from when the Guidelines were adopted in 1984\\n\\nto when the Supreme Court handed down Booker in 2005, courts mandatorily\\n\\napplied them, as § 3553(b) required, to scores of criminal defendants—including\\n\\nmany who still sit in prison because of them.\\n\\n It’s also a particularly mindboggling bit of judicial fiction to, in one breath,\\n\\nconclude that the Guidelines were always advisory, and in the next, withhold relief\\n\\nfrom individuals in Lester’s circumstances by noting the advisory Guidelines do not\\n\\napply retroactively because Booker is a procedural rule, even though, according to\\n\\nthe Pryor Statement, the Guidelines always were advisory. Under the Pryor\\n\\nStatement’s reasoning, the Guidelines were never mandatory, but to inmates like\\n\\nLester, they will always be mandatory, since these prisoners remain subject to their\\n\\npunishment. This heads-I-win-tails-you-lose logic cannot withstand scrutiny. Either\\n\\nthe Guidelines were never mandatory, in which case, Lester and inmates like Lester\\n\\nwould not have been sentenced under the mandatory regime or at least would not\\n\\nremain in prison because of the mandatory regime (a circumstance that is clearly not\\n\\n\\n\\n\\n 60\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 61 of 64\\n\\n\\nthe case), or they were mandatory until Booker ruled they weren’t, and inmates like\\n\\nLester can mount Johnson challenges.\\n\\n III.\\n\\n The last portion of the Pryor Statement that warrants a response is its theory\\n\\nthat when Booker invalidated the mandatory nature of the Guidelines, that was really\\n\\njust a change in “judicial doctrine,” but not “a change in law.” Pryor Statement at\\n\\n16. According to the Pryor Statement, the Supreme Court could not have made the\\n\\nSentencing Guidelines advisory because the “Supreme Court wields judicial power,\\n\\nnot legislative power” and therefore “has no power to amend the text or meaning of\\n\\nany statute . . . .” Id. at 17.\\n\\n To be sure, the “Supreme Court wields judicial power, not legislative power”\\n\\nand therefore “has no power to amend the text or meaning of any statute.” But that\\n\\ndoes not mean the Supreme Court’s actions do not, in a very real sense, change the\\n\\nlaw. In my view, there are at least two problems with the Pryor Statement’s line of\\n\\nthinking to the contrary: it ignores the reality of what happened in Booker, and it\\n\\nundermines the courts’ constitutional power of judicial review.\\n\\n First, I address what happened in Booker. When the United States went to\\n\\nsleep on January 11, 2005, 18 U.S.C. § 3553(b)(1) was the law of the land, and\\n\\nsentencing courts were required to “impose . . . sentence[s] of the kind, and within\\n\\nthe range” established by the Guidelines. But when the United States went to sleep\\n\\n\\n 61\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 62 of 64\\n\\n\\non January 12, 2005—hours after the Court issued Booker—§ 3553(b)(1) no longer\\n\\nhad the force of law. And that is so solely because the Court eliminated § 3553(b)(1)\\n\\n “through severance and excision”5 in order to “make the Guidelines system\\n\\nadvisory.” Booker, 543 U.S. at 245 (opinion of Breyer, J.). In striking § 3553(b)(1),\\n\\nthe Court recognized that it was “alter[ing] the system that Congress designed.” Id.\\n\\n Despite the Supreme Court’s express words, the Pryor Statement opines that\\n\\nthough the Court may have “radically changed judicial doctrine,” that change was\\n\\nnot “equivalent” to a change in “the substance of the law.” Pryor Statement at 19.\\n\\nCall it a change in doctrine, law, policy—pick the noun—but the reality will always\\n\\n be the same: the Court’s change effectively excised the Guidelines’ mandatory\\n\\nlanguage from the United States Code, rendering what were once statutorily imposed\\n\\n mandatory Guidelines advisory. Importantly, the Court had a duty under the\\n\\n Constitution to make this change to our law because “[i]t is emphatically the\\n\\n province and duty of the judicial department to say what the law is.” Marbury v.\\n\\nMadison, 5 U.S. 137, 177 (1803). And here, § 3553(b)(1) violated the Constitution.\\n\\nThat leads to my second point. Our duty to “say what the law is” likewise makes it\\n\\n our job, when a statute is unlawful, to render it unenforceable by saying\\n\\n 5\\n The Pryor Statement takes issue with my characterization of what the Supreme Court did\\nin Booker as “excis[ion].” See Pryor Statement at 27. Of course, that is precisely the word the\\nSupreme Court used. See Booker, 543 U.S. at 245 (opinion of Breyer, J.). And it used that word\\nbecause in the real world, that was the legal effect of what the Supreme Court did in Booker to the\\nmandatory nature of the Guidelines, whether the Pryor Statement wishes to acknowledge that fact\\nor not.\\n 62\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 63 of 64\\n\\n\\nwhat the Constitution requires of the statute. See id. (“If two laws conflict with each\\n\\nother, the courts must decide on the operation of each.”); see also The Federalist No.\\n\\n78. So while it is true that the “Supreme Court . . . has [only] the authority to say\\n\\nwhat a statute means,” Pryor Statement at 17, sometimes those statements\\n\\nnecessarily force a change in the law. And under our Constitution, those changes\\n\\nare every bit as valid and must be followed every bit as much as if Congress itself\\n\\nhad enacted them.\\n\\n Booker is a good example; one day the Guidelines were mandatory, and the\\n\\nnext day they were not, solely because of the Supreme Court’s opinion striking down\\n\\n§ 3553(b)(1). So while we can pretend that the Supreme Court’s decisions do not\\n\\n“change[] the law,” Pryor Statement at 17, the reality is that in our constitutional\\n\\nsystem, sometimes they can and they do.\\n\\nAnd as I have noted, when that happens, those changes are just as valid under our\\n\\nconstitutional system as if Congress had statutorily enacted them.\\n\\n Finally, I must respond to Judge Pryor’s charge that this Statement does not\\n\\n“say what the law is,” but rather what I supposedly think “it should be.” See Pryor\\n\\nStatement at 27 (quoting Marbury, 5 U.S. at 177) (quotation marks omitted). I trust\\n\\nthat any honest reading of this Statement soundly rebuts that accusation. Nor does\\n\\ndaring to disagree with the Pryor Statement’s analysis make my analysis either what\\n\\n\\n\\n\\n 63\\n\\f Case: 18-10523 Date Filed: 04/29/2019 Page: 64 of 64\\n\\n\\nI think the law “should be” or immodest. And I will let the irony of the Pryor\\n\\nStatement’s suggestion to the contrary speak for itself.\\n\\n IV.\\n\\n In short, Johnson’s rule applies retroactively when an unconstitutionally\\n\\nvague law results in the application of a fixed sentencing range that is higher than it\\n\\notherwise would have been. Pre-Booker, when courts applied the career-offender\\n\\nguideline, that resulted in a higher mandatory minimum than otherwise would have\\n\\npertained to a defendant under the mandatorily applied Guidelines. So Johnson’s\\n\\nrule applies to pre-Booker sentences that imposed the career-offender guideline\\n\\nbased on at least one predicate conviction that qualified under only the\\n\\nunconstitutionally vague residual clause. Nor does the judicial fiction that the\\n\\nGuidelines “were never really mandatory” somehow erase the fact that they were\\n\\napplied in a mandatory way for more than 20 years. So if because of the residual\\n\\nclause, a prisoner was incorrectly sentenced under the career-offender guideline in\\n\\nthe pre-Booker sentencing regime, he can establish a viable Johnson claim. And our\\n\\nCircuit precedent to the contrary is simply wrong.\\n\\n\\n\\n\\n 64\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1898,"cells":{"id":{"kind":"number","value":4614620,"string":"4,614,620"},"name":{"kind":"string","value":"Jennifer JENKINS, Plaintiff-Appellant, v. S. David ANTON, PA, D.B.A. Anton Legal Group, S. David Anton, Individually, Defendants-Appellees."},"name_abbreviation":{"kind":"string","value":"Jennifer Jenkins v. S. David Anton, PA"},"decision_date":{"kind":"string","value":"2019-04-29"},"docket_number":{"kind":"string","value":"17-13073"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Tjoflat, Marcus, Newsom\", \"parties\": \"\", \"opinions\": [{\"author\": \"TJOFLAT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13073\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00283-JSM-AEP\\n\\n\\nJENNIFER JENKINS,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\nS. DAVID ANTON, PA,\\nd.b.a. Anton Legal Group,\\nS. DAVID ANTON,\\nindividually,\\n\\n Defendants-Appellees.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 29, 2019)\\n\\nBefore TJOFLAT, MARCUS, and, NEWSOM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Jennifer Jenkins worked as a paralegal for David Anton for about nine\\n\\nmonths. She had a flexible work schedule, and records of the hours she worked\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 2 of 31\\n\\n\\nwere not kept. After her employment ended, Jenkins sued Anton and his law firm\\n\\nfor unpaid overtime wages under the Fair Labor Standards Act. The case was tried\\n\\nto the District Court, which entered judgment in favor of Anton. Jenkins moved\\n\\nfor relief under Rules 59 and Rule 60 of the Federal Rules of Civil Procedure. Her\\n\\nmotion was denied, and she appealed. On appeal, she says the District Court\\n\\nabused its discretion by denying relief under Rule 59 and Rule 60. She also argues\\n\\nthat the Court misapplied the legal standard in ruling against her, and she claims\\n\\nthe Court should have recused. We affirm.\\n\\n We divide our discussion into three parts. First, we set out the evidence that\\n\\nwas presented to the District Court during the bench trial. Second, we consider the\\n\\narguments on appeal. Third, we conclude.\\n\\n I.\\n\\n We refer to Jenkins as “Employee” and Anton as “Employer” for\\n\\nconvenience.\\n\\n A.\\n\\n The parties stipulated to a bench trial. Almost two weeks thereafter,\\n\\nEmployee filed a notice of disclosure with the District Court. There, she notified\\n\\nthe District Court that Employer had represented the District Judge’s ex-wife in the\\n\\ncouple’s divorce proceedings. Employee never asked the District Judge to recuse,\\n\\nand he continued to preside over the case. The case proceeded to trial.\\n\\n 2\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 3 of 31\\n\\n\\n At trial, the parties told two very different stories. According to Employee,\\n\\nshe typically arrived in the office by 8:15 a.m. and left sometime between 6:30\\n\\np.m. and midnight. She said she worked about 70 hours a week. Altogether, she\\n\\nclaimed that she worked 711 hours of unpaid overtime. (This was a revised\\n\\ncalculation; she originally claimed 1078.88 hours but reduced the number at trial\\n\\nafter reviewing documents she received in discovery and after subtracting\\n\\nvacation-related time.) To support her claim for overtime, Employee introduced\\n\\ninto evidence emails that she sent Employer after normal business hours and on\\n\\nweekends. She also argued that these emails were probably just a subset of all the\\n\\nemails she sent after hours. She didn’t have all of the emails because soon after\\n\\nshe left the law firm, her successor deleted many of her emails.\\n\\n Employer told a different story. He said that Employee originally agreed to\\n\\nwork a fixed schedule. But the schedule became more flexible, according to\\n\\nEmployer, because Employee took a lot of time off and worked later hours to make\\n\\nup the time. He didn’t keep a record of the hours she worked, but he testified that\\n\\nshe never worked more than 40 hours a week. He gave a few reasons why he\\n\\nbelieved that. First, Employer said that Employee’s predecessor never worked\\n\\n“anywhere near 40 hours a week.” (Employee’s predecessor did not testify, and\\n\\nthat becomes important later.) Employee’s successor never worked overtime,\\n\\neither. Second, he explained that his practice was slow while Employee worked\\n\\n 3\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 4 of 31\\n\\n\\nfor him. 1 Third, he noted that he could see her office from his, and he saw her\\n\\nstudying—not working—at times. 2\\n\\n Employer also addressed the emails that Employee sent after hours and on\\n\\nthe weekends: he said it would not have taken Employee more than a few minutes\\n\\nto type those emails and to send them to him. They were short emails.\\n\\n Other witnesses echoed Employer’s testimony. For example, the firm’s\\n\\nbookkeeper—who came in two days a week, four hours each day, the entire time\\n\\nEmployee worked at the firm—never saw Employee working at a “harried pace.”\\n\\nNor did the bookkeeper ever notice Employee being pressed for time at work. In\\n\\nthe bookkeeper’s opinion, there was not enough work at the firm to fill even 40\\n\\nhours of Employee’s time each week. And Employee never told the bookkeeper\\n\\nthat she was working overtime and should be paid for it, even though the\\n\\nbookkeeper was the one who told the payroll company how many hours each\\n\\nemployee should be paid for, which Employee knew.\\n\\n Another witness bolstered Employer’s testimony. This witness worked for a\\n\\ndifferent lawyer, but she shared the same office space as Employee for three\\n\\nmonths. She said that Employee’s workload was “[n]ot particularly heavy”; most\\n\\n\\n\\n 1\\n Employer introduced billing records from several years to support this statement. In\\n2011, his firm billed 1883 hours. In 2012, his firm billed 1809 hours. In 2013—the year\\nEmployee worked for him—his firm billed 1342 hours. And in 2014, his firm billed 1851 hours.\\n 2\\n Employee was taking college classes while working for Employer.\\n 4\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 5 of 31\\n\\n\\nof the clients belonged to the lawyer she worked for and not Employer. And\\n\\nEmployee did not work on matters related to those clients. The witness explained\\n\\nthat her boss eventually left the firm, and Employer kept her on for a while. There\\n\\nwas not enough client-related work to keep the witness busy, so Employer asked\\n\\nher to clean the office and to organize rooms. Employer eventually had to let the\\n\\nwitness go because there was not enough work for her to do.\\n\\n The same witness also replaced Employee when she left Employer’s law\\n\\nfirm. Despite taking over all of Employee’s responsibilities, and despite having\\n\\nless paralegal experience than Employee, the witness did not work overtime for\\n\\nEmployer.\\n\\n Finally, Employer’s current paralegal testified. She said that Employer had\\n\\nabout 15 active cases that she worked on. With that caseload—which was similar\\n\\nto Employer’s caseload while Employee worked for him—she had never worked\\n\\novertime. 3 In fact, the witness said, she didn’t even work 40 hours a week.\\n\\n As is apparent from our discussion thus far, much of the testimony was\\n\\npretty vague and generic. But the parties did testify more specifically about the\\n\\nwork Employee did—or didn’t do—during an arbitration that Employer handled\\n\\nand Employee attended. The arbitration lasted four days, Tuesday through Friday.\\n\\n\\n\\n 3\\n Employer testified that he had 17 active cases when Employee started. He said that he\\ntypically has anywhere from 12 or 15 to 20 active cases at one time.\\n 5\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 6 of 31\\n\\n\\nThe parties agreed that Employee worked the Saturday and Sunday before the\\n\\narbitration. But Employer said that Employee “took a lot of time off” during the\\n\\nnormal workweek (Monday through Friday) that preceded the weekend. (As we\\n\\nexplain below, it is important whether the hours Employee worked on Sunday\\n\\ncount as part of her workweek for the week of the arbitration, or if they count as\\n\\npart of the prior workweek.) Employee claimed she worked “13 or 14 hours” the\\n\\nMonday before the arbitration.\\n\\n As for the arbitration itself, each day had a three-hour morning session,\\n\\nfollowed by an hour-and-a-half lunch break, and a three-hour afternoon session.\\n\\nDuring lunch, Employer and Employee stayed at the facility and ate with their\\n\\nexpert witness. Both parties agreed that they talked about the case during lunch.\\n\\nEmployee testified that she worked “about 70 hours” or “[a] little over 70 hours”—\\n\\nlike she did “most weeks”—the week of the arbitration.\\n\\n B.\\n\\n The District Court resolved the he-said-she-said swearing match in\\n\\nEmployer’s favor. It concluded that Employer’s “testimony [was] more credible\\n\\nbecause it better matche[d] the other evidence . . . , particularly the testimony of\\n\\nother employees.” Based on this credibility determination, the Court found that\\n\\nEmployee did not prove that she worked more than 40 hours in any given\\n\\nworkweek.\\n\\n 6\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 7 of 31\\n\\n\\n The Court explained some of the evidence that supported Employer’s\\n\\nversion of events. It noted that the firm billed fewer hours the year that Employee\\n\\nworked there than it did the two years before Employee came on and the year after\\n\\nshe left. This was consistent with Employer’s claim that business was slower than\\n\\nnormal while Employee worked for him. The Court also found that Employer’s\\n\\ndescription of his practice was consistent with the bookkeeper’s; the bookkeeper\\n\\nsaid that Employer’s practice was not busy compared to other lawyers she worked\\n\\nfor, and she never noticed Employee rushing or working through lunch.\\n\\n Employer’s version was also consistent with the testimony of Employee’s\\n\\nsuccessor. The Court pointed out that Employer had the successor do “busy work”\\n\\nduring the three months that she overlapped with Employee, and this was because\\n\\nEmployee needed no help with paralegal work. The successor also said that the\\n\\nworkload was light when she took over for Employee, and she never worked\\n\\nthrough lunch or on a weekend. And finally, Employer’s current paralegal testified\\n\\nthat she never came close to working overtime.\\n\\n The Court discounted the emails that Employee sent after normal business\\n\\nhours because many of them would have taken Employee no more than “two or\\n\\nthree minutes to draft.” Others were unrelated to work or asked for time off. The\\n\\nCourt said the closest Employee came to proving that she worked overtime was the\\n\\nweek of the arbitration. It found that the time Employee worked the Saturday\\n\\n 7\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 8 of 31\\n\\n\\nbefore the arbitration did not make up for the time she took off earlier in the week.\\n\\nThe Court said Employee’s claim that she worked late the Monday before the\\n\\narbitration was “conclusory” because she didn’t identify any work she did. It also\\n\\nrejected Employee’s claim that the lunches during the arbitration were working\\n\\nlunches because she didn’t point to any work she did and said only that they talked\\n\\nabout what happened during the morning sessions. And finally, Employee’s claim\\n\\nthat she worked late nights during the arbitration suffered a similar fate: the Court\\n\\nrejected it because Employee didn’t identify any work she did.\\n\\n Employee moved for relief under Rule 59 and Rule 60 based on several\\n\\ngrounds. The District Court denied the motion, and Employee appealed. We\\n\\nexplain below why the District Court denied relief under Rule 59 and Rule 60.\\n\\n II.\\n\\n Employee makes four arguments on appeal: (1) the District Court abused its\\n\\ndiscretion by denying relief under Rule 59, (2) the District Court abused its\\n\\ndiscretion by denying relief under Rule 60, (3) the District Court misapplied the\\n\\nlegal standard when it found that Employee did not prove she worked overtime,\\n\\nand (4) the District Court abused its discretion by not recusing sua sponte. We\\n\\ntake up each argument separately.\\n\\n\\n\\n\\n 8\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 9 of 31\\n\\n\\n A.\\n\\n Employee moved the District Court to alter or amend the judgment under\\n\\nRule 59(e).4 Alternatively, she moved to open the judgment under Rule 59(a)(2)\\n\\nor for a new trial under Rule 59(a)(1)(B). 5 We first set out the relevant legal\\n\\nstandards and then consider Employee’s arguments.\\n\\n 1.\\n\\n Under Rule 59(e), a district court may “alter or amend a judgment.” Fed. R.\\n\\nCiv. P. 59(e). There are no specific grounds for relief listed in Rule 59(e). But we\\n\\nhave said that a district court may alter or amend a judgment that is based on\\n\\n“manifest errors of law or fact.” See Metlife Life & Annuity Co. of Conn. v.\\n\\nAkpele, 886 F.3d 998, 1008 (11th Cir. 2018). The Rule 59(e) motion looks back at\\n\\n\\n 4\\n Rule 59(e) reads as follows: “(e) Motion to Alter or Amend a Judgment. A motion to\\nalter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”\\nFed. R. Civ. P. 59(e).\\n 5\\n Here are the relevant parts of Rule 59(a):\\n Rule 59. New Trial; Altering or Amending a Judgment\\n (a) In General.\\n (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or\\n some of the issues—and to any party—as follows:\\n ...\\n (B) after a nonjury trial, for any reason for which a rehearing has heretofore been\\n granted in a suit in equity in federal court.\\n (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may,\\n on motion for a new trial, open the judgment if one has been entered, take\\n additional testimony, amend findings of fact and conclusions of law or make new\\n ones, and direct the entry of a new judgment.\\nFed. R. Civ. P. 59(a).\\n 9\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 10 of 31\\n\\n\\nwhat was; it does not look forward at what could have been. For this reason, a\\n\\ndistrict court should not grant relief under Rule 59(e) after a nonjury trial based on\\n\\nnewly discovered evidence.6 We review a district court’s decision on a Rule 59(e)\\n\\nmotion for abuse of discretion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,\\n\\n1343 n.20 (11th Cir. 2010).\\n\\n Rule 59(a)(2), by contrast, does look forward at what could have been. It\\n\\nsays that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the\\n\\njudgment if one has been entered, take additional testimony, amend findings of fact\\n\\nand conclusions of law or make new ones, and direct the entry of a new judgment.”\\n\\n\\n\\n\\n 6\\n This is not to say a party is out of luck if it wants to present newly discovered evidence\\nafter a nonjury trial. Our point is only that Rule 59(e) is the wrong vehicle. Indeed, Rule\\n59(a)(2) specifically allows a district court to open the judgment, take additional evidence,\\namend its findings of fact and conclusions of law, and enter a new judgment. Rule 60(b)(2)\\nreinforces this reading of Rule 59(e):\\n Rule 60. Relief from a Judgment or Order\\n (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On\\n motion and just terms, the court may relieve a party or its legal representative\\n from a final judgment, order, or proceeding for the following reasons:\\n ...\\n (2) newly discovered evidence that, with reasonable diligence, could not have\\n been discovered in time to move for a new trial under Rule 59(b)[.]\\nFed. R. Civ. P. 60(b) (emphasis added). Rule 59(b) simply says how many days—after judgment\\nis entered—that a party has to file a motion for new trial under Rule 59(a). So, Rule 60(b)(2)\\nsupports our reading of Rule 59(e) because Rule 60(b)(2) strongly suggests that Rule 59(a) is the\\nproper vehicle for a new motion based on newly discovered evidence. But if the party discovers\\nthe new evidence more than 28 days after judgment is entered and misses the Rule 59 cutoff, see\\nRule 59(b), the party may then move for relief under Rule 60(b).\\n 10\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 11 of 31\\n\\n\\nFed. R. Civ. P. 59(a)(2). A party should use this vehicle if it wants to present\\n\\nnewly discovered evidence after a nonjury trial. See supra note 6.\\n\\n And under Rule 59(a)(1)(B), a district court may grant a new trial “after a\\n\\nnonjury trial, for any reason for which a rehearing has heretofore been granted in a\\n\\nsuit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). As relevant for our\\n\\npurposes, a district court may grant a new trial if “the verdict . . . will result in a\\n\\nmiscarriage of justice.” 7 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\\n\\nCir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th\\n\\nCir. 1970)). We also review a district court’s decision on a Rule 59(a) motion for\\n\\nabuse of discretion. See id.\\n\\n 2.\\n\\n Employee argued that she was entitled to relief based on three grounds: (1) a\\n\\npreviously unavailable witness was now available, (2) a newly discovered email\\n\\nthat showed possible spoliation, and (3) errors related to the Court’s finding that\\n\\nshe did not work overtime the week of the arbitration. In effect, she argued that\\n\\nrelief was appropriate under all three subsections—Rule 59(e), Rule 59(a)(2), and\\n\\nRule 59(a)(1)(B)—based on each of the three claimed grounds. 8 We consider each\\n\\n\\n 7\\n A district court may also grant a new trial under Rule 59(a) if “the verdict is against the\\nclear weight of the evidence.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.\\n1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)).\\n 8\\n We should note that Employee made her arguments to the District Court without tying\\nthem to the proper Rules. Instead, she made her arguments and then dumped at the end a cite to\\n 11\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 12 of 31\\n\\n\\nground—and whether it triggers relief under Rule 59(e), Rule 59(a)(2), or Rule\\n\\n59(a)(1)(B)—separately.\\n\\n i.\\n\\n First, Employee asked the District Court to grant relief because her\\n\\npredecessor, an “impeachment witness,” was unable to testify during the trial. We\\n\\nbegin with Rule 59(e) and make quick work of it. The testimony of Employee’s\\n\\npredecessor is additional evidence. Call it evidence from a previously “unavailable\\n\\nwitness”—as Employee called it before the District Court—or call it newly\\n\\ndiscovered evidence—as Employee calls it on appeal. The point is that the\\n\\ntestimony is additional evidence; it’s not a mistake in the judgment. Thus, relief\\n\\nunder Rule 59(e) is inappropriate.\\n\\n Now for Rule 59(a)(2). According to Employee, the District Court relied on\\n\\nEmployer’s testimony in deciding the case in Employer’s favor. And during\\n\\nEmployer’s testimony, he said that his office was not busy enough to require\\n\\novertime, and he said that Employee’s predecessor never worked any overtime.\\n\\n In turn, Employee planned to “attack [Employer’s] credibility” on this issue\\n\\nby calling her predecessor as a witness. Her predecessor, Employee said, would\\n\\n“directly rebut” Employer by testifying that she regularly worked 20 hours of\\n\\n\\n\\n\\nRule 59(e), Rule 59(a), and Rule 60(b). To impose necessary structure, we pick her arguments\\nthat belong under each Rule and analyze them separately.\\n 12\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 13 of 31\\n\\n\\novertime during her employment. Employee coordinated with Court personnel so\\n\\nthat her predecessor (who lived in Chicago) could testify by videoconference. But\\n\\nafter the trial began, it was continued, 9 and Employee was unable to contact or\\n\\nlocate her predecessor when the trial picked back up a month later. As it turned\\n\\nout, her predecessor had been in the hospital and had no access to her phone or\\n\\nemail.\\n\\n Oddly, Employee never brought any of this to the District Court’s attention.\\n\\nNor did she ask for a continuance so that she could locate this important witness.\\n\\nEmployee kept the issue to herself apparently because she did not know why her\\n\\npredecessor was unavailable to testify. And because she didn’t know why her\\n\\npredecessor was unavailable, she apparently thought she couldn’t notify the\\n\\nDistrict Court or ask for a continuance.\\n\\n The District Court never raised the issue with the parties because it had no\\n\\nway of knowing that Employee planned to call this witness. Indeed, Employee\\n\\nnever listed her predecessor on her trial witness list. And this must have been\\n\\nstrategic because Employee knew—more than a year before the trial started—that\\n\\nEmployer would say (if asked) that Employee’s predecessor never worked\\n\\n\\n\\n\\n 9\\n Employee asked for a continuance because her son suffered a traumatic brain injury\\nafter the first day of trial. The Court granted the continuance, and things resumed about a month\\nlater.\\n 13\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 14 of 31\\n\\n\\novertime. And Employee knew this because Employer said as much in his\\n\\ndeposition.\\n\\n To sum up, Employee knew well before trial that, if asked, Employer would\\n\\nsay that Employee’s predecessor never worked overtime. So, Employee had her\\n\\npredecessor waiting in the wings, planning to call her to flatly contradict\\n\\nEmployer’s sworn testimony. Yet she never tried—at least not on the record\\n\\nbefore the District Court—to call her predecessor as a potential witness.\\n\\n As we said above, Rule 59(a)(2) is the proper vehicle if a party wants to\\n\\npresent newly discovered evidence after a nonjury trial. But this evidence—\\n\\ndespite Employee’s label for it—is not newly discovered. Quite the opposite.\\n\\nEmployee was making plans and setting up the logistics to call her predecessor as a\\n\\nwitness before the trial began. The only thing that is “new” about the testimony\\n\\nfrom Employee’s predecessor is that she’s finally available to give it. 10 But this\\n\\n\\n\\n\\n 10\\n There’s one thing we should point out on the topic of newly discovered evidence. On\\nappeal, the parties spend a lot of time arguing about how to label the testimony of Employee’s\\npredecessor. On the one hand, Employee says that her predecessor’s testimony potentially\\nshows that Employer committed perjury. On the other hand, Employer says that the testimony is\\nimpeachment only. This perjury-or-impeachment distinction would matter if the testimony from\\nEmployee’s predecessor were newly discovered evidence. This is because, as the parties agree,\\nnewly discovered evidence does not trigger Rule 59 relief if that evidence simply impeaches\\nother testimony or evidence. See Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790, 792\\n(5th Cir. 1955) (Davis is binding because in Bonner v. City of Prichard, 661 F.2d 1206, 1207\\n(11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former\\nFifth Circuit handed down by the close of business on September 30, 1981). But this general\\nrule does not apply when the newly discovered evidence potentially shows perjury. See United\\nStates v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990).\\n 14\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 15 of 31\\n\\n\\ndoes not help Employee, either, which takes us to the miscarriage-of-justice\\n\\nargument she made to the District Court.\\n\\n In her motion to the District Court, Employee argued that it would be a\\n\\n“miscarriage of justice” if her predecessor were not allowed to testify. Her\\n\\npredecessor would “directly challenge” the reliability of Employer’s testimony,\\n\\nand the District Court, according to Employee, relied heavily on Employer’s\\n\\ncredibility.\\n\\n The District Court rejected the argument: “[T]here is no miscarriage of\\n\\njustice when [Employee’s] inability to present [her predecessor’s] testimony was\\n\\ndue to [Employee’s] strategic choices.” The Court noted that Employee was not\\n\\nsurprised by Employer’s testimony because he gave the same testimony in his\\n\\ndeposition. And the Court pointed out that Employee coordinated with her\\n\\npredecessor “in preparation for trial.” The Court summed up with this: “If\\n\\n[Employee] wanted to ensure that the Court benefitted from [her predecessor’s]\\n\\ntestimony, she should have taken [her predecessor’s] deposition and entered it into\\n\\nevidence.”\\n\\n\\n\\n\\n The District Court denied relief under Rule 59(a) because “impeachment evidence is not\\nsufficient to warrant a new trial.” So, the parties understandably devote a good deal of the\\nbriefing to this issue. But because we find that the evidence is not newly discovered, we need\\nnot wade into the perjury-or-impeachment issue.\\n 15\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 16 of 31\\n\\n\\n The District Court did not abuse its discretion by denying relief under Rule\\n\\n59(a)(2). Specifically, there’s no miscarriage because Employee made a strategic\\n\\ndecision—to rest her case without asking for a continuance so that she could call\\n\\nher predecessor—and it backfired. And we know it was a strategic decision\\n\\nbecause nothing prevented Employee from raising the issue with the District Court\\n\\nand asking for a continuance. She claimed that she could not ask for a continuance\\n\\nbecause she did not know why her predecessor was unavailable. But the District\\n\\nCourt could have granted a continuance if Employee made a showing of “good\\n\\ncause.” M.D. Fla. Local Rule 3.09(a). And nothing in the local rules requires a\\n\\nparty to explain why a witness is unavailable when asking for a continuance\\n\\nbecause an important witness is unavailable. Perhaps the District Court would\\n\\nhave denied the request for a continuance—after all, Employee would have needed\\n\\nto explain why she left her predecessor off her witness list—but nothing prevented\\n\\nEmployee from at least raising the issue.\\n\\n Now, with the benefit of hindsight, and with the benefit of knowing that the\\n\\nDistrict Court rejected her position at trial, Employee says her predecessor’s\\n\\ntestimony is indispensable. Without it, she says, there’s a miscarriage a justice.\\n\\nWe disagree. Here, Rule 59(a)(2) relief is inappropriate because Employee (1)\\n\\nknew about the testimony, (2) did not ask for a continuance, (3) hoped for the best,\\n\\nand (4) now, with the benefit of hindsight, asks for a second bite at the apple.\\n\\n 16\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 17 of 31\\n\\n\\n * * *\\n\\n We quickly pause to make an obvious observation: when a party asks for\\n\\nrelief under Rule 59(a)(2) based on newly discovered evidence, the evidence must\\n\\nin fact be newly discovered. This case shows why. If we endorsed Employee’s\\n\\ntheory, parties would be incentivized to strategically manipulate Rule 59(a)(2).\\n\\nThey would do so by rolling the dice and trying their case without a witness that\\n\\nthey knew about well before trial. Then, they would wait and see if they won.\\n\\nNext, if they lost, they would run to the District Court asking for relief under Rule\\n\\n59. Conveniently, that witness they chose not to call is—all of sudden—necessary\\n\\nfor a full and complete trial. But odds are, if the witness really is necessary for a\\n\\nfull and complete trial, the party would have presented the witness at trial. Or, if\\n\\nthe witness was unavailable, the party would have at least asked for a continuance.\\n\\nIf the party is willing to chance it by going to trial without the witness, we doubt\\n\\nthat the witness is really that helpful. Even if the party’s after-the-fact request for\\n\\nrelief says otherwise. In any event, Rule 59(a)(2) does not reward parties who roll\\n\\nthe dice with this wait-and-see approach.\\n\\n ii.\\n\\n Second, Employee asked the District Court to grant relief because she\\n\\ndiscovered evidence after the trial that suggests Employer might have intentionally\\n\\ndeleted evidence. We again begin with Rule 59(e), and we again make quick work\\n\\n 17\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 18 of 31\\n\\n\\nof it. Relief under Rule 59(e) is inappropriate because the ground for relief is\\n\\nnewly discovered evidence.\\n\\n Now for Rule 59(a)(1)(B) (new trial) and Rule 59(a)(2) (open the judgment\\n\\non a motion for new trial). The newly discovered evidence was an email that\\n\\nEmployer allegedly sent to his IT specialist two months after Employee filed this\\n\\nlawsuit.11 In the email, Employer asked his IT specialist to “delete all emails from\\n\\n2014 and earlier” from the server’s deleted items folder. In her brief to the District\\n\\nCourt, Employee argued that this evidence looked “like a deliberate attempt by\\n\\n[Employer] to destroy material information.” And because Employer did not turn\\n\\nthe email over during discovery, Employee was unable to explore whether\\n\\nEmployer engaged in spoliation.\\n\\n The District Court rejected the argument. It concluded that Employee did\\n\\nnot “satisfactorily” explain how her approach would have changed if she had seen\\n\\nthe email before trial. The Court reasonably guessed that Employee would use the\\n\\nemail to impeach Employer, but it explained that impeachment evidence isn’t\\n\\nsufficient grounds for granting a new trial.\\n\\n Next, the Court assumed that the email showed spoliation and asked whether\\n\\napplying an evidentiary presumption—that the deleted emails contained\\n\\n\\n 11\\n Employee says she received this email via U.S. mail two days after the District Court\\nentered judgment in Employer’s favor. She claims there was no return address or other\\ninformation on the envelope showing who sent it.\\n 18\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 19 of 31\\n\\n\\ninformation that was unfavorable to Employer—would change the outcome of the\\n\\ntrial. It held that the evidentiary presumption wouldn’t change anything. The\\n\\nCourt explained that Employee never claimed that the allegedly deleted emails\\n\\nwould prove that she worked overtime. It said that, at best, the emails would show\\n\\nthat Employee sent or received additional emails outside normal business hours.\\n\\nBut the Court said it was aware during trial that additional emails like that might\\n\\nhave existed; indeed, the Court heard testimony that Employee’s successor deleted\\n\\nemails soon after Employee was terminated. Plus, there were emails introduced at\\n\\ntrial showing that Employee sent or received emails outside normal working hours.\\n\\nThus, the Court reasoned, additional emails would have been cumulative.\\n\\n Finally, the Court explained that the email evidence would not prove that\\n\\nEmployee worked overtime because there was evidence showing that she had a\\n\\n“flexible work schedule” and often took time off during normal hours. Nor could\\n\\nthe email evidence overcome “significant testimony” from other witnesses. Two\\n\\nof these witnesses overlapped with Employee’s time at the firm and testified that\\n\\nthere was not enough work for Employee to work overtime. And two witnesses\\n\\nwho succeeded Employee testified that they never even “came close” to working\\n\\novertime.\\n\\n Relief under Rule 59(a)(1)(B) and Rule 59(a)(2) is inappropriate because the\\n\\nemail would not have affected the outcome of the trial. See, e.g., 11 Charles Alan\\n\\n 19\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 20 of 31\\n\\n\\nWright et al., Federal Practice & Procedure § 2808 (3d ed. Nov. 2018) (“Evidence\\n\\nthat will not change the result does not merit a new trial [under Rule 59(a)]. Thus,\\n\\nnewly discovered evidence that would merely affect the weight and credibility of\\n\\nthe evidence ordinarily is insufficient for a new trial, as is evidence that is\\n\\ncumulative of evidence already offered.” (footnotes omitted)). In light of the entire\\n\\nrecord, the District Court reasonably concluded that the outcome of the trial would\\n\\nhave been the same, even if the email showed spoliation and the Court applied an\\n\\nevidentiary presumption against Employer. Thus, the District Court did not abuse\\n\\nits discretion by denying relief under Rule 59(a)(1)(B) and Rule 59(a)(2) based on\\n\\nthe newly discovered email. 12\\n\\n iii.\\n\\n Third, Employee argued that the District Court should grant relief because\\n\\nthe judgment was based on manifest errors of law or facts. We begin with Rule\\n\\n59(e). The Court erred, Employee argued, by finding that she did not work\\n\\novertime during the arbitration in May of 2013. In making that finding, the Court\\n\\noverlooked the hours she worked the Sunday before the arbitration. If the Court\\n\\nhad considered the hours Employee worked on Sunday, and if the Court had\\n\\n\\n 12\\n Employee does not seriously argue otherwise. She argues only that Employer’s\\n“actions prevented [her] from exploring whether [Employer] deliberately spoliated evidence or\\nseeking sanctions.”\\n The is the exact argument the District Court rejected, and Employee does not explain\\nwhy the District Court’s rejection amounts to an abuse of discretion.\\n 20\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 21 of 31\\n\\n\\napplied “the most favorable workweek standard” to her,13 it would have concluded\\n\\nthat she worked overtime the week of Sunday, May 19, 2013, through Saturday,\\n\\nMay 25, 2013. This is a proper Rule 59(e) argument.\\n\\n The District Court agreed that it erred by overlooking the hours that\\n\\nEmployee worked the Sunday before the arbitration. But it found that the error\\n\\nwas harmless because it concluded Employee’s workweek ran Monday through\\n\\nSunday, not Sunday through Saturday. The Court found that “[i]t is more\\n\\nreasonable to conclude that the workweek started on Monday, given that the\\n\\nParties described [Employee’s] weekly work schedule as starting on Monday\\n\\nmornings.”14 Thus, the hours that Employee worked the weekend before the\\n\\narbitration did not count toward the number of hours she worked the week of the\\n\\narbitration. Instead, those weekend hours counted toward the number of hours that\\n\\nEmployee worked the week before the arbitration. And because Employer testified\\n\\nthat Employee took more time off at the beginning of that week than she worked\\n\\non the weekend, the Court found that Employee did not work overtime the week\\n\\nbefore the arbitration.\\n\\n\\n 13\\n A “workweek is a fixed and regularly recurring period of . . . seven consecutive 24–\\nhour periods” that “need not coincide with the calendar week but may begin on any day and at\\nany hour of the day.” 29 C.F.R. § 778.105. Employee did not explain why the Court should\\napply the workweek standard that was most favorable to her—Sunday to Saturday—instead of\\nthe standard that was supported by the evidence.\\n 14\\n The Court also noted that Employee did not cite any authority to support her argument\\nthat the workweek started on Sunday rather than Monday.\\n 21\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 22 of 31\\n\\n\\n The District Court’s finding that Employee’s workweek ran Monday to\\n\\nSunday is a finding of fact that we review for clear error. See Renteria-Marin v.\\n\\nAg-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) (“We review factual\\n\\nfindings made by a district court after a bench trial for clear error, which is a highly\\n\\ndeferential standard of review.”).\\n\\n Under the Fair Labor Standards Act, overtime is calculated on a workweek\\n\\nbasis. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.103. “An employee’s\\n\\nworkweek is a fixed and regularly recurring period of . . . seven consecutive 24–\\n\\nhour periods” that “need not coincide with the calendar week but may begin on any\\n\\nday and at any hour of the day.” 29 C.F.R. § 778.105.\\n\\n The District Court did not clearly err in finding that Employee’s workweek\\n\\nran Monday to Sunday. The parties presented little evidence at trial on this issue.\\n\\nWhen asked whether he had a regularly recurring period of seven days that would\\n\\namount to a workweek, Employer said he was “not sure.” Employer said he paid\\n\\nEmployee twice a month, but he didn’t know exactly how to classify the\\n\\nworkweeks that made up the pay periods. Employee testified that her employment\\n\\nbegan on a Monday. On balance, the record supports a finding that the workweek\\n\\nbegan on Monday. Employee argues that it was “more reasonable” to find that the\\n\\nworkweek began on Sunday. But even if that were true, given the lack of\\n\\nevidence, we would not be “left with the definite and firm conviction” that the\\n\\n 22\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 23 of 31\\n\\n\\nDistrict Court erred. See Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct.\\n\\n1504, 1511 (1985) (explaining when a finding of fact is clearly erroneous) (quoting\\n\\nUnited States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).\\n\\n Thus, the District Court did not abuse its discretion by denying relief under\\n\\nRule 59(e) based on its finding that the workweek began on Monday.\\n\\n Finally, the District Court was correct to deny relief under Rule 59(a),\\n\\nbecause Employee did not make any Rule 59(a) arguments based on the Court’s\\n\\nworkweek finding of fact.\\n\\n * * *\\n\\n Employee makes one more argument related to the arbitration.15 The\\n\\narbitration lasted four days; each day had a three-hour morning session, a break for\\n\\nlunch, and a three-hour afternoon session. In finding that Employee did not work\\n\\novertime during the week of the arbitration, the District Court found that the breaks\\n\\nfor lunch did not count toward overtime. The Court said that Employee’s\\n\\n“contention that lunch each day was a ‘working lunch’ is unsupported” because\\n\\n“[s]he d[id] not identify any work that was performed.”\\n\\n\\n\\n\\n 15\\n It’s not a Rule 59 argument because Employee didn’t raise it in her Rule 59 motion.\\nBut we’ve included it in the Rule 59 section because it fits naturally with our discussion of\\nwhether the District Court erred in finding that Employee did not work overtime the week of the\\narbitration.\\n 23\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 24 of 31\\n\\n\\n Employee argues that the District Court erred by excluding the lunches from\\n\\nthe overtime calculation because lunches during work count toward overtime\\n\\nunless the employee is “completely relieved from duty for the purposes of eating\\n\\nregular meals.” 29 C.F.R. § 785.19(a). And the “employee is not relieved if [s]he\\n\\nis required to perform any duties, whether active or inactive, while eating.”16 Id.\\n\\n Interpreting 29 C.F.R. § 785.19, we have said that “what matters in meal\\n\\nperiod cases is whether the employees are subject to real limitations on their\\n\\npersonal freedom which inure to the benefit of their employer.” Avery v. City of\\n\\nTalladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (quoting Kohlheim v. Glynn\\n\\nCounty, 915 F.2d 1473, 1477 n.19 (11th Cir. 1990)). So, unlike the District\\n\\nCourt’s Order suggests, Employee was not necessarily required to identify any\\n\\n“work” that she performed during lunch. That said, the District Court’s finding of\\n\\nfact—which we review for clear error, see Renteria-Marin, 537 F.3d at 1324—that\\n\\nthe lunches did not count is not clearly erroneous. Again, the parties presented\\n\\nlittle evidence on this issue at trial. Employee never said whether she was required\\n\\nto perform any duties during the lunch. Nor did she identify any limitations on her\\n\\nfreedom. See Avery, 24 F.3d at 1345. She said only that they stayed at the facility\\n\\nthrough lunch, and they “talked about what [they] were doing.” She also said they\\n\\n\\n\\n 16\\n That said, the regulation also makes clear that “[b]ona fide meal periods are not\\nworktime.” 29 C.F.R. § 785.19(a).\\n 24\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 25 of 31\\n\\n\\nate with the expert and talked about work “the entire time.” On this record, we’re\\n\\nnot definitely and firmly convinced that the District Court made a mistake. See\\n\\nAnderson, 470 U.S. at 573, 105 S. Ct. at 1511.\\n\\n B.\\n\\n In addition to Rule 59, Employee moved for relief under Rule 60(b)(3). 17\\n\\nWe again begin with the legal standards and then take up Employee’s argument.\\n\\n 1.\\n\\n Under Rule 60(b)(3), a district court may “relieve a party . . . from a final\\n\\njudgment” due to “fraud . . . , misrepresentation, or misconduct by an opposing\\n\\nparty.” Fed. R. Civ. P. 60(b)(3). To get relief under Rule 60(b)(3), “the moving\\n\\nparty must prove by clear and convincing evidence that the adverse party obtained\\n\\nthe verdict through fraud, misrepresentations, or other misconduct.” Waddell v.\\n\\nHendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). “The moving\\n\\nparty must also demonstrate that the conduct prevented them from fully presenting\\n\\nhis case.” Id.\\n\\n We review the District Court’s decision denying relief under Rule 60(b)(3)\\n\\nfor abuse of discretion. See id.\\n\\n\\n\\n\\n 17\\n She also moved for relief under Rule 60(b)(2). The District Court denied relief, and\\nEmployee does not challenge that decision on appeal.\\n 25\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 26 of 31\\n\\n\\n 2.\\n\\n Employee asked the District Court to grant relief under Rule 60(b)(3) based\\n\\non the newly discovered email—the same one we discussed above—that she said\\n\\nshowed Employer failed to disclose evidence that tended to show spoliation. The\\n\\nDistrict Court denied the request. It found that Employee had not shown the\\n\\nalleged misconduct prevented her from fully presenting her case. 18\\n\\n The Court noted that, even if Employee had gotten the email during\\n\\ndiscovery, her litigation strategy would have been “fundamentally similar” to the\\n\\nstrategy she adopted without the email. Had Employee known about the email, she\\n\\nmight have asked Employer about it is his deposition. And she might have asked\\n\\nto inspect his computer system. She probably would have used the email to\\n\\nimpeach Employer at trial. But Employee did question Employer about deleted\\n\\nemails, the Court noted, and she argued that the deleted emails would have helped\\n\\nprove that she worked overtime.\\n\\n The District Court’s finding of fact—that the alleged misconduct did not\\n\\nprevent Employee from fully presenting her case—is not clearly erroneous. See\\n\\nRenteria-Marin, 537 F.3d at 1324 (reviewing finding of fact for clear error).\\n\\nEmployee argues that the District Court should have held an evidentiary hearing\\n\\n\\n\\n 18\\n The District Court also found that Employee failed to show by clear and convincing\\nevidence that Employer engaged in fraud or misconduct.\\n 26\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 27 of 31\\n\\n\\nbefore ruling on the motion. But the Court’s finding of fact is not clearly\\n\\nerroneous simply because it did not hold an evidentiary hearing, especially in light\\n\\nof the reasons the Court gave.\\n\\n Thus, the District Court did not abuse its discretion by denying relief under\\n\\nRule 60 based on the newly discovered email.\\n\\n C.\\n\\n Employee argues that the District Court misapplied the burden-shifting\\n\\nframework set out in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88,\\n\\n66 S. Ct. 1187, 1192 (1946), superseded on other grounds by statute, 29 U.S.C.\\n\\n§ 254(a), as recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513,\\n\\n516–17 (2014). An employer covered by the Fair Labor Standards Act must keep\\n\\nrecords that show how many hours an employee worked in a workweek. See 29\\n\\nC.F.R. § 516.2(a)(7). When an employer fails to keep accurate and adequate\\n\\nrecords, Anderson says that “an employee has carried out his burden if he proves\\n\\nthat he has in fact performed work for which he was improperly compensated and\\n\\nif he produces sufficient evidence to show the amount and extent of that work as a\\n\\nmatter of just and reasonable inference.” 328 U.S. at 687, 66 S. Ct. at 1192\\n\\n(emphasis added).\\n\\n “The burden then shifts to the employer to come forward with evidence of\\n\\nthe precise amount of work performed or with evidence to negative the\\n\\n 27\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 28 of 31\\n\\n\\nreasonableness of the inference to be drawn from the employee’s evidence.” Id. at\\n\\n687–88, 66 S. Ct. at 1192.\\n\\n Employer admitted that he did not keep records. Rather than apply\\n\\nAnderson’s burden-shifting framework—indeed, the District Court never cited\\n\\nAnderson—Employee says the Court penalized her for Employer’s failure to keep\\n\\nrecords. In turn, Employee argues, this error infected the Court’s findings of fact.\\n\\n We disagree. The District Court found that Employer’s testimony was more\\n\\ncredible than Employee’s “because it better matche[d] the other evidence in the\\n\\ncase, particularly the testimony of other employees.” At the end of the trial, it was\\n\\nEmployee’s word against the word of four others—Employer, the bookkeeper,\\n\\nEmployee’s successor, and Employer’s current paralegal. So, the District Court\\n\\ndid not reject Employee’s narrative because it misapplied Anderson’s standard,\\n\\nwhich is triggered only “if [the employee] proves that he has in fact performed\\n\\nwork for which he was improperly compensated.” Anderson, 328 U.S. at 687, 66\\n\\nS. Ct. at 1192.\\n\\n D.\\n\\n Finally, Employee argues that the District Court abused it discretion when it\\n\\nfailed to sua sponte recuse. We set out the legal standard and then turn to\\n\\nEmployee’s argument.\\n\\n\\n\\n\\n 28\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 29 of 31\\n\\n\\n 1.\\n\\n Any district judge “shall disqualify himself in any proceeding in which his\\n\\nimpartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an\\n\\n“affirmative, self-enforcing obligation.” United States v. Kelly, 888 F.2d 732, 744\\n\\n(11th Cir. 1989). “The standard . . . is ‘whether an objective, disinterested, lay\\n\\nobserver fully informed of the facts underlying the grounds on which recusal was\\n\\nsought would entertain a significant doubt about the judge’s impartiality.’” Id. at\\n\\n744–45 (quoting United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.\\n\\n1989)).\\n\\n Typically, “we review a judge’s decision not to recuse him or herself for an\\n\\nabuse of discretion.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.\\n\\n2004). But “because [Employee] failed to seek recusal of the district judge in the\\n\\nproceedings below, we review [her] recusal request for plain error.” Id. This is a\\n\\ncivil case, so we apply the “civil plain error rule.” See In re Lett, 632 F.3d 1216,\\n\\n1220 n.7, 1227 (11th Cir. 2011). Applying that rule here, we will review the issue\\n\\nonly if Employee shows that a “miscarriage of justice will result from [our] refusal\\n\\nto” do so. See id. at 1220 n.7.\\n\\n 2.\\n\\n Employee argues that the District Judge should have recused because\\n\\nEmployer represented the District Judge’s ex-wife during the couple’s contested\\n\\n 29\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 30 of 31\\n\\n\\ndivorce proceedings in 1990 and 1991.19 As part of those proceedings, Employee\\n\\nsays, Employer deposed the District Judge twice. Based on this, Employee argues\\n\\nthat an objective, disinterested lay person would have significant doubt about the\\n\\nDistrict Judge’s impartiality.\\n\\n We disagree. Employer represented the District Judge’s ex-wife roughly 26\\n\\nyears before this bench trial. We do not think an objective, disinterested lay person\\n\\nwould question the District Judge’s partiality based on something so remote. And\\n\\neven if an objective, disinterested lay person would question the District Judge’s\\n\\npartiality, that person would expect the bias to benefit Employee. Finally, there is\\n\\nnothing in this Court’s § 455(a) precedent that would have alerted the Judge that he\\n\\nshould recuse. There will be no miscarriage of justice if we refuse to review this\\n\\nissue because the District Judge’s failure to recuse is consistent with § 455(a). See\\n\\nRoofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982,\\n\\n990 (11th Cir. 1982) (“Any wrong result resting on the erroneous application of\\n\\nlegal principles is a miscarriage of justice in some degree.”). Thus, the civil plain\\n\\nerror rule bars our review.\\n\\n III.\\n\\n Our analysis is always driven by the standard of review. Here, Employee\\n\\nwas up against a deferential standard at every turn. This case shows that\\n\\n\\n 19\\n The case is Moody v. Moody, No. 90-DR-014416 (Fla. Cir. Ct. filed June 29, 1990).\\n 30\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 31 of 31\\n\\n\\novercoming a deferential standard is an uphill battle. The judgment of the District\\n\\nCourt is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4391873/\", \"author_raw\": \"TJOFLAT, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"MARCUS"},"judge3":{"kind":"string","value":"NEWSOM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614620/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jennifer JENKINS, Plaintiff-Appellant, v. S. David ANTON, PA, D.B.A. Anton Legal Group, S. David Anton, Individually, Defendants-Appellees.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-29\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13073\n ________________________\n\n D.C. Docket No. 8:15-cv-00283-JSM-AEP\n\n\nJENNIFER JENKINS,\n\n Plaintiff-Appellant,\n\nversus\n\nS. DAVID ANTON, PA,\nd.b.a. Anton Legal Group,\nS. DAVID ANTON,\nindividually,\n\n Defendants-Appellees.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (April 29, 2019)\n\nBefore TJOFLAT, MARCUS, and, NEWSOM, Circuit Judges.\n\nTJOFLAT, Circuit Judge:\n\n Jennifer Jenkins worked as a paralegal for David Anton for about nine\n\nmonths. She had a flexible work schedule, and records of the hours she worked\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 2 of 31\n\n\nwere not kept. After her employment ended, Jenkins sued Anton and his law firm\n\nfor unpaid overtime wages under the Fair Labor Standards Act. The case was tried\n\nto the District Court, which entered judgment in favor of Anton. Jenkins moved\n\nfor relief under Rules 59 and Rule 60 of the Federal Rules of Civil Procedure. Her\n\nmotion was denied, and she appealed. On appeal, she says the District Court\n\nabused its discretion by denying relief under Rule 59 and Rule 60. She also argues\n\nthat the Court misapplied the legal standard in ruling against her, and she claims\n\nthe Court should have recused. We affirm.\n\n We divide our discussion into three parts. First, we set out the evidence that\n\nwas presented to the District Court during the bench trial. Second, we consider the\n\narguments on appeal. Third, we conclude.\n\n I.\n\n We refer to Jenkins as “Employee” and Anton as “Employer” for\n\nconvenience.\n\n A.\n\n The parties stipulated to a bench trial. Almost two weeks thereafter,\n\nEmployee filed a notice of disclosure with the District Court. There, she notified\n\nthe District Court that Employer had represented the District Judge’s ex-wife in the\n\ncouple’s divorce proceedings. Employee never asked the District Judge to recuse,\n\nand he continued to preside over the case. The case proceeded to trial.\n\n 2\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 3 of 31\n\n\n At trial, the parties told two very different stories. According to Employee,\n\nshe typically arrived in the office by 8:15 a.m. and left sometime between 6:30\n\np.m. and midnight. She said she worked about 70 hours a week. Altogether, she\n\nclaimed that she worked 711 hours of unpaid overtime. (This was a revised\n\ncalculation; she originally claimed 1078.88 hours but reduced the number at trial\n\nafter reviewing documents she received in discovery and after subtracting\n\nvacation-related time.) To support her claim for overtime, Employee introduced\n\ninto evidence emails that she sent Employer after normal business hours and on\n\nweekends. She also argued that these emails were probably just a subset of all the\n\nemails she sent after hours. She didn’t have all of the emails because soon after\n\nshe left the law firm, her successor deleted many of her emails.\n\n Employer told a different story. He said that Employee originally agreed to\n\nwork a fixed schedule. But the schedule became more flexible, according to\n\nEmployer, because Employee took a lot of time off and worked later hours to make\n\nup the time. He didn’t keep a record of the hours she worked, but he testified that\n\nshe never worked more than 40 hours a week. He gave a few reasons why he\n\nbelieved that. First, Employer said that Employee’s predecessor never worked\n\n“anywhere near 40 hours a week.” (Employee’s predecessor did not testify, and\n\nthat becomes important later.) Employee’s successor never worked overtime,\n\neither. Second, he explained that his practice was slow while Employee worked\n\n 3\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 4 of 31\n\n\nfor him. 1 Third, he noted that he could see her office from his, and he saw her\n\nstudying—not working—at times. 2\n\n Employer also addressed the emails that Employee sent after hours and on\n\nthe weekends: he said it would not have taken Employee more than a few minutes\n\nto type those emails and to send them to him. They were short emails.\n\n Other witnesses echoed Employer’s testimony. For example, the firm’s\n\nbookkeeper—who came in two days a week, four hours each day, the entire time\n\nEmployee worked at the firm—never saw Employee working at a “harried pace.”\n\nNor did the bookkeeper ever notice Employee being pressed for time at work. In\n\nthe bookkeeper’s opinion, there was not enough work at the firm to fill even 40\n\nhours of Employee’s time each week. And Employee never told the bookkeeper\n\nthat she was working overtime and should be paid for it, even though the\n\nbookkeeper was the one who told the payroll company how many hours each\n\nemployee should be paid for, which Employee knew.\n\n Another witness bolstered Employer’s testimony. This witness worked for a\n\ndifferent lawyer, but she shared the same office space as Employee for three\n\nmonths. She said that Employee’s workload was “[n]ot particularly heavy”; most\n\n\n\n 1\n Employer introduced billing records from several years to support this statement. In\n2011, his firm billed 1883 hours. In 2012, his firm billed 1809 hours. In 2013—the year\nEmployee worked for him—his firm billed 1342 hours. And in 2014, his firm billed 1851 hours.\n 2\n Employee was taking college classes while working for Employer.\n 4\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 5 of 31\n\n\nof the clients belonged to the lawyer she worked for and not Employer. And\n\nEmployee did not work on matters related to those clients. The witness explained\n\nthat her boss eventually left the firm, and Employer kept her on for a while. There\n\nwas not enough client-related work to keep the witness busy, so Employer asked\n\nher to clean the office and to organize rooms. Employer eventually had to let the\n\nwitness go because there was not enough work for her to do.\n\n The same witness also replaced Employee when she left Employer’s law\n\nfirm. Despite taking over all of Employee’s responsibilities, and despite having\n\nless paralegal experience than Employee, the witness did not work overtime for\n\nEmployer.\n\n Finally, Employer’s current paralegal testified. She said that Employer had\n\nabout 15 active cases that she worked on. With that caseload—which was similar\n\nto Employer’s caseload while Employee worked for him—she had never worked\n\novertime. 3 In fact, the witness said, she didn’t even work 40 hours a week.\n\n As is apparent from our discussion thus far, much of the testimony was\n\npretty vague and generic. But the parties did testify more specifically about the\n\nwork Employee did—or didn’t do—during an arbitration that Employer handled\n\nand Employee attended. The arbitration lasted four days, Tuesday through Friday.\n\n\n\n 3\n Employer testified that he had 17 active cases when Employee started. He said that he\ntypically has anywhere from 12 or 15 to 20 active cases at one time.\n 5\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 6 of 31\n\n\nThe parties agreed that Employee worked the Saturday and Sunday before the\n\narbitration. But Employer said that Employee “took a lot of time off” during the\n\nnormal workweek (Monday through Friday) that preceded the weekend. (As we\n\nexplain below, it is important whether the hours Employee worked on Sunday\n\ncount as part of her workweek for the week of the arbitration, or if they count as\n\npart of the prior workweek.) Employee claimed she worked “13 or 14 hours” the\n\nMonday before the arbitration.\n\n As for the arbitration itself, each day had a three-hour morning session,\n\nfollowed by an hour-and-a-half lunch break, and a three-hour afternoon session.\n\nDuring lunch, Employer and Employee stayed at the facility and ate with their\n\nexpert witness. Both parties agreed that they talked about the case during lunch.\n\nEmployee testified that she worked “about 70 hours” or “[a] little over 70 hours”—\n\nlike she did “most weeks”—the week of the arbitration.\n\n B.\n\n The District Court resolved the he-said-she-said swearing match in\n\nEmployer’s favor. It concluded that Employer’s “testimony [was] more credible\n\nbecause it better matche[d] the other evidence . . . , particularly the testimony of\n\nother employees.” Based on this credibility determination, the Court found that\n\nEmployee did not prove that she worked more than 40 hours in any given\n\nworkweek.\n\n 6\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 7 of 31\n\n\n The Court explained some of the evidence that supported Employer’s\n\nversion of events. It noted that the firm billed fewer hours the year that Employee\n\nworked there than it did the two years before Employee came on and the year after\n\nshe left. This was consistent with Employer’s claim that business was slower than\n\nnormal while Employee worked for him. The Court also found that Employer’s\n\ndescription of his practice was consistent with the bookkeeper’s; the bookkeeper\n\nsaid that Employer’s practice was not busy compared to other lawyers she worked\n\nfor, and she never noticed Employee rushing or working through lunch.\n\n Employer’s version was also consistent with the testimony of Employee’s\n\nsuccessor. The Court pointed out that Employer had the successor do “busy work”\n\nduring the three months that she overlapped with Employee, and this was because\n\nEmployee needed no help with paralegal work. The successor also said that the\n\nworkload was light when she took over for Employee, and she never worked\n\nthrough lunch or on a weekend. And finally, Employer’s current paralegal testified\n\nthat she never came close to working overtime.\n\n The Court discounted the emails that Employee sent after normal business\n\nhours because many of them would have taken Employee no more than “two or\n\nthree minutes to draft.” Others were unrelated to work or asked for time off. The\n\nCourt said the closest Employee came to proving that she worked overtime was the\n\nweek of the arbitration. It found that the time Employee worked the Saturday\n\n 7\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 8 of 31\n\n\nbefore the arbitration did not make up for the time she took off earlier in the week.\n\nThe Court said Employee’s claim that she worked late the Monday before the\n\narbitration was “conclusory” because she didn’t identify any work she did. It also\n\nrejected Employee’s claim that the lunches during the arbitration were working\n\nlunches because she didn’t point to any work she did and said only that they talked\n\nabout what happened during the morning sessions. And finally, Employee’s claim\n\nthat she worked late nights during the arbitration suffered a similar fate: the Court\n\nrejected it because Employee didn’t identify any work she did.\n\n Employee moved for relief under Rule 59 and Rule 60 based on several\n\ngrounds. The District Court denied the motion, and Employee appealed. We\n\nexplain below why the District Court denied relief under Rule 59 and Rule 60.\n\n II.\n\n Employee makes four arguments on appeal: (1) the District Court abused its\n\ndiscretion by denying relief under Rule 59, (2) the District Court abused its\n\ndiscretion by denying relief under Rule 60, (3) the District Court misapplied the\n\nlegal standard when it found that Employee did not prove she worked overtime,\n\nand (4) the District Court abused its discretion by not recusing sua sponte. We\n\ntake up each argument separately.\n\n\n\n\n 8\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 9 of 31\n\n\n A.\n\n Employee moved the District Court to alter or amend the judgment under\n\nRule 59(e).4 Alternatively, she moved to open the judgment under Rule 59(a)(2)\n\nor for a new trial under Rule 59(a)(1)(B). 5 We first set out the relevant legal\n\nstandards and then consider Employee’s arguments.\n\n 1.\n\n Under Rule 59(e), a district court may “alter or amend a judgment.” Fed. R.\n\nCiv. P. 59(e). There are no specific grounds for relief listed in Rule 59(e). But we\n\nhave said that a district court may alter or amend a judgment that is based on\n\n“manifest errors of law or fact.” See Metlife Life & Annuity Co. of Conn. v.\n\nAkpele, 886 F.3d 998, 1008 (11th Cir. 2018). The Rule 59(e) motion looks back at\n\n\n 4\n Rule 59(e) reads as follows: “(e) Motion to Alter or Amend a Judgment. A motion to\nalter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”\nFed. R. Civ. P. 59(e).\n 5\n Here are the relevant parts of Rule 59(a):\n Rule 59. New Trial; Altering or Amending a Judgment\n (a) In General.\n (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or\n some of the issues—and to any party—as follows:\n ...\n (B) after a nonjury trial, for any reason for which a rehearing has heretofore been\n granted in a suit in equity in federal court.\n (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may,\n on motion for a new trial, open the judgment if one has been entered, take\n additional testimony, amend findings of fact and conclusions of law or make new\n ones, and direct the entry of a new judgment.\nFed. R. Civ. P. 59(a).\n 9\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 10 of 31\n\n\nwhat was; it does not look forward at what could have been. For this reason, a\n\ndistrict court should not grant relief under Rule 59(e) after a nonjury trial based on\n\nnewly discovered evidence.6 We review a district court’s decision on a Rule 59(e)\n\nmotion for abuse of discretion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,\n\n1343 n.20 (11th Cir. 2010).\n\n Rule 59(a)(2), by contrast, does look forward at what could have been. It\n\nsays that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the\n\njudgment if one has been entered, take additional testimony, amend findings of fact\n\nand conclusions of law or make new ones, and direct the entry of a new judgment.”\n\n\n\n\n 6\n This is not to say a party is out of luck if it wants to present newly discovered evidence\nafter a nonjury trial. Our point is only that Rule 59(e) is the wrong vehicle. Indeed, Rule\n59(a)(2) specifically allows a district court to open the judgment, take additional evidence,\namend its findings of fact and conclusions of law, and enter a new judgment. Rule 60(b)(2)\nreinforces this reading of Rule 59(e):\n Rule 60. Relief from a Judgment or Order\n (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On\n motion and just terms, the court may relieve a party or its legal representative\n from a final judgment, order, or proceeding for the following reasons:\n ...\n (2) newly discovered evidence that, with reasonable diligence, could not have\n been discovered in time to move for a new trial under Rule 59(b)[.]\nFed. R. Civ. P. 60(b) (emphasis added). Rule 59(b) simply says how many days—after judgment\nis entered—that a party has to file a motion for new trial under Rule 59(a). So, Rule 60(b)(2)\nsupports our reading of Rule 59(e) because Rule 60(b)(2) strongly suggests that Rule 59(a) is the\nproper vehicle for a new motion based on newly discovered evidence. But if the party discovers\nthe new evidence more than 28 days after judgment is entered and misses the Rule 59 cutoff, see\nRule 59(b), the party may then move for relief under Rule 60(b).\n 10\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 11 of 31\n\n\nFed. R. Civ. P. 59(a)(2). A party should use this vehicle if it wants to present\n\nnewly discovered evidence after a nonjury trial. See supra note 6.\n\n And under Rule 59(a)(1)(B), a district court may grant a new trial “after a\n\nnonjury trial, for any reason for which a rehearing has heretofore been granted in a\n\nsuit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). As relevant for our\n\npurposes, a district court may grant a new trial if “the verdict . . . will result in a\n\nmiscarriage of justice.” 7 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\n\nCir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th\n\nCir. 1970)). We also review a district court’s decision on a Rule 59(a) motion for\n\nabuse of discretion. See id.\n\n 2.\n\n Employee argued that she was entitled to relief based on three grounds: (1) a\n\npreviously unavailable witness was now available, (2) a newly discovered email\n\nthat showed possible spoliation, and (3) errors related to the Court’s finding that\n\nshe did not work overtime the week of the arbitration. In effect, she argued that\n\nrelief was appropriate under all three subsections—Rule 59(e), Rule 59(a)(2), and\n\nRule 59(a)(1)(B)—based on each of the three claimed grounds. 8 We consider each\n\n\n 7\n A district court may also grant a new trial under Rule 59(a) if “the verdict is against the\nclear weight of the evidence.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.\n1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)).\n 8\n We should note that Employee made her arguments to the District Court without tying\nthem to the proper Rules. Instead, she made her arguments and then dumped at the end a cite to\n 11\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 12 of 31\n\n\nground—and whether it triggers relief under Rule 59(e), Rule 59(a)(2), or Rule\n\n59(a)(1)(B)—separately.\n\n i.\n\n First, Employee asked the District Court to grant relief because her\n\npredecessor, an “impeachment witness,” was unable to testify during the trial. We\n\nbegin with Rule 59(e) and make quick work of it. The testimony of Employee’s\n\npredecessor is additional evidence. Call it evidence from a previously “unavailable\n\nwitness”—as Employee called it before the District Court—or call it newly\n\ndiscovered evidence—as Employee calls it on appeal. The point is that the\n\ntestimony is additional evidence; it’s not a mistake in the judgment. Thus, relief\n\nunder Rule 59(e) is inappropriate.\n\n Now for Rule 59(a)(2). According to Employee, the District Court relied on\n\nEmployer’s testimony in deciding the case in Employer’s favor. And during\n\nEmployer’s testimony, he said that his office was not busy enough to require\n\novertime, and he said that Employee’s predecessor never worked any overtime.\n\n In turn, Employee planned to “attack [Employer’s] credibility” on this issue\n\nby calling her predecessor as a witness. Her predecessor, Employee said, would\n\n“directly rebut” Employer by testifying that she regularly worked 20 hours of\n\n\n\n\nRule 59(e), Rule 59(a), and Rule 60(b). To impose necessary structure, we pick her arguments\nthat belong under each Rule and analyze them separately.\n 12\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 13 of 31\n\n\novertime during her employment. Employee coordinated with Court personnel so\n\nthat her predecessor (who lived in Chicago) could testify by videoconference. But\n\nafter the trial began, it was continued, 9 and Employee was unable to contact or\n\nlocate her predecessor when the trial picked back up a month later. As it turned\n\nout, her predecessor had been in the hospital and had no access to her phone or\n\nemail.\n\n Oddly, Employee never brought any of this to the District Court’s attention.\n\nNor did she ask for a continuance so that she could locate this important witness.\n\nEmployee kept the issue to herself apparently because she did not know why her\n\npredecessor was unavailable to testify. And because she didn’t know why her\n\npredecessor was unavailable, she apparently thought she couldn’t notify the\n\nDistrict Court or ask for a continuance.\n\n The District Court never raised the issue with the parties because it had no\n\nway of knowing that Employee planned to call this witness. Indeed, Employee\n\nnever listed her predecessor on her trial witness list. And this must have been\n\nstrategic because Employee knew—more than a year before the trial started—that\n\nEmployer would say (if asked) that Employee’s predecessor never worked\n\n\n\n\n 9\n Employee asked for a continuance because her son suffered a traumatic brain injury\nafter the first day of trial. The Court granted the continuance, and things resumed about a month\nlater.\n 13\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 14 of 31\n\n\novertime. And Employee knew this because Employer said as much in his\n\ndeposition.\n\n To sum up, Employee knew well before trial that, if asked, Employer would\n\nsay that Employee’s predecessor never worked overtime. So, Employee had her\n\npredecessor waiting in the wings, planning to call her to flatly contradict\n\nEmployer’s sworn testimony. Yet she never tried—at least not on the record\n\nbefore the District Court—to call her predecessor as a potential witness.\n\n As we said above, Rule 59(a)(2) is the proper vehicle if a party wants to\n\npresent newly discovered evidence after a nonjury trial. But this evidence—\n\ndespite Employee’s label for it—is not newly discovered. Quite the opposite.\n\nEmployee was making plans and setting up the logistics to call her predecessor as a\n\nwitness before the trial began. The only thing that is “new” about the testimony\n\nfrom Employee’s predecessor is that she’s finally available to give it. 10 But this\n\n\n\n\n 10\n There’s one thing we should point out on the topic of newly discovered evidence. On\nappeal, the parties spend a lot of time arguing about how to label the testimony of Employee’s\npredecessor. On the one hand, Employee says that her predecessor’s testimony potentially\nshows that Employer committed perjury. On the other hand, Employer says that the testimony is\nimpeachment only. This perjury-or-impeachment distinction would matter if the testimony from\nEmployee’s predecessor were newly discovered evidence. This is because, as the parties agree,\nnewly discovered evidence does not trigger Rule 59 relief if that evidence simply impeaches\nother testimony or evidence. See Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790, 792\n(5th Cir. 1955) (Davis is binding because in Bonner v. City of Prichard, 661 F.2d 1206, 1207\n(11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former\nFifth Circuit handed down by the close of business on September 30, 1981). But this general\nrule does not apply when the newly discovered evidence potentially shows perjury. See United\nStates v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990).\n 14\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 15 of 31\n\n\ndoes not help Employee, either, which takes us to the miscarriage-of-justice\n\nargument she made to the District Court.\n\n In her motion to the District Court, Employee argued that it would be a\n\n“miscarriage of justice” if her predecessor were not allowed to testify. Her\n\npredecessor would “directly challenge” the reliability of Employer’s testimony,\n\nand the District Court, according to Employee, relied heavily on Employer’s\n\ncredibility.\n\n The District Court rejected the argument: “[T]here is no miscarriage of\n\njustice when [Employee’s] inability to present [her predecessor’s] testimony was\n\ndue to [Employee’s] strategic choices.” The Court noted that Employee was not\n\nsurprised by Employer’s testimony because he gave the same testimony in his\n\ndeposition. And the Court pointed out that Employee coordinated with her\n\npredecessor “in preparation for trial.” The Court summed up with this: “If\n\n[Employee] wanted to ensure that the Court benefitted from [her predecessor’s]\n\ntestimony, she should have taken [her predecessor’s] deposition and entered it into\n\nevidence.”\n\n\n\n\n The District Court denied relief under Rule 59(a) because “impeachment evidence is not\nsufficient to warrant a new trial.” So, the parties understandably devote a good deal of the\nbriefing to this issue. But because we find that the evidence is not newly discovered, we need\nnot wade into the perjury-or-impeachment issue.\n 15\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 16 of 31\n\n\n The District Court did not abuse its discretion by denying relief under Rule\n\n59(a)(2). Specifically, there’s no miscarriage because Employee made a strategic\n\ndecision—to rest her case without asking for a continuance so that she could call\n\nher predecessor—and it backfired. And we know it was a strategic decision\n\nbecause nothing prevented Employee from raising the issue with the District Court\n\nand asking for a continuance. She claimed that she could not ask for a continuance\n\nbecause she did not know why her predecessor was unavailable. But the District\n\nCourt could have granted a continuance if Employee made a showing of “good\n\ncause.” M.D. Fla. Local Rule 3.09(a). And nothing in the local rules requires a\n\nparty to explain why a witness is unavailable when asking for a continuance\n\nbecause an important witness is unavailable. Perhaps the District Court would\n\nhave denied the request for a continuance—after all, Employee would have needed\n\nto explain why she left her predecessor off her witness list—but nothing prevented\n\nEmployee from at least raising the issue.\n\n Now, with the benefit of hindsight, and with the benefit of knowing that the\n\nDistrict Court rejected her position at trial, Employee says her predecessor’s\n\ntestimony is indispensable. Without it, she says, there’s a miscarriage a justice.\n\nWe disagree. Here, Rule 59(a)(2) relief is inappropriate because Employee (1)\n\nknew about the testimony, (2) did not ask for a continuance, (3) hoped for the best,\n\nand (4) now, with the benefit of hindsight, asks for a second bite at the apple.\n\n 16\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 17 of 31\n\n\n * * *\n\n We quickly pause to make an obvious observation: when a party asks for\n\nrelief under Rule 59(a)(2) based on newly discovered evidence, the evidence must\n\nin fact be newly discovered. This case shows why. If we endorsed Employee’s\n\ntheory, parties would be incentivized to strategically manipulate Rule 59(a)(2).\n\nThey would do so by rolling the dice and trying their case without a witness that\n\nthey knew about well before trial. Then, they would wait and see if they won.\n\nNext, if they lost, they would run to the District Court asking for relief under Rule\n\n59. Conveniently, that witness they chose not to call is—all of sudden—necessary\n\nfor a full and complete trial. But odds are, if the witness really is necessary for a\n\nfull and complete trial, the party would have presented the witness at trial. Or, if\n\nthe witness was unavailable, the party would have at least asked for a continuance.\n\nIf the party is willing to chance it by going to trial without the witness, we doubt\n\nthat the witness is really that helpful. Even if the party’s after-the-fact request for\n\nrelief says otherwise. In any event, Rule 59(a)(2) does not reward parties who roll\n\nthe dice with this wait-and-see approach.\n\n ii.\n\n Second, Employee asked the District Court to grant relief because she\n\ndiscovered evidence after the trial that suggests Employer might have intentionally\n\ndeleted evidence. We again begin with Rule 59(e), and we again make quick work\n\n 17\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 18 of 31\n\n\nof it. Relief under Rule 59(e) is inappropriate because the ground for relief is\n\nnewly discovered evidence.\n\n Now for Rule 59(a)(1)(B) (new trial) and Rule 59(a)(2) (open the judgment\n\non a motion for new trial). The newly discovered evidence was an email that\n\nEmployer allegedly sent to his IT specialist two months after Employee filed this\n\nlawsuit.11 In the email, Employer asked his IT specialist to “delete all emails from\n\n2014 and earlier” from the server’s deleted items folder. In her brief to the District\n\nCourt, Employee argued that this evidence looked “like a deliberate attempt by\n\n[Employer] to destroy material information.” And because Employer did not turn\n\nthe email over during discovery, Employee was unable to explore whether\n\nEmployer engaged in spoliation.\n\n The District Court rejected the argument. It concluded that Employee did\n\nnot “satisfactorily” explain how her approach would have changed if she had seen\n\nthe email before trial. The Court reasonably guessed that Employee would use the\n\nemail to impeach Employer, but it explained that impeachment evidence isn’t\n\nsufficient grounds for granting a new trial.\n\n Next, the Court assumed that the email showed spoliation and asked whether\n\napplying an evidentiary presumption—that the deleted emails contained\n\n\n 11\n Employee says she received this email via U.S. mail two days after the District Court\nentered judgment in Employer’s favor. She claims there was no return address or other\ninformation on the envelope showing who sent it.\n 18\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 19 of 31\n\n\ninformation that was unfavorable to Employer—would change the outcome of the\n\ntrial. It held that the evidentiary presumption wouldn’t change anything. The\n\nCourt explained that Employee never claimed that the allegedly deleted emails\n\nwould prove that she worked overtime. It said that, at best, the emails would show\n\nthat Employee sent or received additional emails outside normal business hours.\n\nBut the Court said it was aware during trial that additional emails like that might\n\nhave existed; indeed, the Court heard testimony that Employee’s successor deleted\n\nemails soon after Employee was terminated. Plus, there were emails introduced at\n\ntrial showing that Employee sent or received emails outside normal working hours.\n\nThus, the Court reasoned, additional emails would have been cumulative.\n\n Finally, the Court explained that the email evidence would not prove that\n\nEmployee worked overtime because there was evidence showing that she had a\n\n“flexible work schedule” and often took time off during normal hours. Nor could\n\nthe email evidence overcome “significant testimony” from other witnesses. Two\n\nof these witnesses overlapped with Employee’s time at the firm and testified that\n\nthere was not enough work for Employee to work overtime. And two witnesses\n\nwho succeeded Employee testified that they never even “came close” to working\n\novertime.\n\n Relief under Rule 59(a)(1)(B) and Rule 59(a)(2) is inappropriate because the\n\nemail would not have affected the outcome of the trial. See, e.g., 11 Charles Alan\n\n 19\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 20 of 31\n\n\nWright et al., Federal Practice & Procedure § 2808 (3d ed. Nov. 2018) (“Evidence\n\nthat will not change the result does not merit a new trial [under Rule 59(a)]. Thus,\n\nnewly discovered evidence that would merely affect the weight and credibility of\n\nthe evidence ordinarily is insufficient for a new trial, as is evidence that is\n\ncumulative of evidence already offered.” (footnotes omitted)). In light of the entire\n\nrecord, the District Court reasonably concluded that the outcome of the trial would\n\nhave been the same, even if the email showed spoliation and the Court applied an\n\nevidentiary presumption against Employer. Thus, the District Court did not abuse\n\nits discretion by denying relief under Rule 59(a)(1)(B) and Rule 59(a)(2) based on\n\nthe newly discovered email. 12\n\n iii.\n\n Third, Employee argued that the District Court should grant relief because\n\nthe judgment was based on manifest errors of law or facts. We begin with Rule\n\n59(e). The Court erred, Employee argued, by finding that she did not work\n\novertime during the arbitration in May of 2013. In making that finding, the Court\n\noverlooked the hours she worked the Sunday before the arbitration. If the Court\n\nhad considered the hours Employee worked on Sunday, and if the Court had\n\n\n 12\n Employee does not seriously argue otherwise. She argues only that Employer’s\n“actions prevented [her] from exploring whether [Employer] deliberately spoliated evidence or\nseeking sanctions.”\n The is the exact argument the District Court rejected, and Employee does not explain\nwhy the District Court’s rejection amounts to an abuse of discretion.\n 20\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 21 of 31\n\n\napplied “the most favorable workweek standard” to her,13 it would have concluded\n\nthat she worked overtime the week of Sunday, May 19, 2013, through Saturday,\n\nMay 25, 2013. This is a proper Rule 59(e) argument.\n\n The District Court agreed that it erred by overlooking the hours that\n\nEmployee worked the Sunday before the arbitration. But it found that the error\n\nwas harmless because it concluded Employee’s workweek ran Monday through\n\nSunday, not Sunday through Saturday. The Court found that “[i]t is more\n\nreasonable to conclude that the workweek started on Monday, given that the\n\nParties described [Employee’s] weekly work schedule as starting on Monday\n\nmornings.”14 Thus, the hours that Employee worked the weekend before the\n\narbitration did not count toward the number of hours she worked the week of the\n\narbitration. Instead, those weekend hours counted toward the number of hours that\n\nEmployee worked the week before the arbitration. And because Employer testified\n\nthat Employee took more time off at the beginning of that week than she worked\n\non the weekend, the Court found that Employee did not work overtime the week\n\nbefore the arbitration.\n\n\n 13\n A “workweek is a fixed and regularly recurring period of . . . seven consecutive 24–\nhour periods” that “need not coincide with the calendar week but may begin on any day and at\nany hour of the day.” 29 C.F.R. § 778.105. Employee did not explain why the Court should\napply the workweek standard that was most favorable to her—Sunday to Saturday—instead of\nthe standard that was supported by the evidence.\n 14\n The Court also noted that Employee did not cite any authority to support her argument\nthat the workweek started on Sunday rather than Monday.\n 21\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 22 of 31\n\n\n The District Court’s finding that Employee’s workweek ran Monday to\n\nSunday is a finding of fact that we review for clear error. See Renteria-Marin v.\n\nAg-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) (“We review factual\n\nfindings made by a district court after a bench trial for clear error, which is a highly\n\ndeferential standard of review.”).\n\n Under the Fair Labor Standards Act, overtime is calculated on a workweek\n\nbasis. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.103. “An employee’s\n\nworkweek is a fixed and regularly recurring period of . . . seven consecutive 24–\n\nhour periods” that “need not coincide with the calendar week but may begin on any\n\nday and at any hour of the day.” 29 C.F.R. § 778.105.\n\n The District Court did not clearly err in finding that Employee’s workweek\n\nran Monday to Sunday. The parties presented little evidence at trial on this issue.\n\nWhen asked whether he had a regularly recurring period of seven days that would\n\namount to a workweek, Employer said he was “not sure.” Employer said he paid\n\nEmployee twice a month, but he didn’t know exactly how to classify the\n\nworkweeks that made up the pay periods. Employee testified that her employment\n\nbegan on a Monday. On balance, the record supports a finding that the workweek\n\nbegan on Monday. Employee argues that it was “more reasonable” to find that the\n\nworkweek began on Sunday. But even if that were true, given the lack of\n\nevidence, we would not be “left with the definite and firm conviction” that the\n\n 22\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 23 of 31\n\n\nDistrict Court erred. See Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct.\n\n1504, 1511 (1985) (explaining when a finding of fact is clearly erroneous) (quoting\n\nUnited States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).\n\n Thus, the District Court did not abuse its discretion by denying relief under\n\nRule 59(e) based on its finding that the workweek began on Monday.\n\n Finally, the District Court was correct to deny relief under Rule 59(a),\n\nbecause Employee did not make any Rule 59(a) arguments based on the Court’s\n\nworkweek finding of fact.\n\n * * *\n\n Employee makes one more argument related to the arbitration.15 The\n\narbitration lasted four days; each day had a three-hour morning session, a break for\n\nlunch, and a three-hour afternoon session. In finding that Employee did not work\n\novertime during the week of the arbitration, the District Court found that the breaks\n\nfor lunch did not count toward overtime. The Court said that Employee’s\n\n“contention that lunch each day was a ‘working lunch’ is unsupported” because\n\n“[s]he d[id] not identify any work that was performed.”\n\n\n\n\n 15\n It’s not a Rule 59 argument because Employee didn’t raise it in her Rule 59 motion.\nBut we’ve included it in the Rule 59 section because it fits naturally with our discussion of\nwhether the District Court erred in finding that Employee did not work overtime the week of the\narbitration.\n 23\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 24 of 31\n\n\n Employee argues that the District Court erred by excluding the lunches from\n\nthe overtime calculation because lunches during work count toward overtime\n\nunless the employee is “completely relieved from duty for the purposes of eating\n\nregular meals.” 29 C.F.R. § 785.19(a). And the “employee is not relieved if [s]he\n\nis required to perform any duties, whether active or inactive, while eating.”16 Id.\n\n Interpreting 29 C.F.R. § 785.19, we have said that “what matters in meal\n\nperiod cases is whether the employees are subject to real limitations on their\n\npersonal freedom which inure to the benefit of their employer.” Avery v. City of\n\nTalladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (quoting Kohlheim v. Glynn\n\nCounty, 915 F.2d 1473, 1477 n.19 (11th Cir. 1990)). So, unlike the District\n\nCourt’s Order suggests, Employee was not necessarily required to identify any\n\n“work” that she performed during lunch. That said, the District Court’s finding of\n\nfact—which we review for clear error, see Renteria-Marin, 537 F.3d at 1324—that\n\nthe lunches did not count is not clearly erroneous. Again, the parties presented\n\nlittle evidence on this issue at trial. Employee never said whether she was required\n\nto perform any duties during the lunch. Nor did she identify any limitations on her\n\nfreedom. See Avery, 24 F.3d at 1345. She said only that they stayed at the facility\n\nthrough lunch, and they “talked about what [they] were doing.” She also said they\n\n\n\n 16\n That said, the regulation also makes clear that “[b]ona fide meal periods are not\nworktime.” 29 C.F.R. § 785.19(a).\n 24\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 25 of 31\n\n\nate with the expert and talked about work “the entire time.” On this record, we’re\n\nnot definitely and firmly convinced that the District Court made a mistake. See\n\nAnderson, 470 U.S. at 573, 105 S. Ct. at 1511.\n\n B.\n\n In addition to Rule 59, Employee moved for relief under Rule 60(b)(3). 17\n\nWe again begin with the legal standards and then take up Employee’s argument.\n\n 1.\n\n Under Rule 60(b)(3), a district court may “relieve a party . . . from a final\n\njudgment” due to “fraud . . . , misrepresentation, or misconduct by an opposing\n\nparty.” Fed. R. Civ. P. 60(b)(3). To get relief under Rule 60(b)(3), “the moving\n\nparty must prove by clear and convincing evidence that the adverse party obtained\n\nthe verdict through fraud, misrepresentations, or other misconduct.” Waddell v.\n\nHendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). “The moving\n\nparty must also demonstrate that the conduct prevented them from fully presenting\n\nhis case.” Id.\n\n We review the District Court’s decision denying relief under Rule 60(b)(3)\n\nfor abuse of discretion. See id.\n\n\n\n\n 17\n She also moved for relief under Rule 60(b)(2). The District Court denied relief, and\nEmployee does not challenge that decision on appeal.\n 25\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 26 of 31\n\n\n 2.\n\n Employee asked the District Court to grant relief under Rule 60(b)(3) based\n\non the newly discovered email—the same one we discussed above—that she said\n\nshowed Employer failed to disclose evidence that tended to show spoliation. The\n\nDistrict Court denied the request. It found that Employee had not shown the\n\nalleged misconduct prevented her from fully presenting her case. 18\n\n The Court noted that, even if Employee had gotten the email during\n\ndiscovery, her litigation strategy would have been “fundamentally similar” to the\n\nstrategy she adopted without the email. Had Employee known about the email, she\n\nmight have asked Employer about it is his deposition. And she might have asked\n\nto inspect his computer system. She probably would have used the email to\n\nimpeach Employer at trial. But Employee did question Employer about deleted\n\nemails, the Court noted, and she argued that the deleted emails would have helped\n\nprove that she worked overtime.\n\n The District Court’s finding of fact—that the alleged misconduct did not\n\nprevent Employee from fully presenting her case—is not clearly erroneous. See\n\nRenteria-Marin, 537 F.3d at 1324 (reviewing finding of fact for clear error).\n\nEmployee argues that the District Court should have held an evidentiary hearing\n\n\n\n 18\n The District Court also found that Employee failed to show by clear and convincing\nevidence that Employer engaged in fraud or misconduct.\n 26\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 27 of 31\n\n\nbefore ruling on the motion. But the Court’s finding of fact is not clearly\n\nerroneous simply because it did not hold an evidentiary hearing, especially in light\n\nof the reasons the Court gave.\n\n Thus, the District Court did not abuse its discretion by denying relief under\n\nRule 60 based on the newly discovered email.\n\n C.\n\n Employee argues that the District Court misapplied the burden-shifting\n\nframework set out in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88,\n\n66 S. Ct. 1187, 1192 (1946), superseded on other grounds by statute, 29 U.S.C.\n\n§ 254(a), as recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513,\n\n516–17 (2014). An employer covered by the Fair Labor Standards Act must keep\n\nrecords that show how many hours an employee worked in a workweek. See 29\n\nC.F.R. § 516.2(a)(7). When an employer fails to keep accurate and adequate\n\nrecords, Anderson says that “an employee has carried out his burden if he proves\n\nthat he has in fact performed work for which he was improperly compensated and\n\nif he produces sufficient evidence to show the amount and extent of that work as a\n\nmatter of just and reasonable inference.” 328 U.S. at 687, 66 S. Ct. at 1192\n\n(emphasis added).\n\n “The burden then shifts to the employer to come forward with evidence of\n\nthe precise amount of work performed or with evidence to negative the\n\n 27\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 28 of 31\n\n\nreasonableness of the inference to be drawn from the employee’s evidence.” Id. at\n\n687–88, 66 S. Ct. at 1192.\n\n Employer admitted that he did not keep records. Rather than apply\n\nAnderson’s burden-shifting framework—indeed, the District Court never cited\n\nAnderson—Employee says the Court penalized her for Employer’s failure to keep\n\nrecords. In turn, Employee argues, this error infected the Court’s findings of fact.\n\n We disagree. The District Court found that Employer’s testimony was more\n\ncredible than Employee’s “because it better matche[d] the other evidence in the\n\ncase, particularly the testimony of other employees.” At the end of the trial, it was\n\nEmployee’s word against the word of four others—Employer, the bookkeeper,\n\nEmployee’s successor, and Employer’s current paralegal. So, the District Court\n\ndid not reject Employee’s narrative because it misapplied Anderson’s standard,\n\nwhich is triggered only “if [the employee] proves that he has in fact performed\n\nwork for which he was improperly compensated.” Anderson, 328 U.S. at 687, 66\n\nS. Ct. at 1192.\n\n D.\n\n Finally, Employee argues that the District Court abused it discretion when it\n\nfailed to sua sponte recuse. We set out the legal standard and then turn to\n\nEmployee’s argument.\n\n\n\n\n 28\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 29 of 31\n\n\n 1.\n\n Any district judge “shall disqualify himself in any proceeding in which his\n\nimpartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an\n\n“affirmative, self-enforcing obligation.” United States v. Kelly, 888 F.2d 732, 744\n\n(11th Cir. 1989). “The standard . . . is ‘whether an objective, disinterested, lay\n\nobserver fully informed of the facts underlying the grounds on which recusal was\n\nsought would entertain a significant doubt about the judge’s impartiality.’” Id. at\n\n744–45 (quoting United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.\n\n1989)).\n\n Typically, “we review a judge’s decision not to recuse him or herself for an\n\nabuse of discretion.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.\n\n2004). But “because [Employee] failed to seek recusal of the district judge in the\n\nproceedings below, we review [her] recusal request for plain error.” Id. This is a\n\ncivil case, so we apply the “civil plain error rule.” See In re Lett, 632 F.3d 1216,\n\n1220 n.7, 1227 (11th Cir. 2011). Applying that rule here, we will review the issue\n\nonly if Employee shows that a “miscarriage of justice will result from [our] refusal\n\nto” do so. See id. at 1220 n.7.\n\n 2.\n\n Employee argues that the District Judge should have recused because\n\nEmployer represented the District Judge’s ex-wife during the couple’s contested\n\n 29\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 30 of 31\n\n\ndivorce proceedings in 1990 and 1991.19 As part of those proceedings, Employee\n\nsays, Employer deposed the District Judge twice. Based on this, Employee argues\n\nthat an objective, disinterested lay person would have significant doubt about the\n\nDistrict Judge’s impartiality.\n\n We disagree. Employer represented the District Judge’s ex-wife roughly 26\n\nyears before this bench trial. We do not think an objective, disinterested lay person\n\nwould question the District Judge’s partiality based on something so remote. And\n\neven if an objective, disinterested lay person would question the District Judge’s\n\npartiality, that person would expect the bias to benefit Employee. Finally, there is\n\nnothing in this Court’s § 455(a) precedent that would have alerted the Judge that he\n\nshould recuse. There will be no miscarriage of justice if we refuse to review this\n\nissue because the District Judge’s failure to recuse is consistent with § 455(a). See\n\nRoofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982,\n\n990 (11th Cir. 1982) (“Any wrong result resting on the erroneous application of\n\nlegal principles is a miscarriage of justice in some degree.”). Thus, the civil plain\n\nerror rule bars our review.\n\n III.\n\n Our analysis is always driven by the standard of review. Here, Employee\n\nwas up against a deferential standard at every turn. This case shows that\n\n\n 19\n The case is Moody v. Moody, No. 90-DR-014416 (Fla. Cir. Ct. filed June 29, 1990).\n 30\n\f Case: 17-13073 Date Filed: 04/29/2019 Page: 31 of 31\n\n\novercoming a deferential standard is an uphill battle. The judgment of the District\n\nCourt is\n\n AFFIRMED.\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jennifer JENKINS, Plaintiff-Appellant, v. S. David ANTON, PA, D.B.A. Anton Legal Group, S. David Anton, Individually, Defendants-Appellees.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-29\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13073\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-00283-JSM-AEP\\n\\n\\nJENNIFER JENKINS,\\n\\n Plaintiff-Appellant,\\n\\nversus\\n\\nS. DAVID ANTON, PA,\\nd.b.a. Anton Legal Group,\\nS. DAVID ANTON,\\nindividually,\\n\\n Defendants-Appellees.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (April 29, 2019)\\n\\nBefore TJOFLAT, MARCUS, and, NEWSOM, Circuit Judges.\\n\\nTJOFLAT, Circuit Judge:\\n\\n Jennifer Jenkins worked as a paralegal for David Anton for about nine\\n\\nmonths. She had a flexible work schedule, and records of the hours she worked\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 2 of 31\\n\\n\\nwere not kept. After her employment ended, Jenkins sued Anton and his law firm\\n\\nfor unpaid overtime wages under the Fair Labor Standards Act. The case was tried\\n\\nto the District Court, which entered judgment in favor of Anton. Jenkins moved\\n\\nfor relief under Rules 59 and Rule 60 of the Federal Rules of Civil Procedure. Her\\n\\nmotion was denied, and she appealed. On appeal, she says the District Court\\n\\nabused its discretion by denying relief under Rule 59 and Rule 60. She also argues\\n\\nthat the Court misapplied the legal standard in ruling against her, and she claims\\n\\nthe Court should have recused. We affirm.\\n\\n We divide our discussion into three parts. First, we set out the evidence that\\n\\nwas presented to the District Court during the bench trial. Second, we consider the\\n\\narguments on appeal. Third, we conclude.\\n\\n I.\\n\\n We refer to Jenkins as “Employee” and Anton as “Employer” for\\n\\nconvenience.\\n\\n A.\\n\\n The parties stipulated to a bench trial. Almost two weeks thereafter,\\n\\nEmployee filed a notice of disclosure with the District Court. There, she notified\\n\\nthe District Court that Employer had represented the District Judge’s ex-wife in the\\n\\ncouple’s divorce proceedings. Employee never asked the District Judge to recuse,\\n\\nand he continued to preside over the case. The case proceeded to trial.\\n\\n 2\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 3 of 31\\n\\n\\n At trial, the parties told two very different stories. According to Employee,\\n\\nshe typically arrived in the office by 8:15 a.m. and left sometime between 6:30\\n\\np.m. and midnight. She said she worked about 70 hours a week. Altogether, she\\n\\nclaimed that she worked 711 hours of unpaid overtime. (This was a revised\\n\\ncalculation; she originally claimed 1078.88 hours but reduced the number at trial\\n\\nafter reviewing documents she received in discovery and after subtracting\\n\\nvacation-related time.) To support her claim for overtime, Employee introduced\\n\\ninto evidence emails that she sent Employer after normal business hours and on\\n\\nweekends. She also argued that these emails were probably just a subset of all the\\n\\nemails she sent after hours. She didn’t have all of the emails because soon after\\n\\nshe left the law firm, her successor deleted many of her emails.\\n\\n Employer told a different story. He said that Employee originally agreed to\\n\\nwork a fixed schedule. But the schedule became more flexible, according to\\n\\nEmployer, because Employee took a lot of time off and worked later hours to make\\n\\nup the time. He didn’t keep a record of the hours she worked, but he testified that\\n\\nshe never worked more than 40 hours a week. He gave a few reasons why he\\n\\nbelieved that. First, Employer said that Employee’s predecessor never worked\\n\\n“anywhere near 40 hours a week.” (Employee’s predecessor did not testify, and\\n\\nthat becomes important later.) Employee’s successor never worked overtime,\\n\\neither. Second, he explained that his practice was slow while Employee worked\\n\\n 3\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 4 of 31\\n\\n\\nfor him. 1 Third, he noted that he could see her office from his, and he saw her\\n\\nstudying—not working—at times. 2\\n\\n Employer also addressed the emails that Employee sent after hours and on\\n\\nthe weekends: he said it would not have taken Employee more than a few minutes\\n\\nto type those emails and to send them to him. They were short emails.\\n\\n Other witnesses echoed Employer’s testimony. For example, the firm’s\\n\\nbookkeeper—who came in two days a week, four hours each day, the entire time\\n\\nEmployee worked at the firm—never saw Employee working at a “harried pace.”\\n\\nNor did the bookkeeper ever notice Employee being pressed for time at work. In\\n\\nthe bookkeeper’s opinion, there was not enough work at the firm to fill even 40\\n\\nhours of Employee’s time each week. And Employee never told the bookkeeper\\n\\nthat she was working overtime and should be paid for it, even though the\\n\\nbookkeeper was the one who told the payroll company how many hours each\\n\\nemployee should be paid for, which Employee knew.\\n\\n Another witness bolstered Employer’s testimony. This witness worked for a\\n\\ndifferent lawyer, but she shared the same office space as Employee for three\\n\\nmonths. She said that Employee’s workload was “[n]ot particularly heavy”; most\\n\\n\\n\\n 1\\n Employer introduced billing records from several years to support this statement. In\\n2011, his firm billed 1883 hours. In 2012, his firm billed 1809 hours. In 2013—the year\\nEmployee worked for him—his firm billed 1342 hours. And in 2014, his firm billed 1851 hours.\\n 2\\n Employee was taking college classes while working for Employer.\\n 4\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 5 of 31\\n\\n\\nof the clients belonged to the lawyer she worked for and not Employer. And\\n\\nEmployee did not work on matters related to those clients. The witness explained\\n\\nthat her boss eventually left the firm, and Employer kept her on for a while. There\\n\\nwas not enough client-related work to keep the witness busy, so Employer asked\\n\\nher to clean the office and to organize rooms. Employer eventually had to let the\\n\\nwitness go because there was not enough work for her to do.\\n\\n The same witness also replaced Employee when she left Employer’s law\\n\\nfirm. Despite taking over all of Employee’s responsibilities, and despite having\\n\\nless paralegal experience than Employee, the witness did not work overtime for\\n\\nEmployer.\\n\\n Finally, Employer’s current paralegal testified. She said that Employer had\\n\\nabout 15 active cases that she worked on. With that caseload—which was similar\\n\\nto Employer’s caseload while Employee worked for him—she had never worked\\n\\novertime. 3 In fact, the witness said, she didn’t even work 40 hours a week.\\n\\n As is apparent from our discussion thus far, much of the testimony was\\n\\npretty vague and generic. But the parties did testify more specifically about the\\n\\nwork Employee did—or didn’t do—during an arbitration that Employer handled\\n\\nand Employee attended. The arbitration lasted four days, Tuesday through Friday.\\n\\n\\n\\n 3\\n Employer testified that he had 17 active cases when Employee started. He said that he\\ntypically has anywhere from 12 or 15 to 20 active cases at one time.\\n 5\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 6 of 31\\n\\n\\nThe parties agreed that Employee worked the Saturday and Sunday before the\\n\\narbitration. But Employer said that Employee “took a lot of time off” during the\\n\\nnormal workweek (Monday through Friday) that preceded the weekend. (As we\\n\\nexplain below, it is important whether the hours Employee worked on Sunday\\n\\ncount as part of her workweek for the week of the arbitration, or if they count as\\n\\npart of the prior workweek.) Employee claimed she worked “13 or 14 hours” the\\n\\nMonday before the arbitration.\\n\\n As for the arbitration itself, each day had a three-hour morning session,\\n\\nfollowed by an hour-and-a-half lunch break, and a three-hour afternoon session.\\n\\nDuring lunch, Employer and Employee stayed at the facility and ate with their\\n\\nexpert witness. Both parties agreed that they talked about the case during lunch.\\n\\nEmployee testified that she worked “about 70 hours” or “[a] little over 70 hours”—\\n\\nlike she did “most weeks”—the week of the arbitration.\\n\\n B.\\n\\n The District Court resolved the he-said-she-said swearing match in\\n\\nEmployer’s favor. It concluded that Employer’s “testimony [was] more credible\\n\\nbecause it better matche[d] the other evidence . . . , particularly the testimony of\\n\\nother employees.” Based on this credibility determination, the Court found that\\n\\nEmployee did not prove that she worked more than 40 hours in any given\\n\\nworkweek.\\n\\n 6\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 7 of 31\\n\\n\\n The Court explained some of the evidence that supported Employer’s\\n\\nversion of events. It noted that the firm billed fewer hours the year that Employee\\n\\nworked there than it did the two years before Employee came on and the year after\\n\\nshe left. This was consistent with Employer’s claim that business was slower than\\n\\nnormal while Employee worked for him. The Court also found that Employer’s\\n\\ndescription of his practice was consistent with the bookkeeper’s; the bookkeeper\\n\\nsaid that Employer’s practice was not busy compared to other lawyers she worked\\n\\nfor, and she never noticed Employee rushing or working through lunch.\\n\\n Employer’s version was also consistent with the testimony of Employee’s\\n\\nsuccessor. The Court pointed out that Employer had the successor do “busy work”\\n\\nduring the three months that she overlapped with Employee, and this was because\\n\\nEmployee needed no help with paralegal work. The successor also said that the\\n\\nworkload was light when she took over for Employee, and she never worked\\n\\nthrough lunch or on a weekend. And finally, Employer’s current paralegal testified\\n\\nthat she never came close to working overtime.\\n\\n The Court discounted the emails that Employee sent after normal business\\n\\nhours because many of them would have taken Employee no more than “two or\\n\\nthree minutes to draft.” Others were unrelated to work or asked for time off. The\\n\\nCourt said the closest Employee came to proving that she worked overtime was the\\n\\nweek of the arbitration. It found that the time Employee worked the Saturday\\n\\n 7\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 8 of 31\\n\\n\\nbefore the arbitration did not make up for the time she took off earlier in the week.\\n\\nThe Court said Employee’s claim that she worked late the Monday before the\\n\\narbitration was “conclusory” because she didn’t identify any work she did. It also\\n\\nrejected Employee’s claim that the lunches during the arbitration were working\\n\\nlunches because she didn’t point to any work she did and said only that they talked\\n\\nabout what happened during the morning sessions. And finally, Employee’s claim\\n\\nthat she worked late nights during the arbitration suffered a similar fate: the Court\\n\\nrejected it because Employee didn’t identify any work she did.\\n\\n Employee moved for relief under Rule 59 and Rule 60 based on several\\n\\ngrounds. The District Court denied the motion, and Employee appealed. We\\n\\nexplain below why the District Court denied relief under Rule 59 and Rule 60.\\n\\n II.\\n\\n Employee makes four arguments on appeal: (1) the District Court abused its\\n\\ndiscretion by denying relief under Rule 59, (2) the District Court abused its\\n\\ndiscretion by denying relief under Rule 60, (3) the District Court misapplied the\\n\\nlegal standard when it found that Employee did not prove she worked overtime,\\n\\nand (4) the District Court abused its discretion by not recusing sua sponte. We\\n\\ntake up each argument separately.\\n\\n\\n\\n\\n 8\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 9 of 31\\n\\n\\n A.\\n\\n Employee moved the District Court to alter or amend the judgment under\\n\\nRule 59(e).4 Alternatively, she moved to open the judgment under Rule 59(a)(2)\\n\\nor for a new trial under Rule 59(a)(1)(B). 5 We first set out the relevant legal\\n\\nstandards and then consider Employee’s arguments.\\n\\n 1.\\n\\n Under Rule 59(e), a district court may “alter or amend a judgment.” Fed. R.\\n\\nCiv. P. 59(e). There are no specific grounds for relief listed in Rule 59(e). But we\\n\\nhave said that a district court may alter or amend a judgment that is based on\\n\\n“manifest errors of law or fact.” See Metlife Life & Annuity Co. of Conn. v.\\n\\nAkpele, 886 F.3d 998, 1008 (11th Cir. 2018). The Rule 59(e) motion looks back at\\n\\n\\n 4\\n Rule 59(e) reads as follows: “(e) Motion to Alter or Amend a Judgment. A motion to\\nalter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”\\nFed. R. Civ. P. 59(e).\\n 5\\n Here are the relevant parts of Rule 59(a):\\n Rule 59. New Trial; Altering or Amending a Judgment\\n (a) In General.\\n (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or\\n some of the issues—and to any party—as follows:\\n ...\\n (B) after a nonjury trial, for any reason for which a rehearing has heretofore been\\n granted in a suit in equity in federal court.\\n (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may,\\n on motion for a new trial, open the judgment if one has been entered, take\\n additional testimony, amend findings of fact and conclusions of law or make new\\n ones, and direct the entry of a new judgment.\\nFed. R. Civ. P. 59(a).\\n 9\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 10 of 31\\n\\n\\nwhat was; it does not look forward at what could have been. For this reason, a\\n\\ndistrict court should not grant relief under Rule 59(e) after a nonjury trial based on\\n\\nnewly discovered evidence.6 We review a district court’s decision on a Rule 59(e)\\n\\nmotion for abuse of discretion. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327,\\n\\n1343 n.20 (11th Cir. 2010).\\n\\n Rule 59(a)(2), by contrast, does look forward at what could have been. It\\n\\nsays that “[a]fter a nonjury trial, the court may, on motion for a new trial, open the\\n\\njudgment if one has been entered, take additional testimony, amend findings of fact\\n\\nand conclusions of law or make new ones, and direct the entry of a new judgment.”\\n\\n\\n\\n\\n 6\\n This is not to say a party is out of luck if it wants to present newly discovered evidence\\nafter a nonjury trial. Our point is only that Rule 59(e) is the wrong vehicle. Indeed, Rule\\n59(a)(2) specifically allows a district court to open the judgment, take additional evidence,\\namend its findings of fact and conclusions of law, and enter a new judgment. Rule 60(b)(2)\\nreinforces this reading of Rule 59(e):\\n Rule 60. Relief from a Judgment or Order\\n (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On\\n motion and just terms, the court may relieve a party or its legal representative\\n from a final judgment, order, or proceeding for the following reasons:\\n ...\\n (2) newly discovered evidence that, with reasonable diligence, could not have\\n been discovered in time to move for a new trial under Rule 59(b)[.]\\nFed. R. Civ. P. 60(b) (emphasis added). Rule 59(b) simply says how many days—after judgment\\nis entered—that a party has to file a motion for new trial under Rule 59(a). So, Rule 60(b)(2)\\nsupports our reading of Rule 59(e) because Rule 60(b)(2) strongly suggests that Rule 59(a) is the\\nproper vehicle for a new motion based on newly discovered evidence. But if the party discovers\\nthe new evidence more than 28 days after judgment is entered and misses the Rule 59 cutoff, see\\nRule 59(b), the party may then move for relief under Rule 60(b).\\n 10\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 11 of 31\\n\\n\\nFed. R. Civ. P. 59(a)(2). A party should use this vehicle if it wants to present\\n\\nnewly discovered evidence after a nonjury trial. See supra note 6.\\n\\n And under Rule 59(a)(1)(B), a district court may grant a new trial “after a\\n\\nnonjury trial, for any reason for which a rehearing has heretofore been granted in a\\n\\nsuit in equity in federal court.” Fed. R. Civ. P. 59(a)(1)(B). As relevant for our\\n\\npurposes, a district court may grant a new trial if “the verdict . . . will result in a\\n\\nmiscarriage of justice.” 7 Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\\n\\nCir. 1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th\\n\\nCir. 1970)). We also review a district court’s decision on a Rule 59(a) motion for\\n\\nabuse of discretion. See id.\\n\\n 2.\\n\\n Employee argued that she was entitled to relief based on three grounds: (1) a\\n\\npreviously unavailable witness was now available, (2) a newly discovered email\\n\\nthat showed possible spoliation, and (3) errors related to the Court’s finding that\\n\\nshe did not work overtime the week of the arbitration. In effect, she argued that\\n\\nrelief was appropriate under all three subsections—Rule 59(e), Rule 59(a)(2), and\\n\\nRule 59(a)(1)(B)—based on each of the three claimed grounds. 8 We consider each\\n\\n\\n 7\\n A district court may also grant a new trial under Rule 59(a) if “the verdict is against the\\nclear weight of the evidence.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.\\n1984) (quoting United States v. Bucon Constr. Co., 430 F.2d 420, 423 (5th Cir. 1970)).\\n 8\\n We should note that Employee made her arguments to the District Court without tying\\nthem to the proper Rules. Instead, she made her arguments and then dumped at the end a cite to\\n 11\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 12 of 31\\n\\n\\nground—and whether it triggers relief under Rule 59(e), Rule 59(a)(2), or Rule\\n\\n59(a)(1)(B)—separately.\\n\\n i.\\n\\n First, Employee asked the District Court to grant relief because her\\n\\npredecessor, an “impeachment witness,” was unable to testify during the trial. We\\n\\nbegin with Rule 59(e) and make quick work of it. The testimony of Employee’s\\n\\npredecessor is additional evidence. Call it evidence from a previously “unavailable\\n\\nwitness”—as Employee called it before the District Court—or call it newly\\n\\ndiscovered evidence—as Employee calls it on appeal. The point is that the\\n\\ntestimony is additional evidence; it’s not a mistake in the judgment. Thus, relief\\n\\nunder Rule 59(e) is inappropriate.\\n\\n Now for Rule 59(a)(2). According to Employee, the District Court relied on\\n\\nEmployer’s testimony in deciding the case in Employer’s favor. And during\\n\\nEmployer’s testimony, he said that his office was not busy enough to require\\n\\novertime, and he said that Employee’s predecessor never worked any overtime.\\n\\n In turn, Employee planned to “attack [Employer’s] credibility” on this issue\\n\\nby calling her predecessor as a witness. Her predecessor, Employee said, would\\n\\n“directly rebut” Employer by testifying that she regularly worked 20 hours of\\n\\n\\n\\n\\nRule 59(e), Rule 59(a), and Rule 60(b). To impose necessary structure, we pick her arguments\\nthat belong under each Rule and analyze them separately.\\n 12\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 13 of 31\\n\\n\\novertime during her employment. Employee coordinated with Court personnel so\\n\\nthat her predecessor (who lived in Chicago) could testify by videoconference. But\\n\\nafter the trial began, it was continued, 9 and Employee was unable to contact or\\n\\nlocate her predecessor when the trial picked back up a month later. As it turned\\n\\nout, her predecessor had been in the hospital and had no access to her phone or\\n\\nemail.\\n\\n Oddly, Employee never brought any of this to the District Court’s attention.\\n\\nNor did she ask for a continuance so that she could locate this important witness.\\n\\nEmployee kept the issue to herself apparently because she did not know why her\\n\\npredecessor was unavailable to testify. And because she didn’t know why her\\n\\npredecessor was unavailable, she apparently thought she couldn’t notify the\\n\\nDistrict Court or ask for a continuance.\\n\\n The District Court never raised the issue with the parties because it had no\\n\\nway of knowing that Employee planned to call this witness. Indeed, Employee\\n\\nnever listed her predecessor on her trial witness list. And this must have been\\n\\nstrategic because Employee knew—more than a year before the trial started—that\\n\\nEmployer would say (if asked) that Employee’s predecessor never worked\\n\\n\\n\\n\\n 9\\n Employee asked for a continuance because her son suffered a traumatic brain injury\\nafter the first day of trial. The Court granted the continuance, and things resumed about a month\\nlater.\\n 13\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 14 of 31\\n\\n\\novertime. And Employee knew this because Employer said as much in his\\n\\ndeposition.\\n\\n To sum up, Employee knew well before trial that, if asked, Employer would\\n\\nsay that Employee’s predecessor never worked overtime. So, Employee had her\\n\\npredecessor waiting in the wings, planning to call her to flatly contradict\\n\\nEmployer’s sworn testimony. Yet she never tried—at least not on the record\\n\\nbefore the District Court—to call her predecessor as a potential witness.\\n\\n As we said above, Rule 59(a)(2) is the proper vehicle if a party wants to\\n\\npresent newly discovered evidence after a nonjury trial. But this evidence—\\n\\ndespite Employee’s label for it—is not newly discovered. Quite the opposite.\\n\\nEmployee was making plans and setting up the logistics to call her predecessor as a\\n\\nwitness before the trial began. The only thing that is “new” about the testimony\\n\\nfrom Employee’s predecessor is that she’s finally available to give it. 10 But this\\n\\n\\n\\n\\n 10\\n There’s one thing we should point out on the topic of newly discovered evidence. On\\nappeal, the parties spend a lot of time arguing about how to label the testimony of Employee’s\\npredecessor. On the one hand, Employee says that her predecessor’s testimony potentially\\nshows that Employer committed perjury. On the other hand, Employer says that the testimony is\\nimpeachment only. This perjury-or-impeachment distinction would matter if the testimony from\\nEmployee’s predecessor were newly discovered evidence. This is because, as the parties agree,\\nnewly discovered evidence does not trigger Rule 59 relief if that evidence simply impeaches\\nother testimony or evidence. See Davis v. Yellow Cab Co. of St. Petersburg, 220 F.2d 790, 792\\n(5th Cir. 1955) (Davis is binding because in Bonner v. City of Prichard, 661 F.2d 1206, 1207\\n(11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former\\nFifth Circuit handed down by the close of business on September 30, 1981). But this general\\nrule does not apply when the newly discovered evidence potentially shows perjury. See United\\nStates v. Espinosa-Hernandez, 918 F.2d 911, 913–14 (11th Cir. 1990).\\n 14\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 15 of 31\\n\\n\\ndoes not help Employee, either, which takes us to the miscarriage-of-justice\\n\\nargument she made to the District Court.\\n\\n In her motion to the District Court, Employee argued that it would be a\\n\\n“miscarriage of justice” if her predecessor were not allowed to testify. Her\\n\\npredecessor would “directly challenge” the reliability of Employer’s testimony,\\n\\nand the District Court, according to Employee, relied heavily on Employer’s\\n\\ncredibility.\\n\\n The District Court rejected the argument: “[T]here is no miscarriage of\\n\\njustice when [Employee’s] inability to present [her predecessor’s] testimony was\\n\\ndue to [Employee’s] strategic choices.” The Court noted that Employee was not\\n\\nsurprised by Employer’s testimony because he gave the same testimony in his\\n\\ndeposition. And the Court pointed out that Employee coordinated with her\\n\\npredecessor “in preparation for trial.” The Court summed up with this: “If\\n\\n[Employee] wanted to ensure that the Court benefitted from [her predecessor’s]\\n\\ntestimony, she should have taken [her predecessor’s] deposition and entered it into\\n\\nevidence.”\\n\\n\\n\\n\\n The District Court denied relief under Rule 59(a) because “impeachment evidence is not\\nsufficient to warrant a new trial.” So, the parties understandably devote a good deal of the\\nbriefing to this issue. But because we find that the evidence is not newly discovered, we need\\nnot wade into the perjury-or-impeachment issue.\\n 15\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 16 of 31\\n\\n\\n The District Court did not abuse its discretion by denying relief under Rule\\n\\n59(a)(2). Specifically, there’s no miscarriage because Employee made a strategic\\n\\ndecision—to rest her case without asking for a continuance so that she could call\\n\\nher predecessor—and it backfired. And we know it was a strategic decision\\n\\nbecause nothing prevented Employee from raising the issue with the District Court\\n\\nand asking for a continuance. She claimed that she could not ask for a continuance\\n\\nbecause she did not know why her predecessor was unavailable. But the District\\n\\nCourt could have granted a continuance if Employee made a showing of “good\\n\\ncause.” M.D. Fla. Local Rule 3.09(a). And nothing in the local rules requires a\\n\\nparty to explain why a witness is unavailable when asking for a continuance\\n\\nbecause an important witness is unavailable. Perhaps the District Court would\\n\\nhave denied the request for a continuance—after all, Employee would have needed\\n\\nto explain why she left her predecessor off her witness list—but nothing prevented\\n\\nEmployee from at least raising the issue.\\n\\n Now, with the benefit of hindsight, and with the benefit of knowing that the\\n\\nDistrict Court rejected her position at trial, Employee says her predecessor’s\\n\\ntestimony is indispensable. Without it, she says, there’s a miscarriage a justice.\\n\\nWe disagree. Here, Rule 59(a)(2) relief is inappropriate because Employee (1)\\n\\nknew about the testimony, (2) did not ask for a continuance, (3) hoped for the best,\\n\\nand (4) now, with the benefit of hindsight, asks for a second bite at the apple.\\n\\n 16\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 17 of 31\\n\\n\\n * * *\\n\\n We quickly pause to make an obvious observation: when a party asks for\\n\\nrelief under Rule 59(a)(2) based on newly discovered evidence, the evidence must\\n\\nin fact be newly discovered. This case shows why. If we endorsed Employee’s\\n\\ntheory, parties would be incentivized to strategically manipulate Rule 59(a)(2).\\n\\nThey would do so by rolling the dice and trying their case without a witness that\\n\\nthey knew about well before trial. Then, they would wait and see if they won.\\n\\nNext, if they lost, they would run to the District Court asking for relief under Rule\\n\\n59. Conveniently, that witness they chose not to call is—all of sudden—necessary\\n\\nfor a full and complete trial. But odds are, if the witness really is necessary for a\\n\\nfull and complete trial, the party would have presented the witness at trial. Or, if\\n\\nthe witness was unavailable, the party would have at least asked for a continuance.\\n\\nIf the party is willing to chance it by going to trial without the witness, we doubt\\n\\nthat the witness is really that helpful. Even if the party’s after-the-fact request for\\n\\nrelief says otherwise. In any event, Rule 59(a)(2) does not reward parties who roll\\n\\nthe dice with this wait-and-see approach.\\n\\n ii.\\n\\n Second, Employee asked the District Court to grant relief because she\\n\\ndiscovered evidence after the trial that suggests Employer might have intentionally\\n\\ndeleted evidence. We again begin with Rule 59(e), and we again make quick work\\n\\n 17\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 18 of 31\\n\\n\\nof it. Relief under Rule 59(e) is inappropriate because the ground for relief is\\n\\nnewly discovered evidence.\\n\\n Now for Rule 59(a)(1)(B) (new trial) and Rule 59(a)(2) (open the judgment\\n\\non a motion for new trial). The newly discovered evidence was an email that\\n\\nEmployer allegedly sent to his IT specialist two months after Employee filed this\\n\\nlawsuit.11 In the email, Employer asked his IT specialist to “delete all emails from\\n\\n2014 and earlier” from the server’s deleted items folder. In her brief to the District\\n\\nCourt, Employee argued that this evidence looked “like a deliberate attempt by\\n\\n[Employer] to destroy material information.” And because Employer did not turn\\n\\nthe email over during discovery, Employee was unable to explore whether\\n\\nEmployer engaged in spoliation.\\n\\n The District Court rejected the argument. It concluded that Employee did\\n\\nnot “satisfactorily” explain how her approach would have changed if she had seen\\n\\nthe email before trial. The Court reasonably guessed that Employee would use the\\n\\nemail to impeach Employer, but it explained that impeachment evidence isn’t\\n\\nsufficient grounds for granting a new trial.\\n\\n Next, the Court assumed that the email showed spoliation and asked whether\\n\\napplying an evidentiary presumption—that the deleted emails contained\\n\\n\\n 11\\n Employee says she received this email via U.S. mail two days after the District Court\\nentered judgment in Employer’s favor. She claims there was no return address or other\\ninformation on the envelope showing who sent it.\\n 18\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 19 of 31\\n\\n\\ninformation that was unfavorable to Employer—would change the outcome of the\\n\\ntrial. It held that the evidentiary presumption wouldn’t change anything. The\\n\\nCourt explained that Employee never claimed that the allegedly deleted emails\\n\\nwould prove that she worked overtime. It said that, at best, the emails would show\\n\\nthat Employee sent or received additional emails outside normal business hours.\\n\\nBut the Court said it was aware during trial that additional emails like that might\\n\\nhave existed; indeed, the Court heard testimony that Employee’s successor deleted\\n\\nemails soon after Employee was terminated. Plus, there were emails introduced at\\n\\ntrial showing that Employee sent or received emails outside normal working hours.\\n\\nThus, the Court reasoned, additional emails would have been cumulative.\\n\\n Finally, the Court explained that the email evidence would not prove that\\n\\nEmployee worked overtime because there was evidence showing that she had a\\n\\n“flexible work schedule” and often took time off during normal hours. Nor could\\n\\nthe email evidence overcome “significant testimony” from other witnesses. Two\\n\\nof these witnesses overlapped with Employee’s time at the firm and testified that\\n\\nthere was not enough work for Employee to work overtime. And two witnesses\\n\\nwho succeeded Employee testified that they never even “came close” to working\\n\\novertime.\\n\\n Relief under Rule 59(a)(1)(B) and Rule 59(a)(2) is inappropriate because the\\n\\nemail would not have affected the outcome of the trial. See, e.g., 11 Charles Alan\\n\\n 19\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 20 of 31\\n\\n\\nWright et al., Federal Practice & Procedure § 2808 (3d ed. Nov. 2018) (“Evidence\\n\\nthat will not change the result does not merit a new trial [under Rule 59(a)]. Thus,\\n\\nnewly discovered evidence that would merely affect the weight and credibility of\\n\\nthe evidence ordinarily is insufficient for a new trial, as is evidence that is\\n\\ncumulative of evidence already offered.” (footnotes omitted)). In light of the entire\\n\\nrecord, the District Court reasonably concluded that the outcome of the trial would\\n\\nhave been the same, even if the email showed spoliation and the Court applied an\\n\\nevidentiary presumption against Employer. Thus, the District Court did not abuse\\n\\nits discretion by denying relief under Rule 59(a)(1)(B) and Rule 59(a)(2) based on\\n\\nthe newly discovered email. 12\\n\\n iii.\\n\\n Third, Employee argued that the District Court should grant relief because\\n\\nthe judgment was based on manifest errors of law or facts. We begin with Rule\\n\\n59(e). The Court erred, Employee argued, by finding that she did not work\\n\\novertime during the arbitration in May of 2013. In making that finding, the Court\\n\\noverlooked the hours she worked the Sunday before the arbitration. If the Court\\n\\nhad considered the hours Employee worked on Sunday, and if the Court had\\n\\n\\n 12\\n Employee does not seriously argue otherwise. She argues only that Employer’s\\n“actions prevented [her] from exploring whether [Employer] deliberately spoliated evidence or\\nseeking sanctions.”\\n The is the exact argument the District Court rejected, and Employee does not explain\\nwhy the District Court’s rejection amounts to an abuse of discretion.\\n 20\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 21 of 31\\n\\n\\napplied “the most favorable workweek standard” to her,13 it would have concluded\\n\\nthat she worked overtime the week of Sunday, May 19, 2013, through Saturday,\\n\\nMay 25, 2013. This is a proper Rule 59(e) argument.\\n\\n The District Court agreed that it erred by overlooking the hours that\\n\\nEmployee worked the Sunday before the arbitration. But it found that the error\\n\\nwas harmless because it concluded Employee’s workweek ran Monday through\\n\\nSunday, not Sunday through Saturday. The Court found that “[i]t is more\\n\\nreasonable to conclude that the workweek started on Monday, given that the\\n\\nParties described [Employee’s] weekly work schedule as starting on Monday\\n\\nmornings.”14 Thus, the hours that Employee worked the weekend before the\\n\\narbitration did not count toward the number of hours she worked the week of the\\n\\narbitration. Instead, those weekend hours counted toward the number of hours that\\n\\nEmployee worked the week before the arbitration. And because Employer testified\\n\\nthat Employee took more time off at the beginning of that week than she worked\\n\\non the weekend, the Court found that Employee did not work overtime the week\\n\\nbefore the arbitration.\\n\\n\\n 13\\n A “workweek is a fixed and regularly recurring period of . . . seven consecutive 24–\\nhour periods” that “need not coincide with the calendar week but may begin on any day and at\\nany hour of the day.” 29 C.F.R. § 778.105. Employee did not explain why the Court should\\napply the workweek standard that was most favorable to her—Sunday to Saturday—instead of\\nthe standard that was supported by the evidence.\\n 14\\n The Court also noted that Employee did not cite any authority to support her argument\\nthat the workweek started on Sunday rather than Monday.\\n 21\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 22 of 31\\n\\n\\n The District Court’s finding that Employee’s workweek ran Monday to\\n\\nSunday is a finding of fact that we review for clear error. See Renteria-Marin v.\\n\\nAg-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) (“We review factual\\n\\nfindings made by a district court after a bench trial for clear error, which is a highly\\n\\ndeferential standard of review.”).\\n\\n Under the Fair Labor Standards Act, overtime is calculated on a workweek\\n\\nbasis. See 29 U.S.C. § 207(a)(1); 29 C.F.R. § 778.103. “An employee’s\\n\\nworkweek is a fixed and regularly recurring period of . . . seven consecutive 24–\\n\\nhour periods” that “need not coincide with the calendar week but may begin on any\\n\\nday and at any hour of the day.” 29 C.F.R. § 778.105.\\n\\n The District Court did not clearly err in finding that Employee’s workweek\\n\\nran Monday to Sunday. The parties presented little evidence at trial on this issue.\\n\\nWhen asked whether he had a regularly recurring period of seven days that would\\n\\namount to a workweek, Employer said he was “not sure.” Employer said he paid\\n\\nEmployee twice a month, but he didn’t know exactly how to classify the\\n\\nworkweeks that made up the pay periods. Employee testified that her employment\\n\\nbegan on a Monday. On balance, the record supports a finding that the workweek\\n\\nbegan on Monday. Employee argues that it was “more reasonable” to find that the\\n\\nworkweek began on Sunday. But even if that were true, given the lack of\\n\\nevidence, we would not be “left with the definite and firm conviction” that the\\n\\n 22\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 23 of 31\\n\\n\\nDistrict Court erred. See Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S. Ct.\\n\\n1504, 1511 (1985) (explaining when a finding of fact is clearly erroneous) (quoting\\n\\nUnited States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)).\\n\\n Thus, the District Court did not abuse its discretion by denying relief under\\n\\nRule 59(e) based on its finding that the workweek began on Monday.\\n\\n Finally, the District Court was correct to deny relief under Rule 59(a),\\n\\nbecause Employee did not make any Rule 59(a) arguments based on the Court’s\\n\\nworkweek finding of fact.\\n\\n * * *\\n\\n Employee makes one more argument related to the arbitration.15 The\\n\\narbitration lasted four days; each day had a three-hour morning session, a break for\\n\\nlunch, and a three-hour afternoon session. In finding that Employee did not work\\n\\novertime during the week of the arbitration, the District Court found that the breaks\\n\\nfor lunch did not count toward overtime. The Court said that Employee’s\\n\\n“contention that lunch each day was a ‘working lunch’ is unsupported” because\\n\\n“[s]he d[id] not identify any work that was performed.”\\n\\n\\n\\n\\n 15\\n It’s not a Rule 59 argument because Employee didn’t raise it in her Rule 59 motion.\\nBut we’ve included it in the Rule 59 section because it fits naturally with our discussion of\\nwhether the District Court erred in finding that Employee did not work overtime the week of the\\narbitration.\\n 23\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 24 of 31\\n\\n\\n Employee argues that the District Court erred by excluding the lunches from\\n\\nthe overtime calculation because lunches during work count toward overtime\\n\\nunless the employee is “completely relieved from duty for the purposes of eating\\n\\nregular meals.” 29 C.F.R. § 785.19(a). And the “employee is not relieved if [s]he\\n\\nis required to perform any duties, whether active or inactive, while eating.”16 Id.\\n\\n Interpreting 29 C.F.R. § 785.19, we have said that “what matters in meal\\n\\nperiod cases is whether the employees are subject to real limitations on their\\n\\npersonal freedom which inure to the benefit of their employer.” Avery v. City of\\n\\nTalladega, 24 F.3d 1337, 1345 (11th Cir. 1994) (quoting Kohlheim v. Glynn\\n\\nCounty, 915 F.2d 1473, 1477 n.19 (11th Cir. 1990)). So, unlike the District\\n\\nCourt’s Order suggests, Employee was not necessarily required to identify any\\n\\n“work” that she performed during lunch. That said, the District Court’s finding of\\n\\nfact—which we review for clear error, see Renteria-Marin, 537 F.3d at 1324—that\\n\\nthe lunches did not count is not clearly erroneous. Again, the parties presented\\n\\nlittle evidence on this issue at trial. Employee never said whether she was required\\n\\nto perform any duties during the lunch. Nor did she identify any limitations on her\\n\\nfreedom. See Avery, 24 F.3d at 1345. She said only that they stayed at the facility\\n\\nthrough lunch, and they “talked about what [they] were doing.” She also said they\\n\\n\\n\\n 16\\n That said, the regulation also makes clear that “[b]ona fide meal periods are not\\nworktime.” 29 C.F.R. § 785.19(a).\\n 24\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 25 of 31\\n\\n\\nate with the expert and talked about work “the entire time.” On this record, we’re\\n\\nnot definitely and firmly convinced that the District Court made a mistake. See\\n\\nAnderson, 470 U.S. at 573, 105 S. Ct. at 1511.\\n\\n B.\\n\\n In addition to Rule 59, Employee moved for relief under Rule 60(b)(3). 17\\n\\nWe again begin with the legal standards and then take up Employee’s argument.\\n\\n 1.\\n\\n Under Rule 60(b)(3), a district court may “relieve a party . . . from a final\\n\\njudgment” due to “fraud . . . , misrepresentation, or misconduct by an opposing\\n\\nparty.” Fed. R. Civ. P. 60(b)(3). To get relief under Rule 60(b)(3), “the moving\\n\\nparty must prove by clear and convincing evidence that the adverse party obtained\\n\\nthe verdict through fraud, misrepresentations, or other misconduct.” Waddell v.\\n\\nHendry Cty. Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003). “The moving\\n\\nparty must also demonstrate that the conduct prevented them from fully presenting\\n\\nhis case.” Id.\\n\\n We review the District Court’s decision denying relief under Rule 60(b)(3)\\n\\nfor abuse of discretion. See id.\\n\\n\\n\\n\\n 17\\n She also moved for relief under Rule 60(b)(2). The District Court denied relief, and\\nEmployee does not challenge that decision on appeal.\\n 25\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 26 of 31\\n\\n\\n 2.\\n\\n Employee asked the District Court to grant relief under Rule 60(b)(3) based\\n\\non the newly discovered email—the same one we discussed above—that she said\\n\\nshowed Employer failed to disclose evidence that tended to show spoliation. The\\n\\nDistrict Court denied the request. It found that Employee had not shown the\\n\\nalleged misconduct prevented her from fully presenting her case. 18\\n\\n The Court noted that, even if Employee had gotten the email during\\n\\ndiscovery, her litigation strategy would have been “fundamentally similar” to the\\n\\nstrategy she adopted without the email. Had Employee known about the email, she\\n\\nmight have asked Employer about it is his deposition. And she might have asked\\n\\nto inspect his computer system. She probably would have used the email to\\n\\nimpeach Employer at trial. But Employee did question Employer about deleted\\n\\nemails, the Court noted, and she argued that the deleted emails would have helped\\n\\nprove that she worked overtime.\\n\\n The District Court’s finding of fact—that the alleged misconduct did not\\n\\nprevent Employee from fully presenting her case—is not clearly erroneous. See\\n\\nRenteria-Marin, 537 F.3d at 1324 (reviewing finding of fact for clear error).\\n\\nEmployee argues that the District Court should have held an evidentiary hearing\\n\\n\\n\\n 18\\n The District Court also found that Employee failed to show by clear and convincing\\nevidence that Employer engaged in fraud or misconduct.\\n 26\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 27 of 31\\n\\n\\nbefore ruling on the motion. But the Court’s finding of fact is not clearly\\n\\nerroneous simply because it did not hold an evidentiary hearing, especially in light\\n\\nof the reasons the Court gave.\\n\\n Thus, the District Court did not abuse its discretion by denying relief under\\n\\nRule 60 based on the newly discovered email.\\n\\n C.\\n\\n Employee argues that the District Court misapplied the burden-shifting\\n\\nframework set out in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–88,\\n\\n66 S. Ct. 1187, 1192 (1946), superseded on other grounds by statute, 29 U.S.C.\\n\\n§ 254(a), as recognized in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513,\\n\\n516–17 (2014). An employer covered by the Fair Labor Standards Act must keep\\n\\nrecords that show how many hours an employee worked in a workweek. See 29\\n\\nC.F.R. § 516.2(a)(7). When an employer fails to keep accurate and adequate\\n\\nrecords, Anderson says that “an employee has carried out his burden if he proves\\n\\nthat he has in fact performed work for which he was improperly compensated and\\n\\nif he produces sufficient evidence to show the amount and extent of that work as a\\n\\nmatter of just and reasonable inference.” 328 U.S. at 687, 66 S. Ct. at 1192\\n\\n(emphasis added).\\n\\n “The burden then shifts to the employer to come forward with evidence of\\n\\nthe precise amount of work performed or with evidence to negative the\\n\\n 27\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 28 of 31\\n\\n\\nreasonableness of the inference to be drawn from the employee’s evidence.” Id. at\\n\\n687–88, 66 S. Ct. at 1192.\\n\\n Employer admitted that he did not keep records. Rather than apply\\n\\nAnderson’s burden-shifting framework—indeed, the District Court never cited\\n\\nAnderson—Employee says the Court penalized her for Employer’s failure to keep\\n\\nrecords. In turn, Employee argues, this error infected the Court’s findings of fact.\\n\\n We disagree. The District Court found that Employer’s testimony was more\\n\\ncredible than Employee’s “because it better matche[d] the other evidence in the\\n\\ncase, particularly the testimony of other employees.” At the end of the trial, it was\\n\\nEmployee’s word against the word of four others—Employer, the bookkeeper,\\n\\nEmployee’s successor, and Employer’s current paralegal. So, the District Court\\n\\ndid not reject Employee’s narrative because it misapplied Anderson’s standard,\\n\\nwhich is triggered only “if [the employee] proves that he has in fact performed\\n\\nwork for which he was improperly compensated.” Anderson, 328 U.S. at 687, 66\\n\\nS. Ct. at 1192.\\n\\n D.\\n\\n Finally, Employee argues that the District Court abused it discretion when it\\n\\nfailed to sua sponte recuse. We set out the legal standard and then turn to\\n\\nEmployee’s argument.\\n\\n\\n\\n\\n 28\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 29 of 31\\n\\n\\n 1.\\n\\n Any district judge “shall disqualify himself in any proceeding in which his\\n\\nimpartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an\\n\\n“affirmative, self-enforcing obligation.” United States v. Kelly, 888 F.2d 732, 744\\n\\n(11th Cir. 1989). “The standard . . . is ‘whether an objective, disinterested, lay\\n\\nobserver fully informed of the facts underlying the grounds on which recusal was\\n\\nsought would entertain a significant doubt about the judge’s impartiality.’” Id. at\\n\\n744–45 (quoting United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir.\\n\\n1989)).\\n\\n Typically, “we review a judge’s decision not to recuse him or herself for an\\n\\nabuse of discretion.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.\\n\\n2004). But “because [Employee] failed to seek recusal of the district judge in the\\n\\nproceedings below, we review [her] recusal request for plain error.” Id. This is a\\n\\ncivil case, so we apply the “civil plain error rule.” See In re Lett, 632 F.3d 1216,\\n\\n1220 n.7, 1227 (11th Cir. 2011). Applying that rule here, we will review the issue\\n\\nonly if Employee shows that a “miscarriage of justice will result from [our] refusal\\n\\nto” do so. See id. at 1220 n.7.\\n\\n 2.\\n\\n Employee argues that the District Judge should have recused because\\n\\nEmployer represented the District Judge’s ex-wife during the couple’s contested\\n\\n 29\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 30 of 31\\n\\n\\ndivorce proceedings in 1990 and 1991.19 As part of those proceedings, Employee\\n\\nsays, Employer deposed the District Judge twice. Based on this, Employee argues\\n\\nthat an objective, disinterested lay person would have significant doubt about the\\n\\nDistrict Judge’s impartiality.\\n\\n We disagree. Employer represented the District Judge’s ex-wife roughly 26\\n\\nyears before this bench trial. We do not think an objective, disinterested lay person\\n\\nwould question the District Judge’s partiality based on something so remote. And\\n\\neven if an objective, disinterested lay person would question the District Judge’s\\n\\npartiality, that person would expect the bias to benefit Employee. Finally, there is\\n\\nnothing in this Court’s § 455(a) precedent that would have alerted the Judge that he\\n\\nshould recuse. There will be no miscarriage of justice if we refuse to review this\\n\\nissue because the District Judge’s failure to recuse is consistent with § 455(a). See\\n\\nRoofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982,\\n\\n990 (11th Cir. 1982) (“Any wrong result resting on the erroneous application of\\n\\nlegal principles is a miscarriage of justice in some degree.”). Thus, the civil plain\\n\\nerror rule bars our review.\\n\\n III.\\n\\n Our analysis is always driven by the standard of review. Here, Employee\\n\\nwas up against a deferential standard at every turn. This case shows that\\n\\n\\n 19\\n The case is Moody v. Moody, No. 90-DR-014416 (Fla. Cir. Ct. filed June 29, 1990).\\n 30\\n\\f Case: 17-13073 Date Filed: 04/29/2019 Page: 31 of 31\\n\\n\\novercoming a deferential standard is an uphill battle. The judgment of the District\\n\\nCourt is\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":1899,"cells":{"id":{"kind":"number","value":4614751,"string":"4,614,751"},"name":{"kind":"string","value":"UNITED STATES of America, Plaintiff-Appellee, v. Diosme Fernandez HANO, Reinaldo Arrastia-Cardoso, A.K.A. Reinaldo Arrastia, Defendants-Appellants."},"name_abbreviation":{"kind":"string","value":"United States v. Diosme Fernandez Hano"},"decision_date":{"kind":"string","value":"2019-04-30"},"docket_number":{"kind":"string","value":"18-10510"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Pryor, Newsom, Rosenthal\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-10510 Date Filed: 04/30/2019 Page: 1 of 44\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10510\\n ________________________\\n\\n D.C. Docket No. 2:15-cr-00101-SPC-CM-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nDIOSME FERNANDEZ HANO,\\n\\nREINALDO ARRASTIA-CARDOSO,\\na.k.a. Reinaldo Arrastia,\\n\\n Defendants-Appellants.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (April 30, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\n\\n\\n*\\n The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District\\nof Texas, sitting by designation.\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 2 of 44\\n\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n This appeal requires us to decide two questions of first impression for our\\n\\nCircuit: (1) whether a five-year statute of limitations for a defendant implicated by\\n\\nDNA testing, 18 U.S.C. § 3297, permits indictment within five years of that testing\\n\\nregardless of whether the limitation period otherwise applicable to the offense has\\n\\nalready expired; and (2) whether the Confrontation Clause of the Sixth\\n\\nAmendment, see Bruton v. United States, 391 U.S. 123 (1968), or the Due Process\\n\\nClause of the Fifth Amendment prohibits use of the nontestimonial statements of a\\n\\nnontestifying criminal defendant against his codefendant in a joint trial. Diosme\\n\\nFernandez Hano and Reinaldo Arrastia-Cardoso were convicted of Hobbs Act\\n\\nrobbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), (b)(1),\\n\\nfor the robbery of $1.7 million from an armored truck. Hano argues that his\\n\\nindictment was returned after the applicable limitation period expired and that the\\n\\nlater discovery of his DNA could not revive the running of the limitation period.\\n\\nArrastia-Cardoso contends that the district court should have prohibited Ruben\\n\\nBorrego Izquierdo, to whom Hano admitted his crimes, from testifying. Hano also\\n\\nchallenges a few of the evidentiary rulings, argues that insufficient evidence\\n\\nsupports his convictions, and challenges the enhancement of his sentence for\\n\\n“otherwise using” a dangerous weapon in the robbery. Arrastia-Cardoso also\\n\\n\\n\\n\\n 2\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 3 of 44\\n\\n\\ncontends that the government improperly commented on his decision not to testify\\n\\nduring closing arguments. All these arguments fail. We affirm.\\n\\n I. BACKGROUND\\n\\n On November 30, 2009, Hano and Arrastia-Cardoso robbed a Brink’s\\n\\narmored truck outside of the Fifth Third Bank in Fort Myers, Florida. The\\n\\noperators of the truck that day were Jimmy Ortiz and Bernard Meaney. Ortiz\\n\\nserved as the truck’s messenger and Meaney was the driver.\\n\\n Both the driver and the messenger on a Brink’s armored truck are armed\\n\\nwith guns. The messenger’s primary role is to get in and out of the truck to collect\\n\\nand deliver currency, but he also is in command of the operation and supervises the\\n\\ndriver. The messenger uses a route guide—a confidential list that includes stops,\\n\\narrival and departure times, and the number of pieces to pick up or deliver—but he\\n\\nhas the authority to amend the guide and add stops, including food or restroom\\n\\nbreaks.\\n\\n An armored wall with a bulletproof window partitions the driver’s cabin\\n\\nfrom the back of the truck. The messenger sits with currency in a cabin in the back\\n\\nof the truck. The partition between the two cabins contains a gun port that allows\\n\\nthe driver to shoot into the messenger’s cabin in the event of a robbery.\\n\\n On the day of the robbery, Ortiz and Meaney picked up currency from\\n\\nseveral businesses, including a casino where the value of pickups ordinarily ranged\\n\\n\\n\\n 3\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 4 of 44\\n\\n\\nbetween $1 million and $1.5 million. The Fifth Third Bank was the last scheduled\\n\\nstop of the day. Before reaching the bank, Ortiz decided that they should stop at a\\n\\nBurger King. Only Ortiz went inside. In spite of a zero-tolerance policy forbidding\\n\\ncarrying cellphones on runs, Ortiz was carrying a cellphone. After spending six or\\n\\nseven minutes at Burger King, they continued to the Fifth Third Bank, which was\\n\\nroughly 30 minutes away.\\n\\n Immediately after they arrived at the bank and Ortiz stepped out of the truck,\\n\\na man wearing a ski mask approached Ortiz from behind, put an arm around his\\n\\nneck, held a gun to his head, and forced him back into the truck. Meaney, who was\\n\\nwatching through the window in the partition between the two cabins, reached for\\n\\nhis gun, but Ortiz told him not to fire. Meaney was afraid for Ortiz’s safety, so he\\n\\nobeyed and put his gun down. A second masked man entered the truck, grabbed\\n\\nbags of money, and exited. The man who had grabbed Ortiz struck his head with\\n\\nthe butt of a gun.\\n\\n One of the masked men then entered a red Pontiac Grand Prix parked behind\\n\\nthe Brink’s truck. Another masked man loaded the trunk of the Pontiac with money\\n\\nand began to enter the car. Meaney saw the Pontiac behind him, shifted the truck in\\n\\nreverse, and rammed the car. He then drove the truck forward and rammed the\\n\\nPontiac again. One of those collisions caused the masked man who had loaded the\\n\\n\\n\\n\\n 4\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 5 of 44\\n\\n\\nmoney into the trunk of the Pontiac to fall down, and his mask came off as he fell.\\n\\nThat man rose and entered the car, which then sped away.\\n\\n Eyewitness accounts established that either two or three men carried out the\\n\\nrobbery. A bank customer who witnessed the robbery said she saw two men of\\n\\nHispanic or Caucasian appearance. She described the man whose mask came off as\\n\\nappearing to be in his twenties to early thirties, standing around 5 feet 6 inches,\\n\\nwith a medium to somewhat heavy-set build, and short brown hair and no facial\\n\\nhair. Meaney said that, in addition to seeing the face of the man whose mask came\\n\\noff, he saw another man without a mask standing 20 to 30 feet from the red car.\\n\\nThat man stood near the scene of the robbery waiting to be picked up and then got\\n\\ninto the car. Meaney described that man as 5 feet 10 inches, 180 pounds, medium\\n\\nbuild, dark, and with a full head of hair and a mustache. Meaney said that the man\\n\\nwho had held Ortiz at gunpoint appeared to be Hispanic based on his skin tone.\\n\\nOrtiz asserted that he saw only the man who had struck him with the butt of his\\n\\ngun, but that he did not see that man’s face.\\n\\n Investigators found a ski mask and a plastic gun grip at the crime scene. The\\n\\ngun grip did not have screws used on real firearms and likely came from a fake\\n\\ngun. An analyst tested the ski mask and the gun grip for the presence of DNA. The\\n\\nanalyst discovered a major profile on the outside of the mask and on the gun grip.\\n\\nA major profile exists when there is significantly more DNA from one contributor\\n\\n\\n\\n 5\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 6 of 44\\n\\n\\nthan any other in the mixture of DNA recovered and makes it possible to identify\\n\\nthat contributor.\\n\\n On the night of the robbery, investigators found the red Pontiac abandoned\\n\\nin a parking lot at a business near the Fifth Third Bank. The vehicle identification\\n\\nnumber plate had been removed from the car and the vehicle identification number\\n\\non another part of the car had been scratched out. Investigators later learned that a\\n\\nTampa mechanic named Camilo Hernandez had sold the vehicle to Arrastia-\\n\\nCardoso in the month when the robbery took place. Another person had driven\\n\\nArrastia-Cardoso to buy the car, but Hernandez did not see who the driver was.\\n\\n The investigators initially suspected that Ortiz and a man named Mariano\\n\\nDuarte-Cardoso had been involved in the robbery. Duarte-Cardoso, who\\n\\ninvestigators later learned to be Arrastia-Cardoso’s cousin and the spouse of\\n\\nOrtiz’s sister, fled the country after a search of his home. At that time, the\\n\\ninvestigators were not focused on Hano or Arrastia-Cardoso.\\n\\n Five years later, in September 2014, Ruben Borrego Izquierdo, who was\\n\\nfacing unrelated state charges, came to the Federal Bureau of Investigation with\\n\\ninformation. Borrego Izquierdo stated that he grew up in the same village in Cuba\\n\\nwith Hano and had known him for decades. Hano had recently told Borrego\\n\\nIzquierdo that he had robbed an armored truck with a man named “Reinaldo\\n\\nArrastia” in 2009. Hano said that the plot to rob the truck included one of the\\n\\n\\n\\n 6\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 7 of 44\\n\\n\\ntruck’s guards, who was part of Arrastia’s family, and included a cousin of\\n\\nArrastia. Hano also described some of the key details of the robbery: that he had\\n\\nleft the scene in a car he had purchased from Camilo Hernandez, that he had\\n\\nremoved the vehicle identification number from the car, that he had taken the\\n\\nmoney from the robbery back to Cuba in a speedboat, and that he had spent the\\n\\nmoney on two houses and a car.\\n\\n Borrego Izquierdo’s story included details about the crime that had not been\\n\\nmade public. No law enforcement agency had made known, for example, that the\\n\\ngetaway car had been purchased in Tampa or that the vehicle identification number\\n\\nof the car had been removed. And investigators were able to corroborate Borrego\\n\\nIzquierdo’s assertion that Hano traveled to Cuba after the robbery through a sworn\\n\\nstatement that Hano provided to a border officer. In the statement, Hano said that\\n\\nhe moved to the United States in 2008, but that in January 2010—a little more than\\n\\na month after the robbery—he traveled to Cuba on a boat that departed from Texas.\\n\\nHano returned to the United States in 2014.\\n\\n After investigators heard Borrego Izquierdo’s story, Arrastia-Cardoso and\\n\\nHano became the primary suspects in the investigation. In 2015, federal\\n\\ninvestigators obtained DNA samples from them. Hano’s DNA matched the major\\n\\nDNA profile from the ski mask. Arrastia-Cardoso’s DNA matched the major\\n\\nprofile on the gun grip. And the government’s analyst determined that, for each\\n\\n\\n\\n 7\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 8 of 44\\n\\n\\nmajor DNA profile, the probability that the profile would match the DNA of a\\n\\nrandom person (the “random-match probability”) was less than one in 700 billion.\\n\\n On March 16, 2016, the United States indicted Hano and Arrastia-Cardoso\\n\\nfor Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. The jury\\n\\nconvicted both men on all charges. Hano’s presentence investigation report\\n\\nrecommended a five-level enhancement to his offense level because he brandished\\n\\nor otherwise possessed a firearm during the robbery, United States Sentencing\\n\\nGuidelines Manual § 2B3.1(b)(2)(C) (Nov. 2015), when the defendants apparently\\n\\ndisarmed Ortiz and stole his gun. Hano objected to this enhancement on the ground\\n\\nthat the evidence at trial established only that the defendants used a fake gun to\\n\\neffectuate the robbery. He conceded that the Guidelines treat a fake gun as a\\n\\n“dangerous weapon,” but argued that he should instead receive only a three-level\\n\\nenhancement for brandishing a weapon in the course of the offense, id. §\\n\\n2B3.1(b)(2)(E). The district court applied a four-level enhancement because a\\n\\ndangerous weapon had been “otherwise used” during the robbery, id. §\\n\\n2B3.1(b)(2)(D). The district court sentenced Hano to serve 121 months of\\n\\nimprisonment and Arrastia-Cardoso to 120 months of imprisonment.\\n\\n II. STANDARD OF REVIEW\\n\\n This appeal is governed by three standards of review. First, we review de\\n\\nnovo the interpretation and application of a statute of limitations. United States v.\\n\\n\\n\\n 8\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 9 of 44\\n\\n\\nFarias, 836 F.3d 1315, 1323 (11th Cir. 2016). The same standard applies to\\n\\nalleged violations of Brady v. Maryland, 373 U.S. 83 (1963). United States v.\\n\\nBrester, 786 F.3d 1335, 1338 (11th Cir. 2015). We also review the denial of a\\n\\nmotion for a judgment of acquittal for insufficiency of the evidence de novo.\\n\\nUnited States v. Flanders, 752 F.3d 1317, 1329 (11th Cir. 2014). And although we\\n\\nreview a district court’s factual findings in applying the Sentencing Guidelines for\\n\\nclear error, we review the application of the guidelines to those facts de novo.\\n\\nUnited States v. Bradley, 644 F.3d 1213, 1283 (11th Cir. 2011). Second, “[w]e\\n\\nreview a district court’s evidentiary rulings for an abuse of discretion.” United\\n\\nStates v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). And we review the denial\\n\\nof a motion for a new trial based on the weight of the evidence for “clear abuse” of\\n\\ndiscretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). Third,\\n\\nwe review issues not raised in the district court for plain error. United States v.\\n\\nTaohim, 817 F.3d 1215, 1224 (11th Cir. 2013). “For there to be plain error, there\\n\\nmust (1) be error, (2) that is plain, and (3) that affects the substantial rights of the\\n\\nparty, and (4) that seriously affects the fairness, integrity, or public reputation of a\\n\\njudicial proceeding.” Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th\\n\\nCir. 2002).\\n\\n\\n\\n\\n 9\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 10 of 44\\n\\n\\n III. DISCUSSION\\n\\n We divide our discussion in six parts. First, we reject Hano’s argument that\\n\\nthe indictment against him was not returned within the applicable limitation period.\\n\\nSecond, we explain that the evidentiary issues raised by Hano and Arrastia-\\n\\nCardoso do not merit reversal. Third, we explain that Hano has failed to establish\\n\\nthat the denial of his motion to obtain the DNA profile of Mariano Duarte-Cardoso\\n\\nresulted in any prejudice. Fourth, we reject Hano’s argument that the government\\n\\nfailed to produce sufficient evidence to support his convictions. Fifth, we conclude\\n\\nthat the government did not improperly comment on Arrastia-Cardoso’s decision\\n\\nnot to testify. And sixth, we explain that Hano “otherwise used” a dangerous\\n\\nweapon in the commission of the robbery so the district court was warranted in\\n\\napplying the four-level enhancement to his sentence.\\n\\n A. The Indictment Was Returned Within the Applicable Limitation Period.\\n\\n Before trial, Hano moved to dismiss the indictment on the ground that it was\\n\\nnot returned within the five-year limitation period ordinarily applicable to federal\\n\\nnoncapital crimes, 18 U.S.C. § 3282(a). The district court denied the motion and\\n\\nruled that the indictment fell within a statutory exception for cases in which DNA\\n\\ntesting implicates a person in a felony, id. § 3297. Section 3297 provides that “[i]n\\n\\na case in which DNA testing implicates an identified person in the commission of a\\n\\nfelony, no statute of limitations that would otherwise preclude prosecution of the\\n\\n\\n\\n 10\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 11 of 44\\n\\n\\noffense shall preclude such prosecution until a period of time following the\\n\\nimplication of the person by DNA testing has elapsed that is equal to the otherwise\\n\\napplicable limitation period.” The district court reasoned that this exception\\n\\napplied to Hano’s indictment because DNA testing did not implicate him in the\\n\\ncharged crimes until June 26, 2015, which left the government with five years to\\n\\nindict Hano after that date. Because the indictment was returned in March 2016,\\n\\nthe district court concluded that the indictment was returned well within the\\n\\nlimitations period of section 3297.\\n\\n Hano argues that this ruling was in error based on the following application\\n\\nnote to section 3297: “The amendments made by this section shall apply to the\\n\\nprosecution of any offense committed before, on, or after the date of the enactment\\n\\nof this section if the applicable limitation period has not yet expired.” Justice for\\n\\nAll Act, Pub. L. No. 108–405, § 204(c), 118 Stat. 2260, 2271 (2004). Although the\\n\\ndistrict court reasoned that section 3297 provided a new five-year limitation period\\n\\nthat began when Hano was first implicated by DNA testing, Hano reads the\\n\\napplication note—in particular, the conditional phrase “if the applicable limitation\\n\\nperiod has not yet expired”—to mean that the exception to the ordinary limitation\\n\\nperiod applies to the prosecution of any offense committed after the date of\\n\\nenactment only if the otherwise applicable limitation period “has not yet expired”\\n\\nat the time the defendant is implicated by DNA testing. So on Hano’s reading, the\\n\\n\\n\\n 11\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 12 of 44\\n\\n\\nimplication of a defendant by DNA testing only extends a not-yet-elapsed\\n\\nlimitation period.\\n\\n The government contends that no error occurred based on the text of section\\n\\n3297. And it argues that the application note only clarifies that section 3297\\n\\napplies retroactively to any offense so long as the limitation period applicable to an\\n\\noffense by default had not yet expired at the time of enactment. We agree with the\\n\\ngovernment.\\n\\n Hano’s argument would require us to disregard the plain meaning of section\\n\\n3297, which provides that “no statute of limitations that would otherwise preclude\\n\\nprosecution of the offense shall preclude such prosecution until a period of time\\n\\nfollowing the implication of the person by DNA testing has elapsed that is equal to\\n\\nthe otherwise applicable limitation period.” This language makes clear that a\\n\\nperiod of time “equal to the otherwise applicable limitation period” will run from\\n\\n“the implication of the person by DNA testing” regardless of whether the\\n\\nimplication occurred within the ordinarily applicable limitation period. If Hano\\n\\nwere right about the import of the application note, the codified text of section\\n\\n3297 would instead say that no statute of limitations will preclude prosecution until\\n\\na period of time has elapsed that is equal to the otherwise applicable limitation\\n\\nperiod if the person is implicated by DNA testing while the otherwise applicable\\n\\nlimitation period continues to run. But that is not what the statute says, and “our\\n\\n\\n\\n 12\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 13 of 44\\n\\n\\nconstitutional structure” does not permit us “to ‘rewrite the statute that Congress\\n\\nhas enacted.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1949\\n\\n(2016) (quoting Dodd v. United States, 545 U.S. 353, 359 (2005)).\\n\\n Hano misreads the application note. The competing interpretations of the\\n\\napplication note turn on the implicit temporal reference of the expression “has not\\n\\nyet expired,” a verbal phrase in the present-perfect tense. The present perfect\\n\\n“denotes an act, state, or condition that is now completed or continues up to the\\n\\npresent.” Bryan A. Garner, The Chicago Guide to Grammar, Usage, and\\n\\nPunctuation 97 (2016). In the application note, the condition that “continues up to\\n\\nthe present” is that the normal limitation period for an offense has not yet expired.\\n\\nAnd the most natural reading of the note is that the time up to which the limitation\\n\\nperiod’s failure to expire continues is the time of enactment. After all, the\\n\\nconditional phrase directly follows a reference to “the date of the enactment of this\\n\\nsection.”\\n\\n Indeed, the text of the application note does not provide any other plausible\\n\\ntemporal anchor for the conditional clause. The note refers directly to three events:\\n\\nthe “commi[ssion]” of “an[] offense,” “the prosecution of [the] offense,” and “the\\n\\nenactment of this section.” Of the options in the text of the application note, only\\n\\n“the date of the enactment” makes sense as a temporal point of reference for the\\n\\nconditional clause. It makes no sense to say that section 3297 would apply unless\\n\\n\\n\\n 13\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 14 of 44\\n\\n\\nthe limitation period expired the very same moment the offense was committed.\\n\\nAnd if the conditional clause were linked in time to the prosecution of the offense,\\n\\nthen the application note would mean that section 3297 would apply only when a\\n\\ndefendant was prosecuted within the original limitation period—a situation in\\n\\nwhich the extended period of section 3297 would have no work to do.\\n\\n Hano does not argue that either the time of the prosecution or the time of the\\n\\ncommission of the offense frames the conditional clause, but his preferred\\n\\ncandidate—the time the defendant is implicated by DNA testing—is no more\\n\\nattractive. That event is described in section 3297, not the application note, so it\\n\\nwould be unusual if it supplied the temporal reference point for the present-perfect\\n\\nverb in the application note. Such a reading might make sense if the application\\n\\nnote incorporated section 3297 by reference in a way that also incorporated its\\n\\ntemporal framework. But the application note does not do so. To be sure, the\\n\\napplication note defines the circumstances in which section 3297 “shall apply.”\\n\\nBut the point is that the application note is a distinct sentence and stands on its own\\n\\ntemporal ground. Nothing in the text or context of the application note provides\\n\\nany reason to think that the “present” to which the present-perfect phrase “has not\\n\\nyet expired” refers is any time other than that contemporaneous with the enactment\\n\\nof the text by Congress.\\n\\n\\n\\n\\n 14\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 15 of 44\\n\\n\\n Our interpretation of section 3297 and the application note is also supported\\n\\nby persuasive authority. Hano cites no authority in support of his reading, and as\\n\\nthe government points out, our sister circuits have consistently applied section\\n\\n3297 even when the otherwise applicable limitation period has already expired. See\\n\\nUnited States v. Lopez, 860 F.3d 201, 206–07 (4th Cir. 2017) (applying section\\n\\n3297 when crime occurred in February 2007 and DNA match occurred over five\\n\\nyears later in June 2012); United States v. Sylla, 790 F.3d 772, 772–73 (7th Cir.\\n\\n2015) (involving 2003 crime and 2010 DNA match); United States v. Hagler, 700\\n\\nF.3d 1091, 1094 (7th Cir. 2012) (involving 2000 crime and 2008 DNA match).\\n\\n Hano argues that our interpretation of the note threatens to read the word\\n\\n“after” out of the note in violation of the surplusage canon, which instructs us to\\n\\ngive effect to every word in a provision if possible and to refrain from assigning an\\n\\ninterpretation to a provision that causes a word “to have no consequence.” Antonin\\n\\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at\\n\\n174 (2012). The note says that section 3297 shall apply to the prosecution of an\\n\\noffense “committed before, on, or after the date of the enactment” of the section\\n\\n“if the applicable limitation period has not yet expired.” And Hano points out that\\n\\nobviously no limitations period for an offense committed after the enactment of the\\n\\nstatute could have already expired at the time when the statute was enacted.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 16 of 44\\n\\n\\n Hano’s argument misses the mark. The word “after” in the application note\\n\\nis not devoid of legal effect. If the application note provided only that section 3297\\n\\n“shall apply to the prosecution of any offense before or on the date of the\\n\\nenactment of this section if the applicable limitation period has not yet expired,”\\n\\nthe note would create the impression that section 3297 does not apply to offenses\\n\\ncommitted after the date of enactment. The inclusion of the word “after” in the\\n\\nnote eliminates this misleading impression. True, the conditional clause of the\\n\\nnote, which says that section 3297 applies “if the applicable limitation period has\\n\\nnot yet expired,” is necessarily satisfied when an offense was committed after the\\n\\ndate of enactment. But that consequence does not render the word “after” or the\\n\\nconditional clause superfluous. The conditional clause—in conjunction with the\\n\\nword “before”—clarifies that section 3297 applies retroactively to offenses\\n\\ncommitted before the date of enactment if the otherwise applicable limitation\\n\\nperiod has yet to expire. The word “after” makes plain that section 3297 has\\n\\nprospective application. Both the word “after” and the conditional clause are\\n\\nnecessary to clarify the full scope of application of section 3297.\\n\\n Consider too the legal context of the enactment of section 3297 and its\\n\\napplication note. Section 3297 was enacted in 2004, only one year after the\\n\\nSupreme Court held in Stogner v. California, 539 U.S. 607 (2003), that “a law\\n\\nenacted after expiration of a previously applicable limitations period violates the\\n\\n\\n\\n 16\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 17 of 44\\n\\n\\nEx Post Facto Clause when it is applied to revive a previously time-barred\\n\\nprosecution.” Id. at 632–33. Stogner explicitly distinguished a law that revives a\\n\\nprosecution that was previously precluded by the applicable statutory-limitation\\n\\nperiod from a statute that merely “extend[s] time limits for the prosecution of\\n\\nfuture offenses, or for prosecutions not yet time barred.” Id. at 632. The language\\n\\nof the application note covers both categories of prosecutions while clarifying that\\n\\nsection 3297 does not purport to revive prosecutions for offenses with limitation\\n\\nperiods that had already expired when the statute was enacted. Instead of\\n\\npermanently limiting the operation of section 3297 to the extension of limitation\\n\\nperiods still running when DNA testing implicates a suspect, the application note\\n\\nappears tailor-made to avoid the constitutional problem that would have resulted\\n\\nunder Stogner if Congress had sought to apply section 3297 retroactively to renew\\n\\nlimitation periods that had elapsed before the time of enactment. As a result, we\\n\\nconclude that the district court did not err in ruling that the indictment was returned\\n\\nwithin the limitation period applicable under section 3297.\\n\\n B. The Evidentiary Issues Raised by Hano and Arrastia-Cardoso Do Not\\n Merit Reversal.\\n\\n Hano and Arrastia-Cardoso challenge three evidentiary rulings. First, they\\n\\nargue, on different grounds, that the district court erred in permitting Borrego\\n\\nIzquierdo to testify about his conversation with Hano who revealed that he\\n\\nparticipated in the robbery and that Arrastia-Cardoso was one of his\\n\\n\\n 17\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 18 of 44\\n\\n\\ncoconspirators. Second, Hano contends that the district court should not have\\n\\npermitted the government to introduce evidence that he traveled to Cuba shortly\\n\\nafter the robbery. Third, Hano argues that the district court erred in ruling that the\\n\\ngovernment could introduce DNA evidence obtained from the getaway vehicle\\n\\neven though the government ultimately decided not to introduce that evidence at\\n\\ntrial. None of their arguments have merit.\\n\\n 1. The District Court Did Not Err in Permitting Borrego Izquierdo to\\n Testify.\\n\\n Arrastia-Cardoso contends that the admission of Hano’s statements to\\n\\nBorrego Izquierdo violated his rights under Bruton, but Hano’s statements were\\n\\nnontestimonial, which means they are beyond the scope of the Bruton doctrine.\\n\\nBruton held that the Confrontation Clause prohibits the use of the confession of a\\n\\nnontestifying criminal defendant in a joint trial if the statement directly inculpates\\n\\na codefendant, although it may be otherwise admissible against the confessing\\n\\ndefendant. 391 U.S. at 126. And Crawford v. Washington, 541 U.S. 36 (2004),\\n\\nheld that the Confrontation Clause prohibits the “admission of testimonial\\n\\nstatements of a witness who [does] not appear at trial unless he [is] unavailable to\\n\\ntestify, and the defendant ha[s] had a prior opportunity for cross-examination.” Id.\\n\\nat 53–54. The Supreme Court has since clarified that the Confrontation Clause\\n\\nprohibits only the introduction of testimonial hearsay statements. See Whorton v.\\n\\nBockting, 549 U.S. 406, 419–20 (2007) (“Under Crawford, . . . the Confrontation\\n\\n\\n 18\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 19 of 44\\n\\n\\nClause has no application to [out-of-court nontestimonial statements] and therefore\\n\\npermits their admission even if they lack indicia of reliability.”); Davis v.\\n\\nWashington, 547 U.S. 813, 823–24 (2006) (same).\\n\\n We have yet to hold in a published opinion that Bruton applies only to\\n\\ntestimonial statements, but every one of our sister circuits to consider the issue has\\n\\nso held, see Lucero v. Holland, 902 F.3d 979, 987–88 (9th Cir. 2018); United\\n\\nStates v. Clark, 717 F.3d 790, 816 (10th Cir. 2013); United States v. Berrios, 676\\n\\nF.3d 118, 128–29 (3d Cir. 2012); United States v. Figueroa-Cartagena, 612 F.3d\\n\\n69, 85 (1st Cir. 2010); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009);\\n\\nUnited States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009), and for\\n\\ngood reason. The Bruton rule “presupposes that the aggrieved co-defendant has a\\n\\nSixth Amendment right to confront the declarant in the first place.” Figueroa-\\n\\nCartagena, 612 F.3d at 85. If no co-defendant “has a constitutional right to\\n\\nconfront the declarant, none can complain that his right has been denied.” Id. So\\n\\nthe same principles that govern whether the admission of testimony violated the\\n\\nConfrontation Clause control whether the admission of the statements of a\\n\\nnontestifying codefendant against a defendant at a joint trial violate Bruton. As a\\n\\nresult, “[t]he threshold question in every case” raising a Bruton issue “is whether\\n\\nthe challenged statement is testimonial.” Id. If it is not, the Confrontation Clause\\n\\n\\n\\n\\n 19\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 20 of 44\\n\\n\\ndoes not apply. So the admission of Hano’s statements through Borrego Izquierdo\\n\\ncould have violated the rule of Bruton only if those statements were testimonial.\\n\\n Hano’s statements as related by Borrego Izquierdo were plainly\\n\\nnontestimonial. Statements made in the course of an out-of-court conversation are\\n\\n“testimonial” if “in light of all the circumstances, viewed objectively, the ‘primary\\n\\npurpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial\\n\\ntestimony.’” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v.\\n\\nBryant, 562 U.S. 344, 358 (2011)). When Hano spoke with Borrego Izquierdo, no\\n\\nfuture prosecution was on the horizon. Hano was not presently under investigation\\n\\nand had no reason to believe that his statements to Borrego Izquierdo would ever\\n\\nbe used in court. Borrego Izquierdo likewise had no ground to suspect that he\\n\\nwould ever testify against Hano. What transpired between them was a friendly and\\n\\ninformal exchange in which Hano happened to reveal evidence that would\\n\\nultimately be critical to the government’s case when Borrego Izquierdo decided to\\n\\ncome forward years after the robbery.\\n\\n In the alternative, Arrastia-Cardoso argues that we should adopt a rule that\\n\\nwould extend the rule of Bruton to nontestimonial statements on procedural-due-\\n\\nprocess grounds. The government responds by arguing that plain-error review\\n\\napplies to Arrastia-Cardoso’s alternative argument because he objected to Borrego\\n\\nIzquierdo’s testimony on the basis of the Confrontation Clause, not the Due\\n\\n\\n\\n 20\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 21 of 44\\n\\n\\nProcess Clause. And the government argues that Arrastia-Cardoso’s proposed rule\\n\\nis not clearly established as the law of this Circuit. United States v. Hesser, 800\\n\\nF.3d 1310, 1325 (11th Cir. 2015) (“‘Plain’ error means that the legal rule is clearly\\n\\nestablished at the time the case is reviewed on direct appeal.”).\\n\\n We conclude that there was no due-process error—plain or otherwise—in\\n\\nthe admission of Borrego Izquierdo’s testimony. In the substantive-due-process\\n\\ncontext, the Supreme Court has explained that “where a particular Amendment\\n\\nprovides an explicit textual source of constitutional protection against a particular\\n\\nsort of government behavior, that Amendment, not the more generalized notion of\\n\\nsubstantive due process, must be the guide for analyzing these claims.” Cty. of\\n\\nSacramento v. Lewis, 523 U.S. 833, 842 (1998) (alteration adopted) (quoting\\n\\nAlbright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)); see also Graham\\n\\nv. Connor, 490 U.S. 386, 395 (1989); Echols v. Lawton, 913 F.3d 1313, 1326 (11th\\n\\nCir. 2019). We see no reason why the same logic would not apply to procedural-\\n\\ndue-process claims.\\n\\n Under Arrastia-Cardoso’s theory, the Due Process Clause would provide\\n\\ndefendants with a right to confront witnesses more expansive than the right secured\\n\\nby the Confrontation Clause itself, reducing the Confrontation Clause to\\n\\nsurplusage. In the Bill of Rights, the “Framers sought to restrict the exercise of\\n\\narbitrary authority by the [g]overnment in particular situations.” Albright, 510 U.S.\\n\\n\\n\\n 21\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 22 of 44\\n\\n\\nat 273 (plurality opinion). If the Due Process Clause contained all the protections\\n\\nof the Confrontation Clause and more, the Framers’ decision to include that Clause\\n\\nin the Sixth Amendment would be mysterious. And needless to say, there is no\\n\\nreason to believe that the drafters of the Sixth Amendment included the\\n\\nConfrontation Clause “out of a flawed sense of style or to engage in the ill-\\n\\nconceived but lamentably common belt-and-suspenders approach.” Scalia &\\n\\nGarner, supra, at § 26, at 177. As a result, “[w]e must analyze the claim under the\\n\\nstandard appropriate to that specific provision, not under the rubric of” procedural\\n\\ndue process. Echols, 913 F.3d at 1326 (alterations adopted) (citation and internal\\n\\nquotation marks omitted). And as we have explained, Arrastia-Cardoso’s argument\\n\\nunder the Confrontation Clause fails.\\n\\n Arrastia-Cardoso’s due-process theory would also render meaningless the\\n\\nlimitation of Crawford and its progeny of the confrontation right to “testimonial\\n\\nstatements of a witness” who “was unavailable to testify” where the defendant did\\n\\nnot have “a prior opportunity for cross-examination.” 541 U.S. at 53–54. On\\n\\nArrastia-Cardoso’s view, the bare fact that a defendant cannot ordinarily subject\\n\\nhis codefendant’s out-of-court statement to the rigors of cross-examination in a\\n\\njoint trial renders the statement inadmissible at trial, regardless of whether the\\n\\nstatement was testimonial. But the apparent rationale for this proposed rule—that\\n\\nthe admission of an out-of-court statement inherently deprives a defendant of a fair\\n\\n\\n\\n 22\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 23 of 44\\n\\n\\ntrial if he had no opportunity to cross-examine the declarant—applies with equal\\n\\nforce to statements of unavailable witnesses who are not codefendants at a joint\\n\\ntrial. So Arrastia-Cardoso’s theory—taken to its logical conclusion—would mean\\n\\nthat the Due Process Clause prevents the introduction of any and all out-of-court\\n\\nstatements at a criminal trial if the defendant did not have “a prior opportunity for\\n\\ncross-examination.” Id. This theory would allow a defendant to avoid Crawford’s\\n\\nlimitation of the confrontation right to testimonial statements by the simple\\n\\nexpedient of labeling their claims under the Confrontation Clause as claims under\\n\\nthe Due Process Clause. We will not adopt a rule that would permit defendants to\\n\\nmake an end run around the strictures recognized by the Supreme Court’s\\n\\nConfrontation Clause jurisprudence.\\n\\n Arrastia-Cardoso also contends, albeit very briefly, that Hano’s statement\\n\\nshould have been excluded as inadmissible hearsay, but he is mistaken. The district\\n\\ncourt overruled Arrastia-Cardoso’s objection to the admission of this statement on\\n\\nhearsay grounds and concluded that Hano’s statement was admissible as a\\n\\nstatement against interest under Federal Rule of Evidence 804(b)(3). On appeal,\\n\\nArrastia-Cardoso concedes that “Hano’s confession to his role in the robbery was\\n\\nagainst his own penal interest,” but argues that “the balance of the statement\\n\\nremains hearsay inadmissible in accordance with [Federal Rule of Evidence] 802.”\\n\\nIn support of this contention, he relies on the principle that Rule 804(b)(3) “does\\n\\n\\n\\n 23\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 24 of 44\\n\\n\\nnot allow admission of non-self-inculpatory statements, even if they are made\\n\\nwithin a broader narrative that is generally self-inculpatory.” Williamson v. United\\n\\nStates, 512 U.S. 594, 600–01 (1994). But Arrastia-Cardoso does not even attempt\\n\\nto identify any portion of Hano’s statement that was not self-inculpatory, nor does\\n\\nhe attempt to prove that the introduction of portions of Hano’s statement that were\\n\\nnot self-inculpatory prejudiced him, so we cannot reverse on this basis. See United\\n\\nStates v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (“No reversal will result if\\n\\nsufficient evidence uninfected by any error supports the verdict, and the error did\\n\\nnot have a substantial influence on the outcome of the case.” (citation and internal\\n\\nquotation marks omitted)).\\n\\n For his part, Hano offers a third challenge to Borrego Izquierdo’s testimony,\\n\\narguing that it should have been excluded as prejudicial under Federal Rule of\\n\\nEvidence 403, but his argument fails as well. Under Rule 403, a district court has\\n\\nthe discretion to “exclude relevant evidence if its probative value is substantially\\n\\noutweighed by a danger” of “unfair prejudice, confusing the issues, misleading the\\n\\njury, undue delay, wasting time, or needlessly presenting cumulative evidence.”\\n\\nAccording to Hano, the district court should have prohibited Borrego Izquierdo\\n\\nfrom testifying altogether because he was not credible. But “Rule 403 does not\\n\\npermit exclusion of evidence because the judge does not find it credible.” United\\n\\nStates v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980) (rejecting the argument that\\n\\n\\n\\n 24\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 25 of 44\\n\\n\\nRule 403 gave the district court the authority to “protect” the jury from a witness’s\\n\\n“contradictory testimony”). Credibility determinations are the “exclusive province”\\n\\nof the jury “and the court of appeals may not revisit this question unless it is\\n\\nincredible as a matter of law.” United States v. Feliciano, 761 F.3d 1202, 1206\\n\\n(11th Cir. 2014) (citation and internal quotation marks omitted). Testimony is\\n\\nincredible as a matter of law if and only if it is “unbelievable on its face, i.e.,\\n\\ntestimony as to facts the witness physically could not have possibly observed or\\n\\nevents that could not have occurred under the laws of nature.” Id. (citation and\\n\\ninternal quotation marks omitted). Nothing of the kind could be fairly said of\\n\\nBorrego Izquierdo’s testimony.\\n\\n Hano also asserts that Borrego Izquierdo’s testimony that Hano purchased\\n\\ntwo houses and a car in Cuba after the robbery should have been excluded because\\n\\nit was uncorroborated and appealed to class prejudice, but we disagree. Rule 403\\n\\ndoes not license exclusion of evidence for want of corroboration, and “evidence of\\n\\nwealth or extravagant spending may be admissible when relevant to the issues in\\n\\nthe case and where other evidence supports a finding of guilt.” Bradley, 644 F.3d\\n\\nat 1271. The evidence of Hano’s expenditures was relevant because it buttressed\\n\\nthe inference that Hano had recently come into a large sum of money when he set\\n\\nsail for Cuba. The evidence was not admitted for the purpose of enticing the jury to\\n\\nconvict Hano based on his wealth or socioeconomic status, and the government\\n\\n\\n\\n 25\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 26 of 44\\n\\n\\nnever attempted to suggest anything along those lines. So Hano’s argument fails to\\n\\nestablish that the district court erred in permitting Borrego Izquierdo to testify.\\n\\n 2. The District Court Did Not Err in Admitting Evidence that Hano Left the\\n United States for Cuba After the Robbery.\\n Before trial, Hano filed a motion in limine to exclude any evidence of his\\n\\ntravel between the United States and Cuba, including his immigration file and the\\n\\nstatement he made to a border officer in which he explained that he left for Cuba\\n\\non a boat that departed from Texas in January 2010. Hano argued that the evidence\\n\\nshould be excluded as prejudicial under Rule 403 and excluded under Rule 404(b)\\n\\non the theory that “testimony regarding the details of [Hano’s] immigration to and\\n\\nfrom the United States and Cuba may be considered a ‘bad act.’” The district court\\n\\ndenied the motion in part and granted it in part. It ruled that Rule 404(b) did not\\n\\napply because Hano failed to establish that his entry into the United States was\\n\\nwrong or related to his character and that Hano’s statement to the border officer\\n\\nconcerning the timing and means of his exodus to Cuba had significant probative\\n\\nvalue that was not outweighed by the danger of unfair prejudice. The district court\\n\\nexcluded all portions of Hano’s immigration file that lacked clear probative value.\\n\\nAt trial, the government introduced a redacted copy of Hano’s immigration file and\\n\\noffered testimony from the border officer regarding Hano’s statement about his\\n\\ntravel to Cuba.\\n\\n\\n\\n\\n 26\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 27 of 44\\n\\n\\n Hano argues that this evidence should have been excluded under Rule 403\\n\\nbecause the evidence transformed a “case about a robbery and conspiracy” into “a\\n\\ncase about immigration,” but he is wrong. As the district court correctly concluded,\\n\\n“the timing of Hano’s departure to Cuba, which was little more than a month after\\n\\nthe robbery, as well as his description of the means and method of that departure”\\n\\nwas probative of his “motivation to move between countries in the immediate\\n\\naftermath of a crime” and “the potential avenue” by which he transported his “ill-\\n\\ngotten gains.”\\n\\n Hano’s only argument for the existence of prejudice relies on a state-court\\n\\nopinion asserting that “[q]uestions regarding a defendant’s immigration status\\n\\nare . . . irrelevant and designed to appeal to the trier of fact’s passion and prejudice\\n\\nand are thus generally improper areas of inquiry,” Washington v. Avendano-Lopez,\\n\\n904 P.2d 324, 331 (Wash. Ct. App. 1995), but the government never suggested that\\n\\nHano was illegally present in the United States. Indeed, the border officer testified\\n\\nthat Hano legally entered the United States when he moved to this country in 2008\\n\\nand in 2014 when he returned from his sojourn in Cuba. The government never\\n\\ninvited the jury to find Hano guilty on the basis of immigration status. The import\\n\\nof the evidence about his travel was clear: it established that Hano was indeed in\\n\\nCuba after the robbery, as Borrego Izquierdo testified, and that he had traveled\\n\\nthere on a private person’s boat that sailed from Texas—an unusual means of\\n\\n\\n\\n 27\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 28 of 44\\n\\n\\ninternational travel that might be appealing if one were carrying hundreds of\\n\\nthousands of dollars obtained by a robbery.\\n\\n Hano’s argument under Rule 404(b) fares no better. Rule 404(b)(1) provides\\n\\nthat “[e]vidence of a crime, wrong, or other act is not admissible to prove a\\n\\nperson’s character in order to show that on a particular occasion the person acted in\\n\\naccordance with the character.” Rule 404(b)(2) clarifies that such evidence “may\\n\\nbe admissible for another purpose, such as proving motive, opportunity, intent,\\n\\npreparation, plan, knowledge, identity, absence of mistake, or lack of accident.”\\n\\nWe have explained that Rule 404(b) is a rule “of inclusion which allows extrinsic\\n\\nevidence unless it tends to prove only criminal propensity.” United States v.\\n\\nSanders, 668 F.3d 1298, 1314 (11th Cir. 2012). And the government made no\\n\\nattempt to use the evidence of Hano’s travel to Cuba to prove that he had a\\n\\npropensity to cross the border unlawfully or otherwise violate the law. The purpose\\n\\nof the evidence was to show that, on a particular occasion, Hano fled the United\\n\\nStates with the proceeds of the robbery. The district court acted well within its\\n\\ndiscretion in denying Hano’s motion to exclude the evidence of when and by what\\n\\nmeans he traveled to Cuba.\\n\\n 3. The Question Whether the District Court Abused its Discretion in Denying\\n Hano’s Motion to Prohibit DNA Evidence from the Getaway Car Is Moot.\\n\\n Before trial, Hano moved to exclude DNA evidence obtained from the\\n\\ngetaway car that purportedly established that he was a possible contributor to the\\n\\n\\n 28\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 29 of 44\\n\\n\\nDNA sample obtained from the car. Hano argued that the introduction of this\\n\\nevidence would violate his rights under California v. Trombetta, 467 U.S. 479\\n\\n(1984), because the government had destroyed the car and Hano would have no\\n\\ncapacity to test the vehicle. The district court denied this motion because local\\n\\ninvestigators destroyed the car before Hano became a suspect, the evidence had no\\n\\nexculpatory value at the time of its destruction, and Hano had failed to prove that\\n\\nthe local investigators acted in bad faith in destroying the car. Nevertheless, the\\n\\ngovernment never offered this evidence at trial.\\n\\n Hano reiterates his challenge to this ruling on appeal, but the issue is now\\n\\nmoot. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979) (“Since the\\n\\nGovernment did not introduce these items into evidence, the issue is moot.”). As a\\n\\nresult, we have no authority to examine the merits of this ruling. See Al Najjar v.\\n\\nAshcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (“Any decision on the merits of a\\n\\nmoot case or issue would be an impermissible advisory opinion.” (citation and\\n\\ninternal quotation marks omitted)).\\n\\n Hano argues that the officer who examined the getaway car mentioned in her\\n\\ntrial testimony that she looked for and attempted to collect DNA samples from the\\n\\nvehicle, but the officer gave no indication of the result of the analysis of the\\n\\nsamples or suggested that the samples implicated Hano in the robbery in any way.\\n\\nInstead, she stated only that she “look[ed] for touch DNA” samples and that\\n\\n\\n\\n 29\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 30 of 44\\n\\n\\n“[t]ouch DNA swabs were collected off of the exterior and interior” of the vehicle.\\n\\nThese incidental references did not introduce the DNA analysis challenged by\\n\\nHano in his pretrial motion.\\n\\n C. The District Court Correctly Denied Hano’s Motion to Obtain the DNA\\n Profile of Mariano Duarte-Cardoso.\\n\\n Hano filed a pretrial motion for the district court to issue a nonparty\\n\\nsubpoena to the Federal DNA Database Unit for the DNA profile of Mariano\\n\\nDuarte-Cardoso—Arrastia-Cardoso’s cousin and the spouse of Ortiz’s sister.\\n\\nDuarte-Cardoso’s DNA profile was in the database because of an earlier unrelated\\n\\nconviction. Hano argued that he had a right to access Duarte-Cardoso’s profile\\n\\nunder Brady, because the DNA of other “potential donors” had been discovered on\\n\\nthe ski mask recovered from the crime scene, and in Hano’s view, the profile\\n\\n“could potentially exculpate [him] . . . by further inculpating [Duarte-]Cardoso.”\\n\\nThe government opposed the motion on the ground that federal privacy protections\\n\\nprohibited the disclosure of Duarte-Cardoso’s DNA profile and that his profile was\\n\\nnot exculpatory because even if his DNA was on the ski mask, it would do nothing\\n\\nto explain away the presence of Hano’s DNA on the mask. The district court held a\\n\\nhearing on the motion in which a supervisor of the Federal DNA Database Unit\\n\\ntestified. The district court denied Hano’s motion because even if Duarte-\\n\\nCardoso’s DNA were found on the ski mask, it “could not conceivably impact a\\n\\ntrial.”\\n\\n\\n 30\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 31 of 44\\n\\n\\n On appeal, Hano reiterates his argument that the government’s failure to\\n\\nproduce Duarte-Cardoso’s DNA profile violated Brady, but the district court was\\n\\nright to reject it. “To establish a Brady violation,” a defendant must “prove that the\\n\\nprosecution withheld favorable evidence and that he was prejudiced as a result.”\\n\\nBrester, 786 F.3d at 1339. To establish prejudice, a defendant must “prove that\\n\\nthere is ‘a reasonable probability that, had the evidence been disclosed to the\\n\\ndefense, the result of the proceeding would have been different. A ‘reasonable\\n\\nprobability’ is a probability sufficient to undermine confidence in the outcome.” Id.\\n\\n(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Hano cannot prove\\n\\nprejudice.\\n\\n As the government argues, even if Hano had Duarte-Cardoso’s profile, he\\n\\nwould be unable to prove that Duarte-Cardoso’s DNA was on the ski mask. The\\n\\nevidence established that Hano was the source of the only major DNA profile on\\n\\nthe mask. At most, Hano could have attempted to prove that Duarte-Cardoso was a\\n\\npossible contributor to a mixture of DNA found on the mask, but as the\\n\\ngovernment’s expert explained, “the frequency of the occurrence of the mixed\\n\\nDNA profile” obtained from the mask in the general population of “unrelated\\n\\nindividuals” was such that “approximately one in six individuals” would have “a\\n\\nDNA profile that could be included in that mixture.” So although a comparison of\\n\\nDuarte-Cardoso’s profile with the mixed profile derived from the mask could have\\n\\n\\n\\n 31\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 32 of 44\\n\\n\\nexcluded Duarte-Cardoso as a contributor of DNA to the mask, it could not have\\n\\nproved that his DNA was present on the mask.\\n\\n More importantly, even if Hano were somehow able to prove that Duarte-\\n\\nCardoso’s DNA was on any of the evidence obtained from the crime scene, the\\n\\nmost it would have proved was that Duarte-Cardoso had also come into contact\\n\\nwith those items. This conclusion would do nothing to undermine the principal\\n\\nvalue of the DNA evidence, which was to prove that Hano had worn the mask. If\\n\\nanything, the presence of Duarte-Cardoso’s DNA on the mask would have\\n\\ncorroborated Hano’s admission to Borrego Izquierdo that Arrastia-Cardoso’s\\n\\ncousin had been involved in the conspiracy. So Hano has failed to establish the\\n\\nexistence of a “reasonable probability that the suppressed evidence would have\\n\\nproduced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999).\\n\\n Hano also argues for the first time on appeal that the government violated\\n\\nFederal Rule of Criminal Procedure 16, which requires the government to disclose\\n\\nitems that are “material to preparing the defense” if they are “within the\\n\\ngovernment’s possession, custody, or control,” Fed. R. Crim. P. 16(E)(i), but this\\n\\nargument fails for the same reasons as Hano’s argument based on Brady. As we\\n\\nhave explained, a defendant must prove “prejudice to substantial rights” to\\n\\nestablish that a violation of Rule 16 warrants reversal. United States v. Mosquera,\\n\\n\\n\\n\\n 32\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 33 of 44\\n\\n\\n886 F.3d 1032, 1045 (11th Cir. 2018). For the reasons discussed above, Hano\\n\\ncannot establish that the failure to produce the profile was prejudicial.\\n\\n D. The District Court Did Not Err in Denying Hano’s Motions for a\\n Judgment of Acquittal and for a New Trial.\\n Hano argues that the district court erred in denying his motions for a\\n\\njudgment of acquittal and for a new trial. “When conducting the review of the\\n\\nrecord” to determine “[w]hether the record contains sufficient evidence to support\\n\\nthe jury’s verdict,” “we view ‘the evidence in the light most favorable to the\\n\\ngovernment and resolve all reasonable inferences and credibility evaluations in\\n\\nfavor of the jury’s verdict.’” United States v. To, 144 F.3d 737, 743 (11th Cir.\\n\\n1998) (quoting United States v. High, 117 F.3d 464, 467 (11th Cir. 1997)). “We\\n\\nmust uphold the jury’s verdict whenever a reasonable factfinder could conclude\\n\\nthat the evidence establishes guilt beyond a reasonable doubt.” Id. at 743–44.\\n\\n Hano contends that there was insufficient evidence that he was one of the\\n\\nrobbers, but the evidence amply supports the jury’s finding. Hano admitted to\\n\\ncommitting the crime with Arrastia-Cardoso to Borrego Izquierdo. Hano’s DNA\\n\\nmatched the only major DNA profile on the ski mask recovered from the crime\\n\\nscene. Shortly after the robbery, Hano traveled to Cuba under suspicious\\n\\ncircumstances. And the evidence that independently implicated Arrastia-Cardoso\\n\\nin the robbery—for example, that his DNA was on the gun grip found at the scene\\n\\nof the robbery and that he purchased the getaway car from Camilo Hernandez—\\n\\n\\n 33\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 34 of 44\\n\\n\\nalso tended to establish Hano’s guilt because it corroborated his admission to\\n\\nBorrego Izquierdo that he had robbed the armored truck with Arrastia-Cardoso.\\n\\n Hano responds that the three eyewitnesses to the robbery were unable to say\\n\\nwith certainty that he was one of the robbers, but the failure of the witnesses to\\n\\nconclusively identify someone they had only seen for a brief moment years earlier\\n\\nhardly suffices to undermine the jury’s inference of guilt. One of the witnesses,\\n\\nOrtiz, said that he never saw the face of the robber who held an apparent gun to his\\n\\nhead because he was wearing a mask, so it is unsurprising that he could not\\n\\nidentify Hano at trial. The second witness who saw one of the robbers—a bank\\n\\ncustomer—disclaimed any ability to conclusively identify the man she saw\\n\\nbecause it had “been a very long time.” But she did describe the robber as a\\n\\n“Caucasian male or light Hispanic male” who was “a little heavy set” and had\\n\\n“short brown hair” and no facial hair, and this description appears to match Hano\\n\\nwell.\\n\\n True, the third witness who saw the robber, Meaney, gave a different\\n\\ndescription. He said that the robber was “dark,” had a “full head of hair,” and a\\n\\n“mustache,” but this discrepancy does not undermine the jury’s verdict. Meaney\\n\\nsaw the robber from 20 to 30 feet away and was in the midst of a stressful\\n\\nencounter with apparently armed robbers—and he had, after all, just rammed the\\n\\ngetaway car and was “winded . . . because of the impact.” It is also entirely\\n\\n\\n\\n 34\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 35 of 44\\n\\n\\npossible that the robber Meaney described was not Hano, but instead one of the\\n\\nother robbers. After all, he testified that there were probably three different\\n\\nrobbers. And in any case, in the light of the DNA evidence, Borrego Izquierdo’s\\n\\ntestimony, and one apparently positive witness identification, the jury could have\\n\\nreasonably found that Hano was one of the robbers even if it discounted Meaney’s\\n\\nidentification.\\n\\n Hano also argues that Borrego Izquierdo’s testimony did not provide a\\n\\nreasonable basis for the jury to reach any finding regarding his involvement in the\\n\\nrobbery because that testimony was “resoundingly impeached” on cross-\\n\\nexamination, but this argument fails. The “uncorroborated testimony of an\\n\\naccomplice is sufficient to support a conviction in the Federal Courts if it is not on\\n\\nits face incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d\\n\\n1554, 1562 (11th Cir. 1991) (citation and internal quotation marks omitted).\\n\\nBorrego Izquierdo’s testimony was not incredible on its face and was supported by\\n\\npowerful corroborating evidence, so the jury was entitled to render its own\\n\\nassessment of Borrego Izquierdo’s credibility. As we have explained, “[t]o the\\n\\nextent that” a defendant’s “argument depends upon challenges to the credibility of\\n\\nwitnesses, the jury has exclusive province over that determination and the court of\\n\\nappeals may not revisit this question.” United States v. Kelley, 412 F.3d 1240,\\n\\n1247 (11th Cir. 2005) (citation and internal quotation marks omitted).\\n\\n\\n\\n 35\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 36 of 44\\n\\n\\n Hano also contends that the evidence was insufficient to support his\\n\\nconviction for Hobbs Act robbery because it failed to establish that he took\\n\\nproperty “by means of actual or threatened injury,” but we are not persuaded. “The\\n\\ntwo required elements for a substantive Hobbs Act conviction are robbery and an\\n\\neffect on interstate commerce.” United States v. Taylor, 480 F.3d 1025, 1026–27\\n\\n(11th Cir. 2007) (alteration adopted) (citation and internal quotation marks\\n\\nomitted). Robbery is defined as including “the unlawful taking or obtaining of\\n\\npersonal property from the person or in the presence of another, against his will”\\n\\nthrough “actual or threatened force, or violence, or fear of injury, immediate or\\n\\nfuture, to his person or property, or property in his custody or possession, or the\\n\\nperson or property . . . of anyone in his company at the time of the taking or\\n\\nobtaining.” 18 U.S.C. § 1951(b)(1). As Hano sees it, the government failed to\\n\\npresent sufficient evidence for the jury to infer that Hano seized the cash through\\n\\n“actual or threatened force, or violence, or fear of injury” because Ortiz was an\\n\\ninside man who was never actually threatened with violence and Meaney “was\\n\\nlocated behind a glass division” and “testified to the jury that he was only\\n\\nconcerned for Ortiz’s safety.” Although Meaney is apparently a brave man—he did\\n\\nram the getaway car repeatedly in an effort to disable it—it is a stretch to say that\\n\\nthe robbers did not at least implicitly threaten his safety by apparently threatening\\n\\nOrtiz’s life, and this threat enabled the robbers to effectuate their crime without\\n\\n\\n\\n 36\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 37 of 44\\n\\n\\ninterference by deterring Meaney from leaving the cabin or using his weapon\\n\\nagainst them. And, in any event, so long as Meaney reasonably believed that\\n\\nOrtiz’s personal safety was threatened, it does not matter whether Ortiz was really\\n\\nin danger or not.\\n\\n Third, Hano argues that the evidence was insufficient to support his\\n\\nconviction for conspiracy to commit Hobbs Act robbery because, in his view, the\\n\\ngovernment failed to introduce any evidence that he had “ever met, spoke[n], or\\n\\notherwise communicated” with Arrastia-Cardoso, but this argument fails. To prove\\n\\na Hobbs Act conspiracy, the government must establish that: “(1) two or more\\n\\npersons agreed to commit a robbery encompassed within the Hobbs Act; (2) the\\n\\ndefendant knew of the conspiratorial goal; and (3) the defendant voluntarily\\n\\nparticipated in helping to accomplish the goal.” To, 144 F.3d at 747–48. “[D]irect\\n\\nevidence of an agreement is unnecessary” to prove conspiracy. United States v.\\n\\nMcNair, 605 F.3d 1152, 1195 (11th Cir. 2010). “Indeed, because the crime of\\n\\nconspiracy is predominantly mental in composition, it is frequently necessary to\\n\\nresort to circumstantial evidence to prove its elements.” United States v. Garcia,\\n\\n405 F.3d 1260, 1270 (11th Cir. 2005) (citation and internal quotation marks\\n\\nomitted). And circumstantial evidence supported an inference that Hano committed\\n\\na robbery in cooperation with Arrastia-Cardoso and perhaps other accomplices,\\n\\nand that the robbery required advance planning, including the purchase of guns,\\n\\n\\n\\n 37\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 38 of 44\\n\\n\\nmasks, and a getaway car. These facts alone are sufficient to infer an agreement\\n\\nbetween Hano and Arrastia-Cardoso. And Hano’s own statements, as related\\n\\nthrough Borrego Izquierdo, confirmed that he had planned and executed the\\n\\nrobbery in conjunction with Arrastia-Cardoso and likely others. It follows that the\\n\\nevidence was sufficient to support both of Hano’s convictions.\\n\\n E. The Government Did Not Improperly Comment During Closing\\n Argument on Arrastia-Cardoso’s Decision Not to Testify.\\n Arrastia-Cardoso contends that the government impermissibly commented\\n\\non his decision not to testify when, during closing arguments, the prosecutor\\n\\nmentioned that “while the burden of proof is not on the defendants to prove\\n\\nanything, there was actually no evidence introduced during the trial explaining an\\n\\nalternative reason why the DNA was on the items” recovered from the scene of the\\n\\nrobbery. Arrastia-Cardoso did not object to this remark at trial, so we review for\\n\\nplain error. United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007). We\\n\\nconclude that Arrastia-Cardoso has failed to identify any error, plain or otherwise,\\n\\nresulting from this remark during closing arguments.\\n\\n Because “the government in a criminal proceeding has the burden of proving\\n\\nevery element of the charged offense beyond a reasonable doubt,” “prosecutors\\n\\nmust refrain from making arguments that improperly shift the burden of proof to\\n\\nthe defendant.” United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017). “Nor\\n\\nmay the prosecution comment on the defendant’s failure to testify.” United States\\n\\n\\n 38\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 39 of 44\\n\\n\\nv. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010). “A prosecutor\\n\\nimpermissibly comments on a defendant’s right to remain silent where: (1) the\\n\\nstatement was manifestly intended to be a comment on the defendant’s failure to\\n\\ntestify; or (2) the statement was of such a character that a jury would naturally and\\n\\nnecessarily take it to be a comment on the failure of the accused to testify.” United\\n\\nStates v. McGarity, 669 F.3d 1218, 1241 (11th Cir. 2012) (citation and internal\\n\\nquotation marks omitted). “[T]he question is not whether the jury possibly or even\\n\\nprobably would review the remark in this manner, but whether the jury necessarily\\n\\nwould have done so.” Id. (citation and internal quotation marks omitted). “A\\n\\nprosecutor’s statements to the jury constitute misconduct only if: (1) the remarks\\n\\nwere improper, and (2) the remarks prejudicially affected the substantial rights of\\n\\nthe defendant.” Taohim, 817 F.3d at 1224. “To warrant a new trial, there must be a\\n\\nreasonable probability that ‘but for the remarks, the outcome would be different.’”\\n\\nId. (citation omitted).\\n\\n The government did not impermissibly comment on Arrastia-Cardoso’s\\n\\ndecision not to testify. It instead argued that the jury should infer that the most\\n\\nreasonable explanation of the presence of the defendants’ DNA on the mask and\\n\\ngun grip recovered from the scene of the robbery was that the defendants used\\n\\nthese items in committing the robbery because no evidence presented at trial\\n\\nundermined that explanation. A prosecutor is entitled to “comment ‘on the failure\\n\\n\\n\\n 39\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 40 of 44\\n\\n\\nby defense counsel, as opposed to the defendant, to counter or explain evidence.’”\\n\\nBernal-Benitez, 594 F.3d at 1315 (quoting United States v. Hernandez, 145 F.3d\\n\\n1433, 1439 (11th Cir. 1998)). And even if the jury might have “possibly” inferred\\n\\nthat the government was arguing that Arrastia-Cardoso should have taken the stand\\n\\nhimself and explained why his DNA was found on items recovered from the scene\\n\\nof the robbery, we cannot say that the jury “necessarily” would have interpreted\\n\\nthe remark that way. McGarity, 669 F.3d at 1241. Arrastia-Cardoso’s argument\\n\\nfails because the government’s “comment[] in closing arguments [was] made in the\\n\\ncontext of the prosecutor’s accurate reminder to the jury about the burden of proof”\\n\\nand so “cannot establish plain error.” Foley, 508 F.3d at 638.\\n\\n F. The District Court Did Not Err in Increasing Hano’s Offense Level for\\n “Otherwise Using” a Firearm During the Commission of the Robbery.\\n Hano argues that the district court erred in enhancing his offense level by\\n\\nfour levels because he “otherwise used” a dangerous weapon in the commission of\\n\\nthe robbery, U.S.S.G. § 2B3.1(b)(2)(D). The Sentencing Guidelines provide that\\n\\n“if a dangerous weapon was otherwise used” in the commission of a robbery\\n\\noffense, the defendant’s offense level increases by four levels. Id. If a dangerous\\n\\nweapon was only “brandished or possessed,” the offense level increases by three\\n\\nlevels. Id. § 2B3.1(b)(2)(E). Under the definitions provided in the application notes\\n\\nfor the Guidelines, a defendant “brandished” a dangerous weapon if “all or part of\\n\\nthe weapon was displayed, or the presence of the weapon was otherwise made\\n\\n\\n 40\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 41 of 44\\n\\n\\nknown to another person, in order to intimidate that person, regardless of whether\\n\\nthe weapon was directly visible to that person.” Id. § 1B1.1 cmt. n.1(C). A\\n\\ndefendant “otherwise used” a dangerous weapon if the “conduct did not amount to\\n\\nthe discharge of a firearm but was more than brandishing, displaying, or possessing\\n\\na firearm or other dangerous weapon.” Id. § 1B1.1 cmt. n.1(I).\\n\\n Hano argues that his conduct did not amount to anything more than\\n\\nbrandishing a dangerous weapon because neither he nor his coconspirators ever\\n\\nactually threatened anyone with a weapon when they committed the robbery.\\n\\nAccording to Hano, because Ortiz was actually an “inside individual” who was in\\n\\non the plot, when Ortiz pointed an apparent firearm at his head and struck him with\\n\\nit, that conduct was nothing more than an elaborate charade. Hano also argues that\\n\\nthe weapon was only a “toy gun” and that he did not directly threaten anyone other\\n\\nthan Ortiz. And although Meaney witnessed the whole sequence of events, Hano\\n\\nsuggests that Meaney was only “a spectator to a performance in which Ortiz was\\n\\nacting as though he had been struck in order to assist in the robbery and avoid\\n\\nsuspicion.”\\n\\n We conclude that Hano “otherwise used” a dangerous weapon in the\\n\\ncommission of the robbery. Whether Hano used a toy gun is of no moment, as we\\n\\nhave held that “defendants who otherwise use an object which appears to be a\\n\\ndangerous weapon will be subject to a four-level enhancement” under the relevant\\n\\n\\n\\n 41\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 42 of 44\\n\\n\\nguideline, id. § 2B3.1(b)(2)(D). United States v. Miller, 206 F.3d 1051, 1053 (11th\\n\\nCir. 2000). The residual question is whether Hano’s conduct amounted to more\\n\\nthan “brandishing” a dangerous weapon, and the answer must be “yes.” Our\\n\\nprecedent establishes that the “use of a firearm to make an explicit or implicit\\n\\nthreat against a specific person constitutes ‘otherwise use’ of the firearm.” United\\n\\nStates v. Verbitskaya, 406 F.3d 1324, 1339 (11th Cir. 2005).\\n\\n The “key consideration” in applying the rule that pointing a weapon at a\\n\\nperson and issuing a threat or order to facilitate the commission of an offense\\n\\nconstitutes “otherwise using” a dangerous weapon is “whether a gun (or other\\n\\nweapon) was pointed at a specific person in an effort to create fear so as to\\n\\nfacilitate compliance with a demand, and ultimately to facilitate the commission of\\n\\nthe crime.” United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir. 1999). The\\n\\nanswer to this question does not depend on whether “the gun was pointed at the\\n\\nsame person in whom fear was sought to be instilled, or even that the person\\n\\nsought to be coerced was the victim of the crime, as opposed to a third party whose\\n\\ncomplicity the perpetrator sought to ensure.” Id. A perpetrator who points a gun at\\n\\na person to coerce another into compliance with a criminal scheme has done more\\n\\nthan merely “display[]” a weapon “to another person, in order to intimidate that\\n\\nperson, regardless of whether the weapon was directly visible to that person.”\\n\\nU.S.S.G. § 1B1.1 cmt. n.1(C).\\n\\n\\n\\n 42\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 43 of 44\\n\\n\\n Regardless of whether Hano actually intended to harm Ortiz when he put\\n\\nwhat appeared to be a gun to his head, Hano pointed what qualifies as a\\n\\n“dangerous weapon” under our precedent at a specific person, namely Ortiz, with\\n\\nthe intent to cause Meaney to fear that Ortiz’s safety would be endangered if\\n\\nMeaney failed to comply with Hano’s demands. Hano’s conduct amounted to\\n\\n“otherwise using” a dangerous weapon in the commission of the robbery,\\n\\nregardless of whether Ortiz or Meaney were actually in danger. Cf. Yelverton, 197\\n\\nF.3d at 534 n.2 (explaining that threatening to “shoot one person in order to extort\\n\\naction from another” qualifies as otherwise using a dangerous weapon).\\n\\n That said, Hano also implicitly threatened Meaney. An explicit threat to one\\n\\nperson may constitute an implicit threat to others present if they reasonably believe\\n\\nin that circumstance that the same threat extends to them and that the perpetrator\\n\\nintends to secure their compliance with his demands through the use of the explicit\\n\\nthreat against the third-party. Cf. United States v. Douglas, 489 F.3d 1117, 1129\\n\\n(11th Cir. 2007) (holding that kidnapper’s explicit threat to harm a child’s mother\\n\\nwas an implicit threat to the child because “he was unable to act independently of\\n\\n[her] and [she] believed that they were both in danger of physical harm”). The\\n\\nsame rule should apply even if the explicit “threat” was only a mock threat. In\\n\\neither case, the perpetrator’s conduct is calculated to induce compliance on the part\\n\\nof those who were not explicitly threatened through the use of an apparent threat\\n\\n\\n\\n 43\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 44 of 44\\n\\n\\nthat communicates that those who fail to comply with his demands will be harmed.\\n\\nAnd under this rule, Hano’s conduct amounted to “otherwise using” a dangerous\\n\\nweapon because his “threat” on Ortiz’s life was calculated to induce Meaney’s\\n\\ncompliance by demonstrating that weapons would be used against any member of\\n\\nthe crew of the truck who refused to comply with his demands. The district court\\n\\ncommitted no error when it enhanced Hano’s offense level by four levels because\\n\\nhe “otherwise used” a dangerous weapon in the robbery.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the convictions and sentences of Hano and Arrastia-Cardoso.\\n\\n\\n\\n\\n 44\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4392004/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"PRYOR"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"ROSENTHAL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4614751/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":4,"string":"4"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Diosme Fernandez HANO, Reinaldo Arrastia-Cardoso, A.K.A. Reinaldo Arrastia, Defendants-Appellants.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-04-30\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-10510 Date Filed: 04/30/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-10510\n ________________________\n\n D.C. Docket No. 2:15-cr-00101-SPC-CM-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nDIOSME FERNANDEZ HANO,\n\nREINALDO ARRASTIA-CARDOSO,\na.k.a. Reinaldo Arrastia,\n\n Defendants-Appellants.\n\n ________________________\n\n Appeals from the United States District Court\n for the Middle District of Florida\n _______________________\n\n (April 30, 2019)\n\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\nDistrict Judge.\n\n\n\n*\n The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District\nof Texas, sitting by designation.\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 2 of 44\n\n\nWILLIAM PRYOR, Circuit Judge:\n\n This appeal requires us to decide two questions of first impression for our\n\nCircuit: (1) whether a five-year statute of limitations for a defendant implicated by\n\nDNA testing, 18 U.S.C. § 3297, permits indictment within five years of that testing\n\nregardless of whether the limitation period otherwise applicable to the offense has\n\nalready expired; and (2) whether the Confrontation Clause of the Sixth\n\nAmendment, see Bruton v. United States, 391 U.S. 123 (1968), or the Due Process\n\nClause of the Fifth Amendment prohibits use of the nontestimonial statements of a\n\nnontestifying criminal defendant against his codefendant in a joint trial. Diosme\n\nFernandez Hano and Reinaldo Arrastia-Cardoso were convicted of Hobbs Act\n\nrobbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), (b)(1),\n\nfor the robbery of $1.7 million from an armored truck. Hano argues that his\n\nindictment was returned after the applicable limitation period expired and that the\n\nlater discovery of his DNA could not revive the running of the limitation period.\n\nArrastia-Cardoso contends that the district court should have prohibited Ruben\n\nBorrego Izquierdo, to whom Hano admitted his crimes, from testifying. Hano also\n\nchallenges a few of the evidentiary rulings, argues that insufficient evidence\n\nsupports his convictions, and challenges the enhancement of his sentence for\n\n“otherwise using” a dangerous weapon in the robbery. Arrastia-Cardoso also\n\n\n\n\n 2\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 3 of 44\n\n\ncontends that the government improperly commented on his decision not to testify\n\nduring closing arguments. All these arguments fail. We affirm.\n\n I. BACKGROUND\n\n On November 30, 2009, Hano and Arrastia-Cardoso robbed a Brink’s\n\narmored truck outside of the Fifth Third Bank in Fort Myers, Florida. The\n\noperators of the truck that day were Jimmy Ortiz and Bernard Meaney. Ortiz\n\nserved as the truck’s messenger and Meaney was the driver.\n\n Both the driver and the messenger on a Brink’s armored truck are armed\n\nwith guns. The messenger’s primary role is to get in and out of the truck to collect\n\nand deliver currency, but he also is in command of the operation and supervises the\n\ndriver. The messenger uses a route guide—a confidential list that includes stops,\n\narrival and departure times, and the number of pieces to pick up or deliver—but he\n\nhas the authority to amend the guide and add stops, including food or restroom\n\nbreaks.\n\n An armored wall with a bulletproof window partitions the driver’s cabin\n\nfrom the back of the truck. The messenger sits with currency in a cabin in the back\n\nof the truck. The partition between the two cabins contains a gun port that allows\n\nthe driver to shoot into the messenger’s cabin in the event of a robbery.\n\n On the day of the robbery, Ortiz and Meaney picked up currency from\n\nseveral businesses, including a casino where the value of pickups ordinarily ranged\n\n\n\n 3\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 4 of 44\n\n\nbetween $1 million and $1.5 million. The Fifth Third Bank was the last scheduled\n\nstop of the day. Before reaching the bank, Ortiz decided that they should stop at a\n\nBurger King. Only Ortiz went inside. In spite of a zero-tolerance policy forbidding\n\ncarrying cellphones on runs, Ortiz was carrying a cellphone. After spending six or\n\nseven minutes at Burger King, they continued to the Fifth Third Bank, which was\n\nroughly 30 minutes away.\n\n Immediately after they arrived at the bank and Ortiz stepped out of the truck,\n\na man wearing a ski mask approached Ortiz from behind, put an arm around his\n\nneck, held a gun to his head, and forced him back into the truck. Meaney, who was\n\nwatching through the window in the partition between the two cabins, reached for\n\nhis gun, but Ortiz told him not to fire. Meaney was afraid for Ortiz’s safety, so he\n\nobeyed and put his gun down. A second masked man entered the truck, grabbed\n\nbags of money, and exited. The man who had grabbed Ortiz struck his head with\n\nthe butt of a gun.\n\n One of the masked men then entered a red Pontiac Grand Prix parked behind\n\nthe Brink’s truck. Another masked man loaded the trunk of the Pontiac with money\n\nand began to enter the car. Meaney saw the Pontiac behind him, shifted the truck in\n\nreverse, and rammed the car. He then drove the truck forward and rammed the\n\nPontiac again. One of those collisions caused the masked man who had loaded the\n\n\n\n\n 4\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 5 of 44\n\n\nmoney into the trunk of the Pontiac to fall down, and his mask came off as he fell.\n\nThat man rose and entered the car, which then sped away.\n\n Eyewitness accounts established that either two or three men carried out the\n\nrobbery. A bank customer who witnessed the robbery said she saw two men of\n\nHispanic or Caucasian appearance. She described the man whose mask came off as\n\nappearing to be in his twenties to early thirties, standing around 5 feet 6 inches,\n\nwith a medium to somewhat heavy-set build, and short brown hair and no facial\n\nhair. Meaney said that, in addition to seeing the face of the man whose mask came\n\noff, he saw another man without a mask standing 20 to 30 feet from the red car.\n\nThat man stood near the scene of the robbery waiting to be picked up and then got\n\ninto the car. Meaney described that man as 5 feet 10 inches, 180 pounds, medium\n\nbuild, dark, and with a full head of hair and a mustache. Meaney said that the man\n\nwho had held Ortiz at gunpoint appeared to be Hispanic based on his skin tone.\n\nOrtiz asserted that he saw only the man who had struck him with the butt of his\n\ngun, but that he did not see that man’s face.\n\n Investigators found a ski mask and a plastic gun grip at the crime scene. The\n\ngun grip did not have screws used on real firearms and likely came from a fake\n\ngun. An analyst tested the ski mask and the gun grip for the presence of DNA. The\n\nanalyst discovered a major profile on the outside of the mask and on the gun grip.\n\nA major profile exists when there is significantly more DNA from one contributor\n\n\n\n 5\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 6 of 44\n\n\nthan any other in the mixture of DNA recovered and makes it possible to identify\n\nthat contributor.\n\n On the night of the robbery, investigators found the red Pontiac abandoned\n\nin a parking lot at a business near the Fifth Third Bank. The vehicle identification\n\nnumber plate had been removed from the car and the vehicle identification number\n\non another part of the car had been scratched out. Investigators later learned that a\n\nTampa mechanic named Camilo Hernandez had sold the vehicle to Arrastia-\n\nCardoso in the month when the robbery took place. Another person had driven\n\nArrastia-Cardoso to buy the car, but Hernandez did not see who the driver was.\n\n The investigators initially suspected that Ortiz and a man named Mariano\n\nDuarte-Cardoso had been involved in the robbery. Duarte-Cardoso, who\n\ninvestigators later learned to be Arrastia-Cardoso’s cousin and the spouse of\n\nOrtiz’s sister, fled the country after a search of his home. At that time, the\n\ninvestigators were not focused on Hano or Arrastia-Cardoso.\n\n Five years later, in September 2014, Ruben Borrego Izquierdo, who was\n\nfacing unrelated state charges, came to the Federal Bureau of Investigation with\n\ninformation. Borrego Izquierdo stated that he grew up in the same village in Cuba\n\nwith Hano and had known him for decades. Hano had recently told Borrego\n\nIzquierdo that he had robbed an armored truck with a man named “Reinaldo\n\nArrastia” in 2009. Hano said that the plot to rob the truck included one of the\n\n\n\n 6\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 7 of 44\n\n\ntruck’s guards, who was part of Arrastia’s family, and included a cousin of\n\nArrastia. Hano also described some of the key details of the robbery: that he had\n\nleft the scene in a car he had purchased from Camilo Hernandez, that he had\n\nremoved the vehicle identification number from the car, that he had taken the\n\nmoney from the robbery back to Cuba in a speedboat, and that he had spent the\n\nmoney on two houses and a car.\n\n Borrego Izquierdo’s story included details about the crime that had not been\n\nmade public. No law enforcement agency had made known, for example, that the\n\ngetaway car had been purchased in Tampa or that the vehicle identification number\n\nof the car had been removed. And investigators were able to corroborate Borrego\n\nIzquierdo’s assertion that Hano traveled to Cuba after the robbery through a sworn\n\nstatement that Hano provided to a border officer. In the statement, Hano said that\n\nhe moved to the United States in 2008, but that in January 2010—a little more than\n\na month after the robbery—he traveled to Cuba on a boat that departed from Texas.\n\nHano returned to the United States in 2014.\n\n After investigators heard Borrego Izquierdo’s story, Arrastia-Cardoso and\n\nHano became the primary suspects in the investigation. In 2015, federal\n\ninvestigators obtained DNA samples from them. Hano’s DNA matched the major\n\nDNA profile from the ski mask. Arrastia-Cardoso’s DNA matched the major\n\nprofile on the gun grip. And the government’s analyst determined that, for each\n\n\n\n 7\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 8 of 44\n\n\nmajor DNA profile, the probability that the profile would match the DNA of a\n\nrandom person (the “random-match probability”) was less than one in 700 billion.\n\n On March 16, 2016, the United States indicted Hano and Arrastia-Cardoso\n\nfor Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. The jury\n\nconvicted both men on all charges. Hano’s presentence investigation report\n\nrecommended a five-level enhancement to his offense level because he brandished\n\nor otherwise possessed a firearm during the robbery, United States Sentencing\n\nGuidelines Manual § 2B3.1(b)(2)(C) (Nov. 2015), when the defendants apparently\n\ndisarmed Ortiz and stole his gun. Hano objected to this enhancement on the ground\n\nthat the evidence at trial established only that the defendants used a fake gun to\n\neffectuate the robbery. He conceded that the Guidelines treat a fake gun as a\n\n“dangerous weapon,” but argued that he should instead receive only a three-level\n\nenhancement for brandishing a weapon in the course of the offense, id. §\n\n2B3.1(b)(2)(E). The district court applied a four-level enhancement because a\n\ndangerous weapon had been “otherwise used” during the robbery, id. §\n\n2B3.1(b)(2)(D). The district court sentenced Hano to serve 121 months of\n\nimprisonment and Arrastia-Cardoso to 120 months of imprisonment.\n\n II. STANDARD OF REVIEW\n\n This appeal is governed by three standards of review. First, we review de\n\nnovo the interpretation and application of a statute of limitations. United States v.\n\n\n\n 8\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 9 of 44\n\n\nFarias, 836 F.3d 1315, 1323 (11th Cir. 2016). The same standard applies to\n\nalleged violations of Brady v. Maryland, 373 U.S. 83 (1963). United States v.\n\nBrester, 786 F.3d 1335, 1338 (11th Cir. 2015). We also review the denial of a\n\nmotion for a judgment of acquittal for insufficiency of the evidence de novo.\n\nUnited States v. Flanders, 752 F.3d 1317, 1329 (11th Cir. 2014). And although we\n\nreview a district court’s factual findings in applying the Sentencing Guidelines for\n\nclear error, we review the application of the guidelines to those facts de novo.\n\nUnited States v. Bradley, 644 F.3d 1213, 1283 (11th Cir. 2011). Second, “[w]e\n\nreview a district court’s evidentiary rulings for an abuse of discretion.” United\n\nStates v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). And we review the denial\n\nof a motion for a new trial based on the weight of the evidence for “clear abuse” of\n\ndiscretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). Third,\n\nwe review issues not raised in the district court for plain error. United States v.\n\nTaohim, 817 F.3d 1215, 1224 (11th Cir. 2013). “For there to be plain error, there\n\nmust (1) be error, (2) that is plain, and (3) that affects the substantial rights of the\n\nparty, and (4) that seriously affects the fairness, integrity, or public reputation of a\n\njudicial proceeding.” Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th\n\nCir. 2002).\n\n\n\n\n 9\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 10 of 44\n\n\n III. DISCUSSION\n\n We divide our discussion in six parts. First, we reject Hano’s argument that\n\nthe indictment against him was not returned within the applicable limitation period.\n\nSecond, we explain that the evidentiary issues raised by Hano and Arrastia-\n\nCardoso do not merit reversal. Third, we explain that Hano has failed to establish\n\nthat the denial of his motion to obtain the DNA profile of Mariano Duarte-Cardoso\n\nresulted in any prejudice. Fourth, we reject Hano’s argument that the government\n\nfailed to produce sufficient evidence to support his convictions. Fifth, we conclude\n\nthat the government did not improperly comment on Arrastia-Cardoso’s decision\n\nnot to testify. And sixth, we explain that Hano “otherwise used” a dangerous\n\nweapon in the commission of the robbery so the district court was warranted in\n\napplying the four-level enhancement to his sentence.\n\n A. The Indictment Was Returned Within the Applicable Limitation Period.\n\n Before trial, Hano moved to dismiss the indictment on the ground that it was\n\nnot returned within the five-year limitation period ordinarily applicable to federal\n\nnoncapital crimes, 18 U.S.C. § 3282(a). The district court denied the motion and\n\nruled that the indictment fell within a statutory exception for cases in which DNA\n\ntesting implicates a person in a felony, id. § 3297. Section 3297 provides that “[i]n\n\na case in which DNA testing implicates an identified person in the commission of a\n\nfelony, no statute of limitations that would otherwise preclude prosecution of the\n\n\n\n 10\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 11 of 44\n\n\noffense shall preclude such prosecution until a period of time following the\n\nimplication of the person by DNA testing has elapsed that is equal to the otherwise\n\napplicable limitation period.” The district court reasoned that this exception\n\napplied to Hano’s indictment because DNA testing did not implicate him in the\n\ncharged crimes until June 26, 2015, which left the government with five years to\n\nindict Hano after that date. Because the indictment was returned in March 2016,\n\nthe district court concluded that the indictment was returned well within the\n\nlimitations period of section 3297.\n\n Hano argues that this ruling was in error based on the following application\n\nnote to section 3297: “The amendments made by this section shall apply to the\n\nprosecution of any offense committed before, on, or after the date of the enactment\n\nof this section if the applicable limitation period has not yet expired.” Justice for\n\nAll Act, Pub. L. No. 108–405, § 204(c), 118 Stat. 2260, 2271 (2004). Although the\n\ndistrict court reasoned that section 3297 provided a new five-year limitation period\n\nthat began when Hano was first implicated by DNA testing, Hano reads the\n\napplication note—in particular, the conditional phrase “if the applicable limitation\n\nperiod has not yet expired”—to mean that the exception to the ordinary limitation\n\nperiod applies to the prosecution of any offense committed after the date of\n\nenactment only if the otherwise applicable limitation period “has not yet expired”\n\nat the time the defendant is implicated by DNA testing. So on Hano’s reading, the\n\n\n\n 11\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 12 of 44\n\n\nimplication of a defendant by DNA testing only extends a not-yet-elapsed\n\nlimitation period.\n\n The government contends that no error occurred based on the text of section\n\n3297. And it argues that the application note only clarifies that section 3297\n\napplies retroactively to any offense so long as the limitation period applicable to an\n\noffense by default had not yet expired at the time of enactment. We agree with the\n\ngovernment.\n\n Hano’s argument would require us to disregard the plain meaning of section\n\n3297, which provides that “no statute of limitations that would otherwise preclude\n\nprosecution of the offense shall preclude such prosecution until a period of time\n\nfollowing the implication of the person by DNA testing has elapsed that is equal to\n\nthe otherwise applicable limitation period.” This language makes clear that a\n\nperiod of time “equal to the otherwise applicable limitation period” will run from\n\n“the implication of the person by DNA testing” regardless of whether the\n\nimplication occurred within the ordinarily applicable limitation period. If Hano\n\nwere right about the import of the application note, the codified text of section\n\n3297 would instead say that no statute of limitations will preclude prosecution until\n\na period of time has elapsed that is equal to the otherwise applicable limitation\n\nperiod if the person is implicated by DNA testing while the otherwise applicable\n\nlimitation period continues to run. But that is not what the statute says, and “our\n\n\n\n 12\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 13 of 44\n\n\nconstitutional structure” does not permit us “to ‘rewrite the statute that Congress\n\nhas enacted.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1949\n\n(2016) (quoting Dodd v. United States, 545 U.S. 353, 359 (2005)).\n\n Hano misreads the application note. The competing interpretations of the\n\napplication note turn on the implicit temporal reference of the expression “has not\n\nyet expired,” a verbal phrase in the present-perfect tense. The present perfect\n\n“denotes an act, state, or condition that is now completed or continues up to the\n\npresent.” Bryan A. Garner, The Chicago Guide to Grammar, Usage, and\n\nPunctuation 97 (2016). In the application note, the condition that “continues up to\n\nthe present” is that the normal limitation period for an offense has not yet expired.\n\nAnd the most natural reading of the note is that the time up to which the limitation\n\nperiod’s failure to expire continues is the time of enactment. After all, the\n\nconditional phrase directly follows a reference to “the date of the enactment of this\n\nsection.”\n\n Indeed, the text of the application note does not provide any other plausible\n\ntemporal anchor for the conditional clause. The note refers directly to three events:\n\nthe “commi[ssion]” of “an[] offense,” “the prosecution of [the] offense,” and “the\n\nenactment of this section.” Of the options in the text of the application note, only\n\n“the date of the enactment” makes sense as a temporal point of reference for the\n\nconditional clause. It makes no sense to say that section 3297 would apply unless\n\n\n\n 13\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 14 of 44\n\n\nthe limitation period expired the very same moment the offense was committed.\n\nAnd if the conditional clause were linked in time to the prosecution of the offense,\n\nthen the application note would mean that section 3297 would apply only when a\n\ndefendant was prosecuted within the original limitation period—a situation in\n\nwhich the extended period of section 3297 would have no work to do.\n\n Hano does not argue that either the time of the prosecution or the time of the\n\ncommission of the offense frames the conditional clause, but his preferred\n\ncandidate—the time the defendant is implicated by DNA testing—is no more\n\nattractive. That event is described in section 3297, not the application note, so it\n\nwould be unusual if it supplied the temporal reference point for the present-perfect\n\nverb in the application note. Such a reading might make sense if the application\n\nnote incorporated section 3297 by reference in a way that also incorporated its\n\ntemporal framework. But the application note does not do so. To be sure, the\n\napplication note defines the circumstances in which section 3297 “shall apply.”\n\nBut the point is that the application note is a distinct sentence and stands on its own\n\ntemporal ground. Nothing in the text or context of the application note provides\n\nany reason to think that the “present” to which the present-perfect phrase “has not\n\nyet expired” refers is any time other than that contemporaneous with the enactment\n\nof the text by Congress.\n\n\n\n\n 14\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 15 of 44\n\n\n Our interpretation of section 3297 and the application note is also supported\n\nby persuasive authority. Hano cites no authority in support of his reading, and as\n\nthe government points out, our sister circuits have consistently applied section\n\n3297 even when the otherwise applicable limitation period has already expired. See\n\nUnited States v. Lopez, 860 F.3d 201, 206–07 (4th Cir. 2017) (applying section\n\n3297 when crime occurred in February 2007 and DNA match occurred over five\n\nyears later in June 2012); United States v. Sylla, 790 F.3d 772, 772–73 (7th Cir.\n\n2015) (involving 2003 crime and 2010 DNA match); United States v. Hagler, 700\n\nF.3d 1091, 1094 (7th Cir. 2012) (involving 2000 crime and 2008 DNA match).\n\n Hano argues that our interpretation of the note threatens to read the word\n\n“after” out of the note in violation of the surplusage canon, which instructs us to\n\ngive effect to every word in a provision if possible and to refrain from assigning an\n\ninterpretation to a provision that causes a word “to have no consequence.” Antonin\n\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at\n\n174 (2012). The note says that section 3297 shall apply to the prosecution of an\n\noffense “committed before, on, or after the date of the enactment” of the section\n\n“if the applicable limitation period has not yet expired.” And Hano points out that\n\nobviously no limitations period for an offense committed after the enactment of the\n\nstatute could have already expired at the time when the statute was enacted.\n\n\n\n\n 15\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 16 of 44\n\n\n Hano’s argument misses the mark. The word “after” in the application note\n\nis not devoid of legal effect. If the application note provided only that section 3297\n\n“shall apply to the prosecution of any offense before or on the date of the\n\nenactment of this section if the applicable limitation period has not yet expired,”\n\nthe note would create the impression that section 3297 does not apply to offenses\n\ncommitted after the date of enactment. The inclusion of the word “after” in the\n\nnote eliminates this misleading impression. True, the conditional clause of the\n\nnote, which says that section 3297 applies “if the applicable limitation period has\n\nnot yet expired,” is necessarily satisfied when an offense was committed after the\n\ndate of enactment. But that consequence does not render the word “after” or the\n\nconditional clause superfluous. The conditional clause—in conjunction with the\n\nword “before”—clarifies that section 3297 applies retroactively to offenses\n\ncommitted before the date of enactment if the otherwise applicable limitation\n\nperiod has yet to expire. The word “after” makes plain that section 3297 has\n\nprospective application. Both the word “after” and the conditional clause are\n\nnecessary to clarify the full scope of application of section 3297.\n\n Consider too the legal context of the enactment of section 3297 and its\n\napplication note. Section 3297 was enacted in 2004, only one year after the\n\nSupreme Court held in Stogner v. California, 539 U.S. 607 (2003), that “a law\n\nenacted after expiration of a previously applicable limitations period violates the\n\n\n\n 16\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 17 of 44\n\n\nEx Post Facto Clause when it is applied to revive a previously time-barred\n\nprosecution.” Id. at 632–33. Stogner explicitly distinguished a law that revives a\n\nprosecution that was previously precluded by the applicable statutory-limitation\n\nperiod from a statute that merely “extend[s] time limits for the prosecution of\n\nfuture offenses, or for prosecutions not yet time barred.” Id. at 632. The language\n\nof the application note covers both categories of prosecutions while clarifying that\n\nsection 3297 does not purport to revive prosecutions for offenses with limitation\n\nperiods that had already expired when the statute was enacted. Instead of\n\npermanently limiting the operation of section 3297 to the extension of limitation\n\nperiods still running when DNA testing implicates a suspect, the application note\n\nappears tailor-made to avoid the constitutional problem that would have resulted\n\nunder Stogner if Congress had sought to apply section 3297 retroactively to renew\n\nlimitation periods that had elapsed before the time of enactment. As a result, we\n\nconclude that the district court did not err in ruling that the indictment was returned\n\nwithin the limitation period applicable under section 3297.\n\n B. The Evidentiary Issues Raised by Hano and Arrastia-Cardoso Do Not\n Merit Reversal.\n\n Hano and Arrastia-Cardoso challenge three evidentiary rulings. First, they\n\nargue, on different grounds, that the district court erred in permitting Borrego\n\nIzquierdo to testify about his conversation with Hano who revealed that he\n\nparticipated in the robbery and that Arrastia-Cardoso was one of his\n\n\n 17\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 18 of 44\n\n\ncoconspirators. Second, Hano contends that the district court should not have\n\npermitted the government to introduce evidence that he traveled to Cuba shortly\n\nafter the robbery. Third, Hano argues that the district court erred in ruling that the\n\ngovernment could introduce DNA evidence obtained from the getaway vehicle\n\neven though the government ultimately decided not to introduce that evidence at\n\ntrial. None of their arguments have merit.\n\n 1. The District Court Did Not Err in Permitting Borrego Izquierdo to\n Testify.\n\n Arrastia-Cardoso contends that the admission of Hano’s statements to\n\nBorrego Izquierdo violated his rights under Bruton, but Hano’s statements were\n\nnontestimonial, which means they are beyond the scope of the Bruton doctrine.\n\nBruton held that the Confrontation Clause prohibits the use of the confession of a\n\nnontestifying criminal defendant in a joint trial if the statement directly inculpates\n\na codefendant, although it may be otherwise admissible against the confessing\n\ndefendant. 391 U.S. at 126. And Crawford v. Washington, 541 U.S. 36 (2004),\n\nheld that the Confrontation Clause prohibits the “admission of testimonial\n\nstatements of a witness who [does] not appear at trial unless he [is] unavailable to\n\ntestify, and the defendant ha[s] had a prior opportunity for cross-examination.” Id.\n\nat 53–54. The Supreme Court has since clarified that the Confrontation Clause\n\nprohibits only the introduction of testimonial hearsay statements. See Whorton v.\n\nBockting, 549 U.S. 406, 419–20 (2007) (“Under Crawford, . . . the Confrontation\n\n\n 18\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 19 of 44\n\n\nClause has no application to [out-of-court nontestimonial statements] and therefore\n\npermits their admission even if they lack indicia of reliability.”); Davis v.\n\nWashington, 547 U.S. 813, 823–24 (2006) (same).\n\n We have yet to hold in a published opinion that Bruton applies only to\n\ntestimonial statements, but every one of our sister circuits to consider the issue has\n\nso held, see Lucero v. Holland, 902 F.3d 979, 987–88 (9th Cir. 2018); United\n\nStates v. Clark, 717 F.3d 790, 816 (10th Cir. 2013); United States v. Berrios, 676\n\nF.3d 118, 128–29 (3d Cir. 2012); United States v. Figueroa-Cartagena, 612 F.3d\n\n69, 85 (1st Cir. 2010); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009);\n\nUnited States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009), and for\n\ngood reason. The Bruton rule “presupposes that the aggrieved co-defendant has a\n\nSixth Amendment right to confront the declarant in the first place.” Figueroa-\n\nCartagena, 612 F.3d at 85. If no co-defendant “has a constitutional right to\n\nconfront the declarant, none can complain that his right has been denied.” Id. So\n\nthe same principles that govern whether the admission of testimony violated the\n\nConfrontation Clause control whether the admission of the statements of a\n\nnontestifying codefendant against a defendant at a joint trial violate Bruton. As a\n\nresult, “[t]he threshold question in every case” raising a Bruton issue “is whether\n\nthe challenged statement is testimonial.” Id. If it is not, the Confrontation Clause\n\n\n\n\n 19\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 20 of 44\n\n\ndoes not apply. So the admission of Hano’s statements through Borrego Izquierdo\n\ncould have violated the rule of Bruton only if those statements were testimonial.\n\n Hano’s statements as related by Borrego Izquierdo were plainly\n\nnontestimonial. Statements made in the course of an out-of-court conversation are\n\n“testimonial” if “in light of all the circumstances, viewed objectively, the ‘primary\n\npurpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial\n\ntestimony.’” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v.\n\nBryant, 562 U.S. 344, 358 (2011)). When Hano spoke with Borrego Izquierdo, no\n\nfuture prosecution was on the horizon. Hano was not presently under investigation\n\nand had no reason to believe that his statements to Borrego Izquierdo would ever\n\nbe used in court. Borrego Izquierdo likewise had no ground to suspect that he\n\nwould ever testify against Hano. What transpired between them was a friendly and\n\ninformal exchange in which Hano happened to reveal evidence that would\n\nultimately be critical to the government’s case when Borrego Izquierdo decided to\n\ncome forward years after the robbery.\n\n In the alternative, Arrastia-Cardoso argues that we should adopt a rule that\n\nwould extend the rule of Bruton to nontestimonial statements on procedural-due-\n\nprocess grounds. The government responds by arguing that plain-error review\n\napplies to Arrastia-Cardoso’s alternative argument because he objected to Borrego\n\nIzquierdo’s testimony on the basis of the Confrontation Clause, not the Due\n\n\n\n 20\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 21 of 44\n\n\nProcess Clause. And the government argues that Arrastia-Cardoso’s proposed rule\n\nis not clearly established as the law of this Circuit. United States v. Hesser, 800\n\nF.3d 1310, 1325 (11th Cir. 2015) (“‘Plain’ error means that the legal rule is clearly\n\nestablished at the time the case is reviewed on direct appeal.”).\n\n We conclude that there was no due-process error—plain or otherwise—in\n\nthe admission of Borrego Izquierdo’s testimony. In the substantive-due-process\n\ncontext, the Supreme Court has explained that “where a particular Amendment\n\nprovides an explicit textual source of constitutional protection against a particular\n\nsort of government behavior, that Amendment, not the more generalized notion of\n\nsubstantive due process, must be the guide for analyzing these claims.” Cty. of\n\nSacramento v. Lewis, 523 U.S. 833, 842 (1998) (alteration adopted) (quoting\n\nAlbright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)); see also Graham\n\nv. Connor, 490 U.S. 386, 395 (1989); Echols v. Lawton, 913 F.3d 1313, 1326 (11th\n\nCir. 2019). We see no reason why the same logic would not apply to procedural-\n\ndue-process claims.\n\n Under Arrastia-Cardoso’s theory, the Due Process Clause would provide\n\ndefendants with a right to confront witnesses more expansive than the right secured\n\nby the Confrontation Clause itself, reducing the Confrontation Clause to\n\nsurplusage. In the Bill of Rights, the “Framers sought to restrict the exercise of\n\narbitrary authority by the [g]overnment in particular situations.” Albright, 510 U.S.\n\n\n\n 21\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 22 of 44\n\n\nat 273 (plurality opinion). If the Due Process Clause contained all the protections\n\nof the Confrontation Clause and more, the Framers’ decision to include that Clause\n\nin the Sixth Amendment would be mysterious. And needless to say, there is no\n\nreason to believe that the drafters of the Sixth Amendment included the\n\nConfrontation Clause “out of a flawed sense of style or to engage in the ill-\n\nconceived but lamentably common belt-and-suspenders approach.” Scalia &\n\nGarner, supra, at § 26, at 177. As a result, “[w]e must analyze the claim under the\n\nstandard appropriate to that specific provision, not under the rubric of” procedural\n\ndue process. Echols, 913 F.3d at 1326 (alterations adopted) (citation and internal\n\nquotation marks omitted). And as we have explained, Arrastia-Cardoso’s argument\n\nunder the Confrontation Clause fails.\n\n Arrastia-Cardoso’s due-process theory would also render meaningless the\n\nlimitation of Crawford and its progeny of the confrontation right to “testimonial\n\nstatements of a witness” who “was unavailable to testify” where the defendant did\n\nnot have “a prior opportunity for cross-examination.” 541 U.S. at 53–54. On\n\nArrastia-Cardoso’s view, the bare fact that a defendant cannot ordinarily subject\n\nhis codefendant’s out-of-court statement to the rigors of cross-examination in a\n\njoint trial renders the statement inadmissible at trial, regardless of whether the\n\nstatement was testimonial. But the apparent rationale for this proposed rule—that\n\nthe admission of an out-of-court statement inherently deprives a defendant of a fair\n\n\n\n 22\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 23 of 44\n\n\ntrial if he had no opportunity to cross-examine the declarant—applies with equal\n\nforce to statements of unavailable witnesses who are not codefendants at a joint\n\ntrial. So Arrastia-Cardoso’s theory—taken to its logical conclusion—would mean\n\nthat the Due Process Clause prevents the introduction of any and all out-of-court\n\nstatements at a criminal trial if the defendant did not have “a prior opportunity for\n\ncross-examination.” Id. This theory would allow a defendant to avoid Crawford’s\n\nlimitation of the confrontation right to testimonial statements by the simple\n\nexpedient of labeling their claims under the Confrontation Clause as claims under\n\nthe Due Process Clause. We will not adopt a rule that would permit defendants to\n\nmake an end run around the strictures recognized by the Supreme Court’s\n\nConfrontation Clause jurisprudence.\n\n Arrastia-Cardoso also contends, albeit very briefly, that Hano’s statement\n\nshould have been excluded as inadmissible hearsay, but he is mistaken. The district\n\ncourt overruled Arrastia-Cardoso’s objection to the admission of this statement on\n\nhearsay grounds and concluded that Hano’s statement was admissible as a\n\nstatement against interest under Federal Rule of Evidence 804(b)(3). On appeal,\n\nArrastia-Cardoso concedes that “Hano’s confession to his role in the robbery was\n\nagainst his own penal interest,” but argues that “the balance of the statement\n\nremains hearsay inadmissible in accordance with [Federal Rule of Evidence] 802.”\n\nIn support of this contention, he relies on the principle that Rule 804(b)(3) “does\n\n\n\n 23\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 24 of 44\n\n\nnot allow admission of non-self-inculpatory statements, even if they are made\n\nwithin a broader narrative that is generally self-inculpatory.” Williamson v. United\n\nStates, 512 U.S. 594, 600–01 (1994). But Arrastia-Cardoso does not even attempt\n\nto identify any portion of Hano’s statement that was not self-inculpatory, nor does\n\nhe attempt to prove that the introduction of portions of Hano’s statement that were\n\nnot self-inculpatory prejudiced him, so we cannot reverse on this basis. See United\n\nStates v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (“No reversal will result if\n\nsufficient evidence uninfected by any error supports the verdict, and the error did\n\nnot have a substantial influence on the outcome of the case.” (citation and internal\n\nquotation marks omitted)).\n\n For his part, Hano offers a third challenge to Borrego Izquierdo’s testimony,\n\narguing that it should have been excluded as prejudicial under Federal Rule of\n\nEvidence 403, but his argument fails as well. Under Rule 403, a district court has\n\nthe discretion to “exclude relevant evidence if its probative value is substantially\n\noutweighed by a danger” of “unfair prejudice, confusing the issues, misleading the\n\njury, undue delay, wasting time, or needlessly presenting cumulative evidence.”\n\nAccording to Hano, the district court should have prohibited Borrego Izquierdo\n\nfrom testifying altogether because he was not credible. But “Rule 403 does not\n\npermit exclusion of evidence because the judge does not find it credible.” United\n\nStates v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980) (rejecting the argument that\n\n\n\n 24\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 25 of 44\n\n\nRule 403 gave the district court the authority to “protect” the jury from a witness’s\n\n“contradictory testimony”). Credibility determinations are the “exclusive province”\n\nof the jury “and the court of appeals may not revisit this question unless it is\n\nincredible as a matter of law.” United States v. Feliciano, 761 F.3d 1202, 1206\n\n(11th Cir. 2014) (citation and internal quotation marks omitted). Testimony is\n\nincredible as a matter of law if and only if it is “unbelievable on its face, i.e.,\n\ntestimony as to facts the witness physically could not have possibly observed or\n\nevents that could not have occurred under the laws of nature.” Id. (citation and\n\ninternal quotation marks omitted). Nothing of the kind could be fairly said of\n\nBorrego Izquierdo’s testimony.\n\n Hano also asserts that Borrego Izquierdo’s testimony that Hano purchased\n\ntwo houses and a car in Cuba after the robbery should have been excluded because\n\nit was uncorroborated and appealed to class prejudice, but we disagree. Rule 403\n\ndoes not license exclusion of evidence for want of corroboration, and “evidence of\n\nwealth or extravagant spending may be admissible when relevant to the issues in\n\nthe case and where other evidence supports a finding of guilt.” Bradley, 644 F.3d\n\nat 1271. The evidence of Hano’s expenditures was relevant because it buttressed\n\nthe inference that Hano had recently come into a large sum of money when he set\n\nsail for Cuba. The evidence was not admitted for the purpose of enticing the jury to\n\nconvict Hano based on his wealth or socioeconomic status, and the government\n\n\n\n 25\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 26 of 44\n\n\nnever attempted to suggest anything along those lines. So Hano’s argument fails to\n\nestablish that the district court erred in permitting Borrego Izquierdo to testify.\n\n 2. The District Court Did Not Err in Admitting Evidence that Hano Left the\n United States for Cuba After the Robbery.\n Before trial, Hano filed a motion in limine to exclude any evidence of his\n\ntravel between the United States and Cuba, including his immigration file and the\n\nstatement he made to a border officer in which he explained that he left for Cuba\n\non a boat that departed from Texas in January 2010. Hano argued that the evidence\n\nshould be excluded as prejudicial under Rule 403 and excluded under Rule 404(b)\n\non the theory that “testimony regarding the details of [Hano’s] immigration to and\n\nfrom the United States and Cuba may be considered a ‘bad act.’” The district court\n\ndenied the motion in part and granted it in part. It ruled that Rule 404(b) did not\n\napply because Hano failed to establish that his entry into the United States was\n\nwrong or related to his character and that Hano’s statement to the border officer\n\nconcerning the timing and means of his exodus to Cuba had significant probative\n\nvalue that was not outweighed by the danger of unfair prejudice. The district court\n\nexcluded all portions of Hano’s immigration file that lacked clear probative value.\n\nAt trial, the government introduced a redacted copy of Hano’s immigration file and\n\noffered testimony from the border officer regarding Hano’s statement about his\n\ntravel to Cuba.\n\n\n\n\n 26\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 27 of 44\n\n\n Hano argues that this evidence should have been excluded under Rule 403\n\nbecause the evidence transformed a “case about a robbery and conspiracy” into “a\n\ncase about immigration,” but he is wrong. As the district court correctly concluded,\n\n“the timing of Hano’s departure to Cuba, which was little more than a month after\n\nthe robbery, as well as his description of the means and method of that departure”\n\nwas probative of his “motivation to move between countries in the immediate\n\naftermath of a crime” and “the potential avenue” by which he transported his “ill-\n\ngotten gains.”\n\n Hano’s only argument for the existence of prejudice relies on a state-court\n\nopinion asserting that “[q]uestions regarding a defendant’s immigration status\n\nare . . . irrelevant and designed to appeal to the trier of fact’s passion and prejudice\n\nand are thus generally improper areas of inquiry,” Washington v. Avendano-Lopez,\n\n904 P.2d 324, 331 (Wash. Ct. App. 1995), but the government never suggested that\n\nHano was illegally present in the United States. Indeed, the border officer testified\n\nthat Hano legally entered the United States when he moved to this country in 2008\n\nand in 2014 when he returned from his sojourn in Cuba. The government never\n\ninvited the jury to find Hano guilty on the basis of immigration status. The import\n\nof the evidence about his travel was clear: it established that Hano was indeed in\n\nCuba after the robbery, as Borrego Izquierdo testified, and that he had traveled\n\nthere on a private person’s boat that sailed from Texas—an unusual means of\n\n\n\n 27\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 28 of 44\n\n\ninternational travel that might be appealing if one were carrying hundreds of\n\nthousands of dollars obtained by a robbery.\n\n Hano’s argument under Rule 404(b) fares no better. Rule 404(b)(1) provides\n\nthat “[e]vidence of a crime, wrong, or other act is not admissible to prove a\n\nperson’s character in order to show that on a particular occasion the person acted in\n\naccordance with the character.” Rule 404(b)(2) clarifies that such evidence “may\n\nbe admissible for another purpose, such as proving motive, opportunity, intent,\n\npreparation, plan, knowledge, identity, absence of mistake, or lack of accident.”\n\nWe have explained that Rule 404(b) is a rule “of inclusion which allows extrinsic\n\nevidence unless it tends to prove only criminal propensity.” United States v.\n\nSanders, 668 F.3d 1298, 1314 (11th Cir. 2012). And the government made no\n\nattempt to use the evidence of Hano’s travel to Cuba to prove that he had a\n\npropensity to cross the border unlawfully or otherwise violate the law. The purpose\n\nof the evidence was to show that, on a particular occasion, Hano fled the United\n\nStates with the proceeds of the robbery. The district court acted well within its\n\ndiscretion in denying Hano’s motion to exclude the evidence of when and by what\n\nmeans he traveled to Cuba.\n\n 3. The Question Whether the District Court Abused its Discretion in Denying\n Hano’s Motion to Prohibit DNA Evidence from the Getaway Car Is Moot.\n\n Before trial, Hano moved to exclude DNA evidence obtained from the\n\ngetaway car that purportedly established that he was a possible contributor to the\n\n\n 28\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 29 of 44\n\n\nDNA sample obtained from the car. Hano argued that the introduction of this\n\nevidence would violate his rights under California v. Trombetta, 467 U.S. 479\n\n(1984), because the government had destroyed the car and Hano would have no\n\ncapacity to test the vehicle. The district court denied this motion because local\n\ninvestigators destroyed the car before Hano became a suspect, the evidence had no\n\nexculpatory value at the time of its destruction, and Hano had failed to prove that\n\nthe local investigators acted in bad faith in destroying the car. Nevertheless, the\n\ngovernment never offered this evidence at trial.\n\n Hano reiterates his challenge to this ruling on appeal, but the issue is now\n\nmoot. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979) (“Since the\n\nGovernment did not introduce these items into evidence, the issue is moot.”). As a\n\nresult, we have no authority to examine the merits of this ruling. See Al Najjar v.\n\nAshcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (“Any decision on the merits of a\n\nmoot case or issue would be an impermissible advisory opinion.” (citation and\n\ninternal quotation marks omitted)).\n\n Hano argues that the officer who examined the getaway car mentioned in her\n\ntrial testimony that she looked for and attempted to collect DNA samples from the\n\nvehicle, but the officer gave no indication of the result of the analysis of the\n\nsamples or suggested that the samples implicated Hano in the robbery in any way.\n\nInstead, she stated only that she “look[ed] for touch DNA” samples and that\n\n\n\n 29\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 30 of 44\n\n\n“[t]ouch DNA swabs were collected off of the exterior and interior” of the vehicle.\n\nThese incidental references did not introduce the DNA analysis challenged by\n\nHano in his pretrial motion.\n\n C. The District Court Correctly Denied Hano’s Motion to Obtain the DNA\n Profile of Mariano Duarte-Cardoso.\n\n Hano filed a pretrial motion for the district court to issue a nonparty\n\nsubpoena to the Federal DNA Database Unit for the DNA profile of Mariano\n\nDuarte-Cardoso—Arrastia-Cardoso’s cousin and the spouse of Ortiz’s sister.\n\nDuarte-Cardoso’s DNA profile was in the database because of an earlier unrelated\n\nconviction. Hano argued that he had a right to access Duarte-Cardoso’s profile\n\nunder Brady, because the DNA of other “potential donors” had been discovered on\n\nthe ski mask recovered from the crime scene, and in Hano’s view, the profile\n\n“could potentially exculpate [him] . . . by further inculpating [Duarte-]Cardoso.”\n\nThe government opposed the motion on the ground that federal privacy protections\n\nprohibited the disclosure of Duarte-Cardoso’s DNA profile and that his profile was\n\nnot exculpatory because even if his DNA was on the ski mask, it would do nothing\n\nto explain away the presence of Hano’s DNA on the mask. The district court held a\n\nhearing on the motion in which a supervisor of the Federal DNA Database Unit\n\ntestified. The district court denied Hano’s motion because even if Duarte-\n\nCardoso’s DNA were found on the ski mask, it “could not conceivably impact a\n\ntrial.”\n\n\n 30\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 31 of 44\n\n\n On appeal, Hano reiterates his argument that the government’s failure to\n\nproduce Duarte-Cardoso’s DNA profile violated Brady, but the district court was\n\nright to reject it. “To establish a Brady violation,” a defendant must “prove that the\n\nprosecution withheld favorable evidence and that he was prejudiced as a result.”\n\nBrester, 786 F.3d at 1339. To establish prejudice, a defendant must “prove that\n\nthere is ‘a reasonable probability that, had the evidence been disclosed to the\n\ndefense, the result of the proceeding would have been different. A ‘reasonable\n\nprobability’ is a probability sufficient to undermine confidence in the outcome.” Id.\n\n(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Hano cannot prove\n\nprejudice.\n\n As the government argues, even if Hano had Duarte-Cardoso’s profile, he\n\nwould be unable to prove that Duarte-Cardoso’s DNA was on the ski mask. The\n\nevidence established that Hano was the source of the only major DNA profile on\n\nthe mask. At most, Hano could have attempted to prove that Duarte-Cardoso was a\n\npossible contributor to a mixture of DNA found on the mask, but as the\n\ngovernment’s expert explained, “the frequency of the occurrence of the mixed\n\nDNA profile” obtained from the mask in the general population of “unrelated\n\nindividuals” was such that “approximately one in six individuals” would have “a\n\nDNA profile that could be included in that mixture.” So although a comparison of\n\nDuarte-Cardoso’s profile with the mixed profile derived from the mask could have\n\n\n\n 31\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 32 of 44\n\n\nexcluded Duarte-Cardoso as a contributor of DNA to the mask, it could not have\n\nproved that his DNA was present on the mask.\n\n More importantly, even if Hano were somehow able to prove that Duarte-\n\nCardoso’s DNA was on any of the evidence obtained from the crime scene, the\n\nmost it would have proved was that Duarte-Cardoso had also come into contact\n\nwith those items. This conclusion would do nothing to undermine the principal\n\nvalue of the DNA evidence, which was to prove that Hano had worn the mask. If\n\nanything, the presence of Duarte-Cardoso’s DNA on the mask would have\n\ncorroborated Hano’s admission to Borrego Izquierdo that Arrastia-Cardoso’s\n\ncousin had been involved in the conspiracy. So Hano has failed to establish the\n\nexistence of a “reasonable probability that the suppressed evidence would have\n\nproduced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999).\n\n Hano also argues for the first time on appeal that the government violated\n\nFederal Rule of Criminal Procedure 16, which requires the government to disclose\n\nitems that are “material to preparing the defense” if they are “within the\n\ngovernment’s possession, custody, or control,” Fed. R. Crim. P. 16(E)(i), but this\n\nargument fails for the same reasons as Hano’s argument based on Brady. As we\n\nhave explained, a defendant must prove “prejudice to substantial rights” to\n\nestablish that a violation of Rule 16 warrants reversal. United States v. Mosquera,\n\n\n\n\n 32\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 33 of 44\n\n\n886 F.3d 1032, 1045 (11th Cir. 2018). For the reasons discussed above, Hano\n\ncannot establish that the failure to produce the profile was prejudicial.\n\n D. The District Court Did Not Err in Denying Hano’s Motions for a\n Judgment of Acquittal and for a New Trial.\n Hano argues that the district court erred in denying his motions for a\n\njudgment of acquittal and for a new trial. “When conducting the review of the\n\nrecord” to determine “[w]hether the record contains sufficient evidence to support\n\nthe jury’s verdict,” “we view ‘the evidence in the light most favorable to the\n\ngovernment and resolve all reasonable inferences and credibility evaluations in\n\nfavor of the jury’s verdict.’” United States v. To, 144 F.3d 737, 743 (11th Cir.\n\n1998) (quoting United States v. High, 117 F.3d 464, 467 (11th Cir. 1997)). “We\n\nmust uphold the jury’s verdict whenever a reasonable factfinder could conclude\n\nthat the evidence establishes guilt beyond a reasonable doubt.” Id. at 743–44.\n\n Hano contends that there was insufficient evidence that he was one of the\n\nrobbers, but the evidence amply supports the jury’s finding. Hano admitted to\n\ncommitting the crime with Arrastia-Cardoso to Borrego Izquierdo. Hano’s DNA\n\nmatched the only major DNA profile on the ski mask recovered from the crime\n\nscene. Shortly after the robbery, Hano traveled to Cuba under suspicious\n\ncircumstances. And the evidence that independently implicated Arrastia-Cardoso\n\nin the robbery—for example, that his DNA was on the gun grip found at the scene\n\nof the robbery and that he purchased the getaway car from Camilo Hernandez—\n\n\n 33\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 34 of 44\n\n\nalso tended to establish Hano’s guilt because it corroborated his admission to\n\nBorrego Izquierdo that he had robbed the armored truck with Arrastia-Cardoso.\n\n Hano responds that the three eyewitnesses to the robbery were unable to say\n\nwith certainty that he was one of the robbers, but the failure of the witnesses to\n\nconclusively identify someone they had only seen for a brief moment years earlier\n\nhardly suffices to undermine the jury’s inference of guilt. One of the witnesses,\n\nOrtiz, said that he never saw the face of the robber who held an apparent gun to his\n\nhead because he was wearing a mask, so it is unsurprising that he could not\n\nidentify Hano at trial. The second witness who saw one of the robbers—a bank\n\ncustomer—disclaimed any ability to conclusively identify the man she saw\n\nbecause it had “been a very long time.” But she did describe the robber as a\n\n“Caucasian male or light Hispanic male” who was “a little heavy set” and had\n\n“short brown hair” and no facial hair, and this description appears to match Hano\n\nwell.\n\n True, the third witness who saw the robber, Meaney, gave a different\n\ndescription. He said that the robber was “dark,” had a “full head of hair,” and a\n\n“mustache,” but this discrepancy does not undermine the jury’s verdict. Meaney\n\nsaw the robber from 20 to 30 feet away and was in the midst of a stressful\n\nencounter with apparently armed robbers—and he had, after all, just rammed the\n\ngetaway car and was “winded . . . because of the impact.” It is also entirely\n\n\n\n 34\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 35 of 44\n\n\npossible that the robber Meaney described was not Hano, but instead one of the\n\nother robbers. After all, he testified that there were probably three different\n\nrobbers. And in any case, in the light of the DNA evidence, Borrego Izquierdo’s\n\ntestimony, and one apparently positive witness identification, the jury could have\n\nreasonably found that Hano was one of the robbers even if it discounted Meaney’s\n\nidentification.\n\n Hano also argues that Borrego Izquierdo’s testimony did not provide a\n\nreasonable basis for the jury to reach any finding regarding his involvement in the\n\nrobbery because that testimony was “resoundingly impeached” on cross-\n\nexamination, but this argument fails. The “uncorroborated testimony of an\n\naccomplice is sufficient to support a conviction in the Federal Courts if it is not on\n\nits face incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d\n\n1554, 1562 (11th Cir. 1991) (citation and internal quotation marks omitted).\n\nBorrego Izquierdo’s testimony was not incredible on its face and was supported by\n\npowerful corroborating evidence, so the jury was entitled to render its own\n\nassessment of Borrego Izquierdo’s credibility. As we have explained, “[t]o the\n\nextent that” a defendant’s “argument depends upon challenges to the credibility of\n\nwitnesses, the jury has exclusive province over that determination and the court of\n\nappeals may not revisit this question.” United States v. Kelley, 412 F.3d 1240,\n\n1247 (11th Cir. 2005) (citation and internal quotation marks omitted).\n\n\n\n 35\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 36 of 44\n\n\n Hano also contends that the evidence was insufficient to support his\n\nconviction for Hobbs Act robbery because it failed to establish that he took\n\nproperty “by means of actual or threatened injury,” but we are not persuaded. “The\n\ntwo required elements for a substantive Hobbs Act conviction are robbery and an\n\neffect on interstate commerce.” United States v. Taylor, 480 F.3d 1025, 1026–27\n\n(11th Cir. 2007) (alteration adopted) (citation and internal quotation marks\n\nomitted). Robbery is defined as including “the unlawful taking or obtaining of\n\npersonal property from the person or in the presence of another, against his will”\n\nthrough “actual or threatened force, or violence, or fear of injury, immediate or\n\nfuture, to his person or property, or property in his custody or possession, or the\n\nperson or property . . . of anyone in his company at the time of the taking or\n\nobtaining.” 18 U.S.C. § 1951(b)(1). As Hano sees it, the government failed to\n\npresent sufficient evidence for the jury to infer that Hano seized the cash through\n\n“actual or threatened force, or violence, or fear of injury” because Ortiz was an\n\ninside man who was never actually threatened with violence and Meaney “was\n\nlocated behind a glass division” and “testified to the jury that he was only\n\nconcerned for Ortiz’s safety.” Although Meaney is apparently a brave man—he did\n\nram the getaway car repeatedly in an effort to disable it—it is a stretch to say that\n\nthe robbers did not at least implicitly threaten his safety by apparently threatening\n\nOrtiz’s life, and this threat enabled the robbers to effectuate their crime without\n\n\n\n 36\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 37 of 44\n\n\ninterference by deterring Meaney from leaving the cabin or using his weapon\n\nagainst them. And, in any event, so long as Meaney reasonably believed that\n\nOrtiz’s personal safety was threatened, it does not matter whether Ortiz was really\n\nin danger or not.\n\n Third, Hano argues that the evidence was insufficient to support his\n\nconviction for conspiracy to commit Hobbs Act robbery because, in his view, the\n\ngovernment failed to introduce any evidence that he had “ever met, spoke[n], or\n\notherwise communicated” with Arrastia-Cardoso, but this argument fails. To prove\n\na Hobbs Act conspiracy, the government must establish that: “(1) two or more\n\npersons agreed to commit a robbery encompassed within the Hobbs Act; (2) the\n\ndefendant knew of the conspiratorial goal; and (3) the defendant voluntarily\n\nparticipated in helping to accomplish the goal.” To, 144 F.3d at 747–48. “[D]irect\n\nevidence of an agreement is unnecessary” to prove conspiracy. United States v.\n\nMcNair, 605 F.3d 1152, 1195 (11th Cir. 2010). “Indeed, because the crime of\n\nconspiracy is predominantly mental in composition, it is frequently necessary to\n\nresort to circumstantial evidence to prove its elements.” United States v. Garcia,\n\n405 F.3d 1260, 1270 (11th Cir. 2005) (citation and internal quotation marks\n\nomitted). And circumstantial evidence supported an inference that Hano committed\n\na robbery in cooperation with Arrastia-Cardoso and perhaps other accomplices,\n\nand that the robbery required advance planning, including the purchase of guns,\n\n\n\n 37\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 38 of 44\n\n\nmasks, and a getaway car. These facts alone are sufficient to infer an agreement\n\nbetween Hano and Arrastia-Cardoso. And Hano’s own statements, as related\n\nthrough Borrego Izquierdo, confirmed that he had planned and executed the\n\nrobbery in conjunction with Arrastia-Cardoso and likely others. It follows that the\n\nevidence was sufficient to support both of Hano’s convictions.\n\n E. The Government Did Not Improperly Comment During Closing\n Argument on Arrastia-Cardoso’s Decision Not to Testify.\n Arrastia-Cardoso contends that the government impermissibly commented\n\non his decision not to testify when, during closing arguments, the prosecutor\n\nmentioned that “while the burden of proof is not on the defendants to prove\n\nanything, there was actually no evidence introduced during the trial explaining an\n\nalternative reason why the DNA was on the items” recovered from the scene of the\n\nrobbery. Arrastia-Cardoso did not object to this remark at trial, so we review for\n\nplain error. United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007). We\n\nconclude that Arrastia-Cardoso has failed to identify any error, plain or otherwise,\n\nresulting from this remark during closing arguments.\n\n Because “the government in a criminal proceeding has the burden of proving\n\nevery element of the charged offense beyond a reasonable doubt,” “prosecutors\n\nmust refrain from making arguments that improperly shift the burden of proof to\n\nthe defendant.” United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017). “Nor\n\nmay the prosecution comment on the defendant’s failure to testify.” United States\n\n\n 38\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 39 of 44\n\n\nv. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010). “A prosecutor\n\nimpermissibly comments on a defendant’s right to remain silent where: (1) the\n\nstatement was manifestly intended to be a comment on the defendant’s failure to\n\ntestify; or (2) the statement was of such a character that a jury would naturally and\n\nnecessarily take it to be a comment on the failure of the accused to testify.” United\n\nStates v. McGarity, 669 F.3d 1218, 1241 (11th Cir. 2012) (citation and internal\n\nquotation marks omitted). “[T]he question is not whether the jury possibly or even\n\nprobably would review the remark in this manner, but whether the jury necessarily\n\nwould have done so.” Id. (citation and internal quotation marks omitted). “A\n\nprosecutor’s statements to the jury constitute misconduct only if: (1) the remarks\n\nwere improper, and (2) the remarks prejudicially affected the substantial rights of\n\nthe defendant.” Taohim, 817 F.3d at 1224. “To warrant a new trial, there must be a\n\nreasonable probability that ‘but for the remarks, the outcome would be different.’”\n\nId. (citation omitted).\n\n The government did not impermissibly comment on Arrastia-Cardoso’s\n\ndecision not to testify. It instead argued that the jury should infer that the most\n\nreasonable explanation of the presence of the defendants’ DNA on the mask and\n\ngun grip recovered from the scene of the robbery was that the defendants used\n\nthese items in committing the robbery because no evidence presented at trial\n\nundermined that explanation. A prosecutor is entitled to “comment ‘on the failure\n\n\n\n 39\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 40 of 44\n\n\nby defense counsel, as opposed to the defendant, to counter or explain evidence.’”\n\nBernal-Benitez, 594 F.3d at 1315 (quoting United States v. Hernandez, 145 F.3d\n\n1433, 1439 (11th Cir. 1998)). And even if the jury might have “possibly” inferred\n\nthat the government was arguing that Arrastia-Cardoso should have taken the stand\n\nhimself and explained why his DNA was found on items recovered from the scene\n\nof the robbery, we cannot say that the jury “necessarily” would have interpreted\n\nthe remark that way. McGarity, 669 F.3d at 1241. Arrastia-Cardoso’s argument\n\nfails because the government’s “comment[] in closing arguments [was] made in the\n\ncontext of the prosecutor’s accurate reminder to the jury about the burden of proof”\n\nand so “cannot establish plain error.” Foley, 508 F.3d at 638.\n\n F. The District Court Did Not Err in Increasing Hano’s Offense Level for\n “Otherwise Using” a Firearm During the Commission of the Robbery.\n Hano argues that the district court erred in enhancing his offense level by\n\nfour levels because he “otherwise used” a dangerous weapon in the commission of\n\nthe robbery, U.S.S.G. § 2B3.1(b)(2)(D). The Sentencing Guidelines provide that\n\n“if a dangerous weapon was otherwise used” in the commission of a robbery\n\noffense, the defendant’s offense level increases by four levels. Id. If a dangerous\n\nweapon was only “brandished or possessed,” the offense level increases by three\n\nlevels. Id. § 2B3.1(b)(2)(E). Under the definitions provided in the application notes\n\nfor the Guidelines, a defendant “brandished” a dangerous weapon if “all or part of\n\nthe weapon was displayed, or the presence of the weapon was otherwise made\n\n\n 40\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 41 of 44\n\n\nknown to another person, in order to intimidate that person, regardless of whether\n\nthe weapon was directly visible to that person.” Id. § 1B1.1 cmt. n.1(C). A\n\ndefendant “otherwise used” a dangerous weapon if the “conduct did not amount to\n\nthe discharge of a firearm but was more than brandishing, displaying, or possessing\n\na firearm or other dangerous weapon.” Id. § 1B1.1 cmt. n.1(I).\n\n Hano argues that his conduct did not amount to anything more than\n\nbrandishing a dangerous weapon because neither he nor his coconspirators ever\n\nactually threatened anyone with a weapon when they committed the robbery.\n\nAccording to Hano, because Ortiz was actually an “inside individual” who was in\n\non the plot, when Ortiz pointed an apparent firearm at his head and struck him with\n\nit, that conduct was nothing more than an elaborate charade. Hano also argues that\n\nthe weapon was only a “toy gun” and that he did not directly threaten anyone other\n\nthan Ortiz. And although Meaney witnessed the whole sequence of events, Hano\n\nsuggests that Meaney was only “a spectator to a performance in which Ortiz was\n\nacting as though he had been struck in order to assist in the robbery and avoid\n\nsuspicion.”\n\n We conclude that Hano “otherwise used” a dangerous weapon in the\n\ncommission of the robbery. Whether Hano used a toy gun is of no moment, as we\n\nhave held that “defendants who otherwise use an object which appears to be a\n\ndangerous weapon will be subject to a four-level enhancement” under the relevant\n\n\n\n 41\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 42 of 44\n\n\nguideline, id. § 2B3.1(b)(2)(D). United States v. Miller, 206 F.3d 1051, 1053 (11th\n\nCir. 2000). The residual question is whether Hano’s conduct amounted to more\n\nthan “brandishing” a dangerous weapon, and the answer must be “yes.” Our\n\nprecedent establishes that the “use of a firearm to make an explicit or implicit\n\nthreat against a specific person constitutes ‘otherwise use’ of the firearm.” United\n\nStates v. Verbitskaya, 406 F.3d 1324, 1339 (11th Cir. 2005).\n\n The “key consideration” in applying the rule that pointing a weapon at a\n\nperson and issuing a threat or order to facilitate the commission of an offense\n\nconstitutes “otherwise using” a dangerous weapon is “whether a gun (or other\n\nweapon) was pointed at a specific person in an effort to create fear so as to\n\nfacilitate compliance with a demand, and ultimately to facilitate the commission of\n\nthe crime.” United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir. 1999). The\n\nanswer to this question does not depend on whether “the gun was pointed at the\n\nsame person in whom fear was sought to be instilled, or even that the person\n\nsought to be coerced was the victim of the crime, as opposed to a third party whose\n\ncomplicity the perpetrator sought to ensure.” Id. A perpetrator who points a gun at\n\na person to coerce another into compliance with a criminal scheme has done more\n\nthan merely “display[]” a weapon “to another person, in order to intimidate that\n\nperson, regardless of whether the weapon was directly visible to that person.”\n\nU.S.S.G. § 1B1.1 cmt. n.1(C).\n\n\n\n 42\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 43 of 44\n\n\n Regardless of whether Hano actually intended to harm Ortiz when he put\n\nwhat appeared to be a gun to his head, Hano pointed what qualifies as a\n\n“dangerous weapon” under our precedent at a specific person, namely Ortiz, with\n\nthe intent to cause Meaney to fear that Ortiz’s safety would be endangered if\n\nMeaney failed to comply with Hano’s demands. Hano’s conduct amounted to\n\n“otherwise using” a dangerous weapon in the commission of the robbery,\n\nregardless of whether Ortiz or Meaney were actually in danger. Cf. Yelverton, 197\n\nF.3d at 534 n.2 (explaining that threatening to “shoot one person in order to extort\n\naction from another” qualifies as otherwise using a dangerous weapon).\n\n That said, Hano also implicitly threatened Meaney. An explicit threat to one\n\nperson may constitute an implicit threat to others present if they reasonably believe\n\nin that circumstance that the same threat extends to them and that the perpetrator\n\nintends to secure their compliance with his demands through the use of the explicit\n\nthreat against the third-party. Cf. United States v. Douglas, 489 F.3d 1117, 1129\n\n(11th Cir. 2007) (holding that kidnapper’s explicit threat to harm a child’s mother\n\nwas an implicit threat to the child because “he was unable to act independently of\n\n[her] and [she] believed that they were both in danger of physical harm”). The\n\nsame rule should apply even if the explicit “threat” was only a mock threat. In\n\neither case, the perpetrator’s conduct is calculated to induce compliance on the part\n\nof those who were not explicitly threatened through the use of an apparent threat\n\n\n\n 43\n\f Case: 18-10510 Date Filed: 04/30/2019 Page: 44 of 44\n\n\nthat communicates that those who fail to comply with his demands will be harmed.\n\nAnd under this rule, Hano’s conduct amounted to “otherwise using” a dangerous\n\nweapon because his “threat” on Ortiz’s life was calculated to induce Meaney’s\n\ncompliance by demonstrating that weapons would be used against any member of\n\nthe crew of the truck who refused to comply with his demands. The district court\n\ncommitted no error when it enhanced Hano’s offense level by four levels because\n\nhe “otherwise used” a dangerous weapon in the robbery.\n\n IV. CONCLUSION\n\n We AFFIRM the convictions and sentences of Hano and Arrastia-Cardoso.\n\n\n\n\n 44\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES of America, Plaintiff-Appellee, v. Diosme Fernandez HANO, Reinaldo Arrastia-Cardoso, A.K.A. Reinaldo Arrastia, Defendants-Appellants.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-04-30\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-10510 Date Filed: 04/30/2019 Page: 1 of 44\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-10510\\n ________________________\\n\\n D.C. Docket No. 2:15-cr-00101-SPC-CM-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nDIOSME FERNANDEZ HANO,\\n\\nREINALDO ARRASTIA-CARDOSO,\\na.k.a. Reinaldo Arrastia,\\n\\n Defendants-Appellants.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (April 30, 2019)\\n\\nBefore WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *\\nDistrict Judge.\\n\\n\\n\\n*\\n The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District\\nof Texas, sitting by designation.\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 2 of 44\\n\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n This appeal requires us to decide two questions of first impression for our\\n\\nCircuit: (1) whether a five-year statute of limitations for a defendant implicated by\\n\\nDNA testing, 18 U.S.C. § 3297, permits indictment within five years of that testing\\n\\nregardless of whether the limitation period otherwise applicable to the offense has\\n\\nalready expired; and (2) whether the Confrontation Clause of the Sixth\\n\\nAmendment, see Bruton v. United States, 391 U.S. 123 (1968), or the Due Process\\n\\nClause of the Fifth Amendment prohibits use of the nontestimonial statements of a\\n\\nnontestifying criminal defendant against his codefendant in a joint trial. Diosme\\n\\nFernandez Hano and Reinaldo Arrastia-Cardoso were convicted of Hobbs Act\\n\\nrobbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), (b)(1),\\n\\nfor the robbery of $1.7 million from an armored truck. Hano argues that his\\n\\nindictment was returned after the applicable limitation period expired and that the\\n\\nlater discovery of his DNA could not revive the running of the limitation period.\\n\\nArrastia-Cardoso contends that the district court should have prohibited Ruben\\n\\nBorrego Izquierdo, to whom Hano admitted his crimes, from testifying. Hano also\\n\\nchallenges a few of the evidentiary rulings, argues that insufficient evidence\\n\\nsupports his convictions, and challenges the enhancement of his sentence for\\n\\n“otherwise using” a dangerous weapon in the robbery. Arrastia-Cardoso also\\n\\n\\n\\n\\n 2\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 3 of 44\\n\\n\\ncontends that the government improperly commented on his decision not to testify\\n\\nduring closing arguments. All these arguments fail. We affirm.\\n\\n I. BACKGROUND\\n\\n On November 30, 2009, Hano and Arrastia-Cardoso robbed a Brink’s\\n\\narmored truck outside of the Fifth Third Bank in Fort Myers, Florida. The\\n\\noperators of the truck that day were Jimmy Ortiz and Bernard Meaney. Ortiz\\n\\nserved as the truck’s messenger and Meaney was the driver.\\n\\n Both the driver and the messenger on a Brink’s armored truck are armed\\n\\nwith guns. The messenger’s primary role is to get in and out of the truck to collect\\n\\nand deliver currency, but he also is in command of the operation and supervises the\\n\\ndriver. The messenger uses a route guide—a confidential list that includes stops,\\n\\narrival and departure times, and the number of pieces to pick up or deliver—but he\\n\\nhas the authority to amend the guide and add stops, including food or restroom\\n\\nbreaks.\\n\\n An armored wall with a bulletproof window partitions the driver’s cabin\\n\\nfrom the back of the truck. The messenger sits with currency in a cabin in the back\\n\\nof the truck. The partition between the two cabins contains a gun port that allows\\n\\nthe driver to shoot into the messenger’s cabin in the event of a robbery.\\n\\n On the day of the robbery, Ortiz and Meaney picked up currency from\\n\\nseveral businesses, including a casino where the value of pickups ordinarily ranged\\n\\n\\n\\n 3\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 4 of 44\\n\\n\\nbetween $1 million and $1.5 million. The Fifth Third Bank was the last scheduled\\n\\nstop of the day. Before reaching the bank, Ortiz decided that they should stop at a\\n\\nBurger King. Only Ortiz went inside. In spite of a zero-tolerance policy forbidding\\n\\ncarrying cellphones on runs, Ortiz was carrying a cellphone. After spending six or\\n\\nseven minutes at Burger King, they continued to the Fifth Third Bank, which was\\n\\nroughly 30 minutes away.\\n\\n Immediately after they arrived at the bank and Ortiz stepped out of the truck,\\n\\na man wearing a ski mask approached Ortiz from behind, put an arm around his\\n\\nneck, held a gun to his head, and forced him back into the truck. Meaney, who was\\n\\nwatching through the window in the partition between the two cabins, reached for\\n\\nhis gun, but Ortiz told him not to fire. Meaney was afraid for Ortiz’s safety, so he\\n\\nobeyed and put his gun down. A second masked man entered the truck, grabbed\\n\\nbags of money, and exited. The man who had grabbed Ortiz struck his head with\\n\\nthe butt of a gun.\\n\\n One of the masked men then entered a red Pontiac Grand Prix parked behind\\n\\nthe Brink’s truck. Another masked man loaded the trunk of the Pontiac with money\\n\\nand began to enter the car. Meaney saw the Pontiac behind him, shifted the truck in\\n\\nreverse, and rammed the car. He then drove the truck forward and rammed the\\n\\nPontiac again. One of those collisions caused the masked man who had loaded the\\n\\n\\n\\n\\n 4\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 5 of 44\\n\\n\\nmoney into the trunk of the Pontiac to fall down, and his mask came off as he fell.\\n\\nThat man rose and entered the car, which then sped away.\\n\\n Eyewitness accounts established that either two or three men carried out the\\n\\nrobbery. A bank customer who witnessed the robbery said she saw two men of\\n\\nHispanic or Caucasian appearance. She described the man whose mask came off as\\n\\nappearing to be in his twenties to early thirties, standing around 5 feet 6 inches,\\n\\nwith a medium to somewhat heavy-set build, and short brown hair and no facial\\n\\nhair. Meaney said that, in addition to seeing the face of the man whose mask came\\n\\noff, he saw another man without a mask standing 20 to 30 feet from the red car.\\n\\nThat man stood near the scene of the robbery waiting to be picked up and then got\\n\\ninto the car. Meaney described that man as 5 feet 10 inches, 180 pounds, medium\\n\\nbuild, dark, and with a full head of hair and a mustache. Meaney said that the man\\n\\nwho had held Ortiz at gunpoint appeared to be Hispanic based on his skin tone.\\n\\nOrtiz asserted that he saw only the man who had struck him with the butt of his\\n\\ngun, but that he did not see that man’s face.\\n\\n Investigators found a ski mask and a plastic gun grip at the crime scene. The\\n\\ngun grip did not have screws used on real firearms and likely came from a fake\\n\\ngun. An analyst tested the ski mask and the gun grip for the presence of DNA. The\\n\\nanalyst discovered a major profile on the outside of the mask and on the gun grip.\\n\\nA major profile exists when there is significantly more DNA from one contributor\\n\\n\\n\\n 5\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 6 of 44\\n\\n\\nthan any other in the mixture of DNA recovered and makes it possible to identify\\n\\nthat contributor.\\n\\n On the night of the robbery, investigators found the red Pontiac abandoned\\n\\nin a parking lot at a business near the Fifth Third Bank. The vehicle identification\\n\\nnumber plate had been removed from the car and the vehicle identification number\\n\\non another part of the car had been scratched out. Investigators later learned that a\\n\\nTampa mechanic named Camilo Hernandez had sold the vehicle to Arrastia-\\n\\nCardoso in the month when the robbery took place. Another person had driven\\n\\nArrastia-Cardoso to buy the car, but Hernandez did not see who the driver was.\\n\\n The investigators initially suspected that Ortiz and a man named Mariano\\n\\nDuarte-Cardoso had been involved in the robbery. Duarte-Cardoso, who\\n\\ninvestigators later learned to be Arrastia-Cardoso’s cousin and the spouse of\\n\\nOrtiz’s sister, fled the country after a search of his home. At that time, the\\n\\ninvestigators were not focused on Hano or Arrastia-Cardoso.\\n\\n Five years later, in September 2014, Ruben Borrego Izquierdo, who was\\n\\nfacing unrelated state charges, came to the Federal Bureau of Investigation with\\n\\ninformation. Borrego Izquierdo stated that he grew up in the same village in Cuba\\n\\nwith Hano and had known him for decades. Hano had recently told Borrego\\n\\nIzquierdo that he had robbed an armored truck with a man named “Reinaldo\\n\\nArrastia” in 2009. Hano said that the plot to rob the truck included one of the\\n\\n\\n\\n 6\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 7 of 44\\n\\n\\ntruck’s guards, who was part of Arrastia’s family, and included a cousin of\\n\\nArrastia. Hano also described some of the key details of the robbery: that he had\\n\\nleft the scene in a car he had purchased from Camilo Hernandez, that he had\\n\\nremoved the vehicle identification number from the car, that he had taken the\\n\\nmoney from the robbery back to Cuba in a speedboat, and that he had spent the\\n\\nmoney on two houses and a car.\\n\\n Borrego Izquierdo’s story included details about the crime that had not been\\n\\nmade public. No law enforcement agency had made known, for example, that the\\n\\ngetaway car had been purchased in Tampa or that the vehicle identification number\\n\\nof the car had been removed. And investigators were able to corroborate Borrego\\n\\nIzquierdo’s assertion that Hano traveled to Cuba after the robbery through a sworn\\n\\nstatement that Hano provided to a border officer. In the statement, Hano said that\\n\\nhe moved to the United States in 2008, but that in January 2010—a little more than\\n\\na month after the robbery—he traveled to Cuba on a boat that departed from Texas.\\n\\nHano returned to the United States in 2014.\\n\\n After investigators heard Borrego Izquierdo’s story, Arrastia-Cardoso and\\n\\nHano became the primary suspects in the investigation. In 2015, federal\\n\\ninvestigators obtained DNA samples from them. Hano’s DNA matched the major\\n\\nDNA profile from the ski mask. Arrastia-Cardoso’s DNA matched the major\\n\\nprofile on the gun grip. And the government’s analyst determined that, for each\\n\\n\\n\\n 7\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 8 of 44\\n\\n\\nmajor DNA profile, the probability that the profile would match the DNA of a\\n\\nrandom person (the “random-match probability”) was less than one in 700 billion.\\n\\n On March 16, 2016, the United States indicted Hano and Arrastia-Cardoso\\n\\nfor Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. The jury\\n\\nconvicted both men on all charges. Hano’s presentence investigation report\\n\\nrecommended a five-level enhancement to his offense level because he brandished\\n\\nor otherwise possessed a firearm during the robbery, United States Sentencing\\n\\nGuidelines Manual § 2B3.1(b)(2)(C) (Nov. 2015), when the defendants apparently\\n\\ndisarmed Ortiz and stole his gun. Hano objected to this enhancement on the ground\\n\\nthat the evidence at trial established only that the defendants used a fake gun to\\n\\neffectuate the robbery. He conceded that the Guidelines treat a fake gun as a\\n\\n“dangerous weapon,” but argued that he should instead receive only a three-level\\n\\nenhancement for brandishing a weapon in the course of the offense, id. §\\n\\n2B3.1(b)(2)(E). The district court applied a four-level enhancement because a\\n\\ndangerous weapon had been “otherwise used” during the robbery, id. §\\n\\n2B3.1(b)(2)(D). The district court sentenced Hano to serve 121 months of\\n\\nimprisonment and Arrastia-Cardoso to 120 months of imprisonment.\\n\\n II. STANDARD OF REVIEW\\n\\n This appeal is governed by three standards of review. First, we review de\\n\\nnovo the interpretation and application of a statute of limitations. United States v.\\n\\n\\n\\n 8\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 9 of 44\\n\\n\\nFarias, 836 F.3d 1315, 1323 (11th Cir. 2016). The same standard applies to\\n\\nalleged violations of Brady v. Maryland, 373 U.S. 83 (1963). United States v.\\n\\nBrester, 786 F.3d 1335, 1338 (11th Cir. 2015). We also review the denial of a\\n\\nmotion for a judgment of acquittal for insufficiency of the evidence de novo.\\n\\nUnited States v. Flanders, 752 F.3d 1317, 1329 (11th Cir. 2014). And although we\\n\\nreview a district court’s factual findings in applying the Sentencing Guidelines for\\n\\nclear error, we review the application of the guidelines to those facts de novo.\\n\\nUnited States v. Bradley, 644 F.3d 1213, 1283 (11th Cir. 2011). Second, “[w]e\\n\\nreview a district court’s evidentiary rulings for an abuse of discretion.” United\\n\\nStates v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). And we review the denial\\n\\nof a motion for a new trial based on the weight of the evidence for “clear abuse” of\\n\\ndiscretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). Third,\\n\\nwe review issues not raised in the district court for plain error. United States v.\\n\\nTaohim, 817 F.3d 1215, 1224 (11th Cir. 2013). “For there to be plain error, there\\n\\nmust (1) be error, (2) that is plain, and (3) that affects the substantial rights of the\\n\\nparty, and (4) that seriously affects the fairness, integrity, or public reputation of a\\n\\njudicial proceeding.” Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th\\n\\nCir. 2002).\\n\\n\\n\\n\\n 9\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 10 of 44\\n\\n\\n III. DISCUSSION\\n\\n We divide our discussion in six parts. First, we reject Hano’s argument that\\n\\nthe indictment against him was not returned within the applicable limitation period.\\n\\nSecond, we explain that the evidentiary issues raised by Hano and Arrastia-\\n\\nCardoso do not merit reversal. Third, we explain that Hano has failed to establish\\n\\nthat the denial of his motion to obtain the DNA profile of Mariano Duarte-Cardoso\\n\\nresulted in any prejudice. Fourth, we reject Hano’s argument that the government\\n\\nfailed to produce sufficient evidence to support his convictions. Fifth, we conclude\\n\\nthat the government did not improperly comment on Arrastia-Cardoso’s decision\\n\\nnot to testify. And sixth, we explain that Hano “otherwise used” a dangerous\\n\\nweapon in the commission of the robbery so the district court was warranted in\\n\\napplying the four-level enhancement to his sentence.\\n\\n A. The Indictment Was Returned Within the Applicable Limitation Period.\\n\\n Before trial, Hano moved to dismiss the indictment on the ground that it was\\n\\nnot returned within the five-year limitation period ordinarily applicable to federal\\n\\nnoncapital crimes, 18 U.S.C. § 3282(a). The district court denied the motion and\\n\\nruled that the indictment fell within a statutory exception for cases in which DNA\\n\\ntesting implicates a person in a felony, id. § 3297. Section 3297 provides that “[i]n\\n\\na case in which DNA testing implicates an identified person in the commission of a\\n\\nfelony, no statute of limitations that would otherwise preclude prosecution of the\\n\\n\\n\\n 10\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 11 of 44\\n\\n\\noffense shall preclude such prosecution until a period of time following the\\n\\nimplication of the person by DNA testing has elapsed that is equal to the otherwise\\n\\napplicable limitation period.” The district court reasoned that this exception\\n\\napplied to Hano’s indictment because DNA testing did not implicate him in the\\n\\ncharged crimes until June 26, 2015, which left the government with five years to\\n\\nindict Hano after that date. Because the indictment was returned in March 2016,\\n\\nthe district court concluded that the indictment was returned well within the\\n\\nlimitations period of section 3297.\\n\\n Hano argues that this ruling was in error based on the following application\\n\\nnote to section 3297: “The amendments made by this section shall apply to the\\n\\nprosecution of any offense committed before, on, or after the date of the enactment\\n\\nof this section if the applicable limitation period has not yet expired.” Justice for\\n\\nAll Act, Pub. L. No. 108–405, § 204(c), 118 Stat. 2260, 2271 (2004). Although the\\n\\ndistrict court reasoned that section 3297 provided a new five-year limitation period\\n\\nthat began when Hano was first implicated by DNA testing, Hano reads the\\n\\napplication note—in particular, the conditional phrase “if the applicable limitation\\n\\nperiod has not yet expired”—to mean that the exception to the ordinary limitation\\n\\nperiod applies to the prosecution of any offense committed after the date of\\n\\nenactment only if the otherwise applicable limitation period “has not yet expired”\\n\\nat the time the defendant is implicated by DNA testing. So on Hano’s reading, the\\n\\n\\n\\n 11\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 12 of 44\\n\\n\\nimplication of a defendant by DNA testing only extends a not-yet-elapsed\\n\\nlimitation period.\\n\\n The government contends that no error occurred based on the text of section\\n\\n3297. And it argues that the application note only clarifies that section 3297\\n\\napplies retroactively to any offense so long as the limitation period applicable to an\\n\\noffense by default had not yet expired at the time of enactment. We agree with the\\n\\ngovernment.\\n\\n Hano’s argument would require us to disregard the plain meaning of section\\n\\n3297, which provides that “no statute of limitations that would otherwise preclude\\n\\nprosecution of the offense shall preclude such prosecution until a period of time\\n\\nfollowing the implication of the person by DNA testing has elapsed that is equal to\\n\\nthe otherwise applicable limitation period.” This language makes clear that a\\n\\nperiod of time “equal to the otherwise applicable limitation period” will run from\\n\\n“the implication of the person by DNA testing” regardless of whether the\\n\\nimplication occurred within the ordinarily applicable limitation period. If Hano\\n\\nwere right about the import of the application note, the codified text of section\\n\\n3297 would instead say that no statute of limitations will preclude prosecution until\\n\\na period of time has elapsed that is equal to the otherwise applicable limitation\\n\\nperiod if the person is implicated by DNA testing while the otherwise applicable\\n\\nlimitation period continues to run. But that is not what the statute says, and “our\\n\\n\\n\\n 12\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 13 of 44\\n\\n\\nconstitutional structure” does not permit us “to ‘rewrite the statute that Congress\\n\\nhas enacted.’” Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1949\\n\\n(2016) (quoting Dodd v. United States, 545 U.S. 353, 359 (2005)).\\n\\n Hano misreads the application note. The competing interpretations of the\\n\\napplication note turn on the implicit temporal reference of the expression “has not\\n\\nyet expired,” a verbal phrase in the present-perfect tense. The present perfect\\n\\n“denotes an act, state, or condition that is now completed or continues up to the\\n\\npresent.” Bryan A. Garner, The Chicago Guide to Grammar, Usage, and\\n\\nPunctuation 97 (2016). In the application note, the condition that “continues up to\\n\\nthe present” is that the normal limitation period for an offense has not yet expired.\\n\\nAnd the most natural reading of the note is that the time up to which the limitation\\n\\nperiod’s failure to expire continues is the time of enactment. After all, the\\n\\nconditional phrase directly follows a reference to “the date of the enactment of this\\n\\nsection.”\\n\\n Indeed, the text of the application note does not provide any other plausible\\n\\ntemporal anchor for the conditional clause. The note refers directly to three events:\\n\\nthe “commi[ssion]” of “an[] offense,” “the prosecution of [the] offense,” and “the\\n\\nenactment of this section.” Of the options in the text of the application note, only\\n\\n“the date of the enactment” makes sense as a temporal point of reference for the\\n\\nconditional clause. It makes no sense to say that section 3297 would apply unless\\n\\n\\n\\n 13\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 14 of 44\\n\\n\\nthe limitation period expired the very same moment the offense was committed.\\n\\nAnd if the conditional clause were linked in time to the prosecution of the offense,\\n\\nthen the application note would mean that section 3297 would apply only when a\\n\\ndefendant was prosecuted within the original limitation period—a situation in\\n\\nwhich the extended period of section 3297 would have no work to do.\\n\\n Hano does not argue that either the time of the prosecution or the time of the\\n\\ncommission of the offense frames the conditional clause, but his preferred\\n\\ncandidate—the time the defendant is implicated by DNA testing—is no more\\n\\nattractive. That event is described in section 3297, not the application note, so it\\n\\nwould be unusual if it supplied the temporal reference point for the present-perfect\\n\\nverb in the application note. Such a reading might make sense if the application\\n\\nnote incorporated section 3297 by reference in a way that also incorporated its\\n\\ntemporal framework. But the application note does not do so. To be sure, the\\n\\napplication note defines the circumstances in which section 3297 “shall apply.”\\n\\nBut the point is that the application note is a distinct sentence and stands on its own\\n\\ntemporal ground. Nothing in the text or context of the application note provides\\n\\nany reason to think that the “present” to which the present-perfect phrase “has not\\n\\nyet expired” refers is any time other than that contemporaneous with the enactment\\n\\nof the text by Congress.\\n\\n\\n\\n\\n 14\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 15 of 44\\n\\n\\n Our interpretation of section 3297 and the application note is also supported\\n\\nby persuasive authority. Hano cites no authority in support of his reading, and as\\n\\nthe government points out, our sister circuits have consistently applied section\\n\\n3297 even when the otherwise applicable limitation period has already expired. See\\n\\nUnited States v. Lopez, 860 F.3d 201, 206–07 (4th Cir. 2017) (applying section\\n\\n3297 when crime occurred in February 2007 and DNA match occurred over five\\n\\nyears later in June 2012); United States v. Sylla, 790 F.3d 772, 772–73 (7th Cir.\\n\\n2015) (involving 2003 crime and 2010 DNA match); United States v. Hagler, 700\\n\\nF.3d 1091, 1094 (7th Cir. 2012) (involving 2000 crime and 2008 DNA match).\\n\\n Hano argues that our interpretation of the note threatens to read the word\\n\\n“after” out of the note in violation of the surplusage canon, which instructs us to\\n\\ngive effect to every word in a provision if possible and to refrain from assigning an\\n\\ninterpretation to a provision that causes a word “to have no consequence.” Antonin\\n\\nScalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 26, at\\n\\n174 (2012). The note says that section 3297 shall apply to the prosecution of an\\n\\noffense “committed before, on, or after the date of the enactment” of the section\\n\\n“if the applicable limitation period has not yet expired.” And Hano points out that\\n\\nobviously no limitations period for an offense committed after the enactment of the\\n\\nstatute could have already expired at the time when the statute was enacted.\\n\\n\\n\\n\\n 15\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 16 of 44\\n\\n\\n Hano’s argument misses the mark. The word “after” in the application note\\n\\nis not devoid of legal effect. If the application note provided only that section 3297\\n\\n“shall apply to the prosecution of any offense before or on the date of the\\n\\nenactment of this section if the applicable limitation period has not yet expired,”\\n\\nthe note would create the impression that section 3297 does not apply to offenses\\n\\ncommitted after the date of enactment. The inclusion of the word “after” in the\\n\\nnote eliminates this misleading impression. True, the conditional clause of the\\n\\nnote, which says that section 3297 applies “if the applicable limitation period has\\n\\nnot yet expired,” is necessarily satisfied when an offense was committed after the\\n\\ndate of enactment. But that consequence does not render the word “after” or the\\n\\nconditional clause superfluous. The conditional clause—in conjunction with the\\n\\nword “before”—clarifies that section 3297 applies retroactively to offenses\\n\\ncommitted before the date of enactment if the otherwise applicable limitation\\n\\nperiod has yet to expire. The word “after” makes plain that section 3297 has\\n\\nprospective application. Both the word “after” and the conditional clause are\\n\\nnecessary to clarify the full scope of application of section 3297.\\n\\n Consider too the legal context of the enactment of section 3297 and its\\n\\napplication note. Section 3297 was enacted in 2004, only one year after the\\n\\nSupreme Court held in Stogner v. California, 539 U.S. 607 (2003), that “a law\\n\\nenacted after expiration of a previously applicable limitations period violates the\\n\\n\\n\\n 16\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 17 of 44\\n\\n\\nEx Post Facto Clause when it is applied to revive a previously time-barred\\n\\nprosecution.” Id. at 632–33. Stogner explicitly distinguished a law that revives a\\n\\nprosecution that was previously precluded by the applicable statutory-limitation\\n\\nperiod from a statute that merely “extend[s] time limits for the prosecution of\\n\\nfuture offenses, or for prosecutions not yet time barred.” Id. at 632. The language\\n\\nof the application note covers both categories of prosecutions while clarifying that\\n\\nsection 3297 does not purport to revive prosecutions for offenses with limitation\\n\\nperiods that had already expired when the statute was enacted. Instead of\\n\\npermanently limiting the operation of section 3297 to the extension of limitation\\n\\nperiods still running when DNA testing implicates a suspect, the application note\\n\\nappears tailor-made to avoid the constitutional problem that would have resulted\\n\\nunder Stogner if Congress had sought to apply section 3297 retroactively to renew\\n\\nlimitation periods that had elapsed before the time of enactment. As a result, we\\n\\nconclude that the district court did not err in ruling that the indictment was returned\\n\\nwithin the limitation period applicable under section 3297.\\n\\n B. The Evidentiary Issues Raised by Hano and Arrastia-Cardoso Do Not\\n Merit Reversal.\\n\\n Hano and Arrastia-Cardoso challenge three evidentiary rulings. First, they\\n\\nargue, on different grounds, that the district court erred in permitting Borrego\\n\\nIzquierdo to testify about his conversation with Hano who revealed that he\\n\\nparticipated in the robbery and that Arrastia-Cardoso was one of his\\n\\n\\n 17\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 18 of 44\\n\\n\\ncoconspirators. Second, Hano contends that the district court should not have\\n\\npermitted the government to introduce evidence that he traveled to Cuba shortly\\n\\nafter the robbery. Third, Hano argues that the district court erred in ruling that the\\n\\ngovernment could introduce DNA evidence obtained from the getaway vehicle\\n\\neven though the government ultimately decided not to introduce that evidence at\\n\\ntrial. None of their arguments have merit.\\n\\n 1. The District Court Did Not Err in Permitting Borrego Izquierdo to\\n Testify.\\n\\n Arrastia-Cardoso contends that the admission of Hano’s statements to\\n\\nBorrego Izquierdo violated his rights under Bruton, but Hano’s statements were\\n\\nnontestimonial, which means they are beyond the scope of the Bruton doctrine.\\n\\nBruton held that the Confrontation Clause prohibits the use of the confession of a\\n\\nnontestifying criminal defendant in a joint trial if the statement directly inculpates\\n\\na codefendant, although it may be otherwise admissible against the confessing\\n\\ndefendant. 391 U.S. at 126. And Crawford v. Washington, 541 U.S. 36 (2004),\\n\\nheld that the Confrontation Clause prohibits the “admission of testimonial\\n\\nstatements of a witness who [does] not appear at trial unless he [is] unavailable to\\n\\ntestify, and the defendant ha[s] had a prior opportunity for cross-examination.” Id.\\n\\nat 53–54. The Supreme Court has since clarified that the Confrontation Clause\\n\\nprohibits only the introduction of testimonial hearsay statements. See Whorton v.\\n\\nBockting, 549 U.S. 406, 419–20 (2007) (“Under Crawford, . . . the Confrontation\\n\\n\\n 18\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 19 of 44\\n\\n\\nClause has no application to [out-of-court nontestimonial statements] and therefore\\n\\npermits their admission even if they lack indicia of reliability.”); Davis v.\\n\\nWashington, 547 U.S. 813, 823–24 (2006) (same).\\n\\n We have yet to hold in a published opinion that Bruton applies only to\\n\\ntestimonial statements, but every one of our sister circuits to consider the issue has\\n\\nso held, see Lucero v. Holland, 902 F.3d 979, 987–88 (9th Cir. 2018); United\\n\\nStates v. Clark, 717 F.3d 790, 816 (10th Cir. 2013); United States v. Berrios, 676\\n\\nF.3d 118, 128–29 (3d Cir. 2012); United States v. Figueroa-Cartagena, 612 F.3d\\n\\n69, 85 (1st Cir. 2010); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009);\\n\\nUnited States v. Avila Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009), and for\\n\\ngood reason. The Bruton rule “presupposes that the aggrieved co-defendant has a\\n\\nSixth Amendment right to confront the declarant in the first place.” Figueroa-\\n\\nCartagena, 612 F.3d at 85. If no co-defendant “has a constitutional right to\\n\\nconfront the declarant, none can complain that his right has been denied.” Id. So\\n\\nthe same principles that govern whether the admission of testimony violated the\\n\\nConfrontation Clause control whether the admission of the statements of a\\n\\nnontestifying codefendant against a defendant at a joint trial violate Bruton. As a\\n\\nresult, “[t]he threshold question in every case” raising a Bruton issue “is whether\\n\\nthe challenged statement is testimonial.” Id. If it is not, the Confrontation Clause\\n\\n\\n\\n\\n 19\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 20 of 44\\n\\n\\ndoes not apply. So the admission of Hano’s statements through Borrego Izquierdo\\n\\ncould have violated the rule of Bruton only if those statements were testimonial.\\n\\n Hano’s statements as related by Borrego Izquierdo were plainly\\n\\nnontestimonial. Statements made in the course of an out-of-court conversation are\\n\\n“testimonial” if “in light of all the circumstances, viewed objectively, the ‘primary\\n\\npurpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial\\n\\ntestimony.’” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v.\\n\\nBryant, 562 U.S. 344, 358 (2011)). When Hano spoke with Borrego Izquierdo, no\\n\\nfuture prosecution was on the horizon. Hano was not presently under investigation\\n\\nand had no reason to believe that his statements to Borrego Izquierdo would ever\\n\\nbe used in court. Borrego Izquierdo likewise had no ground to suspect that he\\n\\nwould ever testify against Hano. What transpired between them was a friendly and\\n\\ninformal exchange in which Hano happened to reveal evidence that would\\n\\nultimately be critical to the government’s case when Borrego Izquierdo decided to\\n\\ncome forward years after the robbery.\\n\\n In the alternative, Arrastia-Cardoso argues that we should adopt a rule that\\n\\nwould extend the rule of Bruton to nontestimonial statements on procedural-due-\\n\\nprocess grounds. The government responds by arguing that plain-error review\\n\\napplies to Arrastia-Cardoso’s alternative argument because he objected to Borrego\\n\\nIzquierdo’s testimony on the basis of the Confrontation Clause, not the Due\\n\\n\\n\\n 20\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 21 of 44\\n\\n\\nProcess Clause. And the government argues that Arrastia-Cardoso’s proposed rule\\n\\nis not clearly established as the law of this Circuit. United States v. Hesser, 800\\n\\nF.3d 1310, 1325 (11th Cir. 2015) (“‘Plain’ error means that the legal rule is clearly\\n\\nestablished at the time the case is reviewed on direct appeal.”).\\n\\n We conclude that there was no due-process error—plain or otherwise—in\\n\\nthe admission of Borrego Izquierdo’s testimony. In the substantive-due-process\\n\\ncontext, the Supreme Court has explained that “where a particular Amendment\\n\\nprovides an explicit textual source of constitutional protection against a particular\\n\\nsort of government behavior, that Amendment, not the more generalized notion of\\n\\nsubstantive due process, must be the guide for analyzing these claims.” Cty. of\\n\\nSacramento v. Lewis, 523 U.S. 833, 842 (1998) (alteration adopted) (quoting\\n\\nAlbright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)); see also Graham\\n\\nv. Connor, 490 U.S. 386, 395 (1989); Echols v. Lawton, 913 F.3d 1313, 1326 (11th\\n\\nCir. 2019). We see no reason why the same logic would not apply to procedural-\\n\\ndue-process claims.\\n\\n Under Arrastia-Cardoso’s theory, the Due Process Clause would provide\\n\\ndefendants with a right to confront witnesses more expansive than the right secured\\n\\nby the Confrontation Clause itself, reducing the Confrontation Clause to\\n\\nsurplusage. In the Bill of Rights, the “Framers sought to restrict the exercise of\\n\\narbitrary authority by the [g]overnment in particular situations.” Albright, 510 U.S.\\n\\n\\n\\n 21\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 22 of 44\\n\\n\\nat 273 (plurality opinion). If the Due Process Clause contained all the protections\\n\\nof the Confrontation Clause and more, the Framers’ decision to include that Clause\\n\\nin the Sixth Amendment would be mysterious. And needless to say, there is no\\n\\nreason to believe that the drafters of the Sixth Amendment included the\\n\\nConfrontation Clause “out of a flawed sense of style or to engage in the ill-\\n\\nconceived but lamentably common belt-and-suspenders approach.” Scalia &\\n\\nGarner, supra, at § 26, at 177. As a result, “[w]e must analyze the claim under the\\n\\nstandard appropriate to that specific provision, not under the rubric of” procedural\\n\\ndue process. Echols, 913 F.3d at 1326 (alterations adopted) (citation and internal\\n\\nquotation marks omitted). And as we have explained, Arrastia-Cardoso’s argument\\n\\nunder the Confrontation Clause fails.\\n\\n Arrastia-Cardoso’s due-process theory would also render meaningless the\\n\\nlimitation of Crawford and its progeny of the confrontation right to “testimonial\\n\\nstatements of a witness” who “was unavailable to testify” where the defendant did\\n\\nnot have “a prior opportunity for cross-examination.” 541 U.S. at 53–54. On\\n\\nArrastia-Cardoso’s view, the bare fact that a defendant cannot ordinarily subject\\n\\nhis codefendant’s out-of-court statement to the rigors of cross-examination in a\\n\\njoint trial renders the statement inadmissible at trial, regardless of whether the\\n\\nstatement was testimonial. But the apparent rationale for this proposed rule—that\\n\\nthe admission of an out-of-court statement inherently deprives a defendant of a fair\\n\\n\\n\\n 22\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 23 of 44\\n\\n\\ntrial if he had no opportunity to cross-examine the declarant—applies with equal\\n\\nforce to statements of unavailable witnesses who are not codefendants at a joint\\n\\ntrial. So Arrastia-Cardoso’s theory—taken to its logical conclusion—would mean\\n\\nthat the Due Process Clause prevents the introduction of any and all out-of-court\\n\\nstatements at a criminal trial if the defendant did not have “a prior opportunity for\\n\\ncross-examination.” Id. This theory would allow a defendant to avoid Crawford’s\\n\\nlimitation of the confrontation right to testimonial statements by the simple\\n\\nexpedient of labeling their claims under the Confrontation Clause as claims under\\n\\nthe Due Process Clause. We will not adopt a rule that would permit defendants to\\n\\nmake an end run around the strictures recognized by the Supreme Court’s\\n\\nConfrontation Clause jurisprudence.\\n\\n Arrastia-Cardoso also contends, albeit very briefly, that Hano’s statement\\n\\nshould have been excluded as inadmissible hearsay, but he is mistaken. The district\\n\\ncourt overruled Arrastia-Cardoso’s objection to the admission of this statement on\\n\\nhearsay grounds and concluded that Hano’s statement was admissible as a\\n\\nstatement against interest under Federal Rule of Evidence 804(b)(3). On appeal,\\n\\nArrastia-Cardoso concedes that “Hano’s confession to his role in the robbery was\\n\\nagainst his own penal interest,” but argues that “the balance of the statement\\n\\nremains hearsay inadmissible in accordance with [Federal Rule of Evidence] 802.”\\n\\nIn support of this contention, he relies on the principle that Rule 804(b)(3) “does\\n\\n\\n\\n 23\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 24 of 44\\n\\n\\nnot allow admission of non-self-inculpatory statements, even if they are made\\n\\nwithin a broader narrative that is generally self-inculpatory.” Williamson v. United\\n\\nStates, 512 U.S. 594, 600–01 (1994). But Arrastia-Cardoso does not even attempt\\n\\nto identify any portion of Hano’s statement that was not self-inculpatory, nor does\\n\\nhe attempt to prove that the introduction of portions of Hano’s statement that were\\n\\nnot self-inculpatory prejudiced him, so we cannot reverse on this basis. See United\\n\\nStates v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007) (“No reversal will result if\\n\\nsufficient evidence uninfected by any error supports the verdict, and the error did\\n\\nnot have a substantial influence on the outcome of the case.” (citation and internal\\n\\nquotation marks omitted)).\\n\\n For his part, Hano offers a third challenge to Borrego Izquierdo’s testimony,\\n\\narguing that it should have been excluded as prejudicial under Federal Rule of\\n\\nEvidence 403, but his argument fails as well. Under Rule 403, a district court has\\n\\nthe discretion to “exclude relevant evidence if its probative value is substantially\\n\\noutweighed by a danger” of “unfair prejudice, confusing the issues, misleading the\\n\\njury, undue delay, wasting time, or needlessly presenting cumulative evidence.”\\n\\nAccording to Hano, the district court should have prohibited Borrego Izquierdo\\n\\nfrom testifying altogether because he was not credible. But “Rule 403 does not\\n\\npermit exclusion of evidence because the judge does not find it credible.” United\\n\\nStates v. Thompson, 615 F.2d 329, 333 (5th Cir. 1980) (rejecting the argument that\\n\\n\\n\\n 24\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 25 of 44\\n\\n\\nRule 403 gave the district court the authority to “protect” the jury from a witness’s\\n\\n“contradictory testimony”). Credibility determinations are the “exclusive province”\\n\\nof the jury “and the court of appeals may not revisit this question unless it is\\n\\nincredible as a matter of law.” United States v. Feliciano, 761 F.3d 1202, 1206\\n\\n(11th Cir. 2014) (citation and internal quotation marks omitted). Testimony is\\n\\nincredible as a matter of law if and only if it is “unbelievable on its face, i.e.,\\n\\ntestimony as to facts the witness physically could not have possibly observed or\\n\\nevents that could not have occurred under the laws of nature.” Id. (citation and\\n\\ninternal quotation marks omitted). Nothing of the kind could be fairly said of\\n\\nBorrego Izquierdo’s testimony.\\n\\n Hano also asserts that Borrego Izquierdo’s testimony that Hano purchased\\n\\ntwo houses and a car in Cuba after the robbery should have been excluded because\\n\\nit was uncorroborated and appealed to class prejudice, but we disagree. Rule 403\\n\\ndoes not license exclusion of evidence for want of corroboration, and “evidence of\\n\\nwealth or extravagant spending may be admissible when relevant to the issues in\\n\\nthe case and where other evidence supports a finding of guilt.” Bradley, 644 F.3d\\n\\nat 1271. The evidence of Hano’s expenditures was relevant because it buttressed\\n\\nthe inference that Hano had recently come into a large sum of money when he set\\n\\nsail for Cuba. The evidence was not admitted for the purpose of enticing the jury to\\n\\nconvict Hano based on his wealth or socioeconomic status, and the government\\n\\n\\n\\n 25\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 26 of 44\\n\\n\\nnever attempted to suggest anything along those lines. So Hano’s argument fails to\\n\\nestablish that the district court erred in permitting Borrego Izquierdo to testify.\\n\\n 2. The District Court Did Not Err in Admitting Evidence that Hano Left the\\n United States for Cuba After the Robbery.\\n Before trial, Hano filed a motion in limine to exclude any evidence of his\\n\\ntravel between the United States and Cuba, including his immigration file and the\\n\\nstatement he made to a border officer in which he explained that he left for Cuba\\n\\non a boat that departed from Texas in January 2010. Hano argued that the evidence\\n\\nshould be excluded as prejudicial under Rule 403 and excluded under Rule 404(b)\\n\\non the theory that “testimony regarding the details of [Hano’s] immigration to and\\n\\nfrom the United States and Cuba may be considered a ‘bad act.’” The district court\\n\\ndenied the motion in part and granted it in part. It ruled that Rule 404(b) did not\\n\\napply because Hano failed to establish that his entry into the United States was\\n\\nwrong or related to his character and that Hano’s statement to the border officer\\n\\nconcerning the timing and means of his exodus to Cuba had significant probative\\n\\nvalue that was not outweighed by the danger of unfair prejudice. The district court\\n\\nexcluded all portions of Hano’s immigration file that lacked clear probative value.\\n\\nAt trial, the government introduced a redacted copy of Hano’s immigration file and\\n\\noffered testimony from the border officer regarding Hano’s statement about his\\n\\ntravel to Cuba.\\n\\n\\n\\n\\n 26\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 27 of 44\\n\\n\\n Hano argues that this evidence should have been excluded under Rule 403\\n\\nbecause the evidence transformed a “case about a robbery and conspiracy” into “a\\n\\ncase about immigration,” but he is wrong. As the district court correctly concluded,\\n\\n“the timing of Hano’s departure to Cuba, which was little more than a month after\\n\\nthe robbery, as well as his description of the means and method of that departure”\\n\\nwas probative of his “motivation to move between countries in the immediate\\n\\naftermath of a crime” and “the potential avenue” by which he transported his “ill-\\n\\ngotten gains.”\\n\\n Hano’s only argument for the existence of prejudice relies on a state-court\\n\\nopinion asserting that “[q]uestions regarding a defendant’s immigration status\\n\\nare . . . irrelevant and designed to appeal to the trier of fact’s passion and prejudice\\n\\nand are thus generally improper areas of inquiry,” Washington v. Avendano-Lopez,\\n\\n904 P.2d 324, 331 (Wash. Ct. App. 1995), but the government never suggested that\\n\\nHano was illegally present in the United States. Indeed, the border officer testified\\n\\nthat Hano legally entered the United States when he moved to this country in 2008\\n\\nand in 2014 when he returned from his sojourn in Cuba. The government never\\n\\ninvited the jury to find Hano guilty on the basis of immigration status. The import\\n\\nof the evidence about his travel was clear: it established that Hano was indeed in\\n\\nCuba after the robbery, as Borrego Izquierdo testified, and that he had traveled\\n\\nthere on a private person’s boat that sailed from Texas—an unusual means of\\n\\n\\n\\n 27\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 28 of 44\\n\\n\\ninternational travel that might be appealing if one were carrying hundreds of\\n\\nthousands of dollars obtained by a robbery.\\n\\n Hano’s argument under Rule 404(b) fares no better. Rule 404(b)(1) provides\\n\\nthat “[e]vidence of a crime, wrong, or other act is not admissible to prove a\\n\\nperson’s character in order to show that on a particular occasion the person acted in\\n\\naccordance with the character.” Rule 404(b)(2) clarifies that such evidence “may\\n\\nbe admissible for another purpose, such as proving motive, opportunity, intent,\\n\\npreparation, plan, knowledge, identity, absence of mistake, or lack of accident.”\\n\\nWe have explained that Rule 404(b) is a rule “of inclusion which allows extrinsic\\n\\nevidence unless it tends to prove only criminal propensity.” United States v.\\n\\nSanders, 668 F.3d 1298, 1314 (11th Cir. 2012). And the government made no\\n\\nattempt to use the evidence of Hano’s travel to Cuba to prove that he had a\\n\\npropensity to cross the border unlawfully or otherwise violate the law. The purpose\\n\\nof the evidence was to show that, on a particular occasion, Hano fled the United\\n\\nStates with the proceeds of the robbery. The district court acted well within its\\n\\ndiscretion in denying Hano’s motion to exclude the evidence of when and by what\\n\\nmeans he traveled to Cuba.\\n\\n 3. The Question Whether the District Court Abused its Discretion in Denying\\n Hano’s Motion to Prohibit DNA Evidence from the Getaway Car Is Moot.\\n\\n Before trial, Hano moved to exclude DNA evidence obtained from the\\n\\ngetaway car that purportedly established that he was a possible contributor to the\\n\\n\\n 28\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 29 of 44\\n\\n\\nDNA sample obtained from the car. Hano argued that the introduction of this\\n\\nevidence would violate his rights under California v. Trombetta, 467 U.S. 479\\n\\n(1984), because the government had destroyed the car and Hano would have no\\n\\ncapacity to test the vehicle. The district court denied this motion because local\\n\\ninvestigators destroyed the car before Hano became a suspect, the evidence had no\\n\\nexculpatory value at the time of its destruction, and Hano had failed to prove that\\n\\nthe local investigators acted in bad faith in destroying the car. Nevertheless, the\\n\\ngovernment never offered this evidence at trial.\\n\\n Hano reiterates his challenge to this ruling on appeal, but the issue is now\\n\\nmoot. See United States v. Diecidue, 603 F.2d 535, 561 (5th Cir. 1979) (“Since the\\n\\nGovernment did not introduce these items into evidence, the issue is moot.”). As a\\n\\nresult, we have no authority to examine the merits of this ruling. See Al Najjar v.\\n\\nAshcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (“Any decision on the merits of a\\n\\nmoot case or issue would be an impermissible advisory opinion.” (citation and\\n\\ninternal quotation marks omitted)).\\n\\n Hano argues that the officer who examined the getaway car mentioned in her\\n\\ntrial testimony that she looked for and attempted to collect DNA samples from the\\n\\nvehicle, but the officer gave no indication of the result of the analysis of the\\n\\nsamples or suggested that the samples implicated Hano in the robbery in any way.\\n\\nInstead, she stated only that she “look[ed] for touch DNA” samples and that\\n\\n\\n\\n 29\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 30 of 44\\n\\n\\n“[t]ouch DNA swabs were collected off of the exterior and interior” of the vehicle.\\n\\nThese incidental references did not introduce the DNA analysis challenged by\\n\\nHano in his pretrial motion.\\n\\n C. The District Court Correctly Denied Hano’s Motion to Obtain the DNA\\n Profile of Mariano Duarte-Cardoso.\\n\\n Hano filed a pretrial motion for the district court to issue a nonparty\\n\\nsubpoena to the Federal DNA Database Unit for the DNA profile of Mariano\\n\\nDuarte-Cardoso—Arrastia-Cardoso’s cousin and the spouse of Ortiz’s sister.\\n\\nDuarte-Cardoso’s DNA profile was in the database because of an earlier unrelated\\n\\nconviction. Hano argued that he had a right to access Duarte-Cardoso’s profile\\n\\nunder Brady, because the DNA of other “potential donors” had been discovered on\\n\\nthe ski mask recovered from the crime scene, and in Hano’s view, the profile\\n\\n“could potentially exculpate [him] . . . by further inculpating [Duarte-]Cardoso.”\\n\\nThe government opposed the motion on the ground that federal privacy protections\\n\\nprohibited the disclosure of Duarte-Cardoso’s DNA profile and that his profile was\\n\\nnot exculpatory because even if his DNA was on the ski mask, it would do nothing\\n\\nto explain away the presence of Hano’s DNA on the mask. The district court held a\\n\\nhearing on the motion in which a supervisor of the Federal DNA Database Unit\\n\\ntestified. The district court denied Hano’s motion because even if Duarte-\\n\\nCardoso’s DNA were found on the ski mask, it “could not conceivably impact a\\n\\ntrial.”\\n\\n\\n 30\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 31 of 44\\n\\n\\n On appeal, Hano reiterates his argument that the government’s failure to\\n\\nproduce Duarte-Cardoso’s DNA profile violated Brady, but the district court was\\n\\nright to reject it. “To establish a Brady violation,” a defendant must “prove that the\\n\\nprosecution withheld favorable evidence and that he was prejudiced as a result.”\\n\\nBrester, 786 F.3d at 1339. To establish prejudice, a defendant must “prove that\\n\\nthere is ‘a reasonable probability that, had the evidence been disclosed to the\\n\\ndefense, the result of the proceeding would have been different. A ‘reasonable\\n\\nprobability’ is a probability sufficient to undermine confidence in the outcome.” Id.\\n\\n(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Hano cannot prove\\n\\nprejudice.\\n\\n As the government argues, even if Hano had Duarte-Cardoso’s profile, he\\n\\nwould be unable to prove that Duarte-Cardoso’s DNA was on the ski mask. The\\n\\nevidence established that Hano was the source of the only major DNA profile on\\n\\nthe mask. At most, Hano could have attempted to prove that Duarte-Cardoso was a\\n\\npossible contributor to a mixture of DNA found on the mask, but as the\\n\\ngovernment’s expert explained, “the frequency of the occurrence of the mixed\\n\\nDNA profile” obtained from the mask in the general population of “unrelated\\n\\nindividuals” was such that “approximately one in six individuals” would have “a\\n\\nDNA profile that could be included in that mixture.” So although a comparison of\\n\\nDuarte-Cardoso’s profile with the mixed profile derived from the mask could have\\n\\n\\n\\n 31\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 32 of 44\\n\\n\\nexcluded Duarte-Cardoso as a contributor of DNA to the mask, it could not have\\n\\nproved that his DNA was present on the mask.\\n\\n More importantly, even if Hano were somehow able to prove that Duarte-\\n\\nCardoso’s DNA was on any of the evidence obtained from the crime scene, the\\n\\nmost it would have proved was that Duarte-Cardoso had also come into contact\\n\\nwith those items. This conclusion would do nothing to undermine the principal\\n\\nvalue of the DNA evidence, which was to prove that Hano had worn the mask. If\\n\\nanything, the presence of Duarte-Cardoso’s DNA on the mask would have\\n\\ncorroborated Hano’s admission to Borrego Izquierdo that Arrastia-Cardoso’s\\n\\ncousin had been involved in the conspiracy. So Hano has failed to establish the\\n\\nexistence of a “reasonable probability that the suppressed evidence would have\\n\\nproduced a different verdict.” Strickler v. Greene, 527 U.S. 263, 281 (1999).\\n\\n Hano also argues for the first time on appeal that the government violated\\n\\nFederal Rule of Criminal Procedure 16, which requires the government to disclose\\n\\nitems that are “material to preparing the defense” if they are “within the\\n\\ngovernment’s possession, custody, or control,” Fed. R. Crim. P. 16(E)(i), but this\\n\\nargument fails for the same reasons as Hano’s argument based on Brady. As we\\n\\nhave explained, a defendant must prove “prejudice to substantial rights” to\\n\\nestablish that a violation of Rule 16 warrants reversal. United States v. Mosquera,\\n\\n\\n\\n\\n 32\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 33 of 44\\n\\n\\n886 F.3d 1032, 1045 (11th Cir. 2018). For the reasons discussed above, Hano\\n\\ncannot establish that the failure to produce the profile was prejudicial.\\n\\n D. The District Court Did Not Err in Denying Hano’s Motions for a\\n Judgment of Acquittal and for a New Trial.\\n Hano argues that the district court erred in denying his motions for a\\n\\njudgment of acquittal and for a new trial. “When conducting the review of the\\n\\nrecord” to determine “[w]hether the record contains sufficient evidence to support\\n\\nthe jury’s verdict,” “we view ‘the evidence in the light most favorable to the\\n\\ngovernment and resolve all reasonable inferences and credibility evaluations in\\n\\nfavor of the jury’s verdict.’” United States v. To, 144 F.3d 737, 743 (11th Cir.\\n\\n1998) (quoting United States v. High, 117 F.3d 464, 467 (11th Cir. 1997)). “We\\n\\nmust uphold the jury’s verdict whenever a reasonable factfinder could conclude\\n\\nthat the evidence establishes guilt beyond a reasonable doubt.” Id. at 743–44.\\n\\n Hano contends that there was insufficient evidence that he was one of the\\n\\nrobbers, but the evidence amply supports the jury’s finding. Hano admitted to\\n\\ncommitting the crime with Arrastia-Cardoso to Borrego Izquierdo. Hano’s DNA\\n\\nmatched the only major DNA profile on the ski mask recovered from the crime\\n\\nscene. Shortly after the robbery, Hano traveled to Cuba under suspicious\\n\\ncircumstances. And the evidence that independently implicated Arrastia-Cardoso\\n\\nin the robbery—for example, that his DNA was on the gun grip found at the scene\\n\\nof the robbery and that he purchased the getaway car from Camilo Hernandez—\\n\\n\\n 33\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 34 of 44\\n\\n\\nalso tended to establish Hano’s guilt because it corroborated his admission to\\n\\nBorrego Izquierdo that he had robbed the armored truck with Arrastia-Cardoso.\\n\\n Hano responds that the three eyewitnesses to the robbery were unable to say\\n\\nwith certainty that he was one of the robbers, but the failure of the witnesses to\\n\\nconclusively identify someone they had only seen for a brief moment years earlier\\n\\nhardly suffices to undermine the jury’s inference of guilt. One of the witnesses,\\n\\nOrtiz, said that he never saw the face of the robber who held an apparent gun to his\\n\\nhead because he was wearing a mask, so it is unsurprising that he could not\\n\\nidentify Hano at trial. The second witness who saw one of the robbers—a bank\\n\\ncustomer—disclaimed any ability to conclusively identify the man she saw\\n\\nbecause it had “been a very long time.” But she did describe the robber as a\\n\\n“Caucasian male or light Hispanic male” who was “a little heavy set” and had\\n\\n“short brown hair” and no facial hair, and this description appears to match Hano\\n\\nwell.\\n\\n True, the third witness who saw the robber, Meaney, gave a different\\n\\ndescription. He said that the robber was “dark,” had a “full head of hair,” and a\\n\\n“mustache,” but this discrepancy does not undermine the jury’s verdict. Meaney\\n\\nsaw the robber from 20 to 30 feet away and was in the midst of a stressful\\n\\nencounter with apparently armed robbers—and he had, after all, just rammed the\\n\\ngetaway car and was “winded . . . because of the impact.” It is also entirely\\n\\n\\n\\n 34\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 35 of 44\\n\\n\\npossible that the robber Meaney described was not Hano, but instead one of the\\n\\nother robbers. After all, he testified that there were probably three different\\n\\nrobbers. And in any case, in the light of the DNA evidence, Borrego Izquierdo’s\\n\\ntestimony, and one apparently positive witness identification, the jury could have\\n\\nreasonably found that Hano was one of the robbers even if it discounted Meaney’s\\n\\nidentification.\\n\\n Hano also argues that Borrego Izquierdo’s testimony did not provide a\\n\\nreasonable basis for the jury to reach any finding regarding his involvement in the\\n\\nrobbery because that testimony was “resoundingly impeached” on cross-\\n\\nexamination, but this argument fails. The “uncorroborated testimony of an\\n\\naccomplice is sufficient to support a conviction in the Federal Courts if it is not on\\n\\nits face incredible or otherwise insubstantial.” United States v. LeQuire, 943 F.2d\\n\\n1554, 1562 (11th Cir. 1991) (citation and internal quotation marks omitted).\\n\\nBorrego Izquierdo’s testimony was not incredible on its face and was supported by\\n\\npowerful corroborating evidence, so the jury was entitled to render its own\\n\\nassessment of Borrego Izquierdo’s credibility. As we have explained, “[t]o the\\n\\nextent that” a defendant’s “argument depends upon challenges to the credibility of\\n\\nwitnesses, the jury has exclusive province over that determination and the court of\\n\\nappeals may not revisit this question.” United States v. Kelley, 412 F.3d 1240,\\n\\n1247 (11th Cir. 2005) (citation and internal quotation marks omitted).\\n\\n\\n\\n 35\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 36 of 44\\n\\n\\n Hano also contends that the evidence was insufficient to support his\\n\\nconviction for Hobbs Act robbery because it failed to establish that he took\\n\\nproperty “by means of actual or threatened injury,” but we are not persuaded. “The\\n\\ntwo required elements for a substantive Hobbs Act conviction are robbery and an\\n\\neffect on interstate commerce.” United States v. Taylor, 480 F.3d 1025, 1026–27\\n\\n(11th Cir. 2007) (alteration adopted) (citation and internal quotation marks\\n\\nomitted). Robbery is defined as including “the unlawful taking or obtaining of\\n\\npersonal property from the person or in the presence of another, against his will”\\n\\nthrough “actual or threatened force, or violence, or fear of injury, immediate or\\n\\nfuture, to his person or property, or property in his custody or possession, or the\\n\\nperson or property . . . of anyone in his company at the time of the taking or\\n\\nobtaining.” 18 U.S.C. § 1951(b)(1). As Hano sees it, the government failed to\\n\\npresent sufficient evidence for the jury to infer that Hano seized the cash through\\n\\n“actual or threatened force, or violence, or fear of injury” because Ortiz was an\\n\\ninside man who was never actually threatened with violence and Meaney “was\\n\\nlocated behind a glass division” and “testified to the jury that he was only\\n\\nconcerned for Ortiz’s safety.” Although Meaney is apparently a brave man—he did\\n\\nram the getaway car repeatedly in an effort to disable it—it is a stretch to say that\\n\\nthe robbers did not at least implicitly threaten his safety by apparently threatening\\n\\nOrtiz’s life, and this threat enabled the robbers to effectuate their crime without\\n\\n\\n\\n 36\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 37 of 44\\n\\n\\ninterference by deterring Meaney from leaving the cabin or using his weapon\\n\\nagainst them. And, in any event, so long as Meaney reasonably believed that\\n\\nOrtiz’s personal safety was threatened, it does not matter whether Ortiz was really\\n\\nin danger or not.\\n\\n Third, Hano argues that the evidence was insufficient to support his\\n\\nconviction for conspiracy to commit Hobbs Act robbery because, in his view, the\\n\\ngovernment failed to introduce any evidence that he had “ever met, spoke[n], or\\n\\notherwise communicated” with Arrastia-Cardoso, but this argument fails. To prove\\n\\na Hobbs Act conspiracy, the government must establish that: “(1) two or more\\n\\npersons agreed to commit a robbery encompassed within the Hobbs Act; (2) the\\n\\ndefendant knew of the conspiratorial goal; and (3) the defendant voluntarily\\n\\nparticipated in helping to accomplish the goal.” To, 144 F.3d at 747–48. “[D]irect\\n\\nevidence of an agreement is unnecessary” to prove conspiracy. United States v.\\n\\nMcNair, 605 F.3d 1152, 1195 (11th Cir. 2010). “Indeed, because the crime of\\n\\nconspiracy is predominantly mental in composition, it is frequently necessary to\\n\\nresort to circumstantial evidence to prove its elements.” United States v. Garcia,\\n\\n405 F.3d 1260, 1270 (11th Cir. 2005) (citation and internal quotation marks\\n\\nomitted). And circumstantial evidence supported an inference that Hano committed\\n\\na robbery in cooperation with Arrastia-Cardoso and perhaps other accomplices,\\n\\nand that the robbery required advance planning, including the purchase of guns,\\n\\n\\n\\n 37\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 38 of 44\\n\\n\\nmasks, and a getaway car. These facts alone are sufficient to infer an agreement\\n\\nbetween Hano and Arrastia-Cardoso. And Hano’s own statements, as related\\n\\nthrough Borrego Izquierdo, confirmed that he had planned and executed the\\n\\nrobbery in conjunction with Arrastia-Cardoso and likely others. It follows that the\\n\\nevidence was sufficient to support both of Hano’s convictions.\\n\\n E. The Government Did Not Improperly Comment During Closing\\n Argument on Arrastia-Cardoso’s Decision Not to Testify.\\n Arrastia-Cardoso contends that the government impermissibly commented\\n\\non his decision not to testify when, during closing arguments, the prosecutor\\n\\nmentioned that “while the burden of proof is not on the defendants to prove\\n\\nanything, there was actually no evidence introduced during the trial explaining an\\n\\nalternative reason why the DNA was on the items” recovered from the scene of the\\n\\nrobbery. Arrastia-Cardoso did not object to this remark at trial, so we review for\\n\\nplain error. United States v. Foley, 508 F.3d 627, 637 (11th Cir. 2007). We\\n\\nconclude that Arrastia-Cardoso has failed to identify any error, plain or otherwise,\\n\\nresulting from this remark during closing arguments.\\n\\n Because “the government in a criminal proceeding has the burden of proving\\n\\nevery element of the charged offense beyond a reasonable doubt,” “prosecutors\\n\\nmust refrain from making arguments that improperly shift the burden of proof to\\n\\nthe defendant.” United States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017). “Nor\\n\\nmay the prosecution comment on the defendant’s failure to testify.” United States\\n\\n\\n 38\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 39 of 44\\n\\n\\nv. Bernal-Benitez, 594 F.3d 1303, 1315 (11th Cir. 2010). “A prosecutor\\n\\nimpermissibly comments on a defendant’s right to remain silent where: (1) the\\n\\nstatement was manifestly intended to be a comment on the defendant’s failure to\\n\\ntestify; or (2) the statement was of such a character that a jury would naturally and\\n\\nnecessarily take it to be a comment on the failure of the accused to testify.” United\\n\\nStates v. McGarity, 669 F.3d 1218, 1241 (11th Cir. 2012) (citation and internal\\n\\nquotation marks omitted). “[T]he question is not whether the jury possibly or even\\n\\nprobably would review the remark in this manner, but whether the jury necessarily\\n\\nwould have done so.” Id. (citation and internal quotation marks omitted). “A\\n\\nprosecutor’s statements to the jury constitute misconduct only if: (1) the remarks\\n\\nwere improper, and (2) the remarks prejudicially affected the substantial rights of\\n\\nthe defendant.” Taohim, 817 F.3d at 1224. “To warrant a new trial, there must be a\\n\\nreasonable probability that ‘but for the remarks, the outcome would be different.’”\\n\\nId. (citation omitted).\\n\\n The government did not impermissibly comment on Arrastia-Cardoso’s\\n\\ndecision not to testify. It instead argued that the jury should infer that the most\\n\\nreasonable explanation of the presence of the defendants’ DNA on the mask and\\n\\ngun grip recovered from the scene of the robbery was that the defendants used\\n\\nthese items in committing the robbery because no evidence presented at trial\\n\\nundermined that explanation. A prosecutor is entitled to “comment ‘on the failure\\n\\n\\n\\n 39\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 40 of 44\\n\\n\\nby defense counsel, as opposed to the defendant, to counter or explain evidence.’”\\n\\nBernal-Benitez, 594 F.3d at 1315 (quoting United States v. Hernandez, 145 F.3d\\n\\n1433, 1439 (11th Cir. 1998)). And even if the jury might have “possibly” inferred\\n\\nthat the government was arguing that Arrastia-Cardoso should have taken the stand\\n\\nhimself and explained why his DNA was found on items recovered from the scene\\n\\nof the robbery, we cannot say that the jury “necessarily” would have interpreted\\n\\nthe remark that way. McGarity, 669 F.3d at 1241. Arrastia-Cardoso’s argument\\n\\nfails because the government’s “comment[] in closing arguments [was] made in the\\n\\ncontext of the prosecutor’s accurate reminder to the jury about the burden of proof”\\n\\nand so “cannot establish plain error.” Foley, 508 F.3d at 638.\\n\\n F. The District Court Did Not Err in Increasing Hano’s Offense Level for\\n “Otherwise Using” a Firearm During the Commission of the Robbery.\\n Hano argues that the district court erred in enhancing his offense level by\\n\\nfour levels because he “otherwise used” a dangerous weapon in the commission of\\n\\nthe robbery, U.S.S.G. § 2B3.1(b)(2)(D). The Sentencing Guidelines provide that\\n\\n“if a dangerous weapon was otherwise used” in the commission of a robbery\\n\\noffense, the defendant’s offense level increases by four levels. Id. If a dangerous\\n\\nweapon was only “brandished or possessed,” the offense level increases by three\\n\\nlevels. Id. § 2B3.1(b)(2)(E). Under the definitions provided in the application notes\\n\\nfor the Guidelines, a defendant “brandished” a dangerous weapon if “all or part of\\n\\nthe weapon was displayed, or the presence of the weapon was otherwise made\\n\\n\\n 40\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 41 of 44\\n\\n\\nknown to another person, in order to intimidate that person, regardless of whether\\n\\nthe weapon was directly visible to that person.” Id. § 1B1.1 cmt. n.1(C). A\\n\\ndefendant “otherwise used” a dangerous weapon if the “conduct did not amount to\\n\\nthe discharge of a firearm but was more than brandishing, displaying, or possessing\\n\\na firearm or other dangerous weapon.” Id. § 1B1.1 cmt. n.1(I).\\n\\n Hano argues that his conduct did not amount to anything more than\\n\\nbrandishing a dangerous weapon because neither he nor his coconspirators ever\\n\\nactually threatened anyone with a weapon when they committed the robbery.\\n\\nAccording to Hano, because Ortiz was actually an “inside individual” who was in\\n\\non the plot, when Ortiz pointed an apparent firearm at his head and struck him with\\n\\nit, that conduct was nothing more than an elaborate charade. Hano also argues that\\n\\nthe weapon was only a “toy gun” and that he did not directly threaten anyone other\\n\\nthan Ortiz. And although Meaney witnessed the whole sequence of events, Hano\\n\\nsuggests that Meaney was only “a spectator to a performance in which Ortiz was\\n\\nacting as though he had been struck in order to assist in the robbery and avoid\\n\\nsuspicion.”\\n\\n We conclude that Hano “otherwise used” a dangerous weapon in the\\n\\ncommission of the robbery. Whether Hano used a toy gun is of no moment, as we\\n\\nhave held that “defendants who otherwise use an object which appears to be a\\n\\ndangerous weapon will be subject to a four-level enhancement” under the relevant\\n\\n\\n\\n 41\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 42 of 44\\n\\n\\nguideline, id. § 2B3.1(b)(2)(D). United States v. Miller, 206 F.3d 1051, 1053 (11th\\n\\nCir. 2000). The residual question is whether Hano’s conduct amounted to more\\n\\nthan “brandishing” a dangerous weapon, and the answer must be “yes.” Our\\n\\nprecedent establishes that the “use of a firearm to make an explicit or implicit\\n\\nthreat against a specific person constitutes ‘otherwise use’ of the firearm.” United\\n\\nStates v. Verbitskaya, 406 F.3d 1324, 1339 (11th Cir. 2005).\\n\\n The “key consideration” in applying the rule that pointing a weapon at a\\n\\nperson and issuing a threat or order to facilitate the commission of an offense\\n\\nconstitutes “otherwise using” a dangerous weapon is “whether a gun (or other\\n\\nweapon) was pointed at a specific person in an effort to create fear so as to\\n\\nfacilitate compliance with a demand, and ultimately to facilitate the commission of\\n\\nthe crime.” United States v. Yelverton, 197 F.3d 531, 534 (D.C. Cir. 1999). The\\n\\nanswer to this question does not depend on whether “the gun was pointed at the\\n\\nsame person in whom fear was sought to be instilled, or even that the person\\n\\nsought to be coerced was the victim of the crime, as opposed to a third party whose\\n\\ncomplicity the perpetrator sought to ensure.” Id. A perpetrator who points a gun at\\n\\na person to coerce another into compliance with a criminal scheme has done more\\n\\nthan merely “display[]” a weapon “to another person, in order to intimidate that\\n\\nperson, regardless of whether the weapon was directly visible to that person.”\\n\\nU.S.S.G. § 1B1.1 cmt. n.1(C).\\n\\n\\n\\n 42\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 43 of 44\\n\\n\\n Regardless of whether Hano actually intended to harm Ortiz when he put\\n\\nwhat appeared to be a gun to his head, Hano pointed what qualifies as a\\n\\n“dangerous weapon” under our precedent at a specific person, namely Ortiz, with\\n\\nthe intent to cause Meaney to fear that Ortiz’s safety would be endangered if\\n\\nMeaney failed to comply with Hano’s demands. Hano’s conduct amounted to\\n\\n“otherwise using” a dangerous weapon in the commission of the robbery,\\n\\nregardless of whether Ortiz or Meaney were actually in danger. Cf. Yelverton, 197\\n\\nF.3d at 534 n.2 (explaining that threatening to “shoot one person in order to extort\\n\\naction from another” qualifies as otherwise using a dangerous weapon).\\n\\n That said, Hano also implicitly threatened Meaney. An explicit threat to one\\n\\nperson may constitute an implicit threat to others present if they reasonably believe\\n\\nin that circumstance that the same threat extends to them and that the perpetrator\\n\\nintends to secure their compliance with his demands through the use of the explicit\\n\\nthreat against the third-party. Cf. United States v. Douglas, 489 F.3d 1117, 1129\\n\\n(11th Cir. 2007) (holding that kidnapper’s explicit threat to harm a child’s mother\\n\\nwas an implicit threat to the child because “he was unable to act independently of\\n\\n[her] and [she] believed that they were both in danger of physical harm”). The\\n\\nsame rule should apply even if the explicit “threat” was only a mock threat. In\\n\\neither case, the perpetrator’s conduct is calculated to induce compliance on the part\\n\\nof those who were not explicitly threatened through the use of an apparent threat\\n\\n\\n\\n 43\\n\\f Case: 18-10510 Date Filed: 04/30/2019 Page: 44 of 44\\n\\n\\nthat communicates that those who fail to comply with his demands will be harmed.\\n\\nAnd under this rule, Hano’s conduct amounted to “otherwise using” a dangerous\\n\\nweapon because his “threat” on Ortiz’s life was calculated to induce Meaney’s\\n\\ncompliance by demonstrating that weapons would be used against any member of\\n\\nthe crew of the truck who refused to comply with his demands. The district court\\n\\ncommitted no error when it enhanced Hano’s offense level by four levels because\\n\\nhe “otherwise used” a dangerous weapon in the robbery.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM the convictions and sentences of Hano and Arrastia-Cardoso.\\n\\n\\n\\n\\n 44\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":18,"numItemsPerPage":100,"numTotalItems":31175,"offset":1800,"length":100}},"jwt":"eyJhbGciOiJFZERTQSIsImtpZCI6IjVHZDBvd0g5MTM2eDZjc1FvbE1zcktNWUZoRVFoUm5PVVVybEpjOUhaUEEifQ.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc4NTA0MjgyNiwianRpIjoiNGZlY2VkNjUtM2JhOS00M2ExLTlkM2MtOWY5NjNjYTVmMTAzIiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3ODUwNDY0MjYsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.9jv81EmnRNMbTPOnYOxzsw4YZJNgxaqMtkzfbGs_AfEoqKqIHIF9hWlrcxa9m0SrNUGhafHLc7LinISwvcmZAw","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,614,424 | Derrick D. JONES, Movant - Appellant v. UNITED STATES of America, Respondent - Appellee | Derrick Jones v. United States | 2019-04-29 | 17-2214 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Gruender, Kelly, Grasz", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 17-2214\n... | GRUENDER | KELLY | GRASZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614424/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,816 | Mahmood KHAN, Plaintiff - Appellant v. CITY OF MINNEAPOLIS, a Municipal Corporation; Does 1-10, Defendants - Appellees | Mahmood Khan v. City of Minneapolis | 2019-04-30 | 18-1654 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Shepherd, Arnold, Kobes", "parties": "", "opinions": [{"author": "ARNOLD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1654... | SHEPHERD | ARNOLD | KOBES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614816/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,605,674 | Robert Martin v. City of Boise | 2019-04-01 | 15-35845 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nROBERT MARTIN; LAWRENCE LEE No. 1... | MARSHA S BERZON | PAUL J WATFORD | JOHN B OWENS | 1 | {} | 5 | 0 | 2 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605674/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,605,675 | Luis Sanchez v. William P. Barr | 2019-04-01 | 14-71768 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw, Richard A. Paez, and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "Statement Respecting Order by Judge O'Scannlain", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nLUIS ENRIQUE SA... | KIM MCLANE WARDLAW | RICHARD A PAEZ | MORGAN CHRISTEN | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605675/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,606,449 | Bank of America v. Arlington West Twilight Hoa | 2019-04-03 | 17-15796 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: William A. Fletcher, Paul J. Watford, and Andrew D. Hurwitz, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nBANK OF AMERICA, N.A., No. 17-1... | WILLIAM A FLETCHER | PAUL J WATFORD | ANDREW D HURWITZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4606449/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,607,011 | Shahid Mutee v. United States | 2019-04-04 | 17-15415 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: J. Clifford Wallace, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSHAHID MILLKELLER MUTEE, No. 1... | J CLIFFORD WALLACE | JOHNNIE B RAWLINSON | PAUL J WATFORD | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607011/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,607,430 | Mary Murray v. Bej Minerals, LLC | 2019-04-04 | 16-35506 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS APR 4 2019\n MOLLY ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607430/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,607,730 | Joan Demarest v. HSBC Bank USA | 2019-04-08 | 17-56432 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: FERDINAND F. FERNANDEZ and MILAN D. SMITH, JR., Circuit Judges, and DANA L. CHRISTENSEN, * Chief District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\... | FERDINAND F FERNANDEZ | MILAN D SMITH JR | DANA L CHRISTENSEN | 1 | {"FERDINAND F FERNANDEZ": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "DANA L CHRISTENSEN": ", Chief District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607730/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,608,179 | United States v. Christopher Johnson | 2019-04-09 | 18-10016 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Milan D. Smith, Jr., Jacqueline H. Nguyen, and Mark J. Bennett, Circuit Judges.", "parties": "", "opinions": [{"author": "BENNETT, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | MILAN D SMITH JR | JACQUELINE H NGUYEN | MARK J BENNETT | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608179/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,609,157 | United States v. Monique Lozoya | 2019-04-11 | 17-50336 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and BENJAMIN H. SETTLE, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATE... | MILAN D SMITH JR | JOHN B OWENS | BENJAMIN H SETTLE | 1 | {"MILAN D SMITH JR": ", Circuit", "JOHN B OWENS": ", Circuit", "BENJAMIN H SETTLE": ", District"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609157/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,609,794 | United States v. Monique Lozoya | 2019-04-11 | 17-50336 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR. and JOHN B. OWENS, Circuit Judges, and BENJAMIN H. SETTLE, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATE... | MILAN D SMITH JR | JOHN B OWENS | BENJAMIN H SETTLE | 1 | {"MILAN D SMITH JR": ", Circuit", "JOHN B OWENS": ", Circuit", "BENJAMIN H SETTLE": ", District"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609794/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,609,793 | United States v. Juan Price | 2019-04-12 | 15-50556 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald Lee Gilman, * Kim McLane Wardlaw, and Jacqueline H. Nguyen **, Circuit Judges.", "parties": "", "opinions": [{"author": "WARDLAW, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERI... | RONALD LEE GILMAN | KIM MCLANE WARDLAW | JACQUELINE H NGUYEN | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609793/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,132 | Michael Castro v. Tri Marine Fish Company LLC | 2019-04-15 | 17-35703 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Susan R. Bolton, * District Judge.", "parties": "", "opinions": [{"author": "McKEOWN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMICHAEL D. ... | M MARGARET MCKEOWN | MICHELLE T FRIEDLAND | SUSAN R BOLTON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610132/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,133 | Ingenco Holdings, LLC v. Ace American Insurance Company | 2019-04-15 | 16-35792 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Dorothy W. Nelson and Paul J. Watford, Circuit Judges, and Dean D. Pregerson,* District Judge.", "parties": "", "opinions": [{"author": "PREGERSON, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nINGENCO HOLDING... | DOROTHY W NELSON | PAUL J WATFORD | DEAN D PREGERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610133/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,492 | Terry Grimm v. Vortex Marine Construction | 2019-04-16 | 18-15104 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: William A. Fletcher, Paul J. Watford, and Andrew D. Hurwitz, Circuit Judges.", "parties": "", "opinions": [{"author": "HURWITZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nTERRY GRIMM, ... | WILLIAM A FLETCHER | PAUL J WATFORD | ANDREW D HURWITZ | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610492/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,493 | Oracle USA, Inc. v. Rimini Street, Inc. | 2019-04-16 | 16-16832 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber, Jacqueline H. Nguyen, and Michelle T. Friedland, Circuit Judges.", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nORACLE USA, INC., a Colorado Nos. 16-1683... | SUSAN P GRABER | JACQUELINE H NGUYEN | MICHELLE T FRIEDLAND | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610493/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,494 | Howard Baldwin v. United States | 2019-04-16 | 17-55115 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Paul J. Watford, Circuit Judges, and Jack Zouhary, * District Judge.", "parties": "", "opinions": [{"author": "WATFORD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n HOWARD L. BALDWIN; KA... | SUSAN P GRABER | PAUL J WATFORD | JACK ZOUHARY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610494/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,495 | Erickson Productions, Inc. v. Kraig Kast | 2019-04-16 | 15-16801 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and M. Margaret McKeown, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion by Judge Hawkins", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ERICKSON PRODU... | SIDNEY R THOMAS | MICHAEL DALY HAWKINS | M MARGARET MCKEOWN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610495/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,675 | Ronald Ross v. Williams | 2019-04-16 | 16-16533 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS APR 16 2019\n M... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610675/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,610,921 | Xue Lu v. United States | 2019-04-17 | 17-55040 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sandra S. Ikuta and John B. Owens, Circuit Judges, and Haywood S. Gilliam, Jr.,* District Judge.", "parties": "", "opinions": [{"author": "IKUTA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n XUE L... | SANDRA S IKUTA | JOHN B OWENS | HAYWOOD S GILLIAM JR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610921/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,922 | Washington v. Ryan | 2019-04-17 | 05-99009 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould, Consuelo M. Callahan, and N. Randy Smith, Circuit Judges.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nTHEODORE WASHINGTON, ... | RONALD M GOULD | CONSUELO M CALLAHAN | N RANDY SMITH | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610922/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,611,441 | United States v. State of California | 2019-04-18 | 18-16496 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | MILAN D SMITH JR | PAUL J WATFORD | ANDREW D HURWITZ | 1 | {"MILAN D SMITH JR": ", Circuit", "PAUL J WATFORD": ", Circuit", "ANDREW D HURWITZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611441/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,611,920 | United States v. State of California | 2019-04-18 | 18-16496 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | MILAN D SMITH JR | PAUL J WATFORD | ANDREW D HURWITZ | 1 | {"MILAN D SMITH JR": ", Circuit", "PAUL J WATFORD": ", Circuit", "ANDREW D HURWITZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611920/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,611,919 | Lulac v. Andrew Wheeler | 2019-04-19 | 17-71636 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Richard A. Paez, Carlos T. Bea, Morgan Christen, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Michelle T. Friedland, and Mark J. Bennett, Circuit Judges Order LULAC V. WHEELER 3 SUMMARY* Mandamus / Environmental Pro... | SIDNEY R THOMAS | M MARGARET MCKEOWN | KIM MCLANE WARDLAW | 2 | RICHARD A PAEZ; CARLOS T BEA; MORGAN CHRISTEN; JACQUELINE H NGUYEN; PAUL J WATFORD; JOHN B OWENS; MICHELLE T FRIEDLAND; MARK J BENNETT | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611919/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
9,022,994 | LEAGUE OF UNITED LATIN AMERICAN CITIZENS Pesticide Action Network North America Natural Resources Defense Council California Rural Legal Assistance Foundation Farmworkers Association of Florida Farmworker Justice GreenLatinos Labor Council for Latin American Advancement Learning Disabilities Association of America Nati... | League of United Latin Am. Citizens v. Wheeler | 2019-04-19 | No. 17-71636 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016232/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022994/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||||
4,612,138 | United States v. Jorge Guerrero | 2019-04-22 | 17-50384 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Paul J. Watford, Circuit Judges, and Eduardo C. Robreno, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA,... | A WALLACE TASHIMA | PAUL J WATFORD | EDUARDO C ROBRENO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612138/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,494 | Western Watersheds Project v. Todd Grimm | 2019-04-23 | 18-35075 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, * Chief District Judge.", "parties": "", "opinions": [{"author": "Opinion by Chief District Judge Tunheim", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n... | SUSAN P GRABER | MARSHA S BERZON | JOHN R TUNHEIM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612494/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,495 | Michael Redlin v. United States | 2019-04-23 | 17-16963 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit Judges, and Frederic Block,* District Judge.", "parties": "", "opinions": [{"author": "IKUTA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MICHAE... | SANDRA S IKUTA | MICHELLE T FRIEDLAND | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612495/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,496 | Ludwin Lopez-Aguilar v. William Barr | 2019-04-23 | 17-73153 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, * Chief District Judge.", "parties": "", "opinions": [{"author": "TUNHEIM, Chief District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LUDW... | SUSAN P GRABER | MARSHA S BERZON | JOHN R TUNHEIM | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612496/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,612,497 | Alexander Acosta v. City National Corporation | 2019-04-23 | 17-55421 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Paul J. Watford, Circuit Judges, and Eduardo C. Robreno, * District Judge.", "parties": "", "opinions": [{"author": "ROBRENO, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nALEXANDER ACOS... | A WALLACE TASHIMA | PAUL J WATFORD | EDUARDO C ROBRENO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612497/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,022,993 | WESTERN WATERSHEDS PROJECT Center for Biological Diversity Friends of the Clearwater WildEarth Guardians Predator Defense v. Todd GRIMM, Idaho Director, Wildlife Services USDA Wildlife Services | Western Watersheds Project v. Grimm | 2019-04-23 | No. 18-35075 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Tunheim", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016231/", "author_raw": ""}]} | TUNHEIM | TUNHEIM | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022993/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,049 | United States v. Emilio Rodriguez | 2019-04-24 | 17-10233 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Kathleen Cardone, * District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STAT... | MARSHA S BERZON | MICHELLE T FRIEDLAND | KATHLEEN CARDONE | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613049/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,050 | Malibu Textiles, Inc. v. Label Lane International, Inc. | 2019-04-24 | 17-55983 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Paul J. Watford, Circuit Judges, and Jack Zouhary, * District Judge.", "parties": "", "opinions": [{"author": "ZOUHARY, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMALIBU TEXTILES, INC... | A WALLACE TASHIMA | PAUL J WATFORD | JACK ZOUHARY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613050/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,051 | Jorge Rojas v. Faa | 2019-04-24 | 17-55036 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw and Morgan Christen, Circuit Judges, and Donald W. Molloy, * District Judge.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n JORGE ALEJANDRO ROJAS, No. ... | KIM MCLANE WARDLAW | MORGAN CHRISTEN | DONALD W MOLLOY | 1 | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613051/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,052 | James Mills v. City of Covina | 2019-04-24 | 17-56343 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and Ryan D. Nelson, Circuit Judges.", "parties": "", "opinions": [{"author": "R. NELSON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nJAMES MILLS, ... | ANDREW J KLEINFELD | JACQUELINE H NGUYEN | RYAN D NELSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613052/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,053 | Duanna Knighton v. Cedarville Rancheria of Npi | 2019-04-24 | 17-15515 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and Lawrence L. Piersol, * District Judge.", "parties": "", "opinions": [{"author": "Opinion by Judge Piersol", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n DUANNA K... | A WALLACE TASHIMA | MILAN D SMITH JR | LAWRENCE L PIERSOL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613053/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,054 | Care v. Cpuc | 2019-04-24 | 17-55297 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Jacqueline H. Nguyen, Circuit Judges, and Algenon L. Marbley, * District Judge.", "parties": "", "opinions": [{"author": "MARBLEY, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nCALIFORNIANS F... | RONALD M GOULD | JACQUELINE H NGUYEN | ALGENON L MARBLEY | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613054/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,685 | United States v. Emilio Rodriguez | 2019-04-24 | 17-10233 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Kathleen Cardone, * District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STAT... | MARSHA S BERZON | MICHELLE T FRIEDLAND | KATHLEEN CARDONE | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613685/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,686 | Jorge Rojas v. Faa | 2019-04-24 | 17-55036 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw and Morgan Christen, Circuit Judges, and Donald W. Molloy, * District Judge.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n JORGE ALEJANDRO ROJAS, No.... | KIM MCLANE WARDLAW | MORGAN CHRISTEN | DONALD W MOLLOY | 1 | {} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613686/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
9,022,995 | CALIFORNIANS FOR RENEWABLE ENERGY, a California Non-Profit Corporation Michael E. Boyd Robert Sarvey, and Solutions For Utilities, Inc., a California Corporation v. CALIFORNIA PUBLIC UTILITIES COMMISSION, an Independent California State Agency Michael R. Peevey, Timothy Alan Simon, Michael R. Florio, Catherine J.K. San... | Californians For Renewable Energy v. Ca Puco | 2019-04-24 | No. 17-55297 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Marbley", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9016233/", "author_raw": ""}]} | MARBLEY | MARBLEY | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/9022995/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,682 | Onda v. Jeff Rose | 2019-04-25 | 18-35258 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno,* District Judge.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nOREGON NATURA... | SUSAN P GRABER | MARSHA S BERZON | EDUARDO C ROBRENO | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613682/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,683 | Ntch-Wa, Inc. v. Zte Corp. | 2019-04-25 | 17-35833 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Dean D. Pregerson, * District Judge.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n NTCH-WA, INC., a ... | RONALD M GOULD | RICHARD A PAEZ | DEAN D PREGERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613683/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,684 | Marty Emmons v. City of Escondido | 2019-04-25 | 16-55771 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Andrew D. Hurwitz, Circuit Judges, and Algenon L. Marbley, * District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n MARTY EMMONS; MAGGIE EMMON... | SUSAN P GRABER | ANDREW D HURWITZ | ALGENON L MARBLEY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613684/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,037 | United States v. Sri Wijegoonaratna | 2019-04-26 | 17-50255 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | RONALD M GOULD | JACQUELINE H NGUYEN | JOHN B OWENS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614037/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,038 | B.K. v. Thomas Betlach | 2019-04-26 | 17-17501 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: J. Clifford Wallace and Michelle T. Friedland, Circuit Judges, and Lynn S. Adelman, * District Judge.", "parties": "", "opinions": [{"author": "WALLACE, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nB.K., by he... | J CLIFFORD WALLACE | MICHELLE T FRIEDLAND | LYNN S ADELMAN | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614038/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,460 | Vibe Micro, Inc. v. Sig Capital, LLC | 2019-04-29 | 17-16277 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber, Stephanie Dawn Thacker, * and Mark J. Bennett, Circuit Judges.", "parties": "", "opinions": [{"author": "THACKER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n IN THE MATTER OF 8SPEED8, INC.... | SUSAN P GRABER | STEPHANIE DAWN THACKER | MARK J BENNETT | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614460/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,461 | David Weil v. Citizens Telecom Services Co. | 2019-04-29 | 16-35813 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and John Antoon II,* District Judge.", "parties": "", "opinions": [{"author": "N.R. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n DAVID WEIL, ... | JAY S BYBEE | N RANDY SMITH | JOHN ANTOON II | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614461/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,859 | Asif Idrees v. William P. Barr | 2019-04-30 | 15-71573 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould, Barrington D. Parker, * and Mary H. Murguia, Circuit Judges.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ASIF IDREES, ... | RONALD M GOULD | BARRINGTON D PARKER | MARY H MURGUIA | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614859/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,605,913 | Lou HODGES, Plaintiff - Appellee, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, a Pennsylvania Insurance Company, Defendant - Appellant. | Hodges v. Life Ins. Co. of N. Am., Ins. Co. | 2019-04-02 | 18-1279 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Matheson, Phillips, Eid", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | MATHESON | PHILLIPS | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605913/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,606,125 | In re: Sealed Opinion | 2019-04-02 | 19-601 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before TYMKOVICH, Chief Judge, O’BRIEN and MATHESON, Circuit Judges.", "parties": "", "opinions": [{"author": "TYMKOVICH, Chief Judge", "type": "010combined", "text": "FILED\n United States Court of Appeals\n ... | TYMKOVICH | O'BRIEN | MATHESON | 1 | {"TYMKOVICH": ", Chief", "O'BRIEN": ", Circuit", "MATHESON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4606125/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,443,952 | UNITED STATES of America v. E.F. | United States v. E.F. | 2019-04-02 | No. 19-601 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415384/", "author_raw": ""}]} | TYMKOVICH | TYMKOVICH | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443952/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,607,692 | UNITED STATES of America, Plaintiff-Appellee, v. Mark HOPKINS, Defendant-Appellant. | United States v. Hopkins | 2019-04-08 | 18-2046 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Matheson, Bacharach", "parties": "", "opinions": [{"type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n ... | BRISCOE | MATHESON | BACHARACH | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607692/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,122 | WILDEARTH GUARDIANS, Plaintiff-Appellant, v. Tamara CONNER, in Her Official Capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; United States Forest Service, a Federal Agency of the United States Department of Agriculture, Defendants-Appellees. | WildEarth Guardians v. Conner | 2019-04-15 | 17-1334 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Hartz, Seymour, Eid", "parties": "", "opinions": [{"author": "HARTZ, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Cir... | HARTZ | SEYMOUR | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610122/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,498 | UNITED STATES of America, Plaintiff - Appellee, v. Arnold JONES, Defendant - Appellant. | United States v. Jones | 2019-04-16 | 18-2129 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Bacharach, McHugh", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth... | TYMKOVICH | BACHARACH | MCHUGH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610498/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,503 | Tony NELSON, Plaintiff - Appellant, v. CITY OF ALBUQUERQUE, a Political Subdivision of the State of New Mexico; R.T. Johnston, an Officer of the Albuquerque Police Department, Individually; D. Hughs, an Officer of the Albuquerque Police Department, Individually; A. Limon, an Officer of the Albuquerque Police Department... | Nelson v. Board of County Commissioners | 2019-04-16 | 17-2199 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Matheson, Bacharach", "parties": "", "opinions": [{"author": "BACHARACH, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of\n PUBLISH Appeals\n ... | BRISCOE | MATHESON | BACHARACH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610503/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,505 | CITY OF CAMBRIDGE RETIREMENT SYSTEM; MARTA/ATU Local 732 Employees Retirement Plan, Derivatively on Behalf of the Western Union Company, Plaintiffs - Appellants, and Stanley Lieblein, Plaintiff, v. Hikmet ERSEK; Jack M. Greenberg; Dinyar S. Devitre; Richard A. Goodman ; Betsy D. Holden; Linda Fayne Levinson; Roberto G.... | City of Cambridge Retirement v. Ersek | 2019-04-16 | 17-1381 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Matheson, McHUGH, Phillips", "parties": "", "opinions": [{"author": "PHILLIPS, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | MATHESON | MCHUGH | PHILLIPS | 1 | {"McHUGH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610505/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,611,886 | UNITED STATES of America, Plaintiff - Appellee, v. Lucio Ivan LOZANO, Defendant - Appellant. | United States v. Lozano | 2019-04-19 | 18-1031 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Lucero, Seymour, Kelly", "parties": "", "opinions": [{"author": "SEYMOUR, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | LUCERO | SEYMOUR | KELLY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611886/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,156 | UNITED STATES of America, Plaintiff-Appellee, v. Gaspar LEAL, Defendant-Appellant. | United States v. Leal | 2019-04-22 | 18-2083 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Matheson, Murphy, Carson", "parties": "", "opinions": [{"author": "MATHESON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | MATHESON | MURPHY | CARSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612156/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,500 | UNITED STATES of America, Plaintiff - Appellee, v. Joan OSBORN, Defendant - Appellant. | United States v. Osborn | 2019-04-23 | 18-4009 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Holmes, Baldock, Carson", "parties": "", "opinions": [{"author": "CARSON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | HOLMES | BALDOCK | CARSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612500/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,503 | UNITED STATES of America, Plaintiff - Appellee, v. Aaron Eugene COPELAND, Defendant - Appellant. | United States v. Copeland | 2019-04-23 | 17-5125 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Matheson, Phillips, Eid", "parties": "", "opinions": [{"author": "MATHESON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n ... | MATHESON | PHILLIPS | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612503/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,505 | Benjamin GRICE and Kayla Patchett, Plaintiffs - Appellants, v. CVR ENERGY, INC. and CVR Refining, LP, Defendants - Appellees, and Flowserve Corporation; Flowserve US, Inc.; Doug Richison; And John Doe Engineering Company, Defendants. | Grice v. CVR Energy, Inc. | 2019-04-23 | 17-5079 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, McKay, Carson", "parties": "", "opinions": [{"author": "TYMKOVICH, Chief Judge", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n ... | TYMKOVICH | MCKAY | CARSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612505/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,988 | AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY v. David James BURNS Robin Burns, as personal representative of Tyler Burns, and Dora Sam | Am. Nat'l Prop. v. Burns | 2019-04-23 | No. 18-8006 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Holmes", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415422/", "author_raw": ""}]} | HOLMES | HOLMES | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443988/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,613,630 | Jeremy Lee SCARLETT, on Behalf of Himself and All Others Similarly Situated, Et Al., Plaintiffs-Appellants, v. AIR METHODS CORPORATION; Rocky Mountain Holdings LLC, Defendants-Appellees. United States of America, Intervenor-Appellee. Randal Cowen; Keith Kranhold, Executor of the Estate of Kenneth Kranhold; Griff Hughes... | Scarlett v. Air Methods Corporation | 2019-04-25 | 18-1247; 18-1249 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Lucero, Moritz", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circu... | BRISCOE | LUCERO | MORITZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613630/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,039 | UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Daniel Eugene COOKSON, Defendant-Appellee/Cross-Appellant. | United States v. Cookson | 2019-04-26 | 18-3070; 18-3071 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Tymkovich, Bacharach, McHugh", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth C... | TYMKOVICH | BACHARACH | MCHUGH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614039/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,443,989 | Minor JGE, 7 year old minor THROUGH next friend Peter TASSO, Esq. Gabriela Gallegos Jolene Estrada, in her personal and official capacities as co-personal representative of the estate of Jason Julian Estrada Joyce Estrada, in her personal capacity v. UNITED STATES of America, and Christopher Scott Godier Patricia G. Wh... | Jge Through Tasso v. United States | 2019-04-26 | No. 18-2092 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Eid", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415423/", "author_raw": ""}]} | EID | EID | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8443989/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,614,425 | UNITED STATES of America, Plaintiff - Appellee, v. Shawn Christopher GORRELL, Defendant - Appellant. | United States v. Gorrell | 2019-04-29 | 18-5041 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Lucero, Moritz", "parties": "", "opinions": [{"author": "BRISCOE, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | BRISCOE | LUCERO | MORITZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614425/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,426 | UNITED STATES of America, Plaintiff - Appellee, v. Leonard ARAGON, Defendant - Appellant. | United States v. Aragon | 2019-04-29 | 18-1121 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Holmes, McKay, Kelly", "parties": "", "opinions": [{"author": "McKAY", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888421/", "author_raw": "McKAY"}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api... | HOLMES | MCKAY | KELLY | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614426/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,427 | Antonio Deandre SMITH, Petitioner - Appellant, v. Joe M. ALLBAUGH, Director, Respondent - Appellee. | Smith v. Allbaugh | 2019-04-29 | 17-5095 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "McHugh, Moritz, Eid", "parties": "", "opinions": [{"author": "MORITZ, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tent... | MCHUGH | MORITZ | EID | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614427/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,428 | John L. ROTH; Deanne M. Roth, Petitioners - Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. | Roth v. C.I.R. | 2019-04-29 | 18-9006 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Lucero, Bacharach, McHugh", "parties": "", "opinions": [{"author": "McHUGH", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\... | LUCERO | BACHARACH | MCHUGH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614428/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,462 | Clarence Rozell GOODE, Jr., Petitioner - Appellant, v. Mike CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee. | Goode v. Carpenter | 2019-04-29 | 16-5124 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Hartz, Phillips", "parties": "", "opinions": [{"author": "HARTZ, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH Tent... | BRISCOE | HARTZ | PHILLIPS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614462/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,891 | UNITED STATES of America EX REL., Julie REED, Plaintiff - Appellant, v. KEYPOINT GOVERNMENT SOLUTIONS, Defendant - Appellee. | United States of America ex v. Keypoint Government Solutions | 2019-04-30 | 17-1379 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Briscoe, Seymour, Holmes", "parties": "", "opinions": [{"author": "HOLMES, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n Tenth Circuit\n\n ... | BRISCOE | SEYMOUR | HOLMES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614891/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,605,644 | KROMA MAKEUP EU, LLC, a United Kingdom Limited Liability Company, Plaintiff-Appellant, v. BOLDFACE LICENSING + BRANDING, INC., a Nevada Corporation, Kimberly Kardashian, a California Resident, Kourtney Kardashian, a California Resident, Khloe Kardashian, a California Resident, BY Lee Tillett, Inc., a Florida Corporatio... | Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. | 2019-04-01 | 17-14211 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Dubina, Goldberg", "parties": "", "opinions": [{"author": "GOLDBERG, Judge", "type": "010combined", "text": "Case: 17-14211 Date Filed: 04/01/2019 Page: 1 of 13\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF A... | MARCUS | DUBINA | GOLDBERG | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605644/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,605,761 | Pablo GUEVARA, Plaintiff-Appellant, v. NCL (BAHAMAS) LTD., a Bermuda Company Doing Business as Norwegian Cruise Line, Defendant-Appellee. | Pablo Guevara v. NCL (Bahamas) Ltd. | 2019-04-01 | 17-14889 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Wilson, Pryor, Sutton", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888299/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/... | WILSON | PRYOR | SUTTON | 1 | {} | 6 | 0 | 0 | 4 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4605761/ | Published | 1 | 1 | 1 | 1 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,606,259 | Pablo Guevara v. NCL (Bahamas) Ltd. | 2019-04-01 | 17-14889 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILSON, JILL PRYOR, and SUTTON, ∗ Circuit Judges.", "parties": "", "opinions": [{"author": "WILSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-14889 Date Filed: 04/01/2019 Page: 1 of 37\n\n\n [PUBLISH]\n\n\n\n ... | WILSON | JILL PRYOR | SUTTON | 1 | {"WILSON": ", Circuit", "JILL PRYOR": ", Circuit", "SUTTON": ", Circuit"} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4606259/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,606,258 | Bonny Edward TAYLOR, as the Personal Representative and Administrator of the Estate of Almus Reed Taylor, Plaintiff - Appellant, v. Henry P. HUGHES, in His Individual Capacity, Bill Blue, in His Individual Capacity, Et Al., Defendants - Appellees. | Bonny Edward Taylor v. Henry P. Hughes | 2019-04-03 | 17-14772 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Newsom, Gilman", "parties": "", "opinions": [{"author": "GILMAN, Circuit Judge:", "type": "010combined", "text": "Case: 17-14772 Date Filed: 04/03/2019 Page: 1 of 11\n\n\n [PUBLISH]\n\n IN THE UN... | TJOFLAT | NEWSOM | GILMAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4606258/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,606,450 | UNITED STATES of America, Plaintiff - Appellee, v. Willie Lee COOKS, A.K.A. Little Man, Defendant - Appellant. | United States v. Willie Lee Cooks | 2019-04-03 | 18-10080 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Newsom, Gilman", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888304/", "author_raw": ""}, {"author": "", "type": "040dissent", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/op... | TJOFLAT | NEWSOM | GILMAN | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4606450/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,012 | UNITED STATES of America, Plaintiff-Appellee, v. Terin MOSS, Defendant-Appellant. | United States v. Terin Moss | 2019-04-04 | 17-10473 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Wilson, Branch, Anderson", "parties": "", "opinions": [{"author": "WILSON, Circuit Judge:", "type": "010combined", "text": "Case: 17-10473 Date Filed: 04/04/2019 Page: 1 of 14\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES... | WILSON | BRANCH | ANDERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607012/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,254 | Stephen HOLZMAN, Plaintiff-Appellant, v. MALCOLM S. GERALD & ASSOCIATES, INC., LVNV Funding, LLC, Defendants-Appellees. | Stephen Holzman v. Malcolm S. Gerald & Associates, Inc. | 2019-04-05 | 16-16511 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Carnes, Kaplan", "parties": "", "opinions": [{"author": "JULIE CARNES, Circuit Judge:", "type": "010combined", "text": "Case: 16-16511 Date Filed: 04/05/2019 Page: 1 of 20\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES CO... | TJOFLAT | CARNES | KAPLAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607254/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,481 | UNITED STATES of America, Plaintiff-Appellee, v. Ernest VEREEN, Jr., Defendant-Appellant. | United States v. Ernest Vereen, Jr. | 2019-04-05 | 17-11147 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Newsom, Anderson", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 17-11147 Date Filed: 04/05/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n IN THE UNITED STAT... | MARCUS | NEWSOM | ANDERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607481/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,607,489 | Camille BURBAN, Plaintiff-Appellant, v. CITY OF NEPTUNE BEACH, FLORIDA, Defendant-Appellee. | Camille Burban v. City of Neptune Beach, Florida | 2019-04-05 | 18-11347 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Martin, Anderson", "parties": "", "opinions": [{"author": "MARTIN, Circuit Judge:", "type": "010combined", "text": "Case: 18-11347 Date Filed: 04/05/2019 Page: 1 of 18\n\n\n [PUBLISH]\n\n\n IN THE UNITED ST... | CARNES | MARTIN | ANDERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4607489/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,608,521 | Christopher Lee PRICE, Plaintiff - Appellant, v. COMMISSIONER, Alabama DEPARTMENT OF CORRECTIONS, Warden, Holman Correctional Facility, Defendants - Appellees. | Christopher Lee Price v. Commissioner, Alabama Department of Corrections | 2019-04-10 | 19-11268 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Wilson, Rosenbaum", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 19-11268 Date Filed: 04/10/2019 Page: 1 of 26\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEA... | TJOFLAT | WILSON | ROSENBAUM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4608521/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,609,331 | OAK GROVE RESOURCES, LLC, National Union Fire Insurance/ AIG, Petitioners, v. DIRECTOR, OWCP, United States Department of Labor, Respondents. U.S. Steel Mining Company, LLC, U.S. Steel Corporation, Petitioners, v. Cassandra M. Terry, O.B.O. and Widow of Luther Terry, Director, OWCP, United States Department of Labor, R... | U.S. Steel Mining Company, LLC v. Cassandra M. Terry | 2019-04-11 | 17-14468; 17-15782 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Newsom, Antoon", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 17-14468 Date Filed: 04/11/2019 Page: 1 of 19\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT ... | TJOFLAT | NEWSOM | ANTOON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609331/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,609,815 | Wyndel R. HALL, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees. | Wyndel R. Hall v. Secretary, Department of Corrections | 2019-04-12 | 18-10767 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Marcus, Rosenbaum", "parties": "", "opinions": [{"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "Case: 18-10767 Date Filed: 04/12/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n IN THE ... | TJOFLAT | MARCUS | ROSENBAUM | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4609815/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,641 | Wyndel R. Hall v. Secretary, Department of Corrections | 2019-04-12 | 18-10767 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.", "parties": "", "opinions": [{"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "[PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ... | TJOFLAT | MARCUS | ROSENBAUM | 1 | {"TJOFLAT": ", Circuit", "MARCUS": ", Circuit", "ROSENBAUM": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610641/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,610,640 | UNITED STATES of America, Plaintiff-Appellee, v. Paul JOHNSON, Jr., Defendant-Appellant. | United States v. Paul Johnson, Jr. | 2019-04-16 | 16-15690 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Tjoflat, Marcus, Wilson, Pryor, Martin, Jordan, Rosenbaum, Newsom, Branch, Grant", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888364/", "author_raw": ""}, {"author": "", "type": "030concurrence", "tex... | CARNES | TJOFLAT | MARCUS | 1 | WILSON; PRYOR; MARTIN; JORDAN; ROSENBAUM; NEWSOM; BRANCH; GRANT | {} | 15 | 0 | 8 | 5 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610640/ | Published | 1 | 1 | 1 | 0 | 2 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,610,756 | UNITED STATES of America, Plaintiff-Appellee, v. Tanganica CORBETT, Defendant-Appellant. | United States v. Tanganica Corbett | 2019-04-17 | 18-13203 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Newsom, Vratil", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 18-13203 Date Filed: 04/17/2019 Page: 1 of 22\n\n\n [PUBLISH]\n\n ... | PRYOR | NEWSOM | VRATIL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610756/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,610,957 | UNITED STATES of America, Plaintiff-Appellee, v. Juan Fletcher GORDILLO, Defendant-Appellant. | United States v. Juan Fletcher Gordillo | 2019-04-17 | 18-12095 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Black, Walker", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 18-12095 Date Filed: 04/17/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n\n\n IN THE U... | MARCUS | BLACK | WALKER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4610957/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,611,850 | A&M GERBER CHIROPRACTIC LLC, as Assignee of Conor Carruthers, on Behalf of Itself and All Others Similarly Situated, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant. | A&M Gerber Chiropractic LLC v. Geico General Insurance Company | 2019-04-19 | 17-15606 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.", "parties": "", "opinions": [{"author": "VINSON, District Judge:", "type": "010combined", "text": "Case: 17-15606 Date Filed: 04/19/2019 Page: 1 of 23\n\n\n ... | WILSON | BRANCH | VINSON | 1 | {"WILSON": ", Circuit", "BRANCH": ", Circuit", "VINSON": ", District"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4611850/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,139 | UNITED STATES of America, Plaintiff-Appellee, v. Stanislav PAVLENKO, Defendant-Appellant. | United States v. Stanislav Pavlenko | 2019-04-22 | 17-15047 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Newsom, Rosenthal", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 17-15047 Date Filed: 04/22/2019 Page: 1 of 10\n\n\n [PUBLISH]\n\n ... | PRYOR | NEWSOM | ROSENTHAL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612139/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,157 | FRESH RESULTS, LLC, a Delaware Limited Liability Company, Plaintiff-Appellant, v. ASF HOLLAND, B v. a Dutch Corporation, Defendant-Appellee, Total Produce, PLC, an Irish Public Limited Company, Defendant. | Fresh Results, LLC v. ASF Holland, B.V. | 2019-04-22 | 18-11595 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Newsom, Rosenthal", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 18-11595 Date Filed: 04/22/2019 Page: 1 of 17\n\n\n [PUBLISH]\n\n\n\n IN THE UNIT... | PRYOR | NEWSOM | ROSENTHAL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612157/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,232 | Dr. David S. MURANSKY, Individually and on Behalf of All Others Similarly Situated, Plaintiff - Appellee, James H. Price, Eric Alan Isaacson, Interested Parties - Appellants, v. GODIVA CHOCOLATIER, INC., a New Jersey Corporation, Defendant - Appellee. | Dr. David S. Muransky v. Godiva Chocolatier, Inc. | 2019-04-22 | 16-16486; 16-16783 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Martin, Jordan, Ginsburg", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888385/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/... | MARTIN | JORDAN | GINSBURG | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612232/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,396 | INVERSIONES Y PROCESADORA TROPICAL INPROTSA, S.A., a Costa Rican Corporation, Plaintiff-Appellant, v. DEL MONTE INTERNATIONAL GMBH, a Swiss Corporation, Defendant-Appellee. | Inversiones Y Procesadora Tropical Inprotsa, S.A. v. Del Monte International GMBH | 2019-04-23 | 16-17623; 17-12163 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Black, Walker", "parties": "", "opinions": [{"type": "010combined", "text": "Case: 16-17623 Date Filed: 04/23/2019 Page: 1 of 30\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR... | MARCUS | BLACK | WALKER | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612396/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,606 | HARD CANDY, LLC, a Florida Limited Liability Company, Plaintiff-Appellant, v. ANASTASIA BEVERLY HILLS, INC., a California Corporation, Defendant-Appellee. | Hard Candy, LLC v. Anastasia Beverly Hills, Inc. | 2019-04-23 | 18-10877 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Grant, Hull", "parties": "", "opinions": [{"author": "MARCUS, Circuit Judge:", "type": "010combined", "text": "Case: 18-10877 Date Filed: 04/23/2019 Page: 1 of 36\n\n\n\n\n [PUBLISH]\n\n\n\n IN THE UNI... | MARCUS | GRANT | HULL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612606/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,612,640 | SECURITY WALLS, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. | Security Walls, Inc. v. National Labor Relations Board | 2019-04-23 | 17-13154 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Pryor, Murphy", "parties": "", "opinions": [{"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "Case: 17-13154 Date Filed: 04/23/2019 Page: 1 of 16\n\n\n [PUBLISH]\n\n\n\n ... | TJOFLAT | PRYOR | MURPHY | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4612640/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,613,268 | Terry Eugene SEARS, Plaintiff-Appellant, v. Vernia ROBERTS, F. Dexter, David Prince, Jeffrey Hart, Defendants-Appellees. | Terry Eugene Sears v. Vernia Roberts | 2019-04-24 | 15-15080 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Martin, Anderson", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/9888391/", "author_raw": ""}, {"author": "", "type": "030concurrence", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/... | CARNES | MARTIN | ANDERSON | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4613268/ | Published | 1 | 1 | 1 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,463 | Galawezh SHOWAN, Plaintiff-Appellant, v. Patrick PRESSDEE, Krispy Kreme Doughnut Corporation, Defendants-Appellees, Penske Truck Leasing Co., L.P., Defendant. | Galawezh Showan v. Patrick Pressdee | 2019-04-29 | 17-15547 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Branch, Anderson", "parties": "", "opinions": [{"author": "BRANCH, Circuit Judge:", "type": "010combined", "text": "Case: 17-15547 Date Filed: 04/29/2019 Page: 1 of 35\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT O... | PRYOR | BRANCH | ANDERSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614463/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,592 | UNITED STATES of America, Plaintiff-Appellee, v. Bechir DELVA, Dan Kenny Delva, Defendants-Appellants. | United States v. Bechir Delva | 2019-04-29 | 16-12947 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Marcus, Grant, Hull", "parties": "", "opinions": [{"author": "HULL, Circuit Judge:", "type": "010combined", "text": "Case: 16-12947 Date Filed: 04/29/2019 Page: 1 of 55\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF... | MARCUS | GRANT | HULL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614592/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,593 | Stoney LESTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. | Stoney Lester v. United States | 2019-04-29 | 18-10523 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Carnes, Tjoflat, Marcus, Wilson, Pryor, Martin, Jordan, Rosenbaum, Newsom, Branch, Grant", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc", "type": "010combined", "text": "Case: 18-10523 Date Filed: 04/29/2019 Page: 1 of 64\n\n\n ... | CARNES | TJOFLAT | MARCUS | 1 | WILSON; PRYOR; MARTIN; JORDAN; ROSENBAUM; NEWSOM; BRANCH; GRANT | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614593/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||
4,614,620 | Jennifer JENKINS, Plaintiff-Appellant, v. S. David ANTON, PA, D.B.A. Anton Legal Group, S. David Anton, Individually, Defendants-Appellees. | Jennifer Jenkins v. S. David Anton, PA | 2019-04-29 | 17-13073 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Tjoflat, Marcus, Newsom", "parties": "", "opinions": [{"author": "TJOFLAT, Circuit Judge:", "type": "010combined", "text": "Case: 17-13073 Date Filed: 04/29/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n IN THE UNITED STAT... | TJOFLAT | MARCUS | NEWSOM | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614620/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,614,751 | UNITED STATES of America, Plaintiff-Appellee, v. Diosme Fernandez HANO, Reinaldo Arrastia-Cardoso, A.K.A. Reinaldo Arrastia, Defendants-Appellants. | United States v. Diosme Fernandez Hano | 2019-04-30 | 18-10510 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Pryor, Newsom, Rosenthal", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 18-10510 Date Filed: 04/30/2019 Page: 1 of 44\n\n\n [PUBLISH]\n\n ... | PRYOR | NEWSOM | ROSENTHAL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4614751/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 4 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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